Posted: January 4, 2017
Criminal Jury Instructions – Controlled Substance Offenses – Comment period expired February 18, 2017
The following proposed Model Utah Criminal Jury Instructions and forms addressing controlled substance offenses have been published:
1201. Controlled Substance.
1202. Definition of Possession.
1203. Possession of a Controlled Substance.
1204. Possession with Intent to Distribute.
1205. Possession of an Altered or Forged Prescription or Written Order.
1206. Possession of Drug Paraphernalia.
1207. Definition of “Drug Paraphernalia.”
1208. Factors Relevant to Identifying Drug Paraphernalia.
1209. Innocent Possession.
1210. Distribution of a Controlled Substance.
1211. Mere Presence is Not Sufficient.
1212. Firearm Enhancement.
1213. Special Enhancements.
1214. Special Enhancements – Not a Defense.
1215. Relevant Definitions.
SVF 1212. Firearm Enhancement.
SVF 1214. Special Enhancements.
SVF 1202. Marijuana Possession.
Click here to review the controlled substance offenses jury instructions and the forms.
Please reference the instruction or form number(s) in your comments.
I have some concern regarding instruction 1202 (“Definition of Possession”) because it fails to include other potential, relevant portions of the “Possession” definition contained in the Controlled Substances Act. The full, actual definition in Section 58-37-2(1)(ii) states that:
“Possession” or “use” means the joint or individual ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing, injection, or consumption, as distinguished from distribution, of controlled substances and includes individual, joint, or group possession or use of controlled substances. For a person to be a possessor or user of a controlled substance, it is not required that the person be shown to have individually possessed, used, or controlled the substance, but it is sufficient if it is shown that the person jointly participated with one or more persons in the use, possession, or control of any substances with knowledge that the activity was occurring, or the controlled substance is found in a place or under circumstances indicating that the person had the ability and the intent to exercise dominion and control over it.
The proposed jury instruction fails to acknowledge the possibility that possession can be joint or individual. As such, the definition needs to include bracketed, optional language addressing joint possession. Additionally, the statute also lists a non-exclusive list of actions or conduct that could constitute possession. This list should also be included in the proposed instruction. Finally, because there are unique ways in which a person could possess a controlled substance as opposed to paraphernalia, I would suggest that there be separate jury instructions for both. For the definition of “possession” as it pertains to a controlled substance, I would suggest that the jury instruction be changed to read as follows:
A person “possesses” [a controlled substance] when the person has the ability and the intent to exercise control over it. Possession may be [joint or] [individual] ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing, injection, or consumption, and includes [individual,] [joint,] [or] [group] possession or use of controlled substances. [For a person to be a possessor or user of a controlled substance, it is not required that the person be shown to have individually possessed, used, or controlled the substance, but it is sufficient if it is shown that the person jointly participated with one or more persons in the use, possession, or control of any substances with knowledge that the activity was occurring] [or] [the controlled substance is found in a place or under circumstances indicating that the person had the ability and the intent to exercise dominion and control over it]. Factors relevant to deciding possession may include the following:
> ownership and/or occupancy of the [residence] [vehicle] [property] [personal effects] where the [controlled substance] [drug paraphernalia] was found;
> whether that ownership or occupancy was exclusive;
> presence of the [controlled substance] in a location where (DEFENDANT’S NAME) had special control;
> whether other people also had access to the location of the drugs;
> presence of (DEFENDANT’S NAME) at the time the [controlled substance] [drug paraphernalia] was found;
> (DEFENDANT’S NAME) proximity to the [controlled substance] [drug paraphernalia];
> previous drug use;
> incriminating statements or behavior; or
> any other factor related to whether (DEFENDANT’S NAME) had the ability and intent to exercise control over the [controlled substance].
I believe that this instruction more fully captures the legislative intent by more fully incorporating the statutory definition, while also including the relevant factors contained in Lucero.
The proposed definition of “possession” in CR1202 leaves out nearly all the language from the statutory definition contained in 58-37-2(1)(ii). This is a problem because it completely omits any reference to joint or group possession and does not inform the jury that the State does not have to show that a person individually possessed it, which case law sets out. I would recommend including the joint or group possession language in this instruction or creating an alternative instruction with that information in it.
The new jury instruction for possession of a controlled substance does not track the code’s definition for possession. It needs to include all the possible scenarios such as joint possession.
The instruction proposed for possession of a controlled substance hardly uses any of the language from the statutory definition of “possession” contained in 58-37-2(1)(ii). This is problematic because it completely omits any reference to joint or group possession and does not inform the jury that the State does not have to show that a person individually possessed. It also omits the non-exclusive list of actions/conduct which constitute possession.
Instruction 1202:
State code defines the term “possession” for purposes of these offenses. The model jury instruction should track the definition of possession in the code. The proposed definition of possession in the instructions does not mirror the code, and leaves out important aspects contained in the statutory definition. Therefore, the proposed instruction is an incomplete instruction. It certainly is in the discretion of the parties, in conjunction with the court, to remove portions of a model instruction that might not be applicable to a particular case. However, any model jury instruction should, at a bare minimum, contain all the statutory provisions.