8.1-7 Illegal Possession -- § 21a-279 (a), (b) and (c)
Revised to May 10, 2012
The defendant is charged [in count __] with the possession of a controlled substance, specifically <insert type of substance>.1 The statute defining this offense imposes penalties on any person who possesses any controlled substance, except as authorized. <Insert type of substance> is a controlled substance.
For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant knowingly possessed or had under (his/her) control <insert type of substance.>
You must first find that the substance was <insert type of substance>. [<If the substance is marijuana:> You must also determine whether the amount allegedly possessed by the defendant was (more than one-half ounce but less than four ounces / four ounces or more).] <Summarize the evidence presented as to the nature and quantity of the substance.>
[<Insert if applicable:> The defendant does not claim that he was authorized to possess a narcotic substance as a person having a special privilege or a license under the statute.]
"Possession" means either actual possession or constructive possession. Actual possession means actual physical possession, such as having the object on one's person. Constructive possession means having the object in a place under one's dominion and control.
Possession also requires that the defendant knew that (he/she) was in possession of the <insert type of substance>. That is, that (he/she) was aware that (he/she) was in possession of it and was aware of its nature. The state must prove beyond a reasonable doubt that the defendant knew that (he/she) was in possession of <insert type of substance>. <See Knowledge, Instruction 2.3-3.>
In summary, the state must prove beyond a reasonable doubt that the defendant knowingly possessed <insert type of substance>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
possession of <insert type of substance>, then you shall find the
defendant guilty. On the other hand, if you unanimously find that the state has
failed to prove beyond a reasonable doubt any of the elements, you shall then
find the defendant not guilty.
1 Subsection (a) prohibits the possession of "any narcotic substance." Subsection (b) prohibits the possession of "any quantity of hallucinogenic substance other than marijuana or four ounces or more of a cannabis-type substance." Subsection (c) prohibits the possession of "any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or . . . one-half ounce or more but less than four ounces of a cannabis-type substance." The difference between the three is in the punishment. Thus, this statute covers the possession of any controlled substance. If the substance is marijuana, the jury must determine the amount.
The court should indicate the specific substance(s) according to the allegations of the information. See Defining the Controlled Substance in the Introduction to this section for applicable definitions. Also, the parties may be willing to stipulate to the nature of the substance. See Stipulations, Instruction 2.6-9.
2 Ascertain from counsel what form of possession is alleged. The definition should be narrowly tailored to the allegations.
Effective July 1, 2011, the possession of less than one-half ounce of a cannabis-type substance is an infraction.
General Statutes § 21a-279 (a) and (b) provide for an enhanced sentence if the defendant has previously been convicted of one or more violations of § 21a-279. Pursuant to Practice Book § 36-14, the prior conviction must be charged in a Part B information so that the jury is unaware of the prior conviction during the trial on the current charge. If a guilty verdict is returned, the jury must then be instructed on the second part of the information. See Subsequent Offenders, Instruction 2.12-2.
Section 21a-279 (c) provides an enhanced penalty if the violation occurs in, on or within 1500 feet of a school and the defendant is not a student at the school, or within 1500 feet of a day care center. The jury must find this fact proved beyond a reasonable doubt. See Sentence Enhancers, Instruction 2.11-4.