S055136, Opinion — State v. Fries

541
Argued and submitted January 8, decision o f Court o f Appeals and judgment of
circuit court affirmed May 30, 2008
STATE OF OREGON,
Respondent on Review,
v.
THOMAS PATRICK FRIES,
Petitioner on Review.
(CC 03CR0773; CA A124253; SC S055 136)
185 P3d 453
En Banc
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 were 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
* Appeal from Coos County Circuit Court, Martin E. Stone, Judge. 212 Or App
220, 158 P3d 10 (2007).

542 State v. Fries
review. With her on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
KISTLER, J.
The decision of the Court of Appeals and the j udgment of
the circuit court are affirmed.

Cite as 344 Or
KISTLER, J.
The issue in this case is whether defendant pos
sessed 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 bane Court of Appeals affirmed. State v. Fries, 212
Or App 220, 158 P3d 10 (2007). We allowed defendant's peti
tion 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 j udgment.
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 ifhe would help
him move his marijuana plants to his new home. Because
Albritton had a medical marijuana card, defendant under
stood (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 apart
ment 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
1 At defendant's trial, his lawyer asked, "Did [Albritton] indicate in any way
that-that you independently could possess or, uh, move the plants? That they
were anything but his possession'?" Defendant replied, "Well, he-he wouldn't let
them out of his sight."
2 Defendant explained that he has a four-door Jeep Cherokee. "[l]t's got a big
hatch in it. It opens up. You can put the seats down in it. And it will look like a
truck." Defendant lowered the back seat and put "a stereo, some other boxes * * *
and the [marijuana] plants" in the back of the Jeep.

State v. Fries
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 mari
juana. 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 marij uana plants. Specifically,
he contended that, because the evidence showed only that he
moved the plants under Albritton's direction, he did not "pos
sess" 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 marij uana, 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 con
trolled substance, the growing marijuana."
The court accordingly found defendant guilty of possessing
marijuana and sentenced him to 18 months probation, con
ditioned on serving five days in jail and paying a $500 fine
and costs.

Cite as 344 Or 541 545
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 reason
able doubt that defendant possessed the marij uana plants.
See State v. King, 307 Or 332, 339, 768 P2d 391 ( 1989) (stat
ing standard of review for motions ofjudgment of acquittal).
On that point, defendant reiterates his argument that pos
session of marijuana requires more than proof that he know
ingly 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 pos
sess 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 sub
stance."3 ORS 161.0 15(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 defi
nition 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 posses
sion. See State v. Connally, 339 Or 583, 591, 125 P3d 1254
(2005) (discussing actual and constructive possession in con
struing 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 actu
ally possessed the marijuana plants, we begin with the first
8 When defendant moved the marijuana in 2002, former ORS 475.992(4) pro
hibited possessing controlled substances. In 2005, the legislature renumbered
former ORS 475.992 and made minor changes that are not relevant to the issue
presented here. See Or Laws 2005, ch 708, § 39 (making those changes}. For ease of
reference, we refer to the current version of the statutes prohibiting possession of
controlled substances.
4 ORS 161.035(2) provides that the definition of "possess" in ORS 161.0 15(9}
"shall govern the construction of * * * any offense defined outside [the Oregon
Criminal Code] ," such as the prohibition against possession of controlled sub
stances defined in ORS chapter 4 75.

546 State v. Fries
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 def
inition of actual possession is somewhat circular; the legisla
ture 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 <the enemy's - of the
town> <have several old manuscripts in my -> b : actual phys
ical 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 <the locker shall remain in the student's -
throughout the course> * * * ."
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, "con
trol." "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 1 706. 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, 24 1, 951 P2d 693
( 1998) (recognizing that statutory context includes preexist
ing common law). In State v. Oare, 249 Or 597, 599, 439 P2d
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 P2d
556 ( 1974), the court held that a defendant who sat on a bag
of marijuana when the police entered an apartment occupied
5 Webster's divides definitions of a word into senses and subsenses. Webster's at
17a. The first sense of the word possession contains four subsenses. The first two
subsenses are quoted in the text. The third subsense of possession is "copulation,"
and the fourth is "control of [a] playing piece (as a ball or puck) in football, basket
ball, ice hockey, or other game." Webster's at 1770. We think that, in defining "pos
sess" as "physical possession," the legislature did not intend to refer to the third or
fourth subsenses of possession.

Cite as 344 Or 541 	547
by several people and then threw the bag to the ground dis
claiming any knowledge ofits contents actually possessed the
marijuana. Those authorities confirm that "to have physical
possession" of property means actual physical control ofprop
erty, although some physical contacts with property may be
so momentary or fleeting that they are insufficient as a mat
ter oflaw to establish physical control. See Wayne R. LaFave,
1 Substantive Criminal Law § 6. l(e) at 432-33 (2003) (sum
marizing generally understood use of possession in the crim
inal law ).
Defendant argues that the definition of constructive
possession in the second part of ORS 161.0 15(9) demon
strates that a person who holds property at another's direc
tion 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 evi
dence of "sovereignty, supremacy, power or authority" over
property. He then contends that, in using the word "other
wise," the legislature manifested its intent that actual pos
session requires proof of the same type of "dominion or con
trol" 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 consti
tute actual possession.
One problem with defendant's argument is that it
gives too little weight to the legislature's use of the word
"otherwise." "Otherwise" means "in a different way or man
ner." Webster's at 1598. As used in ORS 161.015(9), "other
wise" signals that the state may prove "possession" either by
showing physical control or by showing dominion or control
"in a different way or manner." To be sure, as defendant
argues, actual and constructive possession share a common
element-control. But the legislature's use of the word
"otherwise" makes clear that actual and constructive posses
sion contemplate different types of proof. The former requires
proof of physical control. The latter contemplates proof of
other attributes of dominion or control. See Oare, 249 Or at

State v. Fries
599 (discussing proof of actual and constructive possession).
The fact that a person holds property at another's direction
does not necessarily mean that he or she does not actually
possess it.
The statutory context leads to the same conclusion.
The legislature has established a number of exceptions to the
general prohibition against possessing controlled substances.
Among other things, a "common * * * carrier * * * or an
employee thereof' may "lawfully possess controlled sub
stances" if the possession occurs "in the usual course of
business or employment." ORS 475. 1 25(3)(b). Similarly, an
"agent or employee of any registered manufacturer, distrib
utor or dispenser of any controlled substance" may "lawfully
possess controlled substances" if the "agent or employee is
acting in the usual course of business or employment." ORS
475. 125(3)(a).
If defendant were correct that "possess" does not
include persons who handle or transport controlled sub
stances at another's direction, then there would have been no
need for the legislature to provide that common carriers or
agents lawfully may possess controlled substances in certain
circumstances. Common carriers and agents ordinarily act at
another's direction. See Richardson v. Railway Exp. Agency,
258 Or 1 70, 1 78, 482 P2d 176 ( 197 1) (recognizing "well estab
lished rule that common carriers * * * are [generally] held
strictly to the performance of their duty to make delivery of
goods at the place of destination to the person designated to
receive them"); ORS 475.005(4) (defining an agent for pur
poses of the controlled substances laws as an "authorized per
son who acts on behalf of or at the direction of a manufac
turer, distributor or dispenser") (emphasis added). We should
not read the definition of "possess" in a way that would ren
der those exemptions largely redundant. See PGE v. Bureau
of Labor and Industries, 3 1 7 Or 606, 6 1 1, 859 P2d 1 143
( 1993) (explaining that statutes should be construed, if pos
sible, to give effect to all their provisions).
Defendant argues that one ofthis court's cases, State
v. Gordineer, 229 Or 105, 366 P2d 1 6 1 ( 1961), is contextual
support for his position. The defendant in Gordineer was
charged with contributing to the delinquincy of a minor. The

Cite as 344 Or 541 549
question, as the court stated it in Gordineer, was whether, if
the defendant "gave a bottle of intoxicating liquor to the
minor with intent to relinquish all right of possession and
control over it," the minor would possess the liquor in viola
tion of ORS 471.430. Id. at 1 1 1 . In answering that question,
the court reasoned:
" 'Possession', as used in ORS 471.430, is preceded by the
words 'purchase, acquire'. These words indicate a legisla
tive intent that the minor must know that he is in the phys
ical possession of intoxicating liquor. * * * Nor can we
attribute to the legislature the intent to make a criminal of
a minor child who, though knowing there is intoxicating liq
uor in a package, carries the liquor from an automobile into
the home of a neighbor at the neighbor's request.
"In our opinion 'possession', as used in this statute,
includes in addition to guilty knowledge the intent of the
minor to possess full control over the liquor with the right to
enjoy its consumption to the exclusion of others."
Id. (citation omitted). As we understand the court's interpre
tation of"possession" in Gordineer, it was limited to the term
"as used in this statute," i.e., ORS 471.430. Specifically, the
court looked to the fact that the terms "purchase" and
"acquire" preceded the word "possession" in holding that
proof of possession under ORS 4 71.430 required proof of "the
intent of the minor to possess full control over the liquor with
the right to enjoy its consumption to the exclusion of others."
In enacting ORS 161.015(9), the legislature did not define
"possess" as "possess[ing] full control over [property] * * * to
the exclusion of others." It chose instead a narrower defini
tion-physical control.6
6 In a memorandum of additional authorities, defendant quotes a treatise on
criminal law for the proposition that, at common l aw, an employee who held prop
erty for an employer had custody but not possession of the property. He argues that
the Oregon Criminal Code perpetuates the common-law distinction between pos
session and custody. The treatise explains, however, that the distinction on which
defendant relies was a fiction unique to the common law of larceny and was
designed to permit prosecution of employees who appropriated property that their
employers had entrusted to them. Wayne R. LaFave and Austin W. Scott, Jr.,
Handbook on Criminal Law § 84 at 619 (1972). Not only was the distinction unique
to common-law larceny, but the legislature abrogated that distinction when it
enacted the modern analogue of larceny (theft) in the Oregon Criminal Code. The
legislature defined the "owner" of property taken to mean "any person who has a
right to possession thereof superior to that of' the person who takes it. ORS
164.005(4). Oregon's definition thus recognizes that-contrary to defendant's

550 v. Fries
Considering the text and context of ORS 161.0 15(9),
we conclude that the statutory phrase "to have physical pos
session" means what it says: to have physical control. That
said, we recognize that some physical contacts with property
may be too transient or fleeting to say that a person has
established physical "control" over the property and that,
when the duration of the physical contact is minimal, the cir
cumstances surrounding the contact can bear on the question
whether the defendant exercised sufficient physical control
to find actual possession. See LaFave, 1 Substantive
Criminal Law § 6. l(e) at 432 (discussing actual possession);
compare United States v. Santore, 290 F2d 51, 64-65 (2d Cir
1960) (holding that no reasonable trier of fact could find a
defendant who held a package of narcotics "one brief
moment" before voluntarily declining to take them possessed
them), with United States v. Gregory, 309 F2d 536, 538 (2d
Cir 1962) (holding that a reasonable trier of fact could find
that a codefendant who held narcotics briefly before throwing
them away on seeing police officers approach had sufficient
control to establish actual possession).
With that background in mind, we turn to the only
question that defendant's motion for judgment of acquittal
presents: whether the evidence was sufficient to permit a
reasonable trier of fact to find that defendant possessed the
marijuana. On this record, a reasonable trier of fact could
find that defendant carried Albritton's marijuana plants out
of the back bedroom of Albritton's apartment, took them
down the stairs, loaded the plants in the back of defendant's
Jeep, and drove the Jeep for several minutes before the police
stopped him. This was not a fleeting, momentary, or uninten
tional physical touching, or so a reasonable trier of fact could
find. Cf Gregory, 309 F2d at 537 (evidence that a codefen
dant carried marijuana from a hotel to a car parked across
the street sufficient to establish actual possession);
Commonwealth v. Harvard, 356 Mass 452, 253 NE2d 346
( 1969) (evidence that a defendant who arranged a marijuana
sale and passed marijuana three to four feet from the seller's
car to the buyer's car sufficient to establish possession).
Rather, defendant's acts were part of an extended effort to
argument-an employee has "possession" of the property his or her employer
entrusts to him, just not a superior right of possession.

Cite as 344 Or 541 (2008) 551
move the marijuana plants from one location to another loca
tion in a different part of Coos Bay-an effort that defendant
and Albritton's arrest cut short.
To be sure, defendant argues that, because he was
only moving the marijuana plants at Albritton's direction,
the trial court was required to conclude that he did not pos
sess them. However, neither the definition of possession nor
the statutes criminalizing possession of controlled sub
stances contain a categorical exception for persons who pos
sess controlled substances at another person's direction. We
thus agree with the maj ority of the Court of Appeals and the
trial court that the evidence was sufficient to permit a
reasonable trier of fact to find that defendant possessed the
marijuana plants.
In reaching that conclusion, we note, as the trial
court did, that, for all that appears from the record, defen
dant was helping a friend who lawfully possessed the mari
juana plants. The statutes prohibiting possession of con
trolled substances and authorizing the use of medical
marijuana contain a number of specific exceptions. They per
mit, for example, designated caregivers, as well as common
carriers, to possess marijuana in certain specified circum
stances. See ORS 475.309 (permitting designated caregivers
to possess marijuana if certain conditions are met); ORS
475. 125(3)(b) (permitting common carriers to possess con
trolled substances if certain conditions are met). Defendant
does not argue that he falls within any of those exceptions,
and we may not add to the exceptions that the legislature has
created. See US West Communications u. City of Eugene, 336
Or 181, 188, 8 1 P3d 702 (2003) (explaining that courts may
not rewrite statutes to insert what legislature omitted).
Rather, the only question before us is whether a reasonable
trier of fact could find that defendant knowingly possessed
marijuana plants. The answer to that question is "yes."
Accordingly, we affirm the trial court's judgment and the
Court of Appeals decision.
The decision of the Court of Appeals and the j udg
ment of the circuit court are affirmed.