Opinion
No. 97-CT-01557-SCT
April 5, 2001
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. KEITH STARRETT, DATE OF JUDGMENT: 11/12/1997
DISPOSITION: REVERSED AND REMANDED
ATTORNEY FOR APPELLANT: JOSEPH A. FERNALD, JR.
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
DISTRICT ATTORNEY: DUNN LAMPTON
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. On a petition for writ of certiorari from a 5-5 decision by the Court of Appeals, we granted certiorari to consider whether the Court of Appeals improperly interpreted the transfer statute concerning marijuana. March Meek was convicted of transfer of marijuana after he handed a shaving kit containing marijuana to a good Samaritan at the scene of an accident. He was sentenced to thirty years imprisonment with twenty years suspended. The Court of Appeals affirmed the conviction and sentence by a 5-5 vote. Meek v. State , No. 97-KA-01557-COA (Miss.Ct.App. Feb. 8, 2000). Meek filed a petition for writ of certiorari which we granted. He claims that the evidence was insufficient to support the conviction and that the Court of Appeals improperly interpreted the transfer statute. We find that Meek's conduct does not amount to a transfer under the distribution statute. However, we find that the evidence sufficiently shows that Meek did possess the marijuana. We therefore reverse the judgments of the Court of Appeals and the Lincoln County Circuit Court, and we remand this matter to the circuit court for sentencing on possession alone.
FACTS
¶ 2. March Meek was a passenger in Delinah Chauvin's car when they were involved in a serious accident. Before entering the car, Meek had placed several items in the back seat of the vehicle. One of those items was a shaving kit. Both Chauvin and Meek were injured in the accident. Meek was unable to get out of the vehicle until help arrived.
¶ 3. Phillip Hemby arrived at the scene and offered to help the victims. Hemby testified that when he approached Meek's side of the car, Meek handed him a shaving kit and asked him to "get rid of this." Hemby said that he was suspicious of the contents of the shaving kit. There was testimony that he could smell marijuana. Hemby testified that he immediately handed the kit back to Meek. Hemby then left to help the driver of the other vehicle.
¶ 4. Chauvin testified that Meek asked her if she could get out of the car because he wanted her to dispose of something. She was unable or unwilling to discard the contraband. When Hemby returned to Chauvin's car, he saw the shaving kit lying on the shoulder of the road on Meek's side of the car, approximately 12 to 15 feet from the passenger door. Hemby testified that he kicked the shaving kit into a roadside ditch to preserve the kit as evidence for law enforcement officers. Hemby later directed a highway patrolman to the shaving kit on the side of the road. The officer opened it and found what appeared to be marijuana inside. An analysis by the Mississippi Crime Laboratory revealed that the kit contained over 140 grams of marijuana.
¶ 5. The indictment charged that Meek "did willfully, unlawfully, feloniously, and knowingly, transfer more than one ounce of marihuana . . . to one Phillip Hemby." The jury found Meek guilty of transferring the controlled substance. He was sentenced as a habitual offender to thirty years imprisonment with twenty years suspended. His conviction and sentence were affirmed by the Court of Appeals by a vote of 5-5. Meek then filed a petition for writ of certiorari which was granted by this Court.
ANALYSIS
¶ 6. In his petition for writ of certiorari, Meek raises two issues. He attacks the sufficiency of the evidence that he knew that marijuana was in the kit. He also argues that the conduct here, even if sufficiently proven, was not a transfer within the meaning of the statute.
I. Sufficiency of the evidence.
¶ 7. Meek claims that there was not sufficient evidence that he knew that the drugs were in the shaving kit when he handed it to Hemby. He also states that "it was questionable as to whether he [Hemby] actually took the bag or not." Hemby testified that Meek handed him the shaving kit and asked him if he would "get rid of this for him" when Hemby approached the passenger window of Chauvin's car. Chauvin also testified that Meek had asked her to dispose of the shaving kit. Meek admitted that the shaving kit in which the drugs were found was his. He also admitted that he owned the toiletries found in the shaving kit. Finally, he admitted that he had placed the kit in the back seat of Chauvin's car before the wreck. Meek argued that someone else could have placed the marijuana in the kit between the time when he put it in the car and when the marijuana was found in the kit after it had been located in the roadside ditch. Meek and Chauvin had stopped at a friend's house for approximately an hour before the wreck. The defense claimed that one of the people at the house could have placed the drugs in the kit during that time period. Both the Court of Appeals majority and the dissent found that there was sufficient evidence that Meek had possession of the marijuana.
¶ 8. When reviewing a challenge to the sufficiency of the evidence, this Court considers all of the evidence in the light most consistent with the verdict, giving the State the benefit of all inferences favorable to the verdict. Jones v. State , 669 So.2d 1383, 1388 (Miss. 1995). When the evidence before the jury is such that reasonable jurors could have found the defendant guilty, the verdict is beyond our authority to disturb. Taylor v. State , 672 So.2d 1246, 1255 (Miss. 1996). After reviewing the evidence, we find that the Court of Appeals correctly found that there was sufficient evidence in this case that Meek did in fact have knowledge marijuana was in his shaving kit.
II. Whether the conduct here amounts to a transfer within the statute.
¶ 9. The more difficult question is whether Meek's conduct constitutes a transfer under the controlled substances act. Meek was indicted for transferring the marijuana to Hemby when he handed the shaving kit containing the marijuana through the car window following the accident. The trial court concluded that "to transfer means to pass from one hand to the other." Meek contends that his actions did not amount to a transfer within the meaning of the relevant statute. Miss. Code Ann. § 41-29-139(a) provides in part:
(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance . . .
Miss. Code Ann. § 41-29-105 (Supp. 2000) provides definitions for terms found in the controlled substances section. Although no definition of "transfer" is provided, the following definitions in that statute are enlightening:
(h) "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship.
. . .
(l) "Distribute" means to deliver other than by administering or dispensing a controlled substance.
Id.
¶ 10. The Court of Appeals discussed the definition of "transfer" and compared the terms "distribute" and "deliver." The Court of Appeals found that the terms were for the most part interchangeable. This finding is supported by the case law. The Court has equated the general terms "transfer" and "deliver". Evans v. State , 460 So.2d 824, 828 (Miss. 1984). "The word `distribute' as stated in the statute and the indictment includes transactions which are sales as well as transactions which may not be considered sales." Rogers v. State , 599 So.2d 930, 934 (Miss. 1992). The intent of the delivery and transfer of narcotics statute is "to thwart the exchange or transfer of the substance whether accompanied by consideration or not." Wilkins v. State , 273 So.2d 177 (Miss. 1973).
¶ 11. In finding that a transfer within the meaning of the statute had occurred, the Court of Appeals held that:
What occurred here is equally amenable to the legislature's heightened scrutiny as would be a person's attempt to sell the single rock of crack cocaine that he had initially purchased only for personal use. Further, if he decided that instead of selling, he would give it away to a known user, that too is beyond mere possession. And finally, if as here a user decides to give the drugs to someone who may be unaware of what he is getting, but the accused is willing to risk that this person will be a user or become one because of the opportunity, it is within the language of this statute to consider that more than possession. Quite simply, the risk to society is magnified when a criminal moves from keeping drugs to himself and attempts to transfer drugs to others.
( Meek , Paragraph 32 at page 7).
¶ 12. Both the Court of Appeals majority and dissent cite Stringfield v. State , 588 So.2d 438, 439 (Miss. 1991). There, the Court discussed a case in which the defendant had shared crack cocaine with two cohorts. While being arrested on another charge, the drugs were found on Stringfield. He admitted that the drugs were in his possession and that he had distributed some of the crack to his friends. However, Stringfield was not charged with the actual acts of distribution to his friends but with possession with intent to distribute in the future. The Court held that there was insufficient proof of intent to distribute. In dicta, the Court stated:
If a smoker gives an acquaintance a few cigarettes from his package, or a pack from his carton, does that mean he possessed the tobacco with an intent to distribute? Clearly he is guilty of actually distributing the tobacco he gives his friend, but does this mean he possessed the pack, or carton, with an intent to sell or distribute? That question, however, must wait another day for an answer, because — while almost — it is not quite presented here.
Id . at 439. We find Stringfield to be distinguishable for reasons discussed below.
¶ 13. This Court has held that it is not necessary for the transferor to make a profit or that there be consideration in order for the transaction to constitute a transfer or distribution under the statute. Rogers v. State , 599 So.2d 930 (Miss. 1992); Turner v. State , 573 So.2d 1340 (Miss. 1990); Minor v. State , 482 So.2d 1107 (Miss. 1986). Boone v. State , 291 So.2d 182, 184 (Miss. 1974). However, in each of those cases and in Stringfield , there was a knowing drug transaction between the transferor and the recipient. In the case at hand, the recipient did not knowingly and willingly enter a drug transaction.
¶ 14. We find that the present factual situation has never before been squarely presented in this Court. We have a situation in which the defendant momentarily passed the contraband to another presumably in an effort to dispose of it before law enforcement officers arrived. We find that the factual situation here does not amount to a transfer under the distribution statute. We hold that while the activity here may have been an attempt to conceal evidence, it was not a criminal transfer it was never shown that Hemby intended to take possession or accept a "transfer" of a controlled substance. We therefore reverse the conviction for transfer of marijuana.
¶ 15. This Court has allowed sentencing on a lesser-included offense when the greater offense is unsupported by the evidence. Clark v. State , 756 So.2d 730 (Miss. 1999); Shields v. State , 722 So.2d 584 (Miss. 1998). We find that the evidence in this matter does support a conviction for the lesser-included offense of possession of marijuana and we remand this matter to the trial court for sentencing on possession.
¶ 16. For these reasons, the judgments of the Court of Appeals and the Lincoln County Circuit Court are reversed, and this case is remanded to the Circuit Court for entry of a judgment convicting March Meek of the crime of possession of marijuana and sentencing him for that conviction.
¶ 17. REVERSED AND REMANDED . PITTMAN, C. J., BANKS, P. J., WALLER AND EASLEY, JJ., CONCUR. SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MILLS AND COBB, JJ. DIAZ , J., NOT PARTICIPATING.
¶ 18. I recognize that this type of case has not been squarely addressed by this Court. The majority states that Meek's actions did not amount to a "transfer in fact," and that his actions do not fall within the Controlled Substances Act (the Act). I respectfully dissent believing that Meek's actions did, in fact, equate to a transfer in fact and accordingly fall within the purview of the Act.
¶ 19. There is indeed no definition of the word "transfer" found in the Act. However, there are two words defined in the Act that aid in the understanding of what "transfer" means. The words "deliver" and "distribute" are defined. The word "deliver" has been defined by this Court to be the equivalent of the word "transfer." Evans v. State , 460 So.2d 824, 828 (Miss. 1984). In applying the term "deliver" to the facts of this case, it is clear from this term's definition that Meek "actually, constructively, or attempted to transfer" his bag of marijuana from himself to a supposed `good Samaritan.'" See id . It appears that this "good Samaritan" was immediately aware that the shaving kit contained marijuana. The Samaritan testified that Meek handed him the shaving kit and asked him to get rid of it. When the Samaritan took the bag from Meek, he immediately handed it back to him because the kit contained marijuana. The woman passenger also testified that Meek said he had something in the car that needed to be removed. The shaving kit that contained marijuana clearly passed from Meek's hands to another's, while Meek, who had been injured in an automobile wreck, had the requisite intent to get this item out of his possession. Clearly, Meek knew what was in the shaving kit, and he intended to get it out of his hands into the hands of another.
¶ 20. The majority fails to address several cases that the State raises which aid in clarifying what a "transfer" is. A transfer is a change of possession from one person to another. See Commonwealth v. McCue , 487 A.2d 880, 883 (Pa.Super.Ct. 1985). Also, a transfer is any act by which the holder of an object delivers it to another with the intent of passing whatever rights he has in the latter. See United States v. Nutter , 13 M.J. 803, 803-04 (A.F.C.M.R. 1981). Meek did all of the above. He passed possession of his shaving kit to another with the intent to pass his rights away.
¶ 21. Regarding the term "distribute," the majority cites to several cases in which both parties involved in drug transactions knew that the transaction was taking place. See Turner v. State , 573 So.2d 1340 (Miss. 1990); Minor v. State , 482 So.2d 1107 (Miss. 1986); Boone v. State , 291 So.2d 182, 184 (Miss. 1974). The majority additionally points to Rogers v. State , 599 So.2d 930, 934 (Miss. 1992), where this Court held that the word "distribute" includes sale and non-sale transactions. The majority states that because the good Samaritan did not "knowingly and willingly" enter into this drug transaction, the transaction at issue is not a transfer in fact and does not fall within the Act. The majority claims that Meek's "intent to distribute" is the key element that triggers the Act, and the majority finds that he had no intent to distribute, or "sell", the marijuana for another's use. It is important to note that the Act does not state that it only applies to persons who "distribute" or sell drugs for another's use. The Act states that a person has violated the law when they have intentionally or knowingly sold, bartered, transferred, distributed, dispensed, or possessed drugs with the intent to do all of the above. Miss. Code Ann. § 41-29-139(a). Distribution, or the intent to sell drugs, is part of the Act, but is not the issue in this case. The issue is whether a "transfer in fact" took place, and it is clear that it did.
¶ 22. Meek was aware of the character and the presence of the marijuana, and he intentionally transferred it to another person with the intention of relinquishing possession and control of it. For this reason, I respectfully dissent.
MILLS AND COBB, JJ., JOIN THIS OPINION.