Opinion
No. 32966-2-II.
October 10, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-00748-1, Richard A. Strophy, J., entered March 10, 2005.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, Po Box 510, Hansville, WA, 98340-0510.
Patricia Anne Pethick, Attorney at Law, Po Box 7269, Tacoma, WA, 98406-0269.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr Sw, Olympia, WA, 98502-6001.
Reversed and remanded by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Penoyar, JJ.
David Mains appeals his bench trial conviction of unlawful delivery of a controlled substance, cocaine, with sexual motivation to a person under the age of 18. He argues that insufficient evidence supported finding the elements of delivery and sexual motivation. We reverse and remand.
FACTS
The parties do not dispute the facts. In March 2004, Mains met the victim, KA, in an Internet chat room. KA told the 32-year-old Mains that he was 17 years old. The two frequently masturbated while talking on the telephone.
Soon after meeting, Mains told KA that he would travel to the Olympia area, where KA lived, on a business trip. They arranged to meet on April 14. Before the rendezvous, KA introduced Mains to his 17-year-old acquaintance, DP, via the Internet. Mains asked DP about cocaine use, and DP said that he could facilitate a drug deal when Mains visited Olympia. Before Mains's trip, DP arranged a cocaine transaction for Mains.
On April 14, Mains arrived in Washington and met KA at a Tumwater hotel. In the hotel room, Mains used some cocaine that KA had brought, and they kissed and engaged in oral sex.
After a couple of hours, Mains gave KA $140 to obtain an "eightball" of cocaine. KA left and met DP, DP purchased cocaine from an unknown drug dealer, then DP gave the cocaine to KA. After returning, KA gave the cocaine to Mains because, according to KA, "[i]t was his — his money and his product." I Report of Proceedings (RP) at 107. He and Mains then spent the remainder of the night consuming a large quantity of cocaine and having oral sex. Around this time, Mains asked KA to engage in anal sex, but KA refused.
Early the next morning, Mains began convulsing and fell off the bed, apparently suffering a seizure. This frightened KA, who ran screaming into the hallway and jumped onto a balcony. Someone called the Tumwater police, and Officer Quiles soon arrived and located KA. Quiles and two other police officers obtained consent from Mains to search the hotel room, where they found drug paraphernalia.
The State charged Mains with one count of unlawful delivery of a controlled substance, with sexual motivation, to a person under the age of 18. After waiver of a jury trial, a bench trial commenced. The trial court found Mains guilty as charged.
Regarding the conviction for unlawful delivery, the court employed an accomplice liability theory to satisfy the element of "delivery." The court found that Mains knew his conduct promoted or facilitated two deliveries — one from the unknown drug dealer to DP and one from DP to KA.
The pertinent conclusion of law reads:
The defendant had knowledge that his conduct would promote or facilitate delivery or deliveries of cocaine if he provided $140 to KA to buy cocaine. In fact, the defendant — by providing money to the minor, KA — facilitated the delivery of cocaine to KA, and additionally solicited another person (through DP and KA) to commit delivery, and the defendant aided in that regard not only in the planning of it but in the commission of it by providing money.
Clerk's Papers at 82 (conclusion of law 2.4).
Mains appeals. ANALYSIS
Mains contends that insufficient evidence shows actual or constructive transfer of cocaine. We agree.
When evaluating the sufficiency of the evidence for a criminal conviction, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). In reviewing a bench trial conviction, we must decide whether substantial evidence supports the trial court's findings of fact and, in turn, whether the findings support the conclusions of law. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 792, 98 P.3d 1264 (2004). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We treat circumstantial evidence and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Under RCW 69.50.401(1), (2)(a), "it is unlawful for any person to . . . deliver, or possess with intent to manufacture or deliver, a controlled substance," including cocaine. RCW 69.50.101(f) defines "deliver" as "the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship" (emphasis added). Because the statute does not define "transfer," we look to its common dictionary meaning. State v. Martinez, 123 Wn. App. 841, 846, 99 P.3d 418 (2004). "Citing the dictionary, we have . . . interpreted 'transfer' to mean 'to cause to pass from one person or thing to another,' as well as 'to carry or take from one person or place to another.'" Martinez, 123 Wn. App. at 846-47 (quoting Webster's Third New Int'l Dictionary 2426-27 (1971)) (some internal quotation marks omitted).
"'Constructive delivery' is the transfer of a controlled substance belonging to the defendant or under the defendant's control, by some other person or manner at the instance and direction of the defendant." State v. Martinez, 123 Wn. App. 841, 846 n. 8, 99 P.3d 418 (2004).
We used these definitions to determine that "a person who buys drugs does not 'transfer', and hence does not 'deliver'," because "[t]hese definitions all contemplate that a person who transfers undertakes the active task of relinquishing control to another." State v. Morris, 77 Wn. App. 948, 951, 896 P.2d 81 (1995). Accordingly, in Morris we reversed a conviction of delivery of a controlled substance when the defendant merely purchased drugs. 77 Wn. App. at 949-50. We also rejected, as contrary to legislative intent, the argument that a purchaser is liable as an accomplice to the drug dealer because the purchaser knowingly aided in a delivery. Morris, 77 Wn. App. at 954-55.
As an accomplice, one is guilty of a substantive crime if, "[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it." RCW 9A.08.020(3)(a).
Here, the trial court found that (1) Mains "arranged" to purchase cocaine through DP, (2) Mains gave KA $140 to purchase the cocaine from an unknown drug dealer, and (3) KA returned to the hotel room and the two shared the cocaine. Employing a theory of accomplice liability, the trial court then concluded that Mains delivered the cocaine because he "facilitated the transfer of cocaine from the original dealer through [DP to KA]." Clerk's Papers at 82 (conclusion of law 2.5).
The State counters only that Morris is distinguishable because Mains purchased the cocaine through two drug runners, while Morris purchased the drugs directly from the dealer. 77 Wn. App. at 949. But in Morris we rejected the use of accomplice liability to satisfy the element of "delivery," holding broadly that "[t]he Legislature defined the crime as 'delivery' or 'transfer' and it would frustrate that definition to impose liability on the transferee through the accomplice statute." 77 Wn. App. at 955. Morris's broad holding is not limited to two-person drug deals, and we see no reason to abandon our precedent.
We thus turn to whether Mains undertook the active task of relinquishing control of the cocaine to another. See Morris, 77 Wn. App. at 951. Although Mains shared the cocaine with KA, KA's testimony indicates that Mains never relinquished control because the two both possessed it: (1) KA brought a small amount of cocaine to give to Mains even before they met; (2) KA introduced DP, the middleman, to Mains; (3) KA and Mains mutually came up with the idea to purchase the cocaine at issue; (4) Mains paid the full amount because KA could not afford to pay for any of it (KA admitted that he felt bad about it); and (5) KA went out alone to make the purchase from DP.
Insufficient proof supports the delivery element. "[C]ompleting a 'delivery,' constructive or otherwise, requires the transferor to relinquish possession to the transferee." State v. Martinez, 123 Wn. App. 841, 847, 99 P.3d 418 (2004). "A defendant 'possesses' a controlled substance when the defendant knows of the substance's presence, the substance is immediately accessible, and the defendant exercises 'dominion or control' over the substance." State v. Hornaday, 105 Wn.2d 120, 125, 713 P.2d 71 (1986). Here, KA's own testimony shows that he not only knew about the cocaine and had immediate access to it, but also exercised control over it. That is, the cocaine was in his possession as much as it was in Mains's because both of them were equally involved in the purchase and insufficient evidence shows Mains's exclusive possession.
Taking the evidence in the light most favorable to the State, we cannot say that Mains relinquished control to KA or DP. We, therefore, hold that the evidence was insufficient to support a conviction for delivery of a controlled substance. The remedy is to reverse and remand for dismissal. See Morris, 77 Wn. App. at 956.
Although an actual delivery may have occurred when Mains shared the purchased cocaine with K.A., no findings were made on that specific issue.
Mains also argues that the "procuring agent defense" bars his conviction. Appellant's Br. at 15-16; Resp't's Br. at 25-30. But the legislature repealed the procuring agent defense when it enacted the Uniform Controlled Substances Act, 69.50 RCW. State v. Ramirez, 62 Wn. App. 301, 308-09, 814 P.2d 227 (1991); State v. Grace, 61 Wn. App. 787, 790, 812 P.2d 865 (1991).
Last, Mains raises a sufficiency argument in his Statement of Additional Grounds, RAP 10.10. Because we reverse and remand, we do not address his argument that insufficient evidence establishes a sexual motivation finding.
Reversed and remanded for dismissal with prejudice.
A majorityofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, J., concur.