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State v. Bates

March 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JERRY WAYNE BATES, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-06220-9. Date filed: 07/29/96. Judge signing: Hon. Janice B. Niemi.

PER CURIAM. -- Jerry Bates was convicted of delivery of cocaine in violation of the Uniform Controlled Substances Act. Under the Uniform Act, "deliver" or "delivery" is defined as:

the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship.

RCW 69.50.101(f). Here, the State proposed and the trial court gave an instruction defining "deliver" as "the actual or constructive or attempted transfer of a controlled substance". But an attempted transfer does not constitute a delivery under the statute as it read at the time of Bates' trial. The State concedes the instruction was error and, under the facts of the case, was not harmless. We have reviewed the record and are satisfied that the State's concession is well taken. Accordingly, the conviction is reversed and the case remanded for a new trial.

19970303 ...


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