ICJI 402A

ICJI 402A POSSESSION OF MARIJUANA

In order for the defendant to be guilty of Felony Possession of Marijuana, the state must prove:

1. On or about [date]

2. in the state of Idaho

3. the defendant [name] possessed marijuana,

4. in an amount greater than three (3) ounces, and

5. knew it was marijuana.

If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.

Comment

I.C. � 37-2732(e).

If the defendant is charged with "second offense" possession of marijuana, I.C. � 37-2739, that issue should be presented in a bifurcated proceeding.

In order to establish possession of a controlled substance, a defendant need not have actual physical possession of the substance; the state need only prove that the defendant had such dominion and control over the substance to establish constructive possession. State v. Kopsa, 126 Idaho 512, 887 P.2d 57 (Ct. App. 1994). Constructive possession of a controlled substance exists where a nexus between the accused and the substance is sufficiently proven so as to give rise to the reasonable inference that the accused was not simply a bystander but, rather, had the power and intent to exercise dominion and control over the substance. State v. Rozajewski, 130 Idaho 644, 945 P.2d 1390 (Ct. App. 1997).

To be guilty, the defendant need not know that the substance possessed was a controlled substance. State v. Fox, 124 Idaho 924, 866 P.2d 181 (1993); State v. Blake, 133 Idaho 237, 985 P.2d 117 (1999).

In State v. Fox, 124 Idaho 924, 866 P.2d 181 (1993), the Supreme Court held that I.C. � 37-2732(c) does not set forth any mental state as an element of the crime of possession of a controlled substance. "Thus, as [this statute] does not expressly require any mental element and

I.C. � 18-114 only requires a general intent, we conclude that the offense only requires a general

intent, that is, the knowledge that one is in possession of the substance." The Court held that the defendant's lack of knowledge that the substance was illegal (as a controlled substance) was irrelevant.

The statute does not contain a mental element. The committee concluded, based upon State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997), a mental element as set forth in element 4 should be included.

The state need not prove the absence of a prescription in prosecutions for the possession of marijuana. State v. Sergovia, 93 Idaho 594, 468 P.2d 660 (1970).