WPIC 50.07 Deliver—Definition

Use this instruction for controlled substance or legend drug cases only. Do not use this instruction to define “deliver” or “delivery” in other contexts. Use bracketed material as appropriate.

Do not use “attempted” for controlled substance offenses. See discussion in the Comment below.

RCW 69.50.101(i) and RCW 69.41.010(4).

Actual delivery. Delivery requires the active task of relinquishing control to another. State v. Martinez, 123 Wn.App. 841, 99 P.3d 418 (2004) (insufficient evidence of actual delivery).

Constructive delivery. Constructive delivery is not defined in the statute. However, State v. Campbell, 59 Wn.App. 61, 795 P.2d 750 (1990), defines constructive transfer as “the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance or direction of the defendant.” State v. Campbell, 59 Wn.App. at 63.

In State v. Campbell, 59 Wn.App. 61, 795 P.2d 750 (1990), the defendant placed cocaine on a car seat where a third person, acting at the defendant's direction, picked it up and delivered it to an undercover police officer. At trial, the jury was instructed that “deliver means the transfer of a controlled substance from one person to another.” The trial court did not define the word “transfer” for the jury. On appeal, the defendant argued that his conviction should be reversed because the jury was not instructed on constructive transfer. The Court of Appeals noted that because the word “transfer” was not defined, the determination of the meaning of the word was left to the common understanding of the jury. The court also noted that the word “transfer” is commonly understood as meaning “to cause to pass from one person or thing to another” or “to carry or take from one person or place to another.” The court then held that because the ordinary meaning of the word “transfer” includes constructive transfers such as the defendant's, the instructions given were sufficiently broad to encompass the defendant's acts. Accordingly, the court found that there was no reversible error but cautioned that the better practice would have been to instruct the jury on constructive transfer.

Attempt. The 1993 amendment to RCW 69.50.101(i), applicable to controlled substances, removed the word “attempted” from the definition of “deliver.” The definition of “deliver” in RCW 69.41.010(3), applicable to legend drugs, still contains the word “attempted.”

Purchaser. A purchaser of controlled substances does not “deliver” within the meaning of the Uniform Controlled Substances Act. “[A] person who transfers undertakes the active task of relinquishing control to another. The person who takes control does not ‘transfer’ or ‘deliver’, but accepts the transfer or delivery.” State v. Morris, 77 Wn.App. 948, 951, 896 P.2d 81 (1995). Nor is the purchaser of a controlled substance liable as an accomplice to the delivery. State v. Morris, 77 Wn.App. at 951.