25.5. Drug Abuse - Bringing Into State

NOTE TO JUDGE: Please be aware that the statute number has been changed here. The official jury instruction still reads 893.13(1)(d) but in the 1997 statutes this section is located at 893.13(5). NOTE TO JUDGE: In 2002, the Legislature passed legislation declaring that knowledge of the illicit nature of a controlled substance was not an element under the statute but rather was an affirmative defense. This legislation was in reaction to the Florida Supreme Court=s holdings in Chicone v. State, 684 So. 2d 736 (Fla. 1996) and Scott v. State, 808 So. 2d 166 (Fla. 2002), which held that a knowledge element be added to possession instructions. The jury instruction committee has not yet issued a standard jury instruction reflecting the change created by the Legislature. The instant instruction has been changed, however, to eliminate knowledge of the illicit nature of the controlled substance as an element. However, if the defendant committed the crime prior to May 13, 2002, (the effective date of the legislation), the knowledge element must be included as a fourth element. See Thomas v. State, 844 So. 2d 723 (Fla. 5th DCA 2003). 25.5 DRUG ABUSE - BRINGING INTO STATE 893.13(5), Fla. Stat. Certain drugs and chemical substances are by law known as "controlled substances." [Specific substance alleged] is a controlled substance. To prove the crime of [crime charged], the State must prove the following three elements beyond a reasonable doubt: 1. [Name of defendant] brought a certain substance into Florida. 2. The substance was [specific substance alleged]. 3. [Name of defendant] had knowledge of the presence of the substance. To "possess" means to have personal charge of or exercise the right of ownership, management or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or <<<<<<<<<********>>>>>>>>>>>>> 2 (c) the thing is so close as to be with ready reach and is under the control of the inperson. NOTE TO JUDGE: Give any of the next three paragraphs if applicable. Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place ov which the person has coner trol. Constructive possession means the thing is in a place over which the person has control or in which the person has concealed it. If a thing is in a place over which the person does not have control, in order to establish constructive possession, the State muperson=s (1) control over the st prove the thing, (2) knowledge that the thing was within the person=s presence, and (3) knowledge of the illicit nature of the thing. Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. NOTE TO JUDGE: If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So. 2d 394 (Fla. 1973).