59 Wn. App. 61, THE STATE OF WASHINGTON, Respondent, v. ROBERT L. CAMPBELL, Appellant.

[No. 23061-1-I. Division One.      August 27, 1990.]

THE STATE OF WASHINGTON, Respondent, v. ROBERT L. CAMPBELL, Appellant.

[1] Controlled Substances - Delivery - Elements - Constructive Transfer Use of Intermediary. The constructive transfer of a controlled substance constitutes a "delivery" under RCW 69.50.101(f) when a criminal defendant transfers the substance to a third party who, at the defendant's direction, transfers it to the intended recipient.

[2] Criminal Law - Trial - Instructions - Definition of Element - Definition of Term in Definitional Instruction. The failure to define a term used in an instruction defining an element of a crime does not constitute reversible error if the defendant did not request a definitional instruction and the ordinary meaning of the term, as ascertained from a dictionary, includes the meaning intended by the court.

 62    STATE v. CAMPBELL     Aug. 1990 
59 Wn. App. 61, 795 P.2d 750

[3] Indictment and Information - Bill of Particulars - Failure To Request - Effect. A criminal defendant waives an objection to the specificity of the information by not requesting a bill of particulars.

      Nature of Action: The defendant was charged with delivering a controlled substance by placing cocaine on an automobile seat where, at the defendant's direction, a third person picked it up and handed it to an undercover police officer.

      Superior Court: The Superior Court for King County, No. 88-1-01992-1, R. Joseph Wesley, J., on September 15, 1988, entered a judgment on a verdict of guilty.

      Court of Appeals: Holding that the defendant had constructively transferred the cocaine and that the information and instructions were sufficient, the court affirms the judgment.

      Anna-Mari Sarkanen of Washington Appellate Defender Association, for appellant.

      Norm Maleng, Prosecuting Attorney, and James Cline, Deputy, for respondent.

      WINSOR, J.-Robert Campbell appeals a judgment and sentence for delivering a controlled substance in violation of the Uniform Controlled Substances Act, RCW 69.50.401(a). We affirm.

      On October 5, 1987, Campbell sold cocaine to H.W. Gordon, a King County police officer working undercover for the Drug Enforcement Unit. The sale was accomplished through an intermediary: Campbell placed the cocaine on a car seat, where at his direction a third person, B., picked it up and handed it to Officer Gordon.

 Aug. 1990         STATE v. CAMPBELL     63 
59 Wn. App. 61, 795 P.2d 750

          Campbell was charged with violating RCW 69.50.401 (a) by "deliver[ing] to H.W. Gordon, a certain controlled substance, and a narcotic drug, to-wit: cocaine". He was tried before a jury, which was instructed that to convict Campbell, it must find beyond a reasonable doubt that "the defendant delivered a controlled substance". The jury was also instructed that "[d]eliver means the transfer of a controlled substance from one person to another." The jury found Campbell guilty as charged.

      The issue presented is whether evidence that Campbell transferred cocaine to B., who then transferred the cocaine to Officer Gordon, was sufficient to prove that Campbell committed a delivery under the law of this case. We hold that it is.

[1] A delivery within the meaning of RCW 69.50.401(a) can be accomplished by "the actual, constructive, or attempted transfer" of a controlled substance "from one person to another". RCW 69.50.101(f). A constructive transfer is "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." Davila v. State, 664 S.W.2d 722, 724 (Tex. Crim. App. 1984) (interpreting parallel provision of Texas code which, like RCW 69.50, is derived from the Uniform Controlled Substances Act); accord, Reed v. State, 733 S.W.2d 556, 558 (Tex. Ct. App. 1986). The evidence shows that Campbell directed a constructive transfer of cocaine; he therefore committed a delivery prohibited by RCW 69.50.401(a). 1 Thus, it is inarguable that Campbell

1 Courts in other states which have enacted the Uniform Controlled Substances Act have reached the same result, namely, that delivery through an intermediary is a "constructive transfer", and thus is a delivery under the act. E.g., Laird v. State, 483 N.E.2d 68 (Ind. 1985) (delivery made by giving controlled substance to another and instructing her to give it to a third person); State v. Jochims, 241 N.W.2d 25, 28 (Iowa 1976) (defendant made constructive delivery by giving amphetamines to accomplice, who turned them over to undercover agent; held that defendant need not make personal delivery to be guilty under the statute); State v. Howell, 196 Neb. 832, 246 N.W.2d 479 (1976) (unlawful delivery includes transfer accomplished through an accomplice, i.e., a constructive delivery).

 64    STATE v. CAMPBELL     Aug. 1990 
59 Wn. App. 61, 795 P.2d 750

could have been convicted of a delivery by constructive transfer.

      Campbell would have us hold, however, that his conviction must be reversed because the jury was not instructed on constructive transfer and he was not charged with delivery by constructive transfer. 2 We decline to do so.

[2] The jury was instructed that a delivery is defined as a transfer from one person to another. Transfer was not defined for the jury, nor was its ordinary meaning limited by reference to any one of the particular modes of transfer specified in RCW 69.50.101(f). Consequently, determination of the meaning of the word transfer was left to the common understanding of the jury. Cf. State v. Scott, 110 Wn.2d 682, 691-92, 757 P.2d 492 (1988); State v. Ng, 110 Wn.2d 32, 44-45, 750 P.2d 632 (1988). Significantly, transfer is commonly understood as meaning "to cause to pass from one person or thing to another", i.e., to make a constructive transfer; as well as "to carry or take from one person or place to another", i.e., to make an actual transfer. Webster's Third New International Dictionary 2426-27 (1971). 3

      We hold that because the ordinary meaning of the word transfer includes constructive transfers such as Campbell's, the instructions given were sufficiently broad to encompass Campbell's acts. Accordingly, although the better practice would have been to instruct the jury on constructive transfer, the court's failure to do so, particularly absent a request by defendant, was not reversible error.

[3] We are also unwilling to reverse on the ground that the information did not charge Campbell with delivery by

2 Campbell also argues that he was only liable as an accomplice to B. We find no merit in this argument.

     3The common understanding of a term may be determined by reference to a dictionary definition. E.g., Brenner v. Leake, 46 Wn. App. 852, 854-55, 732 P.2d 1031 (1987).

add pages 65 through 76 here

 Aug. 1990         SHORELINE v. EMPLOYMENT SECURITY     65 
59 Wn. App. 65, 795 P.2d 1178

constructive transfer. If Campbell was confused by the information charging a nonspecific delivery, he could have moved for the State to specify in the information whether he was being charged with committing a delivery by actual or constructive transfer. He did not do so, therefore any problems relating to the specificity of the information are not subject to review. State v. Holt, 104 Wn.2d 315, 320-21, 704 P.2d 1189 (1985) (so long as information sets forth elements of the crime charged, information cannot be challenged on appeal unless defendant timely requested a bill of particulars).

The judgment and sentence are affirmed.

GROSSE, A.C.J., and FORREST, J., concur.