dissenting:
I have difficulty in finding that the delivery of one bag containing 1.2 grams of *451marijuana to one individual constitutes three separate and distinct offenses of delivery of marijuana. The majority avoids this hurdle by blundering around in the thicket of double jeopardy to demonstrate multiple offenses.
What the majority fails to consider is a straightforward analysis of our statutory definition of delivery and our case law under it. W.Va.Code, 60A-l-101(g) (1983), defines “delivery” as the “actual, constructive, or attempted transfer from one person to another of ... a controlled substance[.]” * Thus, a delivery involves a transfer either actual, constructive, or attempted. We defined a “constructive transfer” in Syllabus Point 4 of State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977), which involved a similarly worded precursor of W.Va.Code, 60A-l-101(g), as follows:
“Under W.Va.Code, 60A-l-101(f) (1971), ‘constructive transfer’ of a controlled substance means the transfer of a controlled substance belonging to an individual or under his control by some other person or agency at the instance or direction of the individual accused of such constructive transfer.”
See also State v. Presgraves, 174 W.Va. 683, 328 S.E.2d 699 (1985).
In Ellis, the defendant had induced a Mr. Browning to deliver marijuana owned by the defendant to a third party. Mr. Browning did so and took the third party’s money and gave it to the defendant. Others courts have adopted a similar view of the term “constructive transfer” as centering on the defendant’s use of a third party to transfer the controlled substance. See, e.g., Laird v. State, 483 N.E.2d 68 (Ind. 1985); State v. Jochims, 241 N.W.2d 25 (Iowa 1976); State v. Howell, 196 Neb. 832, 246 N.W.2d 479 (1976); State v. McHorse, 85 N.M. 753, 517 P.2d 75 (App.1973); Queen v. State, 662 S.W.2d 338 (Tex.Crim. App.1983); State v. Campbell, 59 Wash. App. 61, 795 P.2d 750 (1990).
The obvious purpose of the constructive transfer doctrine is to prevent the defendant from escaping liability merely because he did not make the actual transfer. If he controlled the method of transfer, he is still criminally liable. A constructive delivery is viewed from the perspective of the defendant’s activities in directing the course of the transfer of the controlled substance. In this case, the defendant himself made the actual transfer by handing one baggie to a single person. He is guilty of a single offense. Consequently, the multiple sentences imposed by the trial court violate double jeopardy principles. See State v. Barnett, 168 W.Va. 361, 284 S.E.2d 622 (1981).
Rather than accept the admitted fact that there was only one transfer, the majority ignores the entire transfer question. I cannot believe the majority intends to skew our law by holding that once a transfer is complete, it is permissible to see who else may utilize the controlled substance and then to indict the defendant for those subsidiary “constructive transfers.” This is a result that no court has accepted to my knowledge. Moreover, it would stretch the definition of constructive transfer far beyond its ordinary meaning. We are committed to the rule of lenity that penal statutes are to be strictly construed against the State and in favor of the defendant. State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988); State v. Brumfield, 178 W.Va. 240, 358 S.E.2d 801 (1987); State v. Hartshorn, 175 W.Va. 274, 332 S.E.2d 574 (1985).
I can only surmise that either the majority did not understand the transfer question, or that it did, but, in its zeal to uphold the conviction, resorted to a contorted double jeopardy analysis. In any event, I dissent.
The entire text of W.Va.Code, 60A-l-101(g), is:
"'Deliver' or ‘delivery’ means the actual, constructive, or attempted transfer from one person to another of (1) a controlled substance, whether or not there is an agency relationship, (2) a counterfeit substance, or (3) an imitation controlled substance.”
The substantive offense of delivery of a controlled substance is set out in W.Va.Code, 60A-4-401 (1983).