T.P.I. -- CRIM. 31.05

SIMPLE POSSESSION OR CASUAL EXCHANGE

Any person who commits the offense of [simple possession] [casual exchange] is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

(1) that the defendant either intentionally, knowingly or recklessly

[possessed] [casually exchanged] a controlled substance;

and

(2) that the substance was ___________________________,

(specify controlled substance)

a controlled substance.

____________________ is a Schedule ______ controlled substance.2

[There are two types of possession recognized in the law: actual possession and constructive possession. A person who knowingly has direct physical control over an object at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and intention at any given time to exercise dominion and control over an object is then in constructive possession of it.]3

["Possession" may be sole or joint. If the person alone has actual or constructive possession of a thing, possession is sole. If two (2) or more persons have actual or constructive possession of a thing, their possession is joint.]4

[It may be inferred5 from circumstances indicating a casual exchange among individuals of a small amount of controlled substances that the controlled substances so exchanged were possessed not with the purpose of selling or otherwise dispensing them.6 You are instructed that "exchange" means to part with, give, or transfer a substance in consideration of something received as an equivalent.7 "Casual" means without design. The term "casual exchange" does not exclude a transaction in which money is involved.]8

"Intentionally" means that a person acts intentionally with respect to the nature of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.9

"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.10

"Recklessly" means that a person acts recklessly with respect to the circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.11

FOOTNOTES

1. Tenn. Code Ann. 39-17-418(a) & (b).

2. "Controlled substance" means a drug, substance, or immediate precursor in

Schedules I through VIII of Tenn. Code Ann. 39-17-403 through 39-17-416, inclusive.

3. State v. Williams, 623 S.W.2d 121 (Tenn. Crim. App. 1981).

4. State v. Copeland, 677 S.W.2d 471 (Tenn. Crim. App. 1984).

5. The Court should instruct the jury concerning inferences. T.P.I. -- CRIM. 42.19.

6. Tenn. Code Ann. 39-17-419.

7. Webster's Third New International Dictionary (1983), cited in State v. Helton,

507 S.W.2d 117 (Tenn. 1974).

8. State v. Helton, 507 S.W.2d 117 (Tenn. 1974).

9. Tenn. Code Ann. 39-11-106(a)(18).

10. Tenn. Code Ann. 39-11-106(a)(20).

11. Tenn. Code Ann. 39-11-106(a)(31).

COMMENTS

1. Simple possession or casual exchange is a Class A misdemeanor. Tenn. Code Ann. 39-17-418(c).

2. Tenn. Code Ann. 39-17-418(e) contains requirements for felony conviction of a repeat offender.

3. The Sixth Circuit defined constructive possession as knowingly having the power and intention at a given time to exercise dominion and control over an object, either directly or through others. Constructive possession was not found where defendant waited in a truck while another person brought drugs inside. United States v. Craig, 522 F.2d 29 (6th Cir. 1975). Possession means control. Key v. State, 563 S.W.2d 184 (Tenn. 1978).

4. The Court held that it was proper to find joint possession when drugs were discovered in the bedroom. Also an envelope was found which was addressed to both parties. Armstrong v. State, 548 S.W.2d 334 (Tenn. Crim. App. 1976).

5. For the pattern jury instruction concerning inferences, see T.P.I. -- CRIM. 42.19.