Filing # 28842696 E-Filed 06/23/2015 04:05:47 PM o APPENDIX D o o o o Q Committee on Standard Jury Instructions (Criminal) Honorable Jerri L. Collins, Chair Report 2015-03
Search - 1 Result - AMCI 2d 6404 POSSESSION OF A CONTROLLED OR COUNTER... Page 1 of 3 FOCuS442 Terms Search Within [Original Results (1-1) V (m Advanced... View Tutoria View Full V 1 of 1 Book Browse 2-64 Arkansas Model Jury Instructions - Criminal AMCI 2d Pages: 3 6404 (Copy w/ Cite) 2-64 Arkansas Madei Jury Instructions - Criminal AMCI 2d 6404 Arkansas Model Jury Instructions - Criminal Copyright 2014, Matthew Bender & Company, Inc., a member of the LexisNexis Group. CHAPTER 64 CONTROLLED SUBSTANCES 2-64 Arkansas Model Jury Instructions - Criminal AMCI 2d 6404 Arkansas Model Jury Instructions - Criminal AMCI 2d 6404 AMCI2d 6404 POSSESSION OFACONTROLLED OR COUNTERFEITSUBSTANCE possessing (Defendant(s)) [is] [are] charged with the offense of [unlawfully ] (controlled substance) [possessing a counterfeit substance]. To sustain this charge the State must prove the following things beyond a reasonable doubt: First: That (defendant(s)) possessed [ (substance), a controlled substance;] [a counterfeit substance. A counterfeit substance is a non-controlled substance which (by overall dosage unit appearance including color, shape, size, markings, packaging and labeling) (or) (upon the basis of representations made to the recipient) purports to (be) (have the physical or psychological effect associated with) a controlled substance;] and Second: That [he] [they] did so [knowingly] [or] [purposely] [There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons. (If two or more persons share actual or constructive possession of a thing, either [or both] may be found to be in possession.)] NOTE ON USE Use this instruction in conjunction with AMCI 2d 6404-D (except when the charge relates to a counterfeit substance), 8101, 8301-VF, and an appropriate Stage Two explanatory instruction and verdict form. If, under Ark. Code Ann. 5-64-401, a defendant found guilty of a possession offense is alleged to have previously been convicted of a possession offense, then AMCI 2d 9201 or 9202 (depending on whether the previous conviction aliegation is disputed), appropriately modified, should be given in Stage Two along with an appropriate standard verdict form from Chapter 93. The bracketed paragraph will ordinarily be given only when constructive possession is an issue. http://web.lexisnexis.com/research/retrieve? rn=bc9a3cf7994b637e4bd7cd82035bd40e&c... 5/28/2015
6.06 POSSESSION A person is in possession of an object if the person knowingly procured or received the thing possessed or was aware of his/her control of it for a sufficient period to have terminated his/her possession. The law recognizes two kinds of possession: actual possession and constructive possession. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing for a sufficient period to terminate his/her possession of it, either directly or through another person or persons, is then in constructive possession of it. The fact that a person is near an object or is present or associated with a person who controls an object, without more, is not sufficient to support a finding of possession. [The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.] The element of possession has been proved if you find beyond a reasonable doubt that the defendant had actual or constructive possession[, either solely or jointly with others]. Commentary Possession is a voluntary act only if the defendant knowingly procured or received the thing possessed or if the defendant was aware of the defendant's control of it for a sufficient period to have been able to terminate the defendant's possession. HRS 702- XC1v
ICJI 403 POSSESSION OF A CONTROLLED SUBSTANCE INSTRUCTION NO. In order for the defendant to be guilty of Possession of a Controlled Substance, the state must prove each of the following: 1. On or about [date] 2. in the state of Idaho 3. the defendant [name] possessed any amount of [name of substance], and 4. the defendant either knew it was [name of substance] or believed it was a controlled substance. If any of the above has not been proven beyond a reasonable doubt, you must find defendant not guilty. each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty. Comment I.C. 37-2 /32(a). If the charge is possession of a controlled substance by an inmate, see ICJI 604. If the defendant is charged with "second offense" drug possession, I.C. 37-2739, that issue should be presented in a bifurcated proceeding. In State v. Fox, 124 Idaho 924, 866 P.2d 181 (1993), the Supreme Court held that I.C. 37-2732(c) does not set forth any mental state as an element of the crime of possession of a controlled substance. "Thus, as [this statute] does not expressly require any mental element and I.C. 18-114 only requires a general intent, we conclude that the offense only requires a general intent, that is, the knowledge that one is in possession of the substance." The Court held that the defendant's lack of knowledge that the substance was illegal (as a controlled substance) was irrelevant. In order to establish possession of a controlled substance, a defendant need not have actual physical possession of the substance; the state need only prove that the defendant had such dominion and control over the substance to establish
constructive possession. State v. Kopsa, 126 Idaho 512, 887 P.2d 57 (Ct. App. 1994). Constructive possession of a controlled substance exists where a nexus between the accused and the substance is sufficiently proven so as to give rise to the reasonable inference that the accused was not simply a bystander but, rather, had the power and intent to exercise dominion and control over the substance. State v. Rozajewski, 130 Idaho 644, 945 P.2d 1390 (Ct. App. 1997). Even trace or residual quantities of cocaine fall within the scope of I.C. 37-2732(c). State v. Groce, 133 Idaho 144, 983 P.2d 217 (Ct. App. 1999). The statute does not contain a mental element. The committee concluded, based upon State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997), a mental element as set forth in element 4 should be included.
4 16 Possession [1] Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing [either directly or through another person]. [2] If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession. Committec Note When there is no evidence that the possession was either constructive or joint, as, for example, when the substance or object was found on the defendant's person, it generally will be unnecessary to instruct the jury regarding the definition of possession. See People v. Rentsch, 167 Ill.App.3d 368, 521 N.E.2d 213, 118 Ill.Dec. 145 (2d Dist.1988). Give paragraph [1] only when there is an issue as to whether the defendant was in constructive possession. Give paragraph [2] only when there is an issue ofjoint possession. See People v. Pittman, 216 Ill.App.3d 598, 575 N.E.2d 967, 159 Ill.Dec. 160 (4th Dist.1991). Use applicable paragraphs and bracketed material when appropriate. The bracketed numbers are present solely for the guidance of court and counsel and should not be included in the instruction submitted to the jury. For an example of the use of this instruction, see Sample Set 27.07. Section4, Page190f34
CONTROLLED SUBSTANCE #I One is guilty of the crime of possession of a controlled substance or of the crime of sale of a controlled substance if he or she commits the offense himself or herself, or if he or she acts as a principal in aiding abetting, counseling, commanding, inducing, encouraging, or procuring its commission. #2 Nevada Revised Statutes, Section 453.321 provides that it is unlawful for any person to sell, exchange, barter, supply or give away a controlled substance. is a controlled substance. "3 The law recognizes two kinds of possession; actuai possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sale. If two or more persons share actual or constructive possession of a thing, their possession is joint. If you find liom the evidence beyond a reasonable doubt that the accused, either alone or jointly with others, had actual or constructive possession of the controlled substance described in the Information, then you may find that such controlled substance was in the possession of the accused within the meaning of the word "possession" as used in these instructions. "4 To constitute the illegal sale of a controlled substance, the acts of selling, exchanging, bartering, supplying, or giving away must be accompanied by knowledge on the part of thc accused of; 1. The presence of the drug, and; 2. Of its nature as a controlled substance. Unless such knowledge exists, the crime of illegal sale of a narcotic drug is not committed.
Revised 6/20/14 POSSESSI ON (N.J.S.A. 2C:2-1) To "possess" an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as ( IDENTIFY RELEVANT ITEM(S)) must know or be aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls (that it is ). [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, flecting or uncertain in its nature.] In other words, to "possess" an item, one must knowingly procure or receive an item or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish his/her control if he/she chose to do so. The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she is aware that it is practically certain that the conduct will cause such a result. knowledge, or equivalent terms have the same meaning. Knowing, with Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that a particular defendant stated, for example, that he/she acted with knowledge when he/she had control over a particular thing. within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. A person may possess _ (an item) even though it was not physically on his/her person at the time of the arrest, if he/she had in fact, at some time prior to his/her arrest, had control over it. Possession means a conscious, knowing possession, either actual or constructive. [CIIARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASEJ It is Page 1 of 2
POSSESSION (N.J.S.A. 2 C:2-1) ACTUAL POSSESSION A person is in actual possession of an item when he/she first, knows what it is: that is, he/she has knowledge of its character, and second, knowingly has it on his/hcr person at a given time. CONSTRUCTIVE POSSESSION¹ Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it. Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item. JOINT POSSESSION Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint. In State v. Spivev, 179 N.J. 229 (2004), the New Jersey Supreme Court affirmed a conviction under N.J.S.A. 2C:39-4.l(a), Possession of a Firearm While Committing Certain Drug Offenses. There, the Court noted that the statute suggests a temporal and spatial link between possession of the firearm and the drugs. The Court held: "The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the [drug] crime." In the appropriate case, therefore, the possession charge may be supplemented by this language. Page 2 of 2
OSCN Found Document:Drug Possession Defined Page 1 of2 THE OKLAHOMA STATE COURTS NETWORK Home Courts Court Dockets Legal Research Calendar Help Brevlous Sectior I his Point in Indes :itationize 7EM IM Print Onh Oklahoma Jury instructions- Criminal UOklahoma Uniform Jury Instructions doklahoma Jury Instructions- Criminal dchapter 6 QA. DRUG OFFENSES Section OUJI-CR 6-11 - Drug Possession Defined Cite as: o.s., OUJI-CR 6-11 DRUG OFFENSES - DRUG POSSESSION DEFINED The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing, is then in constructive possession of it. The possession prohibited by the law is not only that of actual physical custody of a controlled dangerous substance but also the constructive possession of it [The law recognizes that possession may be sole or joint. In other words, possession need not be exclusive. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint. A person may be deemed to be in joint possession of a controlled dangerous substance which is in the physical custody of an associate if he/she willfully and knowingly shares with that other person the right to control the disposition or use of such substance.] However, mere proximity to a substance is insufficient proof of possession. There must be additional evidence of the defendant's knowledge and control. Such knowledge and control may be established by circumstantial evidence. Each fact necessary to prove the guilt of the defendant must be established by the evidence beyond a reasonable doubt. All of the facts and circumstances, taken together, must establish to your satisfaction the defendant's knowledge and control beyond a reasonable doubt. If you find from the evidence beyond a reasonable doubt that the defendant, either alone or jointly with another, had constructive possession of [Specify Controlled Dangerous Substance] then you may find that such substance was in the possession of the defendant within the meaning of the word "possession" as used in these instructions. Notes on Use This instruction should be used if there is evidence that the defendant had constructive, rather than actual, possession of a controlled dangerous substance. The fifth paragraph should be given only if there is evidence that the defendant had joint possession of the controlled dangerous substance. Committee Comments http://www.osen.net/applications/osen/deliverdocument.asp?citeid 81342 5/28/2015
T.P.I. -- CRIM. 31.05 Page 1 of 3 T.P.I. -- CRIM. 31.05 SIMPLE POSSESSION OR CASUAL EXCHANGE Any person who commits the offense of [simple possession] [casual exchange] is guilty of a crime. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:' (1) that the defendant either intentionally, knowingly or recklessly [possessed] [casually exchanged] a controlled substance; and (2) that the substance was (specify controlled substance) a controlled substance. is a Schedule controlled substance.2 [There are two types of possession recognized in the law: actual possession and constructive possession. A person who knowingly has direct physical control over an object at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and intention at any given time to exercise dominion and control over an object is then in constructive possession of it.]³ ["Possession" may be sole or joint. possession of a thing, possession is sole. If the person alone has actual or constructive If two (2) or more persons have actual or constructive possession of a thing, their possession is joint.]4 http://www.tnerimlaw.com/tpl Crim/31.05.htm 5/28/2015
Page 1 of2 SEQ CHAPTER \h \r 1 CR40-l l l 05/05/06 POSSESSION OF COCAINE, 18 V.S.A. 4231(a)(1) The State has charged (Def) with possession of cocaine, as follows: [Read the charge.] Every crime is made up of essential elements. Before (Def) can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt. In this case, the essential elements are that on the date and at the place alleged, (1) (Def) (2) possessed cocaine; and (3) [he] [she] did so knowingly and unlawfully. The first essential element is that (Def) is the person who committed the alleged acts. The second essential element is that (Def) possessed cocaine. A person possesses cocaine if he or she knowingly has direct physical control over it. In addition, a person possesses cocaine if he or she knowingly has the power and intent to exercise dominion or control over it, either directly or through another person. It does not matter whether the person possesses cocaine by himself or herself, or jointly with someone else. The term cocaine means coca leaves except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine, its salts, optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of cocaine. The last essential element is that (Def) possessed the cocaine knowingly and unlawfully. The word knowingly means that (Det) possessed the cocaine voluntarily and consciously, and not inadvertently, because of mistake, or by accident. The word unlawfully means that (Def) determining whether (Def) deliberately did something which the law forbids. In possessed cocaine knowingly and unlawfully, you should consider all of the surrounding facts and circumstances. http://www.vtjuryinstructions.org/criminal/ms40-111.htm 5/28/2015
Page 2 of 2 All of the elements of the offense must have been present at the same time. If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must fmd (Def) not guilty. However, if the State has proven all of the essential elements beyond a reasonable doubt, you must return a verdict of guilty. http://www.vtjuryinstructions.org/criminal/ms40-111.htm 5/28/2015
4.21.844 Possession of a Controlled Substance, 21 U.S.C. 844 New: 10/23/06 [Defendant] is charged with possession of [controlled substance] on about [date]. It is against federal law to have [controlled substance] in your possession [without a valid prescription or order]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt: First, that [defendant] on or about that date possessed [controlled substanec], either actually or constructively; Second, that (he/shc] did so knowingly and intentionally; and Third, that [he/she] did not possess the controlled substance pursuant to a valid prescription or order.] The word "knowingly" means that the act was done voluntarily and intentionally and not because of mistake or accident. The term "possess" means to exercise authority, dominion or control over something. recognizes different kinds of possession. The law ["Possession" includes both actual and constructive possession. A person who has direct physical control of something on or around his person is in actual possession ofit. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term "possession" in these instructions, I mean actual as well as constructive possession ["Possession" [also] includes both sole possession and.joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word "possession" in these instructions, I mean joint as well as sole possession.]
GENERAL AND PRELIMINARY INSTRUCTIONS 1.31 1.31 POSSESSION Possession, as that term is used in this case, may be of two kinds: actual possession and/or constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is in constructive possession of it. Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. You may find that the element of possession is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others. Note A number of Fifth Circuit cases continue to cite this instruction with approval. Soo United States v. Lewis, 265 F. App'x255, 257 (5th Cir. 2008); United States v. Horace, 227 F. App'x350, 352-53 (5th Cir. 2007); United States v. Gross, 142 F. App'x 829, 830 (5th Cir. 2005); United States v. Bradford, 54 F. App'x 592, *3 (5th Cir. 2002); United States v. Cano-Guel, 167 F.3d 900, 905-06 (5th Cir. 1999); United States v. Prudhome, 13 F.3d 147, 149-50 (5th Cir. 1994). The instruction on actual or constructive possession can be given when the evidence supports a finding of actual and constructive possession.see United States v. Melancon, 662 F.3d 708, 713
Final Instructions: Definitions The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole. two or more persons share actual or constructive possession of a thing, possession is joint. Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession. Committee Comments See 1 A Kevin F. O'Malley, et al., FEDERAI. JURY PRACTICE AND INSTRUCTIONS, Criminal 16.05 (5th ed. 2000); United States v. Smith, 104 F.3d 145, 148 n.2 (8th Cir. 1997); United States v. Ali, 63 F.3d 710 (8th Cir. 1995); United States v. Johnson, 857 F.2d 500, 501-02 n.2 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); Sewell v. United States, 406 F.2d 1289, 1293 n.3 (8th Cir. 1969). See also United States v. Henneberry, 719 F.2d 941, 945 (8th Cir. 1983) (definition of constructive possession). If 5 N 8.02