(concurring in part and dissenting in part).
I concur in all respects except as to Issue D., SUFFICIENCY OF EVIDENCE OF DISTRIBUTION. I have no trouble affirming the conviction of the defendant for conspiracy to distribute a controlled substance, but the facts in this case do not support a conviction on the charge of distribution of a controlled substance under SDCL 22-42-2.
The facts clearly show that rather than accepting and distributing the controlled substance, Sondreal rejected the controlled substance because of poor quality. This cannot constitute “distribution.” In fact, rejection is the antithesis of acceptance and distribution. The defect in the majority’s thinking is clear when one considers SDCL 34-20B-l(l) “Administer” and SDCL 34-20B-1(8) “Dispense,” both of which require transfer to the ultimate user. Obviously, the words “Distribute” “Deliver” and “[D]elivery” mean something more than the receipt and rejection of the drugs. Rejection and return of the drugs does not constitute a “transfer” of the drugs within the meaning of SDCL 22-42-2. The activity the statute criminalizes is the dissemination of controlled substances from supplier to user. Although Sondreal intended to pass the drugs on toward the user, he did not do so. In fact, Hanson distributed to Sondreal and Sondreal rejected that delivery. Therefore, this conviction should not stand on the distribution charge.