State v. Spratlin , 90 S.D. 541 ( 1976 )

WOLLMAN, Justice.

Defendant was found guilty by a jury of distributing or dispensing a controlled substance (amphetamines) in violation of SDCL 39-17-88. Defendant’s principal contentions on appeal are that the trial court erred in giving an instruction on an agency relationship between the person to whom the amphetamines had allegedly been distributed and a third party, and that the evidence was not sufficient to warrant a conviction on the theory of agency. In lieu of filing a brief, the state filed a motion asking that we reverse the conviction and remand the case for a new trial because the criminal agency instruction was improperly given. Defendant resisted the motion, asking that we consider the appeal on its merits, which we have done. In accordance with our obligation to do so, we have examined the record to determine whether the alleged error conceded by the state in fact justifies reversal. State v. Pierce, 88 S.D. 359, 220 N.W.2d 254, and cases cited therein. We have concluded that there was no prejudicial error and that the conviction should be affirmed.

The information charged that the defendant

“ * * * did wilfully, unlawfully and feloniously distribute or dispense a substance controlled under Chapter 39-17 SDCL 1967, as amended, to-wit: did so distribute or dispense amphetamines to William Conner, within Butte County, South Dakota, in violation of SDCL 1967 39-17-88. * * * ”

The state’s evidence revealed that on August 1, 1974, one Larry Harris called defendant at defendant’s Rapid City, South Dakota, telephone number and arranged to meet defendant at Harris’ home in Belle Fourche later that day for the purpose of receiving some drugs from defendant. At about 4:00 o’clock that afternoon, defendant, accompanied by a female companion, arrived at Harris’ home. Defendant and Harris discussed the price of the amphetamines that defendant had brought with him, which was to be $125 per 1000-tablet bag. Defendant, Harris and the girl then left Harris’ home in defendant’s automobile and drove to a point on a gravel road about five miles out of town for the purpose of hiding the amphetamines. Defendant got out of the car, opened the hood and removed a package which he gave to Harris. Harris took the package and hid it in some bushes approximately 15 or 20 feet from the traveled portion of the highway and then piled three rocks near the side of the road as a marker. The three then drove back to Belle Fourche, where defendant and his companion left Harris off at the latter’s home. No money was exchanged between Harris and defendant.¹ Harris then met Bill Conner by prearrangement at a drive-in restaurant and gave Conner a map showing the area where the drugs were hidden. Conner had met with Harris earlier in the day. In Conner’s words, “ * * * I was trying to get some [drugs] for Rich. He wanted some.” In response to a question concerning how the arrangements were made, Conner testified that,

“Larry (Harris) made ’em. I was getting ’em from Larry, and he was getting ’em from Rapid City.”

After receiving the map from Harris, Conner located Richard Carlson and went with Carlson to the place where Harris had hidden the drugs. Conner pretended that he did not see the bag containing the amphetamines because, in his words, “ * * I didn’t want to touch the drugs.” Carlson opened the plastic bag and removed the enclosed packets of white pills. After counting the twenty packets, Carlson replaced them in the larger bag and took them back to Belle Fourche, where, by a prearranged signal from Carlson, who was an undercover narcotics agent, law enforcement officers entered Carlson’s apartment and arrested Conner.

Conner testified that he had never seen defendant prior to the preliminary hearing that was held in connection with the instant case. On cross-examination he acknowledged that he did not know defendant, that he had not purchased anything from defendant on August 1, 1974, or at any time prior to or subsequent to that date, and that Harris had bought drugs for him “a couple of times.”

At the conclusion of the state’s case, defendant moved for a directed verdict of acquittal on the ground that the state’s evidence had failed to establish that defendant had distributed a controlled substance to Conner. In response to this motion, the state’s attorney argued that the theory of the state’s case was that Harris was working for defendant, that Conner was working for Harris and that the amphetamines were procured by Conner through Harris from defendant. Defendant renewed this motion at the close of all of the evidence.

The court on its own motion, and apparently without any assistance from the state in the way of legal research or the citation of any authority, gave the following instruction:

“Instruction 3A

“In order to sustain its burden of proof under the charge contained in the information it is necessary for the State to prove beyond a reasonable doubt that Larry Harris was in fact the agent of William Conner at the time and place charged in the information.

“In an agency relationship, the party for whom another acts and for whom he derives authority to act is known and referred to as a ‘principal’, while the one who acts for and represents the principal, and acquires his authority from him, is known and referred to as an ‘agent’. The agent is a substitute or deputy appointed by the principal with power to do certain things which the principal may or can do. Pursuant to the grant of authority vested in him by the principal, the agent is the representative of the principal and acts for, in place of, and instead of, the principal.”

Defendant objected to the giving of this instruction on the ground that it would be tantamount to allowing the state to amend its pleadings after jeopardy had attached and that it would allow the state to do indirectly that which it could not do directly, that is, prove that defendant had sold drugs to Conner. Defendant also objected to the instruction on the ground that it did not accurately state the law of criminal agency and on the ground that there was no showing in the record that Harris was in fact Conner’s agent at the time the events described above took place.

SDCL 23-32-5 provides:

“The indictment or information must be direct and certain as it regards:

(1) The party charged;

(2) The offense charged;

(3) The name of the thing or person upon or against whom the offense was committed.”

SDCL 23-32-12 provides in part that:

“The indictment or information is sufficient if it can be understood therefrom:

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(6) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.”

In State v. Blue Fox Bar, Inc., 80 S.D. 565, 128 N.W.2d 561, we held that these statutes require the state to set forth in the information the name of the person to whom a defendant is charged with having unlawfully sold intoxicating liquor. Defendant argues that the logical extension of the Blue Fox Bar case is that not only must the victim or person against whom an alleged act was committed be named, but that the proper person be named.

We conclude that defendant’s attack upon the sufficiency of the information must fail for two reasons. First, as a defense to the charge against him, defendant attempted to establish an alibi — that he was in Aberdeen, South Dakota, on the day of the alleged offense and perforce could not have distributed the controlled substance to Conner. That defense, if established, would have been as effective against a charge that defendant had distributed the controlled substance to Larry Harris or Richard Carlson as it would have been to the charge in question. In other words, we fail to see how defendant can complain that he was prejudiced in any way in preparing his defense inasmuch as the defense he tendered would have been good as against an allegation that he had distributed a controlled substance on August 1, 1974, to any of the individuals involved in the alleged scheme of distribution.

Defendant’s attack on the sufficiency of the information and the proof adduced thereunder also fails for the reason that the statute in question does not require that the distribution of the controlled substance must be made directly from the distributor to the distributee. SDCL 39-17-88 provides that:

“Except as authorized by this chapter, it shall be unlawful for any person to manufacture, distribute, or dispense a substance controlled under this chapter, or to possess with intent to manufacture, distribute, or dispense, a substance controlled under this chapter.”

SDCL 39-17-44 provides in part that:

“The following words and phrases, for the purposes of this chapter, shall have the following meanings, unless the context otherwise requires:

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(6) ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer of a controlled drug or substance whether or not there exists an agency relationship.²

(7) ‘Dispense’ means to deliver a controlled drug or substance to the ultimate user or human research subject, including the packaging, labeling, or compounding necessary to prepare the substance for such delivery, and a ‘dispenser’ is one who dispenses.

(8) ‘Distribute’ means to deliver a controlled drug or substance. ‘Distributor’ means a person who delivers a controlled drug or substance.”

In construing a statute substantially similar to SDCL 39-17-44(6), the Nebraska Supreme Court recently held that,

“To sustain a conviction under section 28-4,125(l)(a), R.S.Supp., 1974, it is not necessary for the State to show actual physical transfer of a controlled substance from the defendant. The statutory definition of delivery clearly encompasses more than actual, direct physical transfers. It includes constructive and indirect transfer as well. The evidence in this case was sufficient to show that the defendant constructively delivered a controlled substance to Officer Cramer.” State v. Guyott, Neb., 239 N.W.2d 781, 782.

Although in the Guyott case there had been a conversation between defendant and the officer prior to the time that the officer picked up the drugs from the place where defendant had told him they would be, we conclude that the rationale of the case is applicable to the facts of the instant case.

In interpreting a statute substantially similar to SDCL 39-17-44(6), the Court of Appeals of New Mexico stated that:

“The statement of facts is to the effect that defendant mailed the controlled substance to the juvenile. If this is true, defendant selected the mails as his delivery agent, (citation omitted) If properly mailed, there was a presumption of delivery, (citation omitted) Placing the controlled substance in the mail had the effect of turning the controlled substance over to an agent for delivery. This amounts to a constructive transfer which, under §§ 54-11-2(G) and (J), supra, is a distribution. * * * ” State v. McHorse, N.M.App., 85 N.M. 753, 756, 517 P.2d 75, 78.

SDCL 39-17-88 does not include the word “sale,” nor is there any requirement in the statute that makes the exchange of money or other valuable consideration an element of the offense of unlawful distribution of a controlled substance. The fact that there was no exchange of money between defendant and Harris or between defendant and Conner is without significance. In other words, the scope of the South Dakota Drugs and Substances Control Act, SDCL 39-17, is broader in application than those statutes which require the exchange of consideration for the transfer of a drug as a prerequisite to a criminal charge. As was pointed out with respect to the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, which in pertinent part is substantially similar to the provisions of SDCL 39-17 quoted above,

“These prior concepts have been discarded in the Controlled Substances Act which contains no sale or buying requirement to support a conviction; there is now an offense of participation in the transaction viewed as a whole. The Comprehensive Drug Abuse Prevention and Control Act of 1970 is extremely broad in scope, no longer restricted to the narrower concepts of buy and sell, but all inclusive in covering the entire field of narcotics and dangerous, drugs in all phases of their manufacturing, processing, distribution and use. All distribution is controlled or prohibited, legitimate or illegitimate. Any individual who participates in any manner in the unauthorized distribution of such ‘controlled substances’ is amenable to the Act and the sanctions provided therein. Congress undoubtedly intended by this new Act to make an all-out attempt to combat illicit drugs by subjecting any individual who knowingly participates in the distribution to substantial, and in some cases severe, penalties while dealing less severely with, and attempting to aid, the unfortunate individuals who are the ultimate users of the illicit drugs. * * * ” United States v. Pruitt, 8 Cir., 487 F.2d 1241, 1245.

We think that the same considerations apply to the interpretation of SDCL 39-17. Cf. State v. One 1972 Pontiac Grand Prix, 90 S.D. 455, 242 N.W.2d 660. One who undertakes to distribute a controlled substance unlawfully in this state does so at his peril and is not immune from prosecution merely because the person to whom the controlled substance is deemed delivered was not in privity with the distributor. The evidence in the instant case admits but of one conclusion — that defendant must have intended to distribute the amphetamines to someone other than Harris, else why would he and Harris have driven to a secluded point to conceal the drugs, and why would defendant not have insisted upon payment from Harris at the time he transferred the amphetamines to him? True, it does not appear on the face of the record why the state could not have charged defendant with having distributed the amphetamines to Harris, but that fact is immaterial in determining whether the charge as actually brought against defendant is sufficient to support the conviction.

In attacking Instruction 3A, defendant cites cases dealing with the criminal liability of a principal for the acts of his agent. See e.g., Ex Parte Marley, 29 Cal.2d 525, 175 P.2d 832; People v. Doble, 203 Cal. 510, 265 P. 184. Instruction 3A, however, was posited on the premise that Harris was Conner’s agent in the transaction. Although the instruction might be improved upon and expanded, we conclude that it was sufficient to apprise the jury that in order to convict defendant they would have to find beyond a reasonable doubt that Harris was in fact Conner’s agent at the time defendant transferred possession of the controlled substance. There was sufficient evidence from which the jury could reasonably have made such a finding.

We have considered defendant’s contentions that the amphetamines should not have been admitted in evidence because the chain of evidence was defective, that the exhibits were not properly identified by investigating officers, and that the manner in which the exhibits were displayed to the jury during the course of the trial was improper and prejudicial, and we have concluded that these contentions are without merit.

The conviction is affirmed.

WINANS, J., concurs. COLER, J., concurs specially. DUNN, C. J., dissents.

1 . In late June of 1974, Harris had purchased some amphetamines from defendant near Sturgis, South Dakota. No money was exchanged at the time defendant transferred those drugs to Harris, and defendant later picked the money up at Harris’ house. Harris testified that prior to August 1, 1974, he had ordered drugs by calling the number that he had called on August 1, 1974.

2 . The phrase “whether or not there exists an agency relationship” eliminates the “procuring agent” defense that was available under prior narcotic drug laws. See, e.g., United States v. Pruitt, 8 Cir., 487 F.2d 1241, and cases cited therein; People v. Williams, 54 Mich.App. 448, 221 N.W.2d 204.