State v. Fries

• Decision Date: 25 April 2007
• Docket Number: 03CR0773; A124253.
• Citation: 212 Or. App. 220,158 P.3d 10
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas Patrick FRIES, Defendant-Appellant.
• Court: Oregon Court of Appeals

158 P.3d 10

212 Or. App. 220

STATE of Oregon, Plaintiff-Respondent, v. Thomas Patrick FRIES, Defendant-Appellant.

03CR0773; A124253.

Court of Appeals of Oregon, En Banc.

Argued and Submitted January 31, 2006.

Resubmitted En Banc January 10, 2007.

Decided April 25, 2007.

Stephanie Hortsch argued the cause for appellant. On the brief were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Monica L. Finch, Deputy Public Defender, Office of Public Defense Services.

Julie A. Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

EDMONDS, J.

Defendant appeals from a conviction for possession of a controlled substance. ORS 475.840(3).¹ He makes two assignments of error: the denial of his motion for a judgment of acquittal on the ground that the evidence produced by the state was legally insufficient to convict him of possessing marijuana and the imposition of special conditions of probation based on facts that were not found by a jury beyond a reasonable doubt, admitted to, or stipulated to by defendant. We affirm.

According to the evidence adduced at trial, defendant was operating a vehicle with a male passenger in North Bend when the vehicle was observed by a police officer. As the officer followed the vehicle, it quickly pulled into two different private driveways, which the officer interpreted as a maneuver to avoid further attention. After defendant parked the vehicle in the second driveway, the officer stopped his vehicle along the opposite curb and approached defendant's vehicle. He inquired if the occupants were lost or lived at the address at which they had parked. Defendant replied in the negative. During that conversation, the officer observed multiple live marijuana plants in containers inside defendant's vehicle. The officer called for assistance, and eventually, both defendant and the passenger were arrested. Ultimately, a large aquarium with three buckets containing four live marijuana plants and a zip-loc bag containing less than one ounce of dried marijuana, two large rectangular pots containing two live marijuana plants, one tub/tote containing two live marijuana plants, and one "Sentry" safe containing nine individually rolled sandwich bags, each containing less than one ounce of marijuana, were seized from the interior of the vehicle.

In a subsequent interview with the police, defendant explained that his passenger, Albritton, had asked defendant to come to Albritton's apartment to help move Albritton's marijuana plants to Albritton's new residence. Defendant told the police that "[w]e loaded [the marijuana plants] up and were going to drive them back and drop them off at his place" when they encountered the police officer. The police also interviewed Albritton, who informed them that he was an Oregon Medical Marijuana Program patient, that he was "legal" to possess marijuana, and that he was taking the plants to his "soon to be caregiver's house." As a result of the above events, defendant was indicted on two counts of knowingly possessing a controlled substance. Defendant entered pleas of not guilty, and the case went to trial before the trial court without a jury.

At trial, the state offered the above evidence and rested. The defense called defendant as its first witness. Defendant conceded in his testimony that he helped load the marijuana plant containers into his vehicle, knowing that they contained marijuana plants. Later, defendant testified that he made only one trip with the marijuana plants from Albritton's apartment to his vehicle. When asked if he only took one plant out, defendant answered, "No. There was—I think it was—I don't know which one I helped move out. There was a couple of long things, and there was like three or four * * * in one long, big-type thing[.]" When asked if Albritton had permitted defendant to "independently * * * possess or * * * move the plants," defendant replied, "Well, he—he wouldn't let them out of his sight."

After the parties finished the evidentiary portion of the trial, defense counsel argued to the trial court that there was no evidence that defendant exercised "any independent control. It appears to have been, even by the State's evidence, all controlled by Mr. Albritton." The court inquired, "What about him loading up the stuff? He's moving it from Point A to Point B." Defense counsel interposed, "Under the direction of the possessor." Thereafter, the trial court found defendant not guilty of Count 1, which pertained to the possession of the seized dried marijuana, and guilty of Count 2, which pertained to the possession of the growing marijuana.

On appeal, defendant argues that, as a matter of law, he did not possess the marijuana plants under the above facts. In his view, he

"helped an acquaintance, who had a medical marijuana card, move by loading marijuana plants into defendant's vehicle and driving the person and his plants from one residence to another. Though possession of a controlled substance can be joint, here it was not. Defendant's acquaintance manifested exclusive control over his plants."

The state responds that

"[t]he record reflects that defendant physically carried several marijuana plants out of an apartment, placed them in his car, and drove with them in his car. Defendant's claim that he could not have possessed the plants because he moved them at the owner's request is unavailing. One can possess property without asserting an ownership interest in it so long as one asserts some sort of dominion or control over it, even if only temporarily and even if that dominion or control is not exclusive."

This case presents a question of statutory interpretation subject to the usual analytical template. Our sole task is to discern the legislature's intention. We undertake that task by first examining the text and context of the statute, which includes other provisions of the same statutory scheme and other related statutes. We also apply rules of statutory construction that bear directly on the interpretation of the statutory provision at issue. One such rule is that it is our responsibility to "declare what is, in terms or in substance, contained" in a statute. ORS 174.010. Under ORS 174.010, we lack the authority to "insert what has been omitted, or to omit what has been inserted[.]" Another such rule of statutory construction is that, when the legislature includes an express provision in one statute, but omits such a provision in another statute, it may be inferred that such an omission was deliberate. Oregon Business Planning Council v. LCDC, 290 Or. 741, 749, 626 P.2d 350 (1981).

Defendant was convicted under ORS 475.840(3). That statute provides that

"[i]t is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice or except as otherwise authorized by ORS 475.005 to 475.285 and 475.840 to 475.980."

ORS 475.840(3) contains or refers to a number of terms that are defined by statute, including "controlled substance," ORS 475.005(6), "marijuana," ORS 475.005(16), "practitioner," ORS 475.005(18), "prescription," ORS 475.005(19), "knowingly," ORS 161.105(8), "intentionally," ORS 161.085(7), and "possess," ORS 161.015(9).

When the legislature provides a specific meaning for a word used in a statute, courts have no authority to add or subtract from that definition. See, e.g., State v. Jones, 339 Or. 438, 445, 121 P.3d 657 (2005) (holding that, by using a very specific meaning of the words "oral communication," the legislature limited the reach of a statutory suppression remedy). ORS 475.005 does not include a definition of the word "possess" for purposes of ORS 475.840(3). However, in State v. Daline, 175 Or.App. 625, 631, 30 P.3d 426 (2001), the defendant was charged with the crime of possession of a controlled substance, and we applied the definition found in ORS 161.015(9), as we had in several previous cases. ORS 161.015(9) provides that to "`[p]ossess' means to have physical possession or otherwise to exercise dominion or control over property." We explained in Daline that, "[b]ased on a plain reading of the statute, there are two ways in which a person can `possess': (1) actual and (2) constructive. The first part of the statute states that a person possesses property if he or she has actual `physical possession' of it." 175 Or. App. at 631, 30 P.3d 426.

Here, defendant's statements to the police and his testimony demonstrate that he had physical or actual possession of the marijuana plants within the meaning of ORS 475.840(3). ORS 161.015(9) makes clear that the word "possess" includes "hav[ing] physical possession" of an object. The ordinary meaning of the word "physical" in ORS 161.015(9), when understood in the context of the remaining words of the statute, means "of or relating to the body." Webster's Third New Int'l Dictionary 1706 (unabridged ed. 2002). When defendant placed his hands on the container containing the marijuana plants and carried the container to his car, he physically possessed the marijuana plants within the meaning of the statute.

The fact that defendant may have possessed the plants under someone else's direction or control does not subtract from the fact that the plants were in his actual possession and were subject to his exercise of temporary control over them at that time. For instance, in State v. Coria, 39 Or.App. 507, 592 P.2d 1057 (1979), the defendant was a passenger in a car driven by another person, and controlled substances were found inside an upholstery panel of the car. The defendant argued in part that he could not be...