COURT UPHOLDS MARIJUANA CONVICTION

Coos County - Judges Say Helping a Friend Move Medical Plants Is Possession

Helping a friend move some medical marijuana plants has proved quite
costly for Thomas Patrick Fries.

Although Fries, 38, had no criminal record, a Coos County judge
convicted him of felony drug possession in 2003.

And on Wednesday, a divided Oregon Court of Appeals upheld Fries'
conviction, saying that Oregon's drug laws provide some exemptions
but helping a friend move marijuana plants to a new home isn't one of them.

"The Legislature knows how to create exemptions to criminal
responsibility for those who knowingly have physical possession of
controlled substances," Judge Walt Edmonds wrote for the 6-4
majority. "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."

Four dissenting judges argued that Fries didn't possess the marijuana
in a legal sense because he acted at the direction of his friend,
Richard L. Albritton, 25, who had a legal right to have the marijuana.

"The marijuana plants were never outright contraband, and Albritton
never ceded to defendant any right to control or dispose of them,"
Judge Rex Armstrong wrote in dissent. "In showing that defendant
transported the plants with Albritton as his passenger, the state
demonstrated only that defendant undertook to deliver the plants to
Albritton's new residence at Albritton's direction."

A North Bend police officer arrested Fries and Albritton in May 2003
after observing what he considered to be suspicious driving behavior.

Albritton, who had a medical marijuana card, was acquitted. Fries
testified that he only carried one plant to his car and never had
"independent control" of it.

The judge convicted him of possession of a controlled substance, a
class B felony, and sentenced him to 18 months of probation.

On appeal, the judges focused on the word "possess."

The dissenters concluded 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," Armstrong wrote.

The majority noted that Fries possessed the plant because he had the
ability to do what he wanted with it.

"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," Edmonds wrote.