dissenting.
The majority concludes that defendant possessed marijuana, for purposes of ORS 475.840(3), when he carried a container with one or more of Albritton’s growing marijuana plants from Albritton’s apartment to defendant’s car. It *231therefore concludes that the trial court properly denied defendant’s motion for a judgment of acquittal of the charge that he possessed growing marijuana plants. Because I believe that the evidence in the record in this case was insufficient to establish that defendant possessed Albritton’s marijuana plants, I respectfully dissent.
The legislature has not defined the term “possess” for purposes of ORS chapter 475. However, we have considered the definition of “possess” in ORS 161.015(9) to be an appropriate definition of the term as used in ORS chapter 475. See State v. Amaya, 111 Or App 204, 206-07, 826 P2d 27 (1992). We most recently addressed the meaning of the term in State v. Daline, 175 Or App 625, 30 P3d 426 (2001):
“ORS 161.015(9) defines ‘possess’ as £hav[ing] physical possession or otherwise exercising] dominion or control over property.’ Based 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. The term ‘possession’ is not further defined in either ORS chapter 161 or in ORS chapter 475. Therefore, we give that word of common usage its plain, natural, and ordinary meaning. We first look at the dictionary definition of ‘possession.’ Webster’s Third New Int’l Dictionary, 1770 (unabridged ed 1993), defines ‘possession’ as:
“‘la: 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 * * * 2 : something owned, occupied, or controlled : a thing possessed * * *[.]’ (Emphasis added.)
“Thus, ‘possession’ connotes the exercise of dominion or control; under the statute, one has physical possession of property only if he or she has actual, physical control over that property.
“That understanding comports with the entire statutory text. As [the] defendants explain, ‘By using the terms *232“physical possession” followed by the phrase “or otherwise to exercise dominion or control,” the legislature intended that “dominion or control” was also a necessary element of physical possession.’
“Actual possession is not the only method by which a person can ‘possess’ property under the statutory definition. The statute goes on to say that one can be in constructive possession of property if he or she ‘otherwise exercise [s] dominion or control’ over it. The same overarching legal principle applies to both methods [by] which a person can ‘possess’ property — that is the ability to control property. Therefore, if a person is not in actual physical control of the property, he or she can still ‘possess’ it if he or she otherwise exercises dominion or control similar to that of actual possession.
“* * * [C]ontrol is the gravamen of the statutory definition of‘possess’ * *
175 Or App at 631-32 (emphasis in original; footnote and citation omitted).
The Supreme Court established the principle that control is the gravamen of possession for possession of controlled substances (PCS) offenses long before we decided Daline. See State v. Oare, 249 Or 597, 599, 439 P2d 885 (1968) (“Evidence of the control or the right to control is necessary to constructive possession.”). In addition, the court recently reemphasized in State v. Connally, 339 Or 583, 591, 125 P3d 1254 (2005), the significance of dominion or control to the meaning of possession.
In Connally, the court used the ordinary dictionary meaning of possess to interpret a local ordinance on administrative searches. The analysis in Connally twice emphasized that the meaning of possess must incorporate the concept of dominion or control. Id. More specifically, the court cited Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002), for the meaning of possession, as we did in Daline. The court adopted that dictionary’s definition of the term as “the act or condition of having in or taking into one’s control or holding at one’s disposal,” 339 Or at 591, thus affirming that control is necessary and defining possession by several closely related variations: having in one’s control, taking into one’s control, or holding at one’s disposal.
*233A dictionary definition of dominion also helps illuminate the meaning of possession because, as we explained in Daline, ORS 161.015(9) allows for constructive possession, that is, for a person “otherwise to exercise dominion or control” over property in a manner that is circumstantially equivalent to physical possession. 175 Or App at 632 (emphasis added). The plain, ordinary meaning of dominion in this context is “the exercise of * * * supremacy or ascendancy’ over something. Webster’s at 672. Dominion encapsulates in a single word a variation of the definition of possession that the Supreme Court has emphasized, namely, that of “holding at one’s disposal.” That alternative definition of possession— the ability to determine disposition — is logically equivalent to the dictionary definition of dominion — the ability to exercise supremacy or ascendancy.
That background leads me to conclude that, in the totality of the circumstances here, defendant’s admission of physical contact with a container of Albritton’s marijuana plants was insufficient, without more, to establish that defendant physically possessed the plants. During defendant’s physical contact with the plant container, Albritton continuously controlled and supervised the disposition of the plants for a lawful purpose. Albritton supervised the loading of defendant’s car with Albritton’s household possessions, including the plants. Defendant helped by carrying a heavy container of the plants to defendant’s car in order to transport them from Albritton’s former residence to his new residence.
The only inference that can be drawn from the evidence is that defendant physically handled the plants solely for Albritton’s benefit. The record contains no evidence to permit a different inference. More pointedly, defendant’s physical contact with the plants was not physical possession of them for purposes of the PCS offense because his contact with them was not for himself but, rather, as a servant of a lawful possessor of them, that is, under circumstances in which defendant had no ability “to assert interests in the property.” See Daline, 175 Or App at 631 (citing Webster’s at 1770 for a definition of possess that requires the opposite circumstances).
*234The majority disagrees. It concludes that defendant’s act of carrying the container of plants while accompanied by Albritton, and under Albritton’s direct supervision, constituted physical possession of the plants by defendant. However, the majority does not explain how doing that gave defendant any dominion or control over Albritton’s plants. Defendant could not do anything with Albritton’s container of plants while he carried the container under Albritton’s direct supervision. Because control over the plants is the gravamen of possession under Oregon law, see, e.g., Daline, 175 Or App at 631-32, defendant’s act of carrying a container of Albritton’s marijuana plants under Albritton’s direct supervision cannot support a finding, on the record in this case, that defendant possessed the plants.1
I next address the issue of constructive possession, specifically whether the evidence of defendant handling a container of Albritton’s plants and transporting Albritton’s plants in his vehicle was sufficient to show that defendant possessed the plants under the doctrine of constructive possession. The circumstances of this case appear to rest in the delicate balance between two potentially competing principles that bear on constructive possession of a controlled substance. On one hand, mere presence in the proximity of a controlled substance is not sufficient to establish constructive possession. Oare, 249 Or at 599; State v. Sosa-Vasquez, 158 Or App 445, 448, 974 P2d 701 (1999); see also State v. Miller, 196 Or App 354, 359, 103 P3d 112 (2004) (mere presence at scene of manufacture of a controlled substance, analogized *235from mere presence at scene of crime, even with knowledge, is insufficient). On the other hand, evidence that a controlled substance was found in or on property owned or occupied by a defendant is ordinarily sufficient to support an inference of the defendant’s right to control the substance. State v. Nehl, 19 Or App 590, 592, 528 P2d 555 (1974).
The state argues that defendant cannot distinguish his situation from those in which Oregon courts have held that the defendants had constructively possessed controlled substances. To the contrary, I find a significant basis for making a distinction. Review of PCS cases involving constructive possession reveals that they have always involved outright contraband over which no person exercised control for a lawful purpose and no person was in a position to relinquish — or to retain — that control at the material times.
The purpose of the doctrine of constructive possession for PCS offenses, as demonstrated in practice in the case law, is to give appropriate effect to circumstantial evidence of possession of a contraband substance when everyone involved denies the right or ability to control the contraband found in proximity to them. See, e.g., State v. Williams, 253 Or 646, 456 P2d 489 (1969) (the defendant deemed to possess contraband narcotics in container, with his name on prescription label, that rolled from beneath pillow on his bed); State v. Coria, 39 Or App 507, 592 P2d 1057, rev den, 286 Or 449 (1979) (the defendant, passenger in car, was deemed to possess heroin hidden in storage bin near back seat that was within his reach); Nehl, 19 Or App at 592-93 (husband and wife both deemed to possess five kilograms of contraband marijuana hidden in cabinets and closets of their home); State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973) (the defendant deemed to possess contraband marijuana hidden in car he owned and was driving); State v. Moore, 14 Or App 268, 511 P2d 880 (1973) (the defendant deemed to possess contraband barbiturates in dresser drawer in his bedroom); State v. Wikum, 6 Or App 405, 488 P2d 815 (1971) (the defendant deemed to possess 66 pounds of contraband marijuana hidden throughout car he owned and was riding in); State v. Montgomery, 3 Or App 555, 474 P2d 780 (1970) (the defendant and his visitor deemed to possess one each of the two doses of heroin found on dresser in room that they occupied *236when search occurred); State v. Nasholm, 2 Or App 385, 467 P2d 647 (1970) (the defendant deemed to possess contraband marijuana on table next to bed where he was sleeping when search occurred).
In each of the foregoing cases, evidence that a defendant controlled a place or space where contraband was found or had access to the contraband was sufficient to permit a factfinder to find that the defendant did or could control the substance. When the appellate courts have applied the doctrine of constructive possession to PCS offenses, the unstated assumption has been that no one exercised lawful dominion or control over the substance at issue. The cases have addressed whether the evidence showed that a substance that was contraband for everyone involved in the cases was connected to a defendant in such a way that the defendant could be found to exercise control over its use or disposition.
Conversely, and contrary to the state’s view, the presence of another possessor of the controlled substance who exercised lawful control over it is a significant unprecedented circumstance. Under that circumstance, it is possible that a defendant could exercise control over the substance, even if nonexclusively, and therefore could possess it in violation of ORS 475.840(3). The question becomes, however, whether the lawful possessor in fact relinquished such control to the defendant.
The two cases on which the state primarily relies help me to illustrate the narrow distinction that I draw in this case. In Coria, we said that the right to control “need not be exclusive” and “may be exercised jointly with other persons.” 39 Or App at 511. That opinion nonetheless reinforces the distinction that I make here because it dealt with possession of outright contraband — heroin—that was hidden in a rear seat compartment of a rental car during a long trip under circumstances that involved other evidence of drug trafficking. We affirmed the trial court’s conclusion that the evidence of access to the heroin’s hidden location showed an ability of more than one occupant to control the disposition of the heroin for its illegal purpose and constituted “possession” with respect to those occupants.
I agree with the state that, if one person’s access to the heroin had been exclusive in Coria, then that person *237would have been the only person who could have been convicted of PCS. I also agree that joint access to the contraband, that no one in the car could lawfully possess, implied a joint right to control the contraband that could have been exercised by each of several people and would have been sufficient to show possession by each. Coria illustrates the general rule that joint control of contraband that has no lawful possessor can be sufficient to attribute possession to more than one person. Without disturbing that rule, I conclude that, when at least one person has and maintains lawful possession of the substance for its lawful purpose, and the state makes no factual showing that the defendant had or exercised some right to control the substance, then the “joint control” or “nonexclusive control” that may prove the element of possession is not present.
The state also relies on State v. Cossett, 34 Or App 113, 578 P2d 423, rev den, 283 Or 235 (1978), to argue in the alternative that defendant at least had custody of the plants. In Cossett, the defendant admitted that he had custody of obscene material located on the premises of a company of which he was president. He argued that custody was not sufficient to satisfy the element of possession. We concluded that the evidence was sufficient to establish that the defendant possessed obscene material because the material “was located in a cabinet behind [the] defendant’s desk, in his office, in the warehouse owned by the corporation of which [the] defendant is part owner.” Id. at 116. We dismissed the argument that we should distinguish custody from possession because custody was not the relevant concept. Id.
Custody similarly is not a relevant concept in this case. Based on the more recent case law on possession discussed above, Cossett can be distinguished from this case on the ground that the defendant there relied on labels rather than on the relevant concept, which was whether the defendant could be found to have exercised dominion or control over the obscene material. The defendant in Cossett may have been trying to distinguish custody from ownership. More recent case law makes clear that possession involves “physical control [that is] without regard to * * * ownership.” Daline, 175 Or App at 631 (citing Webster’s definition of “possess”). That understanding is congruent with Cossett’s implication that the relevant comparison was not between custody *238and ownership. In Cossett, we concluded that evidence concerning the storage location of obscene material that no one legally possessed — in a cabinet near a desk in the defendant’s office, all under the defendant’s control — was sufficient for a factfinder to reasonably infer that the defendant exercised dominion or control over the material. The facts showed possession by the defendant alone, which is the second basis on which Cossett is distinguishable from the circumstances at issue here.
Our case law requires, in effect, a showing of functional, rather than merely technical, dominion or control to prove possession for PCS offenses. An example where functional control was lacking, as it is here, arose in State v. Downes, 31 Or App 1183, 572 P2d 1328 (1977). There we considered whether a defendant could be guilty of illegal drug possession based on an undercover officer’s testimony that he saw someone inject the drug into the defendant’s bloodstream. The state argued that the officer’s observation of the injection was proof that the defendant possessed the drug. We rejected that argument: “Obviously, after a drug is ingested or injected into the human body, the host body can no longer exercise dominion or control over it.” Id. at 1186. As a result, the facts could not constitute the charged offense, a variation of PCS. In 2001, we reaffirmed both of the holdings of Downes: that dominion or control is necessary to possession, and that evidence of a drug circulating in a user’s bloodstream is not evidence of his dominion or control over the substance. Daline, 175 Or App at 631-32. The lack of dominion or control under those circumstances is a striking example of how facts that undeniably demonstrate close proximity, direct physical contact, and mobility of the controlled substance that is limited to the defendant’s own mobility, might not functionally satisfy the possession element of a PCS offense.
Here, viewing the evidence in the light most favorable to the state, the state did not show that Albritton relinquished his control of the marijuana plants at any time such that defendant’s handling and transporting of them gave defendant an ability to control their disposition. The marijuana plants were never outright contraband, and Albritton never ceded to defendant any right to control or dispose of them. In showing that defendant transported the plants with *239Albritton as his passenger, the state demonstrated only that defendant undertook to deliver the plants to Albritton’s new residence at Albritton’s direction. The limited extent of defendant’s evasive tactics when he saw a police car — namely, turning around in a stranger’s driveway and parking in another stranger’s driveway — does not show that defendant had gained an ability to control or dispose of the plants. Defendant’s task remained at all times to deliver the plants to Albritton’s new residence under Albritton’s personal supervision. Nor did defendant’s stop at Safeway to permit Albritton to purchase supplies for a lawful grow operation contribute to an inference of defendant’s dominion or control over the plants. The record does not contain facts that show how defendant exercised even a nonexclusive right to control the plants. Hence, the evidence was insufficient to permit a factfinder to find that defendant constructively possessed the marijuana plants.
The majority contends that my interpretation of ORS 475.840(3) conflicts with the regulatory regime established by the Oregon Medical Marijuana Act (OMMA). It does not. The OMMA specifies circumstances in which people who otherwise possess, deliver, or manufacture marijuana will not be subject to criminal liability for that conduct. Because I conclude that defendant’s conduct in connection with Albritton’s marijuana plants cannot support a finding that defendant possessed Albritton’s plants, as possession is defined under Oregon law, the OMMA simply has no bearing on the case.
In summary, I conclude that the evidence in this case of defendant’s handling and transporting growing marijuana plants while they were lawfully possessed by a person who maintained dominion and control of them, was insufficient to support a finding that defendant possessed them under the PCS offense defined in ORS 475.840(3). The trial court erred in concluding that the evidence was sufficient to show that defendant had the marijuana plants in his control, took them into his control, or held them at his disposal. I respectfully dissent from the majority’s contrary conclusion.
Wollheim, Schuman, and Rosenblum, JJ., join in this dissent.
My conclusion on this point is consistent with dictum in State v. Gordineer, 229 Or 105, 366 P2d 161 (1961), on the interpretation of a statute that prohibited possession of intoxicating liquor by a minor. The court stated that it could not
“attribute to the legislature the intent to make a criminal of a minor child who, though knowing there is intoxicating liquor 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.”
229 Or at 111. The court stated, in other words, that a minor who carried the liquor at the direction of an adult, that is, at the direction of someone who could lawfully possess it, could not be said to possess the liquor unless there were facts to support a finding that the minor intended to do something with the liquor other than carry it at the adult’s direction. Although the dictum does not directly bear on the interpretation of the statute at issue here, it is consistent with my interpretation of it.