Citation. 191 Ariz. 380,956 P.2d 507, 1998 Ariz.266 Ariz. Adv. Rep. 32
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Defendant was convicted the unlawful transfer of marijuana. Defendant agues that State’s theory that he transferred the marijuana to himself is not permitted under the statute.
Synopsis of Rule of Law.
Where the crime is so defined that participation by another is inevitably incident to its commission, the legislature must have intended the other to remain unpunished under that specific crime.
Facts.
Police observed Defendant and Loomer talking on a street corner. Police continued to watch as Defendant approached a different person and handed him two dollars. In exchange, Defendant was observed receiving a small amount of marijuana. State argued that Defendant bought marijuana in order to sell it to Loomer. After Loomer was dismissed from the case, State altered its theory to allege that Defendant was an accomplice in the transfer of marijuana to himself. The Court found him guilty.
Issue.
Whether Defendant’s conviction could stand when the principal was acquitted.
Held.
Reversed with respect to the conviction of unlawful transfer of marijuana.
It is unlawful to knowingly transfer marijuana. Transfer by its nature implies movement from one person to another.
Had the Legislature wanted to include the recipient, it could have expressly included such conduct.
A recipient cannot be an accomplice to a transferor of marijuana to himself. Whether a recipient is an accomplice depends upon whether the recipient could have been informed against or indicted for the same offense of which the transferee is accused.
Discussion.
The Court found that Defendant could not be convicted of the crime of unlawful transfer of marijuana due to the language of the statute. Under the statute, there must be another party involved in the transaction. The Court analogized this to one who is guilty of larceny but cannot be guilty of receiving the property stolen. Defendant could have transferred the marijuana to Loomer, but once Loomer was dismissed from the case, Defendant could no longer be found guilty of the transfer.
