State v. Fries

• Decision Date: 30 May 2008
• Docket Number: (CC 03CR0773; CA A124253; SC S055136).
• Citation: 185 P.3d 453,344 Or. 541
• Parties: STATE of Oregon, Respondent on Review, v. Thomas Patrick FRIES, Petitioner on Review.
• Court: Oregon Supreme Court

185 P.3d 453

344 Or. 541

STATE of Oregon, Respondent on Review, v. Thomas Patrick FRIES, Petitioner on Review.

(CC 03CR0773; CA A124253; SC S055136).

Supreme Court of Oregon, En Banc.

Argued and Submitted January 8, 2008.

Decided May 30, 2008.

On review from the Court of Appeals.^*

Stephanie Hortsch, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, Legal Services Division.

Janet Klapstein, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

KISTLER, J.

The issue in this case is whether defendant possessed marijuana when he helped a friend move marijuana plants from one place to another. Defendant has argued that, because he was moving the plants at his friend's direction, he did not possess them. The trial court held otherwise and entered a judgment of conviction for possessing marijuana. A divided en banc Court of Appeals affirmed. State v. Fries, 212 Or.App. 220, 158 P.3d 10 (2007). We allowed defendant's petition for review to consider the issue that divided the Court of Appeals and now affirm the Court of Appeals decision and the trial court's judgment.

Because this case arises on defendant's motion for a judgment of acquittal, we state the facts in the light most favorable to the state. One evening, defendant's friend Albritton called defendant and told him that he (Albritton) was being evicted. Albritton asked defendant if he would help him move his marijuana plants to his new home. Because Albritton had a medical marijuana card, defendant understood (and we assume for purposes of review) that Albritton lawfully possessed the marijuana plants. Defendant went to Albritton's new home, picked him up, and drove Albritton to his former home to pick up the marijuana plants. Albritton's former home was in an upstairs apartment, on the top floor. Defendant and Albritton went into the back bedroom of the apartment. Albritton pointed out the plants and said, "This is what I really needed help moving." According to defendant, there were three or four marijuana plants in "one long, big-type thing," which defendant moved from Albritton's apartment to defendant's Jeep.¹

Defendant loaded the plants and some of Albritton's other belongings into the back of his Jeep.² Albritton got in the front passenger seat of the Jeep, and defendant started driving to Albritton's new home. As they were driving, a police car began following them. Defendant pulled into a driveway. The officer drove past, circled around, and later observed defendant driving on a different street. The officer followed defendant's Jeep as defendant turned onto another street and then pulled into another driveway. Defendant and Albritton remained in the Jeep. The officer approached them and spoke with them briefly. When asked why "they were being so evasive tonight, [defendant] said, `We didn't want to get stopped and have to answer any questions about the marijuana.'" The officer then arrested defendant and Albritton.

The state charged defendant with possessing marijuana. At the end of defendant's trial, he argued that there was no evidence from which a reasonable trier of fact could find that he had possessed the marijuana plants. Specifically, he contended that, because the evidence showed only that he moved the plants under Albritton's direction, he did not "possess" them. The trial court denied defendant's motion for a judgment of acquittal and, sitting as the trier of fact, found defendant guilty. The court found initially that defendant knew that the plants were marijuana. It then found that defendant "actually physically possessed [the marijuana plants] because he moved [them] from Point A to Point B, knowing * * * what it was." The trial court explained that, although the medical marijuana statutes permit designated caregivers to possess medical marijuana, defendant was not Albritton's designated caregiver. The court concluded:

"Is it fair? Perhaps not. In the overall scheme of things, he was someone helping his buddy. And perhaps it's unfair that [defendant] didn't have legal permission to have that particular controlled substance. But there's actually no doubt in my mind that he knowingly possessed that controlled substance, the growing marijuana."

The court accordingly found defendant guilty of possessing marijuana and sentenced him to 18 months probation, conditioned on serving five days in jail and paying a $500 fine and costs.

As noted, a divided Court of Appeals affirmed the trial court's judgment, and we allowed defendant's petition for review to consider whether there was sufficient evidence to permit a reasonable trier of fact to find beyond a reasonable doubt that defendant possessed the marijuana plants. See State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989) (stating standard of review for motions of judgment of acquittal). On that point, defendant reiterates his argument that possession of marijuana requires more than proof that he knowingly moved the marijuana plants at Albritton's direction. In his view, persons who move or hold controlled substances at another person's direction lack sufficient "sovereignty, supremacy, power or authority" over those substances to possess them.

Defendant's argument presents an issue of statutory construction, and we begin by examining the text and context of the relevant statutes. ORS 475.840(3) makes it unlawful for "any person knowingly * * * to possess a controlled substance."³ ORS 161.015(9) in turn provides that "`[p]ossess' means to have physical possession or otherwise to exercise dominion or control over property."⁴ As the text of that definition makes clear, a person may possess property in one of two ways. He or she may "have physical possession" of the property, which customarily is referred to as actual possession. See State v. Connally, 339 Or. 583, 591 125 P.3d 1254 (2005) (discussing actual and constructive possession in construing city ordinance). Alternatively, even if a person does not have actual possession of the property, he or she may have constructive possession of it if the person "otherwise * * * exercise[s] dominion or control over [the] property."

Because the trial court found that defendant actually possessed the marijuana plants, we begin with the first part of the statutory definition. The legislature used the infinitive phrase "to have physical possession" to define actual possession. We note, as an initial matter, that the definition of actual possession is somewhat circular; the legislature said "possess" means to have physical "possession." That said, the definition contains some clues that aid our analysis. The dictionary defines possession as meaning,

"1 a: the act or condition of having in or taking into one's control or holding at one's disposal b: actual physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property against all others having no better right than himself * * *."

Webster's Third New Int'l Dictionary 1770 (unabridged ed. 2002).⁵ The dictionary thus distinguishes possession from ownership and defines possession to mean, at its core, "control." "Physical" is an adjective that defines the type of control necessary to establish actual possession. In this context, physical means "of or relating to the body." Id. at 1706. As a general rule, "to have physical possession" of property means to have bodily or physical control of it.

The statutory definition of actual possession follows the generally understood use of that concept in the criminal law. See Denton and Denton, 326 Or. 236, 241, 951 P.2d 693 (1998) (recognizing that statutory context includes preexisting common law). In State v. Oare, 249 Or. 597, 599, 439 P.2d 885 (1968), for example, the court explained that a person who had a narcotic "upon his person" would actually possess it. Similarly, in State v. Hall, 269 Or. 63, 65-66, 68, 523 P.2d 556 (1974), the court held that a defendant who sat on a bag of marijuana when the police entered an apartment occupied by several people and then threw the bag to the ground disclaiming any knowledge of its contents actually possessed the marijuana. Those authorities confirm that "to have physical possession" of property means actual physical control of property, although some physical contacts with property may be so momentary or fleeting that they are insufficient as a matter of law to establish physical control. See Wayne R. LaFave, 1 Substantive Criminal Law § 6.1(e) at 432-33 (2003) (summarizing generally understood use of possession in the criminal law).

Defendant argues that the definition of constructive possession in the second part of ORS 161.015(9) demonstrates that a person who holds property at another's direction does not actually possess it. Defendant's argument runs as follows. He notes that ORS 161.015(9) provides that "'[p]ossess' means to have physical possession or otherwise to exercise dominion or control over property." Defendant argues that, in order to prove sufficient dominion or control to establish constructive possession, the state must offer evidence of "sovereignty, supremacy, power or authority" over property. He then contends that, in using the word "otherwise," the legislature manifested its intent that actual possession requires proof of the same type of "dominion or control" that constructive possession does. From that premise, defendant concludes that a person who holds property at another's direction does not exercise sufficient sovereignty, supremacy, power, or authority over the property to constitute actual possession.

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