Transfer of drugs does not require a sale


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.

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.

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.

Meek was convicted of transferring the controlled substance and sentenced as a habitual offender to 30 years. On appeal, he argued he did not know what was in the kit and also that there was no transfer. MSC affirmed.


A. Knowledge

The facts reveal nothing questionable as to whether Hemby actually took possession of the shaving kit. 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.

After reviewing the evidence, we find that there was sufficient evidence in this case that Meek did in fact have knowledge marijuana was in his shaving kit.

B. Transfer

Miss. Code Ann. § 41-29-139 (Supp. 2001) 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.

A definition of “transfer” is not statutorily provided. However, there are two words defined in the act that aid in the understanding of what “transfer” means.

Miss. Code Ann. § 41-29-105 (Supp. 2001) provides in part:

(h) “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one 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.

These terms are virtually interchangeable. We have analyzed the broad language contained in these definitions as being intended to relieve the state of the task, oftentimes difficult if not impossible, of proving the consideration paid for the contraband, its intentions being to thwart the exchange or transfer of the substance whether accompanied by consideration or not. See Wilkins v. State, 273 So. 2d 177  (Miss. 1973).

Meek argues that his actions did not constitute a transfer because he did not intend to place the contraband in commerce nor intend to distribute the substance for economic gain. However, we have held that “distributing” a controlled substance as defined in the statute “includes transactions which are sales as well as transactions which may not be considered sales.” See Rogers v. State, 599 So. 2d 930 (Miss. 1992).

A transfer is a change of possession from one person to another. 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. The word “deliver” has been defined by this court to be the equivalent of the word “transfer.” See Evans v. State, 460 So. 2d 824 (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 from himself to Hemby, who was immediately aware that the shaving kit contained marijuana. The shaving kit clearly passed from Meek’s hands to another’s, while Meek had the requisite intent to get this item out of his possession.

There is no logical conclusion other than that Meek knew what was in the shaving kit, and he intended to conceal it by getting it out of his hands into the hands of another. Hemby kicked it into the side of the road in order to make law enforcement officers aware of the contents being marijuana.

To prove a transfer there is no need to show an intent to sell, as is necessary under an indictment for possession with intent to sell. We find that the only intent necessary is an intent to relinquish possession and control. The intent of the recipient is immaterial. All that is required is that Meek, the transferor, have knowledge of the character and presence of the controlled substance and that he intentionally transfer it to another with the intent to part with possession and control. That is exactly what occurred here.

Meek also argues that because Hemby never took the marijuana but immediately handed it back to Meek, the transfer was frustrated and never occurred. We have stated that possession, no matter how fleeting, is sufficient to sustain a conviction for possession of cocaine with intent to deliver. See Berry v. State, 652 So. 2d 745 (Miss. 1995). Likewise, the fact that the handling by Hemby was momentary should not be a factor in determining whether there was a transfer in fact.