THE SHELLOW COLLECTION
 Jury Instructions By James M. Shellow of Wisconsin
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Drugs, Controlled Substances: Paraphernalia

    1.    Possession Of Paraphernalia: Elements
    2.    Prosecution Must Prove Paraphernalia Was Primarily Intended To Be Used 
           To Ingest Drugs
    3.    Prosecution Must Prove Defendant Had Power And Intent To Exercise Dominion And 
           Control Over Paraphernalia
    4.    Prosecution Must Prove Defendant Had The Subjective Intent To Use Paraphernalia 
           To Ingest Drugs
    5.    Where Use Of Substance Is Legal Defendant Cannot Be Convicted For Possession 
           Paraphernalia For Its Consumption
    6.    Mere Proximity To Drug Paraphernalia Does Not Establish Possession

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Possession Of Paraphernalia: Elements

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Section _____________ of the (state code e.g., Wisconsin Statutes) makes it a crime to possess with the primary intent to use drug paraphernalia to inhale a controlled substance whose possession is prohibited by law. Before the defendant may be found guilty of this offense, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

    First, that the defendant possessed drug paraphernalia.

    Second, that the defendant knew or believed that (he/she) possessed drug paraphernalia.

    Third, that the defendant possessed the drug paraphernalia with the primary intent to use it to inhale a controlled substance whose possession is prohibited by law.

    The first element of this offense requires that the defendant possessed drug paraphernalia.

    "Possessed" means that the defendant knowingly had an item under (his/her) actual physical control. An item is also in a person's possession if it is in an area over which the person has control and the person intends to exercise control over the item. It is not required that a person own an item in order to possess it. What is required is that the person exercise control over the item. Possession may be shared with another person. If a person exercises control over an item, that item is in (his/her) possession, even though another person may also have similar control.

    "Drug paraphernalia" means all equipment, products, and materials of any kind that are used, designed for use, or primarily intended for use in inhaling a controlled substance whose possession is prohibited by law. Tetrahydrocannabinols is a controlled substance whose possession is prohibited by law. "Drug paraphernalia" includes, but is not limited to, any of the following, provided that the object is used, designed for use, or primarily intended for use in inhaling a controlled substance into the human body:

    Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls.

    "Drug paraphernalia" excludes:

    Any items including pipes, papers, and accessories, that are designed for use or primarily intended for use with tobacco products.

    The second element of this offense requires that the defendant knew or believed that (he/she) possessed drug paraphernalia. You cannot look into a person's mind to determine (his/her) knowledge or belief. (His/Her) knowledge or belief must be found, if found at all, from (his/her) acts, words, and statements, if any, and from all the facts and circumstances in this case bearing on this knowledge or belief.

    The third element is that the defendant possessed the item with the primary intent to use it to inhale a substance whose possession is prohibited by law.

    With respect to the intent to use, you cannot look into a person's mind to find out (his/her) intent. The intent to use must be found, if found at all, from the defendant's acts, words, and statements, if any, and from all the facts and circumstances in this case bearing on his intent.

    If you are satisfied beyond a reasonable doubt that the defendant possessed drug paraphernalia, that the defendant knew or believed that (he/she) possessed drug paraphernalia, and that the defendant possessed the drug paraphernalia with the primary intent to use it to inhale a substance whose possession is prohibited by law, you should find the defendant guilty of possession of drug paraphernalia.

    If you are not so satisfied, you must find the defendant not guilty of Count _____.

RELATED NCJIC MATERIALS:

See generally NCJI Chapter 56: Possession.

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Prosecution Must Prove Paraphernalia Was Primarily Intended To Be Used To Ingest Drugs

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    In order for the prosecution to prove that the clip allegedly seized from __________’s (name of defendant) _________ (location, e.g., car, home) is drug paraphernalia, it must prove beyond a reasonable doubt that it was designed for use or primarily intended for use in ____________ (method of ingestion, e.g., inhaling marijuana) into the human body. The mere fact that _____________ (type of contraband, e.g, marijuana) may have been __________ (ingestion, e.g., smoked) with that__________ (type of paraphernalia) on one or more occasions does not by itself prove that the__________ (type of paraphernalia) was either designed for that purpose or primarily intended for that purpose. The intent in this statute refers to the intent of the manufacturer of the__________ (type of paraphernalia), or the intent of purchasers of this type of__________ (type of paraphernalia) generally, not the intent of the specific person who possesses it.

AUTHORITIES:

Wis. Stat. §161.57(1)(a)(11.) & §161.571(1)(a)(11.)(b)(2); Posters `N' Things v. United States, 128 L.Ed.2d 539 (1994).

RELATED NCJIC MATERIALS:

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Prosecution Must Prove Defendant Had Power And Intent To Exercise Dominion And Control Over Paraphernalia

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The mere fact that a person owns and occupies a home which contains drug paraphernalia does not prove that this person is in possession of that paraphernalia. In order for the prosecution to convict a person of the possession of drug paraphernalia, it must prove beyond a reasonable doubt that he or she exercised or had the power and intent to exercise dominion and control over that drug paraphernalia.

AUTHORITIES:

Wis. Stat. §161.57(1).

SAMPLE INSTRUCTION # 2:

    A resident of a home does not possess drug paraphernalia that is owned by others merely because (he/she) is fully aware of the existence and location of the drug paraphernalia within the home. In addition to proving that the defendant knew of the drug paraphernalia's existence, the state also must prove beyond a reasonable doubt that the defendant in some manner actually exercised dominion and control over the drug paraphernalia or had the power and intention to exercise dominion and control over the drug paraphernalia. If all the state has shown is that the defendant knew about the drug paraphernalia, then you must find the defendant not guilty.

AUTHORITY:

United States v. Vasquez-Chan, 978 F.2d 546, 551 (9th Cir. 1992); United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993); State v. R.B., 108 Wis. 2d 494, 322 N.W.2d 502 (Ct. App. 1982).

RELATED NCJIC MATERIALS:

See generally NCJI Chapter 56: Possession.

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Prosecution Must Prove Defendant Had The Subjective Intent To Use Paraphernalia To Ingest Drugs

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The mere fact that a person owns and occupies a home which contains drug paraphernalia does not prove that this person is in possession of that paraphernalia. In order for the prosecution to convict a person of the possession of drug paraphernalia, it must prove beyond a reasonable doubt that he or she had the subjective intent to use that paraphernalia to inhale or ingest ___________ (substance, e.g., THC).

AUTHORITIES:

Wis. Stat. §161.572(3).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 45: Criminal Intent.

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Where Use Of Substance Is Legal Defendant Cannot Be Convicted For Possession Paraphernalia For Its Consumption

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The use of _________ (substance, e.g., medical marijuana) does not violate the laws of __________ (state). Accordingly, if the drug paraphernalia allegedly possessed by __________ (name of defendant) was possessed for the purpose of assisting (his/her) use of _________ (substance), (he/she) may not be convicted of the possession of this paraphernalia.

AUTHORITIES:

Wis. Stat. §161.573(1).

RELATED NCJIC MATERIALS:

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    Mere Proximity To Drug Paraphernalia Does Not Establish Possession

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    An individual's mere proximity to drug paraphernalia, or mere presence on or ownership of the property where it is located, or mere association with the person who does control the drug paraphernalia or property, will not alone support a finding that the individual possessed the drug paraphernalia. It is well established that the mere presence or proximity of an individual to drug paraphernalia does not, in itself, establish possession of the drug paraphernalia.

AUTHORITY:

United States v. Brown, 3 F.3d 6793, 680 (3d Cir. 1993).

RELATED NCJIC MATERIALS:

See generally NCJI 56.2 [Possession: Sufficiency Of Proof].

See generally NCJI Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.10 [Drug Paraphernalia].