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2011 PA Super 201
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
AMY N. KOCH,
No. 1669 MDA 2010
Appeal from the Judgment of Sentence of July 20, 2010, in
the Court of Common Pleas of Cumberland County,
Criminal Division, at No.: CP-21-CR-0002876-2009
BEFORE: BOWES, FREEDBERG, and COLVILLE,* JJ.
OPINION BY BOWES, J.:
Filed: September 16, 2011
Amy N. Koch appeals the July 20, 2010 judgment of sentence of
possession with intent to deliver (“PWID”) (marijuana) and possession of a
controlled substance (marijuana) as an accomplice. After careful review, we
reverse and remand for a new trial.
The evidence revealed the following course of events. A confidential
informant apprised police that Norman Koch, a/k/a Matt Koch, was selling
cocaine and that Koch resided with his sister, Appellant herein, and
Dallas Conrad, her paramour, at an address on Aeronca Street in North
Middleton Township. Based on that information, police conducted two trash
pulls at the residence, which yielded two baggies, one containing cocaine
Retired Senior Judge assigned to the Superior Court.
residue, the other marijuana residue.
N.T. Trial, 5/26-27/10, at 15.
Detective Timothy Lively applied for and obtained a search warrant for
Appellant’s residence and on March 25, 2009, at approximately 6:05 p.m.,
members of the Cumberland County Drug Task Force executed the search
warrant on Appellant’s home. The officers, after identifying themselves and
stating their purpose, were granted access to the house. Id. at 17. Present
were Appellant, her brother Norman Koch, and Dallas Conrad.
Officer Richard Grove of the North Middleton Police Department and
assigned to the task force testified that he was involved in the search of the
master bedroom. He found two individual baggies of marijuana and seven
hundred dollars in a dresser drawer containing male underwear and socks.
On top of another longer dresser located in the room, he found a men’s
shoebox containing a bong, two pipes for smoking marijuana, a grinder used
to separate stems and seeds from the leaves, Phillies Blunts cigars, and
sandwich bags. In a basement freezer, other officers recovered a small bag
of marijuana and a marijuana bud. Id. at 31. Scales containing residue of
marijuana were located on top of the refrigerator, along with a marijuana
The task force also seized two cell phones, one of which Appellant
identified as hers.
The other phone was subsequently identified as her
The text messages on Appellant’s phone were transcribed, and
the Commonwealth offered, over objections as to authenticity and hearsay,
testimony and a transcript of what it described as thirteen drug-related text
The jury returned a verdict of guilty as an accomplice on the PWID
charge, guilty as an accomplice on the possession charge, and acquitted
Appellant of conspiracy to commit possession with intent to deliver.
Appellant’s timely post-trial motions raising weight and sufficiency issues
Post-sentence motions also were denied.
appealed and complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The trial court issued
its opinion pursuant to Rule 1925(a), and the matter is ripe for our review.
Appellant raises two issues for our consideration:
1. Did the trial court err in admitting text messages and
transcripts of text messages over the objection of defense
counsel, where the text messages were not authenticated,
the author of the text messages could not be ascertained and
were ultimately offered for the truth of the matter asserted?
2. Whether the finder of fact erred in finding there was sufficient
evidence to prove all the requisite elements of possession
with intent to deliver a controlled substance and simple
possession beyond a reasonable doubt, where the evidence
presented was that of text messages whose sender was
unknowable and there was no other evidence that Appellant
engaged in possessing drugs for delivery or the simple
possession of drugs?
Appellant’s brief at 7.
As Appellant’s second issue challenging the sufficiency of the evidence,
if meritorious, would result in discharge, we turn to that issue first.
Furthermore, in conducting our analysis, we consider all of the evidence
Commonwealth v. Dale, 836 A.2d 150 (Pa.Super. 2003). Consequently,
our examination is unaffected by our subsequent resolution of the
evidentiary issues raised by Appellant.
In reviewing a sufficiency of the evidence claim, we must determine
whether the evidence admitted at trial, as well as all reasonable inferences
drawn therefrom, when viewed in the light most favorable to the verdict
Commonwealth v. Moreno, 14 A.3d 133 (Pa.Super. 2011). Additionally,
we may not reweigh the evidence or substitute our own judgment for that of
the fact finder.
Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super.
2009). The evidence may be entirely circumstantial as long as it links the
accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
In order to convict an accused of PWID under 35 P.S. § 780113(a)(30), the Commonwealth must prove that that he “both possessed
the controlled substance and had an intent to deliver that substance.”
Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super. 2003).
Pennsylvania courts interpreting § 780-113(a)(30), as it applies to PWID,
have concluded that the Commonwealth must establish mens rea as to the
possession element. Commonwealth v. Mohamud, 15 A.3d 80 (Pa.Super.
2010). When determining whether a defendant had the requisite intent to
deliver, relevant factors for consideration are "the manner in which the
controlled substance was packaged, the behavior of the defendant, the
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007).
Additionally, expert opinion testimony is also admissible "concerning whether
the facts surrounding the possession of controlled substances are consistent
with an intent to deliver rather than with an intent to possess it for personal
use." Id. at 1238. We held in Commonwealth v. Bull, 618 A.2d 1019,
1021 (Pa.Super. 1993), aff'd, 650 A.2d 874 (Pa. 1994), cert. denied, 515
U.S. 1141, 115 S.Ct. 2577, 132 L.Ed.2d 827 (1995), that such expert
testimony, coupled with the presence of drug paraphernalia, is sufficient to
establish intent to deliver.
Appellant assails the sufficiency of evidence that she possessed the
controlled substance with intent to deliver. Viewing the evidence in the light
most favorable to the Commonwealth, the quantity of drugs recovered at
her home, scales and packaging materials, the text messages, in addition to
the expert testimony of Detective Lively, we find that the Commonwealth
established PWID beyond a reasonable doubt. Officer Grove testified that he
searched the master bedroom of the home and it contained both male and
female clothing and mail addressed to Appellant and her paramour/codefendant, Dallas Conrad. In a dresser drawer containing male underwear
and socks, the officer located two baggies containing marijuana adjacent to
approximately seven hundred dollars in cash. N.T. Trial, 5/26-27/10, at 21.
A man’s shoebox located on a longer dresser contained a bong, two pipes, a
grinder, sandwich bags, and the Phillies Blunts cigars.
Search of the
basement freezer yielded a small bag of marijuana and a marijuana bud.
Id. at 31.
Detective Lively testified that he had been a member of the
Cumberland County Drug Task Force since 2003 or 2004 and that he had
training and experience in narcotics and drug-trafficking.
Id. at 60.
participated in the search and personally recovered a pipe and electronic
scales from the top of the refrigerator and two cellular phones.
continued that the purpose of searching for cellular phones is that “more
often than not, [they] are used to communicate between dealers and users.”
Id. at 71.
The detective stated that he seized an AT&T cell phone that
Appellant identified as her phone and that he transcribed the text messages
stored in the phone. He segregated those messages that were drug-related
from those that were just general communications. Id. at 82. The detective
related that thirteen of the text messages were drug-related and he
explained to the jury what each meant. He “located these texts back and
forth with regard to what appeared to be the delivery or intent to deliver
controlled substances.” Id. at 99. He then opined, based on his experience
with the way marijuana is delivered, as opposed to personal use, that the
large amount of cash, the fact that there was more than one bag of
marijuana, and scales saturated with marijuana residue, were indicative of
drug sellers rather than users.
He further suggested that the nice house,
expensive furniture and electronics also were more characteristic of dealers.
Id. at 98. He opined that the text messages, together with the pipes and
bongs, also indicated possession.
Id. at 101.
We find such evidence
sufficient to sustain convictions for PWID and possession, and no relief is due
on this basis.
Appellant’s remaining issue is a challenge to the admissibility of the
text message evidence. Our standard of review of such a claim is as follows:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d
893, 904 (2002), certiorari denied, 539 U.S. 919, 123 S.Ct.
2284, 156 L.Ed.2d 137 (2003). See also Commonwealth v
Lewis, 2005 PA Super 341, 885 A.2d 51, 54 (Pa.Super. 2005).
Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa.Super. 2006).
Appellant alleges first that the trial court erred in admitting text
messages into evidence that were not properly authenticated.
insists there was no evidence substantiating that she was the author of the
text messages, nor evidence that drug-related texts were directed to her
because Commonwealth witnesses conceded that another person was using
Appellant’s phone at least some of the time.
Pennsylvania Rule of Evidence 901 provides that authentication is
required prior to admission of evidence.
The proponent of the evidence
must introduce sufficient evidence that the matter is what it purports to be.
Testimony of a witness with personal knowledge that a
matter is what it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). See
also Comment, citing Commonwealth v. Hudson, 414 A.2d 1381 (Pa.
1980). Furthermore, electronic writings typically show their source, so they
can be authenticated by contents in the same way that a communication by
postal mail can be authenticated.
Circumstantial evidence may suffice
where the circumstances support a finding that the writing is genuine. In
the Interest of F.P., a Minor, 878 A.2d 91 (Pa.Super. 2005).
While Detective Lively testified that the cellular phone from which the
messages were recovered belonged to Appellant, he conceded that the
author of the drug-related text messages could not be ascertained.
further acknowledged that some of the text messages referenced Appellant
in the third person and thus, were clearly not written by her.
3/26/10, at 104. Furthermore, the text messages were not complete; it was
evident that some had been deleted. Id. at 89.
The question of what is necessary to authenticate a text message
appears to be an issue of first impression in Pennsylvania. Text messages
are defined as “writings or other data transmitted electronically by cellular
telephones” that constitute an electronic communication for purposes of the
Wiretap Act. See Commonwealth v. Cruttendon, 976 A.2d 1176, 1181
(Pa.Super. 2009), appeal granted, 21 A.3d 680 (Pa. 2011). In determining
what is required to authenticate text messages, we look first to the
treatment accorded other electronic communications.
In In the Interest of F.P., a Minor, supra, this Court examined the
issue of whether instant message transcripts had been appropriately
The Commonwealth sought to introduce instant messages
from screen name “Icp4Life30” to WHITEBOY Z.
The victim identified
himself as WHITEBOY Z and testified that he thought Icp4Life30 was the
defendant. In that case, the victim testified about the events that occurred
The defendant had threatened the victim via instant
message, and when this was reported to the school counselor, there was a
meeting between defendant and school officials. A mediation between both
students was conducted by a school guidance counselor.
The contents of
the instant messages referred to these ongoing events and in one instance,
the defendant referred to himself by his first name.
defendant never denied sending the messages.
We concluded that this
circumstantial evidence sufficiently identified defendant as “Icp4Life30” and
authenticated the instant message transcripts.
Importantly, in In the Interest of F.P., a Minor, supra, we rejected
the argument that e-mails or text messages are inherently unreliable due to
their relative anonymity and the difficulty in connecting them to their author.
Id. at 95.
We reasoned that the same uncertainties existed with written
documents: “A signature can be forged; a letter can be typed on another's
typewriter; distinct letterhead stationary can be copied or stolen.”
Concluding that electronic communications, such as e-mail and instant
messages, can be authenticated within the framework of Pa.R.E. 901 and
our case law, we declined to create new rules governing the admissibility of
such evidence. We held that such evidence is to be evaluated on a case-bycase basis as any other document to determine whether there has been an
adequate foundational showing of its relevance and authenticity.
Our approach and rationale in In the Interest of F.P., a Minor, was
cited favorably by the Supreme Court of North Dakota in State v.
Thompson, 777 N.W.2d 617, 624-627 (N.D. 2010), a case of first
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impression involving the authenticity of text messages. That state’s highest
court performed an extensive review of other jurisdictions’ authenticity
requirements for electronic communications generally and summarized its
findings. In every case cited therein, authentication involved more than just
confirmation that the number or address belonged to a particular person.
Often it was important that there be evidence that the e-mails, instant
messages, or text messages themselves contained factual information or
references unique to the parties involved.
See Thompson, supra and
cases cited therein; e.g., Dickens v. State, 927 A.2d 32, 36-38 (Md.App.
2007) (threatening text messages received by victim on cell phone were
properly authenticated when circumstantial evidence provided adequate
proof message was sent by defendant).
In People v. Chromik, 408 Ill. App. 3d 1028, 946 N.E.2d 1039
(Ill.App.3 2011), an Illinois appellate court held that a transcription of text
messages created by the school principal as read to him by the victim was
While the transcription was not completely accurate, the dates
and times of text messages sent from the defendant to the victim were
consistent with phone company records. The victim also testified as to the
contents of the text messages and the accuracy of the principal’s
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Similarly, in State v. Taylor, 632 S.E.2d 218 (N.C.App. 2006), the
court held that testimony from the network’s strategic care specialist and the
manager of a wireless store was sufficient to authenticate the transcription
of the text messages sent to and from the victim's assigned cellular
The court held further that the text messages
themselves contained sufficient circumstantial evidence tending to show the
identity of the person who sent and received them.
Implicit in these decisions is the realization that e-mails and text
messages are documents and subject to the same requirements for
authenticity as non-electronic documents generally.
A document may be
authenticated by direct proof, such as the testimony of a witness who saw
the author sign the document, acknowledgment of execution by the signer,
admission of authenticity by an adverse party, or proof that the document or
its signature is in the purported author's handwriting.
Evidence, §§ 219-221 (E. Cleary 2d Ed. 1972).
See McCormick on
A document also may be
authenticated by circumstantial evidence, a practice which is “uniformly
recognized as permissible.”
Commonwealth v. Brooks, 508 A.2d 316
(Pa.Super. 1986), (citing, e.g., Commonwealth v. Nolly, 138 A. 836 (Pa.
1927) (letters authenticated by contents: facts known only to sender and
recipient); Commonwealth v. Bassi, 130 A. 311 (Pa. 1925) (unsigned
letter authenticated by defendant's nickname written on it, along with
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contents indicating knowledge of matters familiar to both defendant-sender
and witness-recipient); and McFarland v. McFarland, 107 A.2d 615, 616,
As these cases illustrate, the difficulty that frequently arises in e-mail
and text message cases is establishing authorship.
Often more than one
person uses an e-mail address and accounts can be accessed without
permission. In the majority of courts to have considered the question, the
mere fact that an e-mail bears a particular e-mail address is inadequate to
authenticate the identity of the author; typically, courts demand additional
Text messages are somewhat different in that they are intrinsic to the
cell phones in which they are stored. While e-mails and instant messages
can be sent and received from any computer or smart phone, text messages
are sent from the cellular phone bearing the telephone number identified in
the text message and received on a phone associated with the number to
which they are transmitted. The identifying information is contained in the
text message on the cellular telephone. However, as with e-mail accounts,
cellular telephones are not always exclusively used by the person to whom
the phone number is assigned.
Such was the case herein.
Detective Lively testified that he
transcribed the text messages, together with identifying information, from
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the cellular phone belonging to Appellant. He acknowledged that he could
not confirm that Appellant was the author of the text messages and that it
was apparent that she did not write some of the messages. Regardless, the
trial court found that the text messages were sufficiently authenticated to be
admissible. The court reasoned that doubts as to the identity of the sender
or recipient went to the weight of the evidence, rather than to its
Authentication is a prerequisite to admissibility.
detective’s description of how he transcribed the text messages, together
with his representation that the transcription was an accurate reproduction
of the text messages on Appellant’s cellular phone, is insufficient for
Appellant did not author all of the text messages on her phone. We held in
In the Interest of F.P., a Minor, and courts of other jurisdictions concur,
that authentication of electronic communications, like documents, requires
more than mere confirmation that the number or address belonged to a
particular person. Circumstantial evidence, which tends to corroborate the
identity of the sender, is required.
Glaringly absent in this case is any evidence tending to substantiate
that Appellant wrote the drug-related text messages.
No testimony was
presented from persons who sent or received the text messages. There are
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no contextual clues in the drug-related text messages themselves tending to
reveal the identity of the sender.
In addition to evidence that Appellant
identified the phone as hers, the trial court relied upon the fact that the
cellular phone was found on the table in close proximity to Appellant. Trial
Court Opinion, 11/30/10, at 13.
However, we find Appellant’s physical
proximity to the telephone to be of no probative value in determining
whether she authored text messages days and weeks before.
facts, the admission of the text messages constituted an abuse of discretion.
Furthermore, we find merit in Appellant’s position that the text
messages constituted inadmissible hearsay. The Commonwealth argued at
trial that the out-of-court statements were not offered for the truth of the
matter asserted, and thus were not hearsay. Instead, they were offered to
“prove the fact that these things were said on this phone.” N.T. Trial, 5/2526/10, at 75.
Counsel for the Commonwealth elaborated:
“I am not
offering it to prove that on this date and time she actually delivered, you
know, this marijuana or – I’m just showing that these statements were
made on the phone that belonged to her and that -- that these other types
of statements then would constitute drug receipts, drug statements, and
orders.” Id. Counsel explained further that Detective Lively made a list of
what he determined were thirteen drug-related texts. Id. at 77. It was the
Commonwealth’s intention to have the detective explain the difference
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between the drug-related text messages and the non-drug-related texts to
show that that Appellant’s phone was used in drug transactions, making it
more probable that when she possessed the marijuana, she did so with the
intent to deliver as opposed to personal use. Id. Based on this proffer, the
trial court ruled the text message evidence admissible. For the reasons that
follow, we conclude that the text messages constituted inadmissible hearsay.
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
(a) Statement. A "statement" is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
Pa.R.E. 801. Additionally, Pa.R.E. 802 provides: "Hearsay is not admissible
except as provided by these rules, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute." Pa.R.E. 802.
The Commonwealth’s position that the text messages were not offered
for the truth of the matter is unsupported by the record. The only relevance
of the text messages and precisely the reason the Commonwealth sought to
introduce them was because they demonstrated an intent to deliver.
relevance was not that statements were made, but the content of the
statements. The evidentiary value of the text messages depended entirely
on the truth of their content. See Commonwealth v. Thornton, 431 A.2d
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248 (Pa. 1981). In addition, not only was the evidence improperly admitted,
it was then used by the Commonwealth as the basis for the detective’s
expert opinion testimony that it indicated a drug exchange, and that the
transaction did occur.
Id. at 87, 89.
The mere existence of the text
messages themselves was not enough to prove PWID.
The jurors had to
believe the actual text of the text messages, that is, the matters asserted
therein, to grasp what the text messages were offered at trial to prove.
Nor is there any exception to the hearsay rule that would render these
text messages admissible.
Arguably, the text messages could have been
admitted under the exception to the Pennsylvania hearsay rule for
admissions of a party opponent. See Pa.R.E. 803(25). However, they are
not party admissions because the Commonwealth was unable to prove that
Appellant was the author.
Thus, on the basis of hearsay as well, the
admission of the text messages constituted an abuse of discretion.
The sole question remaining is whether this abuse of discretion
warrants a new trial.
A new trial is mandated where the error is not
harmless beyond a reasonable doubt. As we explained in Commonwealth
v. Thornton, supra, “[t]he doctrine of harmless error is a technique of
appellate review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced that a trial error
was harmless beyond a reasonable doubt. Its purpose is premised on the
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well-settled proposition that ‘[a] defendant is entitled to a fair trial but not a
Thornton, supra at 251.
Accord, Commonwealth v.
Drummond, 775 A.2d 849, 853 (Pa.Super. 2001). In Commonwealth v.
Moore, 937 A.2d 1062 (Pa. 2007), our highest court reaffirmed that an
error may be considered harmless only when the Commonwealth proves
beyond a reasonable doubt that the error could not have contributed to the
Whenever there is a “reasonable possibility” that an error “could
Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004). “An
error may be deemed harmless, inter alia, where the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict.”
Commonwealth v. Moore, supra at
1073. Harmless error exists when the error did not prejudice the defendant
or the prejudice was de minimis or the erroneously admitted evidence was
merely cumulative of other untainted evidence, which was substantially
Passmore, supra at 711.
Our review of the certified record convinces us that the improper
admission of the text message evidence could reasonably have contributed
to the jury’s verdict. This is not a case where the Commonwealth presented
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overwhelming properly admitted evidence regarding Appellant’s involvement
in drug transactions. The Commonwealth's case against Appellant rested on
this evidence and evidence that drugs were found in the bedroom she
shared and in common areas of her home.
No controlled substance was
found on the Appellant’s person, and thus it was incumbent upon the
prosecution to prove constructive possession of the controlled substance to
Commonwealth v. Smith, 497 A.2d 1371 (Pa.Super.
Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591
(1982). Our Supreme Court held in Commonwealth v. Reece, 263 A.2d
463 (Pa. 1970), that it is not a crime to live in a house where illegal activity
occurs if one does not participate in such activity.
Proof of constructive
possession requires that one had both power to control and intent to
exercise control over the narcotics. Commonwealth v. Hoetzel, 426 A.2d
669 (Pa.Super. 1981).
But see Commonwealth v. Mudrick, 507 A.2d
1212, 1214 (Pa. 1986) ("even absent a marital relationship[,] constructive
possession may be found in either or both actors if contraband is found in an
area of joint control and equal access."). In order to prove possession with
intent to deliver, the Commonwealth must prove beyond a reasonable doubt
both that the defendant possessed the controlled substance and had the
intent to deliver. Commonwealth v. Carpenter, 955 A.2d 411 (Pa.Super.
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2008). The text messages on Appellant’s phone were a vital element of the
Commonwealth’s proof on both charges.
The prejudicial effect of the improperly admitted text message
evidence was so pervasive in tending to show that Appellant took an active
role in an illicit enterprise that it cannot be deemed harmless. Even with the
improperly admitted evidence, the jury only found Appellant liable as an
accomplice.1 Accordingly, we conclude that the erroneous admission of the
highly prejudicial electronic communications herein was not harmless error
and a new trial is warranted.
Judgment of sentence reversed.
Case remanded for new trial.
One may conceivably be found guilty of PWID as an accomplice. In Commonwealth v.
Murphy, 844 A.2d 1228 (Pa. 2004), a state trooper, acting undercover, approached the
defendant and asked him if he knew where he could buy drugs. The defendant signaled to
another man, who eventually accepted the trooper's money in exchange for drugs. We
upheld the defendant’s conviction as an accessory, holding that in order to be an accessory
to the offense of delivering drugs, one must have had the intent to actively aid in the
delivery and then aid the deliverer.
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