DRUG OFFENSES: DISTRIBUTING - ELEMENTS
No person may be convicted of distributing a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, distributing/(transporting with the intent to distribute)/([soliciting the use]/[using the services] of a person less than 18 years of age to cultivate/distribute/manufacture/(attem pt to manufacture);
Third, the controlled dangerous substance of [Name of Substance].
Statutory Authority: 63 O.S Supp. 1995, § 2-401(A)(1).
Section 2-401(A)(1) prohibits unlawful transfer and delivery of the controlled dangerous substances defined in Schedules I through V of Article II of the Uniform Controlled Substances Act, enacted in 1971. Schedules I through V are codified at 63 O.S. 1991 & Supp. 1995, §§ 2-203 through 2-212. The statute prescribes no minimum quantity of any contraband substances that must exist in order to invoke the statutory prohibitions. The State is not required to establish that any traceable or specific usable quantity of a prohibited narcotic substance was involved. The quantity of the drug involved need not be sufficient to produce a stimulating or depressing effect on the nervous system, so long as the substance is within the statutory proscription of controlled dangerous substances. Whitehorn v. State, 561 P.2d 539 (Okl. Cr. 1977); Cox v. State, 551 P.2d 1125 (Okl. Cr. 1976); Spriggs v. State, 511 P.2d 1139 (Okl. Cr. 1973); Doyle v. State, 511 P.2d 1133 (Okl. Cr. 1973).
It must be noted that the statutory language, which prohibits distributing illegal narcotic substances, does not specifically refer to "sale" as a proscribed type of transfer. The statutory definitions of these transactions, set forth at 63 O.S. Supp. 1995, § 2-101, illustrate the legislative intent to incorporate the sale of unlawful drugs into the described conduct while not requiring the element of compensation. For example, "distribute" is defined at 63 O.S. Supp. 1995, § 2-101(12) as follows: "'Distribute' means to deliver other than by administering or dispensing a controlled substance." "Dispensing," defined at 63 O.S. Supp. 1995, § 2-101(11), also incorporates use of the term "deliver," which is defined at 63 O.S. Supp. 1995, § 2-101(10) as follows: "'Deliver' or 'delivery' means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance, whether or not there is an agency relationship."
The statutory definition of "dispense" in 63 O.S. Supp. 1996, § 2-101(11) is as follows:
"Dispense" means to deliver a controlled dangerous substance to an ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for such distribution. "Dispenser" is a practitioner who delivers a controlled dangerous substance to an ultimate user or human research subject"
After reviewing this definition, the Committee concluded that the inclusion of "dispense" in 63 O.S. Supp. 1996, § 2-401 as a prohibited act was not appropriate, because "dispense" is clearly a lawful act based on the definition. Therefore, the Committee has eliminated "dispense" or "dispensing" from the list of unlawful acts included in OUJI-CR 6-2, 6-4, and 6-5.
Thus, the conduct prohibited by section 2-401(A)(1) includes not only dealing and selling, but also sharing with or dividing among persons any contraband drug. The element of compensation is immaterial. Goodner v. State, 546 P.2d 653 (Okl. Cr. 1976); Woodruff v. State, 539 P.2d 28 (Okl. Cr. 1975).
The statutory definition of "distribute" precludes use of the "procuring agent" defense which once flourished in Oklahoma. See Yetter v. State, 528 P.2d 345 (Okl. Cr. 1974); Posey v. State, 507 P.2d 576 (Okl. Cr. 1973); Jones v. State, 481 P.2d 169 (Okl. Cr. 1971). As delineated in those decisions, the "procuring agent" defense was available where an individual acted solely in the capacity of an agent for the purchaser or recipient in a narcotics transaction, and had neither a part in prearranging the sale on behalf of the seller nor a personal or financial interest in the sale. The underlying theory was that the agent of the buyer or recipient who acted in no capacity other than that of agency did not partake in a transaction tantamount to a sale, barter, exchange, or gift, all of which were prohibited by the narcotics laws at that time. The protection of the "procuring agent" defense did not extend to the agent of the seller.
Statutory revision of the narcotics laws in 1971 rendered the agency issue irrelevant. Tipton v. State, 528 P.2d 1115, 1117 (Okl.Cr. 1974). See also Banks v. State, 654 P.2d 631, 632 (Okl.Cr. 1982). Any person who unlawfully distributes a dangerous controlled substance, regardless of agency or personal or financial stake in the transaction, is within the purview of section 2-401(A)(1). Crow v. State, 551 P.2d 279 (Okl. Cr. 1976); Harwood v. State, 543 P.2d 761 (Okl. Cr. 1975); Yetter, supra.
Although it is axiomatic that in every case the possession of a controlled substance by the defendant precedes the actual distribution of the drug, or the intent to distribute, an instruction on the lesser included offense of simple possession, as delineated at 63 O.S. Supp. 1996, § 2-402, is not warranted in every case. Rather, the evidence must reasonably tend to prove that the defendant's contact with a proscribed drug constituted simple possession, and must not raise the inference that the defendant's conduct constituted either distribution, intent to distribute, or no crime at all. For example, in McKee v. State, 531 P.2d 343 (Okl. Cr. 1975), the defendant urged on appeal from his conviction for unlawful distribution of marijuana that the trial court's refusal to instruct the jury concerning the lesser included offense of possession was error. Upon reviewing the record, the Court of Criminal Appeals noted that the State's evidence proved the defendant to be guilty of unlawful distribution of marijuana, or of nothing at all, whereas the defendant's evidence, if credited, established that the defendant merely happened to be in the vicinity of a narcotics transaction, unaware of the presence of the unlawful drug and lacking any dominion or control of it. The court held such evidence insufficient to support a conviction for simple possession, and affirmed the refusal to give an instruction inapposite to the proof adduced at trial. See also Wilson v. State, 568 P.2d 1323 (Okl. Cr. 1977); King v. State, 562 P.2d 902 (Okl. Cr. 1977); Capehart v. State, 559 P.2d 861 (Okl. Cr. 1977); Massengale v. State, 556 P.2d 282 (Okl. Cr. 1976); Price v. State, 546 P.2d 632 (Okl. Cr. 1976); Morgan v. State, 545 P.2d 1265 (Okl. Cr. 1976).