Elements of the Crime: Possession with Intent to Deliver
Both possession and intent to deliver may be proved by circumstantial evidence and reasonable inferences drawn therefrom. People v. Ferguson, 94 Mich. App. 137, 151, 288 N.W.2d 587, 594. Intent to deliver may be inferred from the amount of controlled substance possessed by an accused. Id, citing People v Abrego, 72 Mich App 176, 181; 249 NW2d 345 (1976). Below is the jury instruction used when a Defendant is charged with Possession with Intent to Deliver:
M Crim JI 12.3
Unlawful Possession of a Controlled Substance with Intent to Deliver
The defendant is charged with the crime of illegally possessing with intent to deliver [(state weight) of a mixture containing]1 a controlled substance, ______________________________.
To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant knowingly possessed2 a controlled substance.
(3) Second, that the defendant intended to deliver this substance to someone else.3
(4) Third, that the substance possessed was _________________________ and the defendant knew it was.
(5) Fourth, that the substance was in a mixture that weighed (state weight).]1
(6) Fifth, that the defendant was not legally authorized to possess this substance.]4
Use Note
1 Use the bracketed portion when the controlled substance is a narcotic drug classified in Schedule 1 or 2, or a cocaine-related substance as found in MCL 333.7214(a)(iv).
2 For a definition of possession, see M Crim JI 12.7.
3 This is a specific intent crime.
4 This paragraph should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to possess the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt. People v Pegenau, 447 Mich 278, 523 NW2d 325 (1994).
History M Crim JI 12.3 (formerly CJI2d 12.3) was CJI 12:2:00, 12:2:01, 12:2:04.
Reference Guide:
Case Law: People v Konrad, 449 Mich 263, 273, 536 NW2d 517 (1995); People v Pegenau, 447 Mich 278, 523 NW2d 325 (1994); People v Wolfe, 440 Mich 508, 519-520, 489 NW2d 748 (1992); People v Allen, 390 Mich 383, 212 NW2d 21 (1973); People v Harper, 365 Mich 494, 506- 507, 113 NW2d 808, 813-814 (1962); cert den, 371 US 930 (1962); Peterson v Oceana Circuit Judge, 243 Mich 215, 219 NW2d 934 (1928); People v Germaine, 234 Mich 623, 627, 208 NW 705, 706 (1926); People v Johnson, 68 Mich App 697, 243 NW2d 715 (1976); Michigan Model Criminal Jury Instructions Narcotics Chapter 12 280 People v Mumford, 60 Mich App 279, 282-283, 230 NW2d 395 (1975); People v Davenport, 39 Mich App 252, 197 NW2d 521 (1972).
