''Constructive'' Transfer of Drugs in Mississippi
In York v. State, 751 So. 2d 1194 (Miss. 1999)the Mississippi Supreme Court adopted the idea of "constructive transfer" from Roberts v. State, 866 S.W.2d 773 (Tex. Ct. App. 1993).
In York, the defendant argued that the State failed to prove he had sold controlled substances to an undercover agent because there was no hand-to-hand exchange. York, 751 So. 2d at .
The supreme court rejected York's arguments and adopted the definition of constructive transfer from Roberts. Id.
In Roberts, an undercover agent paid the defendant for drugs that were transferred from the defendant to an informant (present at the exchange), who gave the drugs to the agent. York, 751 So. 2d at ; Roberts, 866 S.W.2d at 778.
The defendant claimed that because the informant actually transferred the drugs, there was insufficient evidence to convict him of selling drugs to the agent.
The Texas court rejected that argument and found that constructive delivery had occurred. York, 751 So. 2d at ; Roberts, 866 S.W.2d at 778.
It defined constructive delivery as "the transfer of a controlled substance either belonging to the accused or under his control, by some other person or agency, at the instance or direction of the accused." York, 751 So. 2d at ; Roberts, 866 S.W.2d at 778.
A constructive transfer is proven by showing that before the delivery, the transferor had either direct or indirect control of the substance transferred, and the transferor knew of the existence of the transferee. York, 751 So. 2d at ; Roberts, 866 S.W.2d at 778. Since Roberts had knowledge of the transfer and of the undercover agent's existence, he was found to have constructively transferred the drugs. York, 751 So. 2d at ; Roberts, 866 S.W.2d at 778.