## Facts

- Police observed Santiago Cota and Kevin Loomer together on a street corner.
- Officers watched Cota enter a nearby park, give Ronda Shulark $2, and receive a small amount of marijuana, then return to Loomer.
- Cota and Loomer were arrested immediately after the exchange.
- Both were indicted for unlawful sale of marijuana and unlawful transfer of marijuana.
- The trial court dismissed all charges against Loomer for insufficient evidence and directed a verdict for Cota on the sale count.
- The remaining charge against Cota was unlawful transfer of marijuana.
- After Loomer’s dismissal, the State argued Cota was liable as Shulark’s accomplice in the transfer of marijuana to Cota himself; the jury was instructed on accomplice liability and convicted Cota on that theory.
- The court of appeals affirmed; the Arizona Supreme Court granted review.

## Issues

1. Whether a recipient/purchaser of marijuana may be convicted of unlawful transfer as an accomplice to the seller’s transfer of marijuana to that recipient.
2. Whether accomplice liability applies when the charged offense is defined so that participation by the recipient is necessarily incident to the offense’s commission.

## Decision

- The Arizona Supreme Court reversed Cota’s conviction for unlawful transfer of marijuana and remanded.
- The court held that “transfer” requires movement from one person to another and targets the transferor’s conduct.
- Because a recipient’s participation is necessarily incident to a transfer, the recipient is not punishable as an accomplice to that same transfer absent clear legislative authorization.
- Cota could not be treated as Shulark’s accomplice in transferring marijuana to Cota himself.

## Legal Principles

- When an offense is defined such that participation by another person is inevitably incident to its commission, the legislature is presumed not to have intended to punish that other person for that offense via accomplice liability, absent explicit statutory language.
- “Transfer” of contraband implies a transferor and a transferee; criminalizing “transfer” does not, without more, criminalize the transferee’s receipt as the same offense.
- Accomplice liability requires that the alleged accomplice could be charged with the same offense as the principal for the conduct at issue; a recipient who cannot be charged with “transfer” cannot be an accomplice to “transfer.”
- A transferee/recipient cannot be an accomplice to the transferor for the transfer of marijuana to the transferee.

## Conclusion

The court reversed because Arizona’s marijuana “transfer” offense punishes the transferor, and the recipient—whose involvement is necessary to any transfer—cannot be recast as an accomplice to the transfer of marijuana to himself without legislative direction.


State v. Cota, 956 P.2d 507 (Ariz. 1998)