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8.1-12  Misrepresenting Substance as Controlled -- § 21a-268

Revised to December 1, 2007

The defendant is charged [in count __] with misrepresentation of a substance as a controlled substance.  The statute defining this offense imposes punishment on any person who knowingly delivers or attempts to deliver a noncontrolled substance <insert appropriate subsection:>

• § 21a-268 (a) (1):  upon the express representation that such substance is a controlled substance.

• § 21a-268 (a) (2):  under circumstances which would lead a reasonable person to believe that such substance is a controlled substance.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Delivered or attempted to deliver
The first element is that the defendant knowingly delivered or attempted to deliver a noncontrolled substance.  A noncontrolled substance is one that does not fall within the definition of a controlled substance.  The state must prove that the defendant knew that the substance in question was not a controlled substance.  A person acts "knowingly" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.  <See Knowledge, Instruction 2.3-3.>

"Deliver or delivery" means the actual, constructive or attempted transfer from one person to another of such substance, whether or not there is an agency relationship.  Attempt has its ordinary meaning.

Element 2 - Misrepresentation
The second element is that the defendant represented through (his/her) words or conduct that the substance was a controlled substance,  specifically <insert type of substance>.¹   In other words, the delivery or attempted delivery of the noncontrolled substance was <insert as appropriate:>

• upon the express representation that such substance was <insert type of substance>.

• under circumstances which would lead a reasonable person to believe that such substance was <insert type of substance>.

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant 1) knowingly delivered or attempted to deliver a noncontrolled substance, and 2) represented through (his/her) words or conduct that the substance was <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 the misrepresentation of a substance as a controlled 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.
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¹ See Defining the Controlled Substance in the Introduction to this section.