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Criminal Jury Instructions

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8.1-2  Sale or Possession with Intent to Sell a Controlled Substance by a Non-Drug-Dependent Person -- § 21a-278 (a) and (b)

Revised to December 1, 2007

The defendant is charged [in count __] with the illegal (sale / possession with intent to sell) of <insert type of substance>1 by a non-drug-dependent person.2  The statute defining this offense imposes penalties on any person who (sells to another person / possesses with the intent to sell to another person)3 any controlled substance, which includes <insert type of substance>.

For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant knowingly (sold / possessed with the intent to sell) <insert type of substance>.

[<If a specific quantity of heroin, methadone or cocaine is alleged:>  The state must prove beyond a reasonable doubt that <insert as appropriate:>

  • the (preparation / compound / mixture / substance) contains an aggregate weight of one ounce or more of (heroin / methadone).

  • the (preparation / compound / mixture / substance) contains an aggregate weight of one-half ounce or more of cocaine or cocaine in a free-base form.

  • the substance contains five milligrams or more of lysergic acid diethylamide.

The term "aggregate weight" means the entire weight of the (preparation / compound / mixture / substance) that is alleged to contain the (heroin / methadone / cocaine / cocaine in a free-base form / lysergic acid diethylamide).  The illegal substance may be less than ten percent pure (heroin / methadone / cocaine / cocaine in a free-base form / lysergic acid diethylamide), the balance being sugar, milk, quinine, mannite or the like.  In other words, you must consider the weight of the entire substance, including the alleged illegal drug in combination with any other substance it may contain, in determining whether the substance is (one ounce / one-half ounce / five milligrams) or more.]

[<If the alleged substance is one kilogram or more of a cannabis-type substance:>  The state must prove beyond a reasonable doubt that the defendant (sold / possessed with the intent to sell) at least one kilogram of a cannabis-type substance.]

"Sale" is any form of delivery, which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee. 

[<If possession with intent to sell is alleged:>  "Possession"4 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.>

<If some form of constructive possession is alleged, see Possession, Instruction 2.11-1.>

Conviction for possession of a <insert type of substance> with the intent to sell requires proof of the specific intent to sell the <insert type of substance>.  A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result.  <See Intent: Specific, Instruction 2.3-1.>

You should consider all of the surrounding circumstances in determining whether the defendant had the intent to sell.5]   

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant (sold / possessed with the intent to sell) <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 (sale / possession with intent to sell) <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.
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1 Subsection (a) imposes a higher punishment for larger quantities of certain substances, specifically one or more preparations, compounds, mixtures or substances containing either an aggregate weight of one ounce or more of heroin or methadone or an aggregate weight of one-half ounce or more of cocaine or cocaine in a free-base form, or a substance containing five milligrams or more of lysergic acid diethylamide.  The jury must determine that if the substance is heroine, methadone, cocaine, or lysergic acid diethylamide, that it is at least the specified quantity.  Subsection (b) imposes a lesser punishment for an undetermined quantity of any narcotic substance, hallucinogenic substance other than marijuana, or amphetamine-type substance, and for a quantity of a cannabis-type substance of one kilogram or more.  If the quantity is unspecified, then the jury need only determine that the substance is what it is alleged to be, and the lower penalties of subsection (b) will apply.

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.  The parties may be willing to stipulate to the nature of the substance.  See Stipulations, Instruction 2.6-9.

2 Non-drug-dependency is not an element of the crime.  See Affirmative Defense of Drug Dependency, Instruction 8.1-4.

3 See Drug Transactions in the Introduction to this section.

4 Ascertain from counsel what form of possession is alleged.  The definition should be narrowly tailored to the allegations.

5 See State v. Avila, 166 Conn. 569, 579-80 (1974) (the possession of a quantity of narcotics far greater than the amount a drug user would usually possess for his or her own use is sufficient to prove the intent to sell.); State v. Brown, 90 Conn. App. 835, 840, cert. denied, 276 Conn. 901 (2005) (defendant's presence in area known for drug activity, his possession of cash and a cellular phone, and the packaging of the drugs were all indicia of the intent to sell); see also State v. Brown, 14 Conn. App. 605, 616-17, cert. denied, 208 Conn. 816 (1988) (evidence of intercepted phone conversations regarding drug sales was sufficient evidence to support a probable cause determination).
 


 

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