York v. State

751 So. 2d 1194, 1999 WL 1013172
CourtCourt of Appeals of Mississippi
DecidedNovember 9, 1999
Docket1998-KA-01088-COA
StatusPublished
Cited by10 cases

This text of 751 So. 2d 1194 (York v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
York v. State, 751 So. 2d 1194, 1999 WL 1013172 (Mich. Ct. App. 1999).

Opinion

751 So.2d 1194 (1999)

Arthur Willis YORK, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01088-COA.

Court of Appeals of Mississippi.

November 9, 1999.

*1195 Constance Iona Slaughter, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE KING, P.J., DIAZ, AND IRVING, JJ.

DIAZ, J., for the Court:

¶ 1. The Scott County Circuit Court convicted Arthur Willis York of one count of the sale of less than one ounce of marijuana and one count of the sale of cocaine. On appeal, York argues (1) the trial court erred in denying his motion for a directed verdict, (2) the verdict was against the overwhelming weight of the evidence, (3) the State's failure to name the confidential *1196 informant in the indictment violated his double jeopardy rights because the State could, at a later date, prosecute him for selling drugs to the confidential informant who acted as the middleman in the drug transactions, and (4) the trial court erred in granting the State's requested jury instruction concerning constructive transfer. We find no error in the trial court's resolution of these issues and affirm.

FACTS

¶ 2. On December 2, 1997, agents from the Mississippi Bureau of Narcotics conducted undercover drug "sting" operations in Scott County. Undercover agent Josh Coleman and two confidential informants left the pre-buy meeting site in search of Arthur Willis York, a suspected drug dealer. Coleman and the informants drove to the Springlane Apartments where one of the informants resided. There they found York, who was driving a red or maroon Pontiac Grand Am. One of the informants, an acquaintance of York's, approached the vehicle and told York that the agent wished to purchase an ounce of marijuana. York indicated he would not deal directly with the agent and would only deal with the informant. After York quoted a price of eighty dollars, Agent Coleman handed the money to the informant who in turn passed it to York. The drugs were then passed from York to the informant to Coleman. The informants and Coleman then departed the Springlane Apartments and returned to the pre-buy meeting site where the drugs were turned over to the agent in charge of the investigation.

¶ 3. The process was repeated three days later on December 5, when Coleman and the confidential informants located York in a parking lot near Fred's Dollar Store and approached him, seeking to purchase additional drugs. Again, York refused to deal directly with the undercover agent, stating "[w]here I'm from, we don't—we don't do business to [sic] anybody we don't know, because we will go to jail." Because there were several law enforcement officers nearby, York expressed a desire to conduct the drug transaction at the apartment of one of the informants. York later arrived at the apartment and sold the cocaine to the agent for $250. As with the previous drug buy, a confidential informant served as the intermediary, passing the cash from the agent to York, and the drugs from York to the agent.

¶ 4. York was indicted for the sale of less than one ounce of marijuana and the sale of cocaine. Following a trial held June 8 and 9, 1998, the Scott County Circuit Court convicted York on both counts. York was sentenced to a term of three years in the custody of the Mississippi Department of Corrections and ordered to pay a $2,000 fine on Count I. He received a sentence of fifteen years and was ordered to pay a $5,000 fine on Count II, with the sentence to run consecutively to Count I.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING YORK'S MOTION FOR A DIRECTED VERDICT

¶ 5. York claims that the State failed to prove that he sold either marijuana or cocaine to Agent Coleman because there was no "hand to hand" exchange. He contends that, at most, the evidence established his guilt of selling drugs to the confidential informant, crimes for which he was not indicted. According to York, no drug purchases occurred within the meaning of the statute because he did not "deliver" the drugs to Agent Coleman but rather to the confidential informant.

¶ 6. When judging the sufficiency of the evidence on a motion for a directed verdict, the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. If, under this standard, sufficient evidence to support a jury verdict of guilty exists, the motion for a directed verdict should be overruled. Mamon *1197 v. State, 724 So.2d 878, 881 (Miss. 1998).

¶ 7. York was convicted of the sale of less than one ounce of marijuana, in violation of Miss.Code Ann. § 41-29-139(b)(3) (Supp.1998) and the sale of cocaine, in violation of Miss.Code Ann. § 41-29-139(a)(1) (Supp.1998). The Uniform Controlled Substances Law defines a sale as "the actual, constructive or attempted transfer or delivery of a controlled substance for remuneration, whether in money or other consideration." Miss.Code Ann. § 41-29-105(aa)(Supp.1998). York contends that because he did not transfer or deliver the drugs to the undercover agent personally, a sale did not occur. Though York did not transfer the drugs directly to the undercover agent, a sale did occur. We find that York constructively delivered both the marijuana and the cocaine to the undercover agent. There exists no Mississippi case law defining "constructive transfer"; however, other jurisdictions have defined it and concluded on similar facts that a constructive transfer took place.

¶ 8. In one case, the undercover agent tendered the cash to the defendant, who accepted it. Roberts v. State, 866 S.W.2d 773, 778 (Tex.Ct.App.1993). The defendant then handed the cocaine to the informant who in turn handed it to the agent. The defendant claimed that because the informant actually transferred the cocaine, there was insufficient evidence that he sold it to the agent as alleged in the indictment. Id.

¶ 9. The court rejected the defendant's contentions and found that a constructive delivery had occurred. It defined constructive delivery as "the transfer of a controlled substance, either belonging to an accused or under his control, by some other person or agency, at the instance and direction of the accused." Id. The court further explained that "[a] constructive transfer is proved by showing that before the alleged delivery, the transferor had either direct or indirect control of the substance transferred, and the transferor knew of the existence of the transferee." Id. Because the defendant had direct control over the cocaine and was aware of the undercover agent's existence, the court found that he constructively transferred the drugs.

¶ 10. Courts in other jurisdictions which have enacted the Uniform Controlled Substances Act have reached similar results. State v. Campbell, 59 Wash.App. 61, 795 P.2d 750, 752 (1990) (constructive delivery where the dealer placed the cocaine on a car seat and at his direction a third person picked it up and handed it to the undercover agent); Laird v. State,

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Bluebook (online)
751 So. 2d 1194, 1999 WL 1013172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/york-v-state-missctapp-1999.