dissenting. I dissent because I
believe there was insufficient evidence of possession in this case to support the appellant’s conviction. “Possession” is defined as “[t]he detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment. . . .” Black’s Law Dictionary 1047 (5th ed. 1979). It has been held that criminal possession of an illicit drug requires more than a fleeting and shadowy control of a passing nature. United States v. Landry, 257 F.2d 425 (7th Cir. 1958); State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982). In the present case, the appellant’s act of “possession,” which took the form of disposing of the marijuana, was the antithesis of detention, was both fleeting and shadowy in nature, and was in no sense directed at obtaining use and enjoyment of the substance.
I submit that the essential question in this case is whether the appellant exercised “actual dominion, control, or management” over the marijuana before he took steps to dispose of it. See Ark. Stat. Ann. § 41-115(15) (Repl. 1977);Moreau v.State, 588 P.2d 275 (Alaska 1978). Neither the appellant’s statement nor any of the other evidence presented in this case demonstrates such an exercise of dominion and control. Under different circumstances it would be ludicrous to charge a person with possession of a controlled substance where the only evidence of possession was the immediate and unmistakeable disposal of unsolicited contraband. In this case, however, the appellant did state that he decided to purchase the marijuana when asked to do so, and I submit that his conviction was actually based on his stated, unconsummated intent to purchase. Nevertheless, the appellant was not charged with conspiracy or attempt, but rather with actual possession of marijuana. 1 do not agree that the appellant’s admission of his intent to purchase the marijuana is a circumstance from which one could conclude, without speculation or conjecture, that he actually exercised dominion and control over the contraband. I would reverse and dismiss.