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. Continue reading
Tag Archives: knowledge
When Is There Sufficient Evidence that a Check Writer Knew that He or She Had Insufficient Funds?
If a person writes a check and the check bounces, is that enough to charge the person with the misdemeanor offense of writing a worthless check? What about if the recipient of the check notifies the check writer that the check bounced and the check writer doesn’t pay off the check? This post explores when a criminal charge is a permissible response to a worthless check. Continue reading →
You Don’t Know What You Have Until It’s Seized
“You don’t know what you have until it’s gone” is classic relationship advice. But is “I didn’t know what I had until it was seized” a classic defense to drug charges?
Consider the facts of State v. Hall. An officer stopped the defendant’s car for a traffic violation. The traffic stop led to a search of the car, which led to the discovery of two green pills that the officer suspected contained ecstasy. The SBI determined that they contained both ecstasy and ketamine, and the defendant was charged with, and convicted of, possession of both controlled substances. Apparently, neither the officer nor the prosecutor contended that the defendant knew the pills contained ketamine. As the prosecutor put it, “I believe she knew she had a controlled substance, not the identity of the controlled substance.”
Whether the defendant could be convicted of possessing ketamine without knowing that she possessed ketamine wasn’t the precise issue on appeal in Hall — but could she? As the Hall court noted, to sustain a conviction for possession of a controlled substance, the state must prove that the defendant “knowingly” possessed such a substance. Standing alone, this language at least suggests the viability of an “I didn’t know what I had” defense. But courts in North Carolina and elsewhere have generally required only that the defendant knew that the substance she possessed was controlled, not that she knew the exact nature of the substance. See, e.g., State v. Mendez, 42 N.C. App. 141 (1979) (holding that a defendant “would not be exonerated by virtue of a mistaken belief on his part that he was selling mescaline when, in fact, he was selling another Schedule I controlled substance, [LSD]”); United States v. De La Torre, 599 F.3d 1198 (10th Cir. 2010) (“The statute does not require the Government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance.”).
The bottom line is that if a defendant didn’t know that what she had was a controlled substance at all, she’s not guilty. But if she didn’t know exactly what she had until it was seized, well, that “classic defense” isn’t a defense at all.
I’m working on revising Arrest Warrant and Indictment Forms, a manual that provides charging language for several hundred common offenses. In the course of working on language for possession of stolen goods and receiving stolen goods, I noticed a couple of things that might be of interest.
First, there are two statutes that criminalize each offense. The principal larceny statute, G.S. 14-72, also criminalizes possession of stolen goods and receiving stolen goods, but there are also stand-alone statutes prohibiting receiving stolen goods, see G.S. 14-71, and possession of stolen goods, see G.S. 14-71.1. That’s an odd state of affairs, but the statutes appear to be consistent with one another, so it’s not problematic. If anyone knows why G.S. 14-71 and G.S. 14-71.1 were enacted, please post a comment or send me an email.
Second, the knowledge requirements for the offenses have an interesting wrinkle. Larceny is a felony in the circumstances set forth in G.S. 14-72(b) – when it is from the person, pursuant to a breaking or entering, and so on. Possession of stolen goods and receiving stolen goods are likewise felonies if the goods were stolen under one of those circumstances, but only if the defendant “kn[ew] or ha[d] reasonable grounds to believe” that the goods were stolen in that manner. G.S. 14-72(c). See also State v. Southards, 189 N.C. App. 152 (2008); N.C.P.I. – Crim. 216.45. So suppose that A pickpocket’s B’s cell phone, then gives the phone to C. If A tells C that A the phone is stolen, but not that A stole the phone from the person of B, C is guilty only of a misdemeanor.
Compare that to the other common circumstance in which larceny is a felony, which is when the value of the stolen items exceeds $1,000. G.S. 14-72(a). In that case, possession of stolen goods and receiving stolen goods are felonies regardless of whether the defendant knew of the factor that elevated the larceny to a felony, i.e., the value of the stolen items. G.S. 14-72(a); State v. Brown, 85 N.C. App. 583 (1987); N.C.P.I. – Crim. 216.40. So in the example above, if the cell phone happens to be a limited edition model signed by Paris Hilton and worth $5,000, C is guilty of a felony even if C fails to recognize the value of the phone.
As an aside relevant to this point, it looks to me as though N.C.P.I. – Crim. 216.41 and 216.49C, the pattern instructions for receiving and possessing goods stolen from a construction site, are incorrect. The statute requires that the defendant know, or have reasonable grounds to believe, that the goods were stolen from a construction site, see G.S. 14-72.6, while the pattern instruction omits that requirement.
Third – and most relevant to my writing project – it appears that the state must allege in the indictment or information the factor that elevates the possession or receiving offense to felony status. That’s the rule for larceny charges under State v. Wilson, 315 N.C. 157 (1985) (“An indictment charging felonious larceny must allege facts sufficient to raise the charge to the level of a felony.”). I couldn’t find a case directly on point with respect to possession and receiving – let me know if I’m missing one – but State v. Babb, 34 N.C. App. 336 (1977), holds that when goods are stolen pursuant to a felony other than felony larceny, an indictment for receiving stolen goods must allege that felony. It arguably follows that when goods are stolen pursuant to felony larceny, an indictment for possessing or receiving stolen goods must allege the specific variety of felony larceny at issue. But cf. State v. Harper, 51 N.C. App. 493 (1981) (offering the following intriguing comment without describing the indictment at issue: “Defendant was charged with feloniously possessing stolen property in violation of G.S. 14-71.1. The indictment could have supported proof either that defendant knew or had reason to know that the property was feloniously stolen pursuant to a breaking and entering, or otherwise by means described in G.S. 14-72(b), or that the property stolen was of a value in excess of $400.”). Anyone care to argue otherwise?