CONCURRING OPINION OF ACOBA, J.

I agree with reversal of the convictions of Defendant-Appellant Juliet Moniz (Defendant), but disagree with the majority's conclusion that there was substantial evidence she had the power to exercise control and dominion over the marijuana.

Hawaii Revised Statutes (HRS) § 712-1249(1) (1993) prohibits possession of marijuana in any amount. Possession must be a voluntary act. HRS § 702-201 (1993). "'Voluntary act' means a bodily movement performed consciously or habitually as the result of the effort or determination of the defendant." Id. Under our penal code, "[p]ossession is a voluntary act [only] if the defendant knowingly procured or received the thing possessed or if the defendant was aware of the defendant's control of it for a sufficient period to have been able to terminate the defendant's possession." HRS § 702-202 (1993). After the passage of the Hawaii Penal Code (HPC) in 1973, I consider the relevant definition of possession is that which is set forth in the HPC. See State v. Auwae, 89 Hawaii 59, 62, 968 P.2d 1070, 1073 (App. 1998) (holding that possession is a prosecutable act under the definition in HRS § 702-202). While the possession instructions given by the court did not constitute harmful error in this case, I believe an analysis of a possession crime should proceed from the definition set forth in HRS § 702-202. Id. at 62-63, 968 P.2d at 1073-74.

The majority concludes that a reasonable jury could infer that Defendant had control and dominion over the marijuana because the marijuana was discovered in a drawer of a bedroom dresser that defendant shared with her husband; Defendant washed, folded, and placed clothes in the drawer; by the date of arrest the marijuana had been in the drawer for two months; and Defendant admitted she saw the marijuana there. Nothing in these facts satisfies the definition of possession binding on us. There is no evidence to indicate Defendant procured or received the thing possessed or that she had control of it.

It is uncontroverted that Defendant did not procure the marijuana or receive it. Defendant was not in physical possession of the marijuana when it was seized. The question then, is whether Defendant had "control" of the marijuana by virtue of the facts above. HRS § 702-202 is based upon Model Penal Code (MPC) § 2.01 (1962). The MPC commentary states in part that "control" includes the ability to terminate such control:

An actor who is aware of his [or her] control of the thing possessed for a period that would enable him [or her] to terminate control has failed to act in the face of a legal duty imposed by the law that makes his [or her] possession criminal.

Model Penal Code and Commentaries § 2.01 comment 4 at 224 (Official Draft and Revised Comments 1985). Black's Law Dictionary 329 (6th ed. 1990) defines the verb form of "control" as, in part, "[t]o exercise restraining or directing influence over[;] . . . govern." Similarly, Webster's Third New International Dictionary 496 (1981) defines control as "to exercise restraining or directing influence over something[.]"

The facts relied upon by the majority demonstrate only that Defendant had equal access to the drawer because she shared the dresser with her husband. As wife, Defendant had joint use of the drawer. But in light of her marital relationship, Defendant's equal access to and joint use of the dresser do not logically lead to the determination that Defendant had control over the marijuana found within it. The facts are consistent with Defendant's marital status and without more, only serve to confirm that status.

Indeed, to infer more is to infer from the marriage status itself that Defendant had control over, and therefore possession of the marijuana. Such an inference lacks a rational basis and is akin to the impermissible inference of guilt drawn from mere presence at the scene of a crime or mere association with a guilty party. See State v. Yabusaki, 58 Haw. 404, 408, 570 P.2d 844, 846 (1977) (explaining that the defendant's presence at the crime scene alone was insufficient to establish criminal intent in the absence of additional evidence); State v. Medeiros, 1 Haw. App. 536, 537, 621 P.2d 986, 988 (1981) (stating "guilt by association is not and has never been recognized as a tactic available to the prosecution"). There was no evidence that demonstrated Defendant exercised restraining or directing influence over the marijuana discovered in the drawer.

The fact that money given Defendant by her husband was from the sale of drugs would not establish a nexus with control over the marijuana. The question is not whether Defendant knew of her husband's sale of other drugs; the question is whether under the evidence she was guilty of the voluntary act of marijuana possession as "possession" is defined under the penal code.

From the record I do not believe that we can conclude a reasonable person exercising caution would reach the conclusion that Defendant exercised such restraining or directing influence over the marijuana so as to be subject to the legal obligation to end any purported control over it.





SIMEON R. ACOBA, JR.

Associate Judge