N.J. Model Criminal Jury Charge, N.J.S.A. 2C:35-5.3a

Approved 3/9/15

POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE

WITH INTENT TO DISTRIBUTE1

(BATH SALTS)2

(N.J.S.A. 2C:35-5.3a)

Count of the indictment charges the defendant as follows:

(Read Indictment)

The pertinent part of the statute on which this indictment is based reads as follows:

It is a crime for any person knowingly or purposely … to possess

or have under his contr ol with intent to … distribute [or dispense,

or manufacture] substances contai ning [insert appropriate bath

salt chemical here, either: 4-methylmethcathinone (mephedrone,

4-MMC); 3,4- methylenedioxypyrovalerone (MDPV); 3,4-methylenedioxymethcathinone (methylone, MDMC), 4 -

methoxymethcathinone (methedrone, bk- PMMA, PMMC); 3 -

fluoromethcathinone (3- FMC); or 4 -fluoromethcathinone

(flephedrone, 4-FMC)].3

In order for you to find defendant guilty of the charge, the State must prove the following

elements beyond a reasonable doubt:

1. That S______ in evidence contains [insert appropriate CDS (bath salt) here];

2. That the defendant possessed, or had under his/her control, S_____ in evidence;

and

3. That the defendant, when he/she possessed or had under his/her control S_____ in

evidence, had the intent to [distribute] [or dispense] [or manufacture] S_____ in

evidence.4

The first element that the State must prove beyond a reasonable doubt is that S ___

contains [insert appropriate CDS (bath salt) here].

In regard to the second element, the State alleges that defendant possessed, or had under

1 This instruction is also to be used when possession with intent is for dispensing or manufacturing.

2 N.J.S.A. 2C:35-5.3a grades this offense for sentencing purposes by the quantity of the CDS (bath

salt) involved. Because the quantity of the CDS (bath salt) is an element of the offense, N.J.S.A. 2C:35-

5.3a.b. and c. require that this element be determi ned by the jury . Accordingly, this charge may need to

be supplemented to add this elem ent. Please see the Supplemental model charge to Bath Salts Offenses

concerning this required element of quantity.

3 If the issue of authorization is raised as an affirmative defense, see N.J.S.A. 2C:35-18.

4 Although the text of N.J.S.A. 2C:35-5.3a states that it is a crime for any person to “knowingly or

purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to

manufacturer, distribute, or dispense” the enumerated substances, the Supreme Court Committee on

Model Criminal Jury Charges notes that the definition of possession, N.J.S.A. 2C:2-1c, requires a

knowing state of mind.

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE

(BATH SALTS)

(N.J.S.A. 2C:35-5.3a)

his/her control, S in evidence . To “possess” an item under the law, one must have a

knowing, intentional control of that item accompanied by knowledge of its character. So, a

person who possesses an item such as ( IDENTIFY RELEVANT ITEM(S) ) must

know or be aware that he/she possesses it/them, and he/she must know what it is that he/she

possesses or controls (that it is ). [WHERE APPLICABLE, charge: Possession

cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to

“possess” an item, one must knowingly procure or receive an item or be aware of his/her control

thereof for a sufficient period of time to have been able to relinquish his/her control if he/she

chose to do so.

The State must prove beyond a reasonable doubt that a possessor acted knowingly in

possessing the item. A person acts knowingly with respect to the nature of his/her conduct or the

attendant circu mstances if he/she is aware that his/her conduct is of that nature, or that such

circumstances exist, or he/she is aware of the high probability of their existence. A person acts

knowingly as to a result of his/her conduct if he/she is aware that it is practically certain that

conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same

meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by

inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce

witnesses to testify that a particular defendant stated, for example, that he/she acted with

knowledge when he/she had control over a particular thing. It is within your power to find that

proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise

from the nature of the acts and the surrounding circumstances.

A person may possess (an item) even though it was not physically

on his/her person at the time of the arrest, if he/she had in fact, at some time prior to his/her

arrest, had control over it.

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THE FOLLOWING PARAGRAPHS WHICH APPLY TO YOUR CASE]

ACTUAL POSSESSION

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE

(BATH SALTS)

(N.J.S.A. 2C:35-5.3a)

A person is in actual possession of an item when he/she first, knows what it is: that is,

he/she has knowledge of its character, and second, knowingly has it on his/her person at a given

time.

CONSTRUCTIVE POSSESSION5

Possession may be constructive instead of actual. As I just stated, a person who, with

knowledge of its character, knowingly has direct physical control over an item at a given time is

in actual possession of it.

Constructive possession means possession in which the possessor does not physically

have the item on his or her person but is aware that the item is present and is able to and has the

intention to exercise control over it. So, someone who has knowledge of the character of an item

and knowingly has both the power and the intention at a given time to exercise control over it,

either directly or through another pers on or persons, is then in constructive possession of that

item.

JOINT POSSESSION

Possession may be sole or joint. If one person alone has actual or constructive possession

of an item, possession is sole. If two or more persons share actual or constructive knowing

possession of an item, possession is joint.

In re gard to the third element, the State must prove beyond a reasonable doubt that

defendant possessed with the intent to [distribute] [or dispense] [or manufacture] S_____ in

evidence.

"Distribute" means the transfer, actual, constructive or attempted,

6 from one person to

another of a controlled dangerous substance. It is not necessary that the drugs be transferred in

exchange for payment or promise of payment of money or anything of value.7

[Charge the following when applicable: To “dispense” means to deliver a controlled

5 In State v. Spivey , 179 N.J. 229 (2004), the New Jersey Supreme Court affirmed a conviction

under N.J.S.A. 2C:39-4.1(a), Possession of a Firearm While Committing Certain Drug Offenses. There,

the Court noted that that statute suggests a temporal and spatial link between possession of the firearm

and the drugs. The Court held: “The evidence must permit the jury to infer that the fir earm was

accessible for use in the commission of the [drug] crime.” In the appropriate case, therefore, the

possession charge may be supplemented by this language.

6 This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A.

2C:35-2.

7 State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd, 107 N.J. 603 (1987).

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE

(BATH SALTS)

(N.J.S.A. 2C:35-5.3a)

dangerous substance to an ultimate user or research subject by or pursuant to the lawful order of

a practi tioner, including the prescribing, administering, packaging, labeling, or c ompounding

necessary to prepare the substance for that delivery.]

[Charge the following when applicable: To "manufacture" means the production,

preparation, propagation, compounding, conversion or processing of a controlled dangerous

substance, either directly or by extraction from substances or natural origin, or independently by

means of chemical synthesis, or by a combination of extraction and chemical synthesis, and

includes any packaging or repackaging of the substance or labeling or re -labeling of its

container, except that this term does not include the preparation of compounding of a controlled

dangerous substance by an individual for his/her own use or the preparation, compounding,

packaging, or labeling of a controlled dangerous substance: (1) by a practitioner as an incident to

his/her administering or dispensing of a controlled dangerous substance in the course of his/her

professional practice, or (2) by a practitioner (or under his/her supervision) for the purpose of, or

as an incident to, research, teaching or chemical analysis and not for sale.

8

In this regard the term "practitioner" means a physician, dentist, veterinarian, scientific

investigator, laboratory worker, pharmacist, hospital worker or othe r person licensed, registered,

or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a

controlled dangerous substance in the course of professional practice or research in this State.9]

[RESUME MAIN CHARGE]

"Intent" means a purpose to do something, a resolution to do a particular act or

accomplish a certain thing. Intent is a state of mind, and it is very rare that intent is proven by

witnesses who can testify that an accused said he/she had a certain intent when he/she engaged in

a particular act. The intention may be gathered from a person's acts, conduct, from all the person

said and did at the particular time and place, and from all of the surrounding circumstances.

You may conside r any evidence as to the quantity, purity, and packaging

10 of S _____

together with all the other evidence in the case to aid you in your determination of the element of

intent to [distribute] [or dispense] [or manufacture.]

A person acts knowingly with respect to the nature of his/her conduct or the attendant

8 N.J.S.A. 2C:35-2.

9 N.J.S.A. 2C:35-2.

10 See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE

(BATH SALTS)

(N.J.S.A. 2C:35-5.3a)

circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances

exist, or he/she is aware of a high probabil ity of their existence. A person acts knowingly with

respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her

conduct will cause such a result. "Knowing," "with knowle dge" or equivalent terms have the

same meaning.11

A person acts purposely with respect to the nature of his/her conduct or a result thereof if

it is his/her conscious object to engage in conduct of that nature or to cause such a result. A

person acts purposely with respect to attendant circumstances if he/she is aware of the existence

of such circumstances o r he/she believes or hopes that they exist. "With purpose," "designed,"

"with design" or equivalent terms have the same meaning.12

Remember that when we speak of knowingly and purposely we are speaking of

conditions of the mind that cannot be seen. It is not necessary for the State to prove the existence

of such mental states by direct evidence su ch as a s tatement by the defendant that he/she had

particular knowledge or a particular purpose. Knowledge and purpose as separate propositions

of proof do not commonly exist. They must ordinarily be discovered as other mental states are

from circumstantial evidence; that is, by reference to the defendant's conduct, words or acts and

all the surrounding circumstances.

To reiterate, the three elements of this offense that the State must prove beyond a

reasonable doubt are:

1. That S_____ in evidence contains [insert appropriate CDS (bath salt) here];

2. That the defendant possessed, or had under his/her control, S_____ in evidence; and

3. That t he defendant possessed with the intent to [distribute] [or dispense] [or

manufacture] S_____ in evidence.

If you find that the State ha s proven all these elements beyond a reasonable doubt, then

you must return a verdict of guilty. On the other hand, if you find that the State has failed to

prove any of these elements beyond a reasonabl e doubt, then you must return a verdict of not

guilty.

11 N.J.S.A. 2C:2-2b(1).

12 N.J.S.A. 2C:2-2b(2).