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56.2 Possession: Sufficiency Of Proof

    56.2.1 Possession: Error To Give Instruction Without Sufficient Evidence
    56.2.2 Power And Intent Is Not Enough To Establish Criminal Liability
    56.2.3 Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object
    56.2.4 Possession: Access Alone Not Sufficient
    56.2.5 Possession: Ownership Or Occupancy Not Sufficient
    56.2.6 Possession: Joint Access Insufficient
    56.2.7 Possession: Premises Shared By More Than One Person
    56.2.8 Possession: Passenger In Vehicle Not Sufficient
    56.2.9 Improper to Presume Possession Solely from Fact That Defendant Drove The Vehicle Containing Secreted Drugs
    56.2.10 Possession: Participation In Drug Transaction Does Not Prove Possession Of Drugs Or Money Possessed By Others
    56.2.11 Possession: Agreement Or Contract To Purchase Not Sufficient
    56.2.12 Possession: Mere Presence Or Knowledge Not Sufficient
    56.2.13 Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband

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    56.2.1    Possession: Error To Give Instruction Without Sufficient Evidence

PRACTICE NOTE: An instruction on constructive possession should not be given unless there is evidence supporting such a finding. (See U.S. v. Wolak (6th Cir. 1991) 923 F2d 1193, 1198 [cautions against use of boilerplate possession instruction including concepts of joint and constructive possession when neither concept was at issue given the facts of the case]; see also U.S. v. James (6th Cir. 1987) 819 F2d 674 [reversible error to give constructive possession instruction where no evidence of constructive possession was presented]; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.10 Constructive Possession], commentary (1991).)

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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    See NCJIC 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Absent an affirmative duty to act, a person should not be convicted of a crime based solely on the ability and/or intent to commit the crime. Hence, the jury should not be permitted to find criminal possession based only on the defendant's power and/or intent to assume control of an object.

POINTS AND AUTHORITIES: Introduction.  Many standard pattern instructions define constructive possession in terms of power and intent to exercise dominion and control over the object. Such instructions may be subject to challenge for failure to include an actus reus requirement.  (See e.g., 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.31 [Possession] (2001); see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.18 [Possession-Defined] (2000); see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruction 6 [Possession] (1997).)

    Power And Intent Is Not Enough To Establish Criminal Liability

    It is established that a person cannot be held criminally liable for unlawful intent only. (See NCJIC 43.2 [Criminal Intent Is Not Alone Sufficient To Convict]; NCJIC 66.2.7 [Attempt: Intent, Without An Act, Is Not Sufficient]; LaFave & Scott, Substantive Criminal Law § 3.2(b) (West, 1986).)

    The mere fact that the defendant also has the power to commit the crime should not change the situation. (See e.g., NCJIC 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].) Power should not itself constitute the necessary act for crimes requiring an affirmative act. (See generally, NCJIC Chapter 43 [Criminal Act].)

    In other words, constructive possession should require words or acts which either bring the object into the person's control or which exercises a restraining or directing influence over the object while not on his or her person. (See Jason v. State (MD 1970) 262 A2d 774, 780; Bryant v. State (MD 1962) 185 A2d 190, 193.) That is, there must be a nexus or relationship between the person and the object that makes it "reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession." (U.S. v. Casalinuovo (2nd Cir. 1965) 350 F2d 207, 209.) Thus, State v. Hagen (WA 1989) 781 P2d 892, 894-95, held that it was error to instruct that "dominion and control is the ability to reduce an object to actual possession." While the power or ability to control or reduce an object to actual possession is one aspect of dominion and control, there are other aspects such as physical proximity and intent which must be included in a definitional instruction. (See State v. Hagen, 781 P2d at 895.)

    Hence, not only must the defendant have the intent and power to exercise dominion and control over the object, but at some point, the defendant must have, by words or acts, assumed personal control of the object or exercised restraining or directing influence over the object which serves to hold the object at the person's disposal. For example, if the defendant places or conceals an object in a location that remains available to him such as a safe or deposit box, then he has committed an act which places the object in his constructive possession. (See e.g., U.S. v. Manzella (7th Cir. 1986) 791 F2d 1263, 1266 [using example of safe deposit box].) Or, if a defendant commits an act which gives him control or authority over an object not in his direct possession (e.g., receiving a key for the storage locker where the object is stored; paying for the object and assuming legal right to it) this would be an act upon which constructive possession could be predicated. (See e.g., People v. Konrad (MI 1995) 536 NW2d 517, 522-23 [constructive possession proven where defendant paid for drugs and arranged for agent to deliver drugs to defendant].)

    However, absent such an act, or some other conduct on the part of the defendant from which it may be inferred that the defendant had assumed constructive dominion and control over the object, constructive possession should not be found.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    Constructive possession occurs when there is no actual physical possession but, by word or action, the defendant assumed dominion and control over the item, and such dominion and control could be immediately exercised.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 133.52 [Possession-Weapon-Definition] 3d sent. (West, 2nd ed. 1994); see also State v. Rieger (WA 1981) 637 P2d 236.]

    Possession exists when an article is taken into a person’s control or the person holds it at his or her disposal even though it is not on his or her person.  Holding at one's disposal means to exercise a restraining or directing influence over the object.

[See Jason v. State (MD 1970) 262 A2d 774, 780; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.76 [Narcotics-Possession (Actual And Constructive)] ¶ 6 (Lexis, 2nd ed. 1988).]

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RATIONALE: Without special instruction the jury may not understand that equal access by two or more persons fails to establish the knowing dominion and control which is required for possession.

POINTS AND AUTHORITIES: Care should be taken to ensure that the instructions do not erroneously leave the impression that mere proximity to the drugs is sufficient to establish constructive possession. 

    Therefore, when appropriate, a supplement to the definition of constructive possession should be given so the jury understands that access alone does not establish possession.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

Annotation, Conviction Of Possession Of Illicit Drugs Found In Premises Of Which Defendant Was In Nonexclusive Possession, 56 ALR3d 948.

Annotation, Conviction Of Possession Of Illicit Drugs Found In Automobile Of Which Defendant Was Not Sole Occupant, 57 ALR3d 1319.

Annotation, Drug Abuse: What Constitutes Illegal Constructive Possession Under 21 USC 841(a)(1), Prohibiting Possession Of A Controlled Substance With Intent To Manufacture, Distribute, Or Dispense The Same, 87 ALR Fed 309.

Annotation, What Constitutes "Constructive" Possession Of Stolen Property To Establish Requisite Element Of Possession Supporting Offense Of Receiving Stolen Property, 30 ALR4th 488.

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

  Mere proximity to an object is not sufficient to establish control over or constructive possession of that object.

[See Goodlow v. Superior Court (CA 1980) 101 CA3d 969, 975 [162 CR 121]; State v. Sizemore (NM 1993) 858 P2d 420, 424; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 22.330 [Possession-Definition] ¶ 1, last sentence (Lexis, 2000); FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES F.S. 893.13(1)(a) [Drug Abuse-Sale, Purchase, Manufacture, Delivery, Or Possession With Intent] p. 291 (Florida Bar, 1997).]

    Access to a thing, without more, is insufficient to support a finding of possession.

[See Goodlow v. Superior Court (CA 1980) 101 CA3d 969, 975 [162 CR 121].]

    A defendant must be shown to have knowingly been in possession of __________.  The mere fact that a person is near a location or had access to a place where __________ is found is not, by itself, sufficient proof of possession.

[See Goodlow v. Superior Court (CA 1980) 101 CA3d 969, 975 [162 CR 121]; State v. Sizemore (NM 1993) 858 P2d 420, 424; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-11-8 [Possession-What Constitutes] ¶ 2 (State Bar of South Dakota, 2000).]

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RATIONALE: Mere ownership of the property where the contraband is found is not alone sufficient to convict.

POINTS AND AUTHORITIES: "Proof of possession of an item requires more than proof of control over the premises where the item was found or control over the vehicle in which the item was found." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Inst. 2.1 [Possession/Mere Control Of Premises Or Vehicle] p. 196 (South Carolina CLE, 1994); see also State v. Flurry (MS 1988) 536 So2d 1340 [evidence that son had exercised dominion and control over marijuana plants located on mother's property was insufficient to convict mother of manufacturing marijuana; mother could not be convicted based solely upon her constructive possession as owner of property]; State v. Janson (MO 1998) 964 SW2d 552, 555 [ownership or occupancy alone is insufficient to prove knowing possession of drugs located on premises or in vehicle]; State v. Layman (UT 1998) 953 P2d 782, 787-88 [same]; State v. Fox (UT 1985) 709 P2d 316, 319 [same]; Burchette v. Commonwealth (VA 1992) 425 SE2d 81, 83-84 [same].)

    For example, the prosecution "may not rely only upon a defendant’s ownership and control of a vehicle to prove the defendant knew that he possessed a controlled substance. While these are factors [the jury] may consider, the government must prove that there is other evidence indicating the defendant’s guilty knowledge of a controlled substance hidden in the vehicle." (5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.31 [Possession], note (2001); see also U.S. v. Pennington (5th Cir. 1994) 20 F3d 593, 598.)

    This view has also been expressed by the State of Washington Instruction Committee: "One 1995 case found no error in the giving of a jury instruction which defined constructive possession in terms of ‘dominion and control over the substance or the premises upon which the substance is found.’ [Citation.] However, the Committee remains of the view that the reasoning of State v. Olivarez (WA 1991) 820 P2d 66...is the more persuasive analysis and recommends against giving of such an instruction. [Citation.]" (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 50.03 [Possession-Definition], comment (1998 Pocket Part) (West, 2nd ed. 1994).)

    See also NCJIC 56.2.4 [Possession: Access Alone Not Sufficient].

    See also NCJIC 56.2.6 [Possession: Equal Access Insufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

Annotation, Statutory Presumption Of Possession Of Weapon By Occupants Of Place Or Vehicle Where it Was Found, 87 ALR3d 949.

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without special instruction the jury may not understand that access alone fails to establish the knowing dominion and control which is required for possession.

    See also NCJIC 56.2 [Possession: Sufficiency Of Proof].

    See also NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    If someone other than the defendant had equal opportunity to [possess the _________ (object)] [place the _________ (object) on the described premises], the defendant must be acquitted unless the prosecution has proved beyond a reasonable doubt that the defendant knowingly had exclusive possession of the _________ (object), or knowingly shared possession of it with another person.

[See Gee v. State (GA 1974) 204 SE2d 329, 331; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL p. CASES 136 [(S)(6) Drugs-Equal Access] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

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RATIONALE: When premises are shared by more than one person special instruction may be necessary so the jury understands that mere proximity, presence on the property and association with the other persons do not establish possession.

POINTS AND AUTHORITIES: "It is fundamental to our system of criminal law that guilt is individual ... [T]hat means that there must be sufficient evidence to support a finding, as to each defendant, that he or she had possession of the [contraband] ...." (Delgado v. U.S. (9th Cir. 1964) 327 F2d 641, 642; see also U.S. v. Earl (9th Cir. 1994) 27 F3d 423, 425-26.) Hence, when the premises are shared by more than one person, the jury must find, based on rational inferences from the evidence, that the defendant had dominion and control over the contraband. (See Goodlow v. Sup.Ct. (CA 1980) 101 CA3d 969, 975 [162 CR 121]; see also State v. Phelps (MN 1998) UNPUBLISHED 1998 WL 252347, *2 [if police find a substance in a place to which more than one person had access, to prove constructive possession, the state must show that there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it]; State v. Florine (MN 1975) 226 NW2d 609, 611 [same]; Parette v. State (AK 1990) 786 SW2d 817, 822 [where there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband]; Miller v. State (OK 1978) 579 P2d 200, 202 [possession not established where proof failed to demonstrate that bedroom where contraband found belonged to defendant].)

    See also NCJIC 56.2.6 [Possession: Equal Access Insufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

RESEARCH NOTES:

Annotation, Conviction Of Possession Of Illicit Drugs Found In Premises Of Which Defendant Was In Nonexclusive Possession, 56 ALR3d 948.

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without special instruction the jury may find possession based merely on the defendant's presence in the car where the contraband was found.

POINTS AND AUTHORITIES: A nonowner passenger in car is not constructively presumed to be in possession of everything in the car. (Paul v. Commonwealth (KY 1988) 765 SW2d 24, 26; see also Nguyen v. State (AL 1991) 580 So2d 122, 123 [mere presence of defendant in automobile containing contraband is not sufficient in and of itself to support conviction for possession of a controlled substance]; Hishaw v. State (OK 1977) 568 P2d 643, 645 [evidence insufficient to establish possession where marijuana cigarette found on floor adjacent to feet of defendant, a passenger in the automobile].)

    See also NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient].

    See also NCJIC 56.2.4 [Possession: Access Alone Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

RESEARCH NOTES: .

Annotation, Conviction Of Possession Of Illicit Drugs Found In Automobile Of Which Defendant Was Not Sole Occupant, 57 ALR3d 1319.

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: An instruction that the jury may infer that the driver of an automobile in which the drugs were secreted knew the drugs were present improperly shifts the burden to the defendant. This is so even though the court cautioned the jury that it was not required to make this inference. There must be some additional facts other than the defendant’s control of the vehicle to support such an inference. (See e.g., U.S. v. Rubio-Villareal (9th Cir. 1992) 967 F2d 294, 299; see also Scruggs v. Commonwealth (VA 1994) 448 SE2d 663, 665 [driver's mere possession of a gun and large quantity of cash was insufficient to support inference that he possessed drugs found secreted in passenger's seat]

    See also NCJIC 56.2.8 [Possession: Nonowner Passenger In Vehicle Not Sufficient].

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without special instruction the jury may assume that participation in a drug transaction is the equivalent of possession.

POINTS AND AUTHORITIES: In People v. Howard (CA 1995) 33 CA4th 1407, 1418-20 [39 CR2d 766], the court held that the defendant could not be found to have constructively possessed money which the codefendant brought to the transaction for the purpose of purchasing drugs. (See also U.S. v. Kearns (9th Cir. 1995) 61 F3d 1422, 1424-25 [coconspirator's brief touching and smelling of marijuana in car trunk insufficient to establish possession].) Similarly, in People v. Tambini (CA 1969) 275 CA2d 757, 764-66 [80 CR 179] it was held that the defendant who put a buyer and seller together for a finder's fee never possessed the marijuana which was sold.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: The language of many standard pattern instructions may be interpreted by the jury to permit a finding of possession based on an agreement or contract to purchase. Hence, when appropriate, a special instruction on this point may be necessary.

POINTS AND AUTHORITIES: In Armstrong v. Superior Court (CA 1990) 217 CA3d 535, 538-40 [265 CR 877], the court rejected "the position that a verbal agreement or contract to purchase drugs will, alone, establish constructive possession." (Armstrong, at 540.) The court went on to observe that it found "no authority which has established constructive possession based upon a bare agreement to purchase illegal contraband. Rather, the nature and terms of the purchase agreements are more appropriately factors in determining whether a defendant has exercised the requisite control over the illegal goods." (Ibid.; see also U.S. v. Delvecchio (2nd Cir. 1987) 816 F2d 859, 862.)

    The Armstrong court concluded that constructive possession was not shown under the facts of that case. "A defendant agreeing to meet the police, paying for and standing ready to receive the goods, without more, does not constitute the requisite control necessary to establish constructive possession." (Armstrong, 217 CA3d at 540.) However, because the defendant was prepared to take immediate physical possession of the drugs he could be convicted of attempted possession. (Ibid.; see also People v. Barnes (CA 1997) 57 CA4th 552 [67 CR2d 162] [constructive possession theory was "legally incorrect" where based only on an agreement to purchase cocaine].)

    Therefore, because the constructive possession language utilized in many pattern instructions may mislead the jury, a special instruction should be given when the evidence warrants it.

    See NCJIC 88.1.3 [Defense Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy].

    See also NCJIC 56.3.1 [Temporary Or Momentary Possession].

FEDERALIZATION: To federalize this request, click here.[Constitutional Macro 3.5; 4.1].

NOTES: Because an agreement to purchase may constitute only attempted possession, instructions on attempt as a lesser offense may be appropriate when warranted by the evidence.

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Just as access alone is insufficient to prove possession, presence and/or knowledge is also insufficient.

POINTS AND AUTHORITIES: See NCJIC 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object]; see also NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient]; U.S. v. Amaya-Sanchez (10th Cir. 1997) UNPUBLISHED 132 F3d 43.)

    See also NCJIC 56.2.4 [Possession: Access Alone Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, NCJIC 305.1.7 [Actual/Constructive Possession].

See generally, NCJIC 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    Possession is not established merely by presence in the vicinity of the object and even if the person has knowledge of the existence of the object.

[Cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-130 ["Possession" Defined] (Lexis, 1998).]

SAMPLE INSTRUCTION # 2:

    Mere presence where the item is possessed or kept is not sufficient to prove possession even if the person had knowledge of the item.

[See Goodlow v. Superior Court (CA 1980) 101 CA3d 969, 975 [162 CR 121]; U.S. v. Highsmith (9th Cir. 2001) 268 F3d 1141; State v. Sizemore (NM 1993) 858 P2d 420; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS IV(A) Inst 2 [Possession/Mere Presence/Mere Knowledge] p. 195 (South Carolina CLE, 1994); see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 16.02(b)A [Controlled Substance, "Possession" Defined] (Pennsylvania Bar Institute, PBI Press, 06/00).]

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    56.2.13    Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband

RATIONALE: It would be unfair to convict the defendant of criminal possession of contraband unless the defendant was aware of the presence and nature of the contraband.

POINTS AND AUTHORITIES: "Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." (Model Penal Code § 201(4).) Hence, "...proof that the accused was present at a place where drugs were being used or possessed is, in and of itself, insufficient to justify a finding of possession. There must be additional evidence of knowledge and control." (Staples v. State (OK 1974) 528 P2d 1131, 1122; see also Commonwealth v. Ramirez (MA 1990) 555 NE2d 208, 211 [carrying a firearm occurs when the defendant knowingly has more than momentary possession of a working firearm and moves it from one place to another]; People v. Jeffers (CA 1996) 41 CA4th 917, 922 [49 CR2d 86]; U.S. v. Beckham (DC Cir. 1992) 968 F2d 47, 52-53 [inadvertent of accidental possession does not satisfy the statutory requirement that possession be knowing or intentional]; Oliver v. State (FL 1998) 707 So2d 771, 772 [possession crimes require "guilty knowledge"].)

    Due to those requirements the jury must be instructed on the knowledge elements of possession. (See also Chicone v. State (FL 1996) 684 So2d 736, 745-46 [error to deny special jury instruction on knowledge of the illicit nature of the items possessed]; People v. Castro (IL 1971) 274 NE2d 839, 841; State v. Christel (WI 1973) 211 NW2d 801, 808-09; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1021 [First Degree Reckless Homicide] comment p. 4 (University of Wisconsin Law School, 2000).)

    Scott v. State (Fla. Sup. Ct. 2002) 808 So2d 166, 168 held that a "defendant's knowledge of the illicit nature of the substance is an element of the offense of possession, and an instruction that the State must prove this element must be given as a part of the standard jury instructions."  This instruction must be given on defense request even if the defense is lack of proof of possession, end "even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance." (Scott, 808 So2d 166, 172.)  The error in denying the instruction is harmful where there is evidence the defendant was in constructive or nonexclusive possession.  (Ibid.)

    The Florida standard jury instruction on constructive possession (adopted in 1997) includes these elements:

    If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person's (1) control over the thing, (2) knowledge that the thing was within the person's presence, and (3) knowledge of the illicit nature of the thing.

(Standard Jury Instructions in Criminal Cases, (97-1), 697 So2d 84, 87 (Fla. 1997).

    Similarly, in some jurisdictions unwitting possession is an affirmative defense. For example, in Washington the affirmative defense of "unwitting" possession may be based on the defendant’s theory that he did not know the nature of the substance he possessed." (State v. Staley (WA 1994) 872 P2d 502, 505; WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 50.02 [Possession Of Controlled Substance-Elements] comment (West, 2nd ed. 1994).)

    See also NCJIC 56.1.4 [Possession: Intoxication As Defense To Knowledge Element].

    See also NCJIC 88.4.3.13 [Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute].

    See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

SAMPLE INSTRUCTION # 1: [Knowledge As Element]:

    Possession is having control over an object with knowledge of and the intent to have such control.

[See U.S. v. Beckham (DC Cir. 1992) 968 F2d 47, 52-53; Staples v. State (OK 1974) 528 P2d 1131, 1122; see also PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 53.00 [Definitions And Explanations Of Terms] p. 102 (Kansas Judicial Council, 3rd ed. 1999).]

SAMPLE INSTRUCTION # 2:

    The prosecution must prove that the defendant knew that the substance was _____________________ (insert name of controlled substance). If you have a reasonable doubt whether the defendant knew that the substance was __________________, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

SAMPLE INSTRUCTION # 3:

    If you have a reasonable doubt whether the defendant knew the substance was _______________ (insert name of substance), you must give the defendant the benefit of the doubt and find [him] [her] not guilty.

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden of Proving Identity Based Solely on Eyewitness] p. 120 (West, 6th Ed. 1996).]

SAMPLE INSTRUCTION # 4:

    The burden is on the prosecution to prove beyond a reasonable doubt that the defendant knew the substance was _________________ (insert name of substance). If you have a reasonable doubt as to whether the prosecution has met this burden, you must vote not guilty.

[See NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5120 [Ignorance Or Mistake Of Facts] p. 619 (Lexis, 1998).]

SAMPLE INSTRUCTION # 5:

    The prosecution must prove beyond a reasonable doubt that the defendant had knowledge of the illicit nature of the substance allegedly possessed.

[Chicone v. State (FL 1996) 684 So2d 736, 745-46.]

SAMPLE INSTRUCTION # 6:

SAMPLE INSTRUCTION # 7:

    The prosecution must prove beyond a reasonable doubt is that the defendant knew the substance was ______________ (name of controlled substance).

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1021 [First Degree Reckless Homicide [Based On Supplying Controlled Substance]] 1/98, p. 2, ¶ 10 (University of Wisconsin Law School, 2000).]

SAMPLE INSTRUCTION # 8:

    The State must prove beyond and to the exclusion of every reasonable doubt that at the time of the transaction that the defendant knew the substance was cocaine.

[Johnson v. State (FL 1995) 650 So2d 89, 90.]

SAMPLE INSTRUCTION # 9:

    To convict a defendant of possession of ________________ (name of contraband), the prosecution must prove both possession of the item and knowledge of the fact that the item possessed was ________________ (name of contraband).

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS IV(A), inst. 3, [Possession/Knowledge Of Nature Of Item Controlled] p. 197 (South Carolina CLE, 1994).]

SAMPLE INSTRUCTION # 10:

    Possession is the actual, physical possession, or the immediate and knowing dominion or control over the object or the thing allegedly possessed. Possession need not be exclusive, provided that each possessor actually knew of the presence of the object, or thing possessed, and exercised actual physical control or immediate, knowing dominion and control over it.

[See Dwire v. People (CO 1981) 624 P2d 909, 911; see also COLORADO JURY INSTRUCTIONS, COLJI - Crim Ch. 36 (11) [Offenses Relating To Controlled Substances] (West, 1983).]

SAMPLE INSTRUCTION # 11:

    If evidence that persons other than the defendant had equal opportunity to possess, or to place the articles of contraband upon the described premises, leaves you with a reasonable doubt that the defendant possessed the ________________ (object) you must find the defendant not guilty.

[See Gee v. State (GA 1974) 204 SE2d 329, 331; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL p. CASES 136 [(S)(6) Drugs-Equal Access] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]