State v. Fries

*222EDMONDS, 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 *223and 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 *224vehicle 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 P2d 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 pursu.- it to, a valid prescription or order of a practitioner while s’ :ing in the course of professional practice or except as otb rwise authorized by ORS 475.005 to 475.285 and 475.8401 475.980.”

*225ORS 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 P3d 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 P3d 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, “[biased 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.

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.

*226The 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 P2d 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 convicted of actual possession of the heroin because he was not the driver of the car. Nonetheless, the court held that possession need not be exclusive in order for a person to be criminally responsible and may be exercised jointly with another person. Thus, in this case, as in Coria, a reasonable factfinder could find that one person (defendant) was in actual possession of the marijuana plants and the other (Albritton) in constructive possession of the plants, at the same time. Thus, unless some statutory exception authorized defendant’s actual possession of the plants, he violated ORS 475.840(3) by knowingly picking up the container and transporting it to his car.

The dissent, however, concludes that defendant’s physical contact with the marijuana was not “possession” within the meaning of ORS 161.015(9) because, in its view, Albritton never relinquished dominion or control over the container of plants to defendant and because defendant’s handling of the container was not for defendant’s benefit, but for the benefit of Albritton. In its view, “[defendant could not do anything with Albritton’s container of plants while he carried the container under Albritton’s direct supervision.” 212 Or App at 234 (Armstrong, J., dissenting).2

*227The dissent’s reasoning is incorrect for two reasons. First, the dissent’s reasoning fails to recognize that, once defendant acquired physical possession of the plants by picking up the container in Albritton’s residence and carrying it out of the residence to defendant’s vehicle, he had the physical ability to do anything with the container that he wished, including appropriating it to his own use. The fact that he elected not to act inconsistently with Albritton’s direction does not obviate the fact that he physically possessed the plants when he picked up the container and transported it to his vehicle. His physical handling of the plants constituted the actual control and dominion over the plants that the dissent contends did not exist.

Second, neither ORS 161.015(9) nor ORS 475.840(3) requires that the exercise of physical possession of an object by a person be for the purpose of benefitting the possessor. The dissent’s view of ORS 161.015(9) would add a requirement to the definition of possession in the statute that does not appear in the statute.3 Moreover, if the legislature intended such a requirement, then it would have been unnecessary for it to have created the numerous statutory exemptions from criminal liability that exist for persons who are in actual or constructive possession of controlled substances.

There is an additional fact to consider in this case. For purposes of this case, the state assumes that Albritton was legally in possession of the plants when he asked defendant to carry the container to the car. The question becomes whether Albritton can confer his status upon defendant to provide defendant with a defense to the charge of possession of a controlled substance. The answer to that question is found in the provisions of ORS 475.005 to 475.285, which ORS 475.840(3) incorporates by reference, and the Oregon Medical Marijuana Act, ORS 475.300 to 475.346. ORS 475.125 provides exemptions from criminal liability for the possession of a controlled substance in ORS 475.840(3). In general, those exemptions refer to persons who are registered with the State Board of Pharmacy to possess controlled *228substances, including manufacturers, common carriers, and dispensers of controlled substances and their agents or employees. ORS 475.125. Of particular note, ORS 475.125(3)(c) exempts from registration “[a]n ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner * * ORS 475.005(22) defines an “ultimate user,” in part, as “a person who lawfully possesses a controlled substance for the use of the person or the use of a member of the household of the person * * *.” (Emphasis added.)

Similarly, the legislature has undertaken to define those individuals who can lawfully possess marijuana to assist the holder of a medical marijuana registry identification card. Under the Medical Marijuana Act, a registry identification cardholder may designate a single “primary caregiver” to assist the cardholder with the medical use of marijuana. ORS 475.306. A “designated primary caregiver” is “an individual 18 years of age or older who has significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition and who is designated as such on that person’s application for a registry identification card or in other written notification to the department.” ORS 475.302(5). Under ORS 475.320(1)(a), a “registry identification cardholder or the designated primary caregiver of the cardholder may possess up to six mature marijuana plants and 24 ounces of usable marijuana.”

The dissent contends, however, that “possession” does not include handling a controlled substance when “at least one person has and maintains lawful possession of the substance for its lawful purpose * * 212 Or App at 237 (Armstrong, J., dissenting). Although the dissent makes much of the fact that defendant possessed Albritton’s marijuana for Albritton’s benefit, it ignores two critical facts. First, if the dissent is correct — if “possession,” as defined by ORS 161.015(9), does not encompass a person who actually possesses marijuana for the benefit of another — it would have been unnecessary for the legislature to enact a specific statute exempting a primary caregiver of a person possessing marijuana under the Act from criminal liability. Indeed, *229Oregon’s controlled substances laws expressly limit the persons who may assist with the use of medical marijuana to a single “designated primary caregiver.” ORS 475.312 (“A person described in this section may have only one designated primary caregiver at any given time.”); see also ORS 475.125(3)(c) and ORS 475.005(22) (limiting assistance with controlled substances to members of household of the ultimate user).

Second, the Act itself makes Albritton himself potentially criminally liable for delivering the marijuana to defendant — a person who is not in possession of a registry identification card — to be transported.4 Albritton’s immunity under the Act from the criminal laws regarding possession of controlled substances is subject to certain statutory limitations. Although Albritton could have designated a “primary caregiver” under ORS 475.312 to possess marijuana for medical purposes on his behalf, no statute gives him the legal authority to confer his immunity under the law upon defendant. Rather, ORS 475.316(1)(c) makes it unlawful for Albritton to deliver marijuana to any individual “who the person knows is not in possession of a registry identification card[.]”

In summary, this court has no authority to immunize defendant for his possession of the controlled substances involved in this case; only the legislature has that authority. The legislature’s creation of certain statutory exemptions that are inapplicable to this case, and its silence with regard to other circumstances that could lend themselves to a legislative classification of immunity, is persuasive evidence of its intent. The legislature knows how to create exemptions to criminal responsibility for those who knowingly have physical possession of controlled substances under ORS 475.840(3); because it did not create an exemption that applies to the circumstances of defendant in this case, we must infer that the legislature’s omission was deliberate. For all of the reasons expressed above, we conclude that the trial *230court correctly focused on the fact that defendant physically handled the marijuana plants as the basis of its ruling that he was unlawfully in possession of a controlled substance.

In defendant’s second assignment of error, he challenges the imposition of special conditions of probation, conditions that include serving five custody units, submitting to a polygraph examination, refraining from knowingly associating with persons who use controlled substances illegally or from frequenting places where such substances are kept, refraining from associating with persons known to be engaged in criminal activities, and submitting to DNA testing. Defendant contends that, before those conditions could be imposed, he was entitled to a jury trial on the facts underlying the imposition of the conditions under the Sixth Amendment to the United States Constitution as interpreted in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Moreover, he asserts that he was entitled to have those facts proved beyond a reasonable doubt. Defendant concedes, however, that he did not raise that issue to the trial court, but nonetheless requests that we review the issue as error apparent on the face of the record under ORAP 5.45.

Even if the claim of error qualified as error apparent on the face of the record (which we doubt is the case), we would not, under the circumstances of this case, exercise our discretion to review it. The trial court sentenced defendant to an 18-month period of probation subject to the above conditions commencing on March 1, 2004. That time period has since expired, and defendant offers no explanation why the issue regarding his conditions of probation is not moot. This court has in the past declined, and will continue to decline, to review issues when such review will result in advisory opinions. That appears to be what would occur here if we were to review defendant’s second assignment of error.

Affirmed.

Defendant was convicted ofviolating former ORS 475.992 (2001), renumbered as ORS 475.840 (2005).

The dissent reads too much into our holding in Daline, 175 0rAppat627, in which the issue was whether an indictment that alleged that the defendant had “in his body a controlled substance, to-wit Heroin,” alleged facts that constituted a crime. Following our holding in State v. Downes, 31 Or App 1183, 572 P2d 1328 (1977), we held that consumption of a controlled substance does not constitute possession of a controlled substance because a person can no longer exercise dominion or control over the substance once the substance is in the person’s bloodstream. 175 Or App at 632. The facts in Daline and Downes, where the defendants no longer could exercise dominion or control over controlled substances once the substances had been consumed by them, are inapposite to the facts here, where defendant had the ability to control what happened to the marijuana plants once he picked them up. For instance, he could have put them into his car and driven off with them, leaving Albritton behind.

Under the dissent’s reasoning, a drug runner or “mule” who shuttles cocaine between a supplier and an ultimate user as a favor to the supplier would have no criminal responsibility because his possession was for the benefit of others.

“Delivery” under the Medical Marijuana Act is defined by ORS 475.005(8), and means the “actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship.” (Emphasis added.) The transfer from Albritton to defendant (even assuming that defendant was acting on behalf of Albritton) would appear to constitute a “delivery” under the statute.