When a defendant is charged with a crime involving the possession of a controlled substance, what kind of knowledge or intent must the prosecution show? Must the state prove that the defendant knew that he or she possessed the substance? That the defendant knew that the substance was legally controlled? That the defendant knew the particular identity of the substance? Given the proliferation of controlled substances and the fact that many cannot be distinguished without laboratory equipment, these are important questions.
For starters, the state must show that the defendant knew he or she possessed the substance. G.S. 90-95(a)(3) makes it unlawful to “possess a controlled substance.” The statute doesn’t say anything about knowledge. However, the state supreme court has held that “‘[f]elonious possession of a controlled substance has two essential elements. The substance must be possessed and the substance must be knowingly possessed.’” State v. Galaviz-Torres, 368 N.C. 44 (2015), quoting State v. Weldon, 314 N.C. 401 (1985). That likely follows from the very idea of possession: if you’re not aware of the presence of an item, you can’t intend to exercise control over it and so you can’t really possess it. Sometimes defendants contest this issue, as in State v. Boone, 310 N.C. 284 (1984), overruled on other grounds by State v. Oates, 366 N.C. 264 (2012). The defendant in that case claimed that someone else put a duffel bag containing marijuana in his trunk and that he did not know anything about the contents. The Supreme Court of North Carolina ordered a new trial because the jury instructions did not adequately reflect the state’s burden to show that the defendant knew of the presence of the marijuana.
The state must also show that the defendant knew the specific identity of the controlled substance. That’s basically what the court said in State v. Coleman, 227 N.C. App. 354 (2013). In that case, officers searched the defendant’s car after he admitted, during a traffic stop, that he was carrying marijuana. They found marijuana and heroin in the trunk and charged the defendant with trafficking heroin by possession. Although the defendant did not testify at trial, the state introduced his recorded statement, in which he claimed that he believed he was carrying marijuana and cocaine. The parties’ arguments to the jury focused on whether the defendant knew that he was carrying heroin as opposed to cocaine. The Court of Appeals ruled that this should have triggered an instruction on the identity of the substance: “[T]he trial court’s failure to instruct the jury that it must find that defendant knew what he possessed or transported was heroin before finding defendant guilty of trafficking in heroin by possession or trafficking in heroin by transportation was error.”
The Pattern Jury Instructions are consistent with this focus on the identity of the particular substance. They say that the State must prove that the defendant “knowingly possessed (name controlled substance).” NCPI – Crim. 260.10. Further, in a footnote, they direct: “If the defendant contends that the defendant did not know the true identity of what the defendant possessed, add this language to the first sentence: ‘and the defendant knew that what the defendant possessed was (name substance).” Id.
I’ll note in passing that the law in federal court is different. In federal court, the prosecution generally must show that the defendant knew that he or she possessed a substance, and that the substance was a controlled substance, but not the specific identity of the substance. See, e.g., United States v. Ali, 735 F.3d 176 (4th Cir. 2013) (“[W]hile the statute requires specific intent to distribute a controlled substance or to possess with intent to distribute a controlled substance, it does not require that the defendant have, within that intent, specific knowledge of the controlled substance or any of the chemicals, derivatives, isomers, esters, ethers, or salts that constitute the controlled substance”).
The state’s burden arises only if knowledge is contested. The state’s burden to establish the defendant’s knowledge of the specific identity of the controlled substance only arises if the defendant raises the issue. So says State v. Galaviz-Torres, 368 N.C. 44 (2015): “A presumption that the defendant has the required guilty knowledge exists in the event that the State makes a prima facie showing that the defendant has committed a crime, such as trafficking by possession, trafficking by transportation, or possession with the intent to sell or deliver, that lacks a specific intent element. . . . However, when the defendant denies having knowledge of the controlled substance that he has been charged with possessing or transporting, the existence of the requisite guilty knowledge becomes a determinative issue of fact about which the trial court must instruct the jury.”
I find it interesting that knowledge is an element, but that the jury need not be instructed completely on it unless the defendant takes affirmative steps to contest it. But that’s the law.
What does it mean to contest knowledge? Given the foregoing, what must a defendant do to make knowledge a “determinative issue of fact” that the state must prove and the jury must find? Consider three cases on this point, in chronological order:
- State v. Lopez, 176 N.C. App. 538 (2006). Two defendants, Lopez and Sanchez, were charged with trafficking heroin after taking delivery of a mini-fridge containing two packages of heroin. Lopez testified that he had been hired to received the mini-fridge and didn’t know it contained heroin. Sanchez didn’t testify. Lopez asked that the jury be instructed that it could convict only if it found that he knew that the substance he possessed was heroin. The trial judge declined to give the instruction, and the Court of Appeals, citing Boone, found that this was error. It found no plain error as to Sanchez, who had not requested the instruction and who had “presented no evidence that he was unaware of the contents of the package and did not raise the issue of his knowledge as a determinative issue of fact to the trial court.”
- Galaviz-Torres, supra. An informant arranged to purchase cocaine from the defendant. The informant met with the defendant, who was driving a van. Officers then arrested the defendant and found cocaine in a gift bag in the front passenger seat. Although the defendant admitted on the scene that the cocaine was his, at trial he “claimed that he had borrowed the van that he was driving, [and] that he did not know that the van contained cocaine.” The reviewing court ruled that the defendant was not entitled to an instruction on knowledge of the specific substance, basically because he denied knowing that any substance was in the van, rather than denying that he knew the substance was cocaine.
- State v. Hammond, __ N.C. App. __, __ S.E.2d __, 2023 WL 2375533 (Mar. 7, 2023). Officers searched the defendant’s home pursuant to a search warrant. They found a bag containing a “solid white substance” that field tested positive for cocaine. They arrested the defendant for trafficking cocaine, but lab tests later revealed that the substance was fentanyl so the cocaine charges were dismissed and the defendant was charged with trafficking fentanyl. At trial, an officer testified that the cocaine charges were based on the field test and the local prevalence of cocaine. He said that “everyone” thought the substance was cocaine and that he had “not seen or heard of fentanyl” in the area. The defendant asked that the jury be instructed that the state had to prove that the defendant knew that the substance was fentanyl, but the trial judge declined, finding no evidence that the defendant was unaware of the identity of the substance and noting that Hammond “didn’t testify.” The Court of Appeals affirmed, stating that knowledge is presumed absent contrary evidence and that the reference to “everyone” thinking the substance was cocaine meant the officers, not the defendant.
I don’t think it is easy to distill a consistent rule from these cases. I have trouble reconciling Lopez and Galaviz-Torres, even though the latter claimed to be consistent with the former. I also struggle to draw a clear line between Hammond, where the evidence was not enough to call the defendant’s guilty knowledge into question, and Coleman, supra, where it was enough. It is clear from Coleman that a defendant doesn’t necessarily have to put his or her knowledge at issue, but the defendant seems to need to do something to do so. Defense lawyers seeking to raise and to preserve this issue may want to keep it front and center during witness examinations and in closing argument.
When at issue, knowledge may be inferred from the circumstances. When the state has the burden of proving the defendant’s knowledge of the specific substance, it may rely on circumstantial evidence. See State v. Robledo, 193 N.C. App. 521 (2008) (stating that “[d]irect evidence [that the defendant knew the presence and identity of a substance] is not required; awareness or knowledge may be inferred from incriminating circumstances” and collecting cases). This may include things like what the defendant says about the substance; how the substance appears and is packaged; and what kinds of paraphernalia are associated with the substance.
Knowledge of the weight of the substance is not required. Finally, for offenses, like trafficking, where the weight of the substance is an element of the offense, the defendant need not know the weight of the substance. See, e.g., State v. Shelman, 159 N.C. App. 300 (2003) (“[T]o convict an individual of drug trafficking the State is not required to prove that defendant had knowledge of the weight or amount of methamphetamine which he knowingly possessed or transported. Instead, the statute requires only that the defendant knowingly possess or transport the controlled substances.”).
Conclusion. I started thinking about this issue in connection with khat, about which Phil Dixon posted here. But it might also arise with white powders or pills, or any substance that isn’t readily and obviously identifiable. The more substances chemists invent and governments regulate the more difficult it may become to show that a defendant knowingly possessed a specific substance.