(dissenting).
I respectfully dissent. With each constructive possession case since State v. McDowell, 622 N.W.2d 305 (Iowa 2001), I have grown increasingly concerned that we have essentially transformed the absence of a judicial inference of possession into a legal standard and, in the process, created an erroneous, unfair, and unworkable test for assessing the sufficiency of evidence to support a finding of constructive possession of a controlled substance. This case now convinces me that we have done so, and causes me to depart from the majority.
State v. Reeves is our seminal case in the area of constructive possession of illegal contraband. 209 N.W.2d 18. In Reeves, we said constructive possession “occurs when the accused maintains control or a right to control the narcotic.” Id. at 22. We then specifically recognized that constructive possession may be inferred “when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to” the dominion and control of the accused or the *140“joint dominion and control of the accused and another.” Id. We emphasized that when illegal drugs are found “in the exclusive possession of the accused,” knowledge is inferred and no further proof of knowledge is required to be produced by the state. Id. at 23. On the other hand, when the accused is in joint possession of the premises or area where the drugs are found, knowledge is not inferred, “but must be established by proof.” Id. Finally, we said this proof might come from evidence showing knowledge, incriminating statements, or circumstances from which a jury may infer knowledge. Id.
Despite some of our cases that followed, Reeves remains our polestar in constructive possession cases. However, in our persistent vigilance to protect innocent bystanders from being convicted of a drug possession charge simply because they were in the wrong place at the wrong time, we have lost contact with those principles that guide our jury process and we have established legal requirements to support a possession conviction unknown in other areas of the law. See State v. Simpson, 528 N.W.2d 627, 636 (Iowa 1995) (Ternus, J., dissenting) (While “[w]e want to convict persons guilty of drug offenses even though they are not caught ‘red handed’ with the drugs on their person” we want also “to protect innocent bystanders from being convicted for drug offenses merely because they were in the wrong place at the wrong time.” (Citations omitted.)).
In recent years, we have, perhaps not musingly, elevated the judicially created inference, discussed in Reeves into a legal standard for determining the sufficiency of evidence. Consequently, if the facts of a constructive possession case do not fit the Reeves judicial inference, we do not permit the fact finder to draw its own inferences based on its own mental processes and experiences from all the evidence in the case. Instead, we insist upon some form of direct or concrete evidence of possession such as incriminating statements, incriminating actions, or fingerprints and — with this case — an additional legal requirement that a possessor maintain a proprietary interest or rights in the contraband.
The majority acknowledges, as do our recent cases, that the lack of evidence to support a judicial inference of constructive possession in a drug possession case only means the state must produce other evidence of constructive possession. See State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). Yet, the majority has applied this principle to preclude the fact finder from drawing rational inferences from the other evidence in the case. A similar application was made in Cashen, where we said evidence that the defendant knew marijuana was in the car, knew it belonged to his girlfriend (so as to make it more likely he had access to it or the ability to control it), possessed rolling papers and a fighter on his person, and was sitting in the immediate area where a baggie of marijuana was found in the car, was insufficient as a matter of law to support a jury verdict of constructive possession. Id. at 571-73. Instead, we concluded the “only fact relevant” to show “control and dominion” was “proximity to the marijuana,” but “possession cannot rest on mere proximity.” Id. at 572. The other evidence in the case was irrelevant, apparently, because it was only circumstantial and did not fit within the judicial inference.
The error we have committed since McDowell can be traced to our failure to distinguish standardized court-created inferences based on prior judicial decisions finding proof of one fact to be sufficient to infer proof of an element of the crime from those common rational inferences from evidence used by fact finders in every case based on their mental processes and expe*141riences. The lack of a judicially created inference in a case does not prohibit the jury from drawing inferences from other facts. It has always been a jury function in our system of jurisprudence to determine the reasonable inferences to be drawn from the evidence. See Newell v. Newell’s Estate, 198 Iowa 710, 720-21, 200 N.W. 238, 242 (1924). Additionally, the law does not give greater importance to direct evidence as opposed to circumstantial evidence. Yet, in this particular area of the law and in this area only, we have taken from the fact finder the ability to use its own judgment to draw inferences of constructive possession from evidence in the case.
Instead of allowing the jury to draw inferences and reach conclusions from the evidence, the majority, to compound matters, now finds it necessary to introduce a new rule of limitation. This new rule requires an accused to have “some proprietary interest ... or an immediate right to control or reduce the controlled substance to the defendant’s possession” in those cases where the illegal drug is not exclusively and immediately accessible to the defendant. This standard has little relationship to the original judicial inference from which it was derived. Constructive possession is not about proprietary interest in property, but control. The effect of this rule is to prevent a jury from weighing and considering all of the evidence in the case, as the fact finder is permitted to do in all other cases, to draw reasonable and rational inferences of possession.
I could perhaps agree with the majority that constructive possession was not established in this case based on the mere fact that the box of marijuana and the bong was found near the husband’s side of the bed in the bedroom the defendant shared with her husband. This alone may not amount to substantial evidence of control or the right to maintain control of the marijuana. However, instead of deciding the case on the evidence, the majority injects a new legal standard that in most cases will severely limit the concept of constructive possession.
Our law in this area has created murky jurisprudence. We should treat constructive possession cases like any other criminal case, and permit the jury to separate the innocent bystander from the guilty perpetrator under the same standards used in other criminal cases.