Opinion
Argued September 23, 1970
Affirmed October 15, 1970 Petition for rehearing denied November 12, 1970 Petition for review denied January 12, 1971
Appeal from Circuit Court, Multnomah County.
PAT DOOLEY, Judge.
Howard R. Lonergan, Portland, argued the cause and filed the briefs for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and FORT, Judges.
AFFIRMED.
Defendant was convicted of illegal possession of narcotics. ORS 474.020. He appeals on the ground that possession was not proved.
Defendant was a tenant in a house which the police entered pursuant to a search warrant. At that time the defendant and four others were in the house. The police found heroin, items used to process heroin, including an adulterant which is used for that purpose, and some heroin which had been "cut" with the adulterant. There was testimony that earlier the same day defendant bought two bottles of the adulterant. Even if this had been the only evidence, it was sufficient to make a jury question. However, there was more.
At the time he was arrested, defendant had just emerged from a bedroom in which the heroin-processing equipment was found. Further, the defendant testified that he was elsewhere at the time he was supposed to have purchased the adulterant — testimony which was disproved by his own alibi witness. The "mere presence" cases relied upon by defendant, i.e., State v. Chandler, 2 Or. App. 107, 467 P.2d 127 (1970), and State v. Oare, 249 Or. 597, 439 P.2d 885 (1968), are not applicable here. The facts here are more analogous to State v. Williams, 253 Or. 646, 456 P.2d 489 (1969), and State v. Henry, 249 Or. 287, 288-89, 437 P.2d 851 (1968).
Affirmed.