From OCDLA Library of Defense
There is a mistaken belief out there that possession with intent to deliver is sufficient to prove an attempted delivery which is sufficient to prove a delivery. It simply isn't true. Per the always brilliant Ryan Scott:
This mistaken belief is based on a number of cases where the Court of Appeals held that evidence showing "possession with intent" is enough to survive a MJOA on a delivery charge. As you know, attempted delivery equals delivery. the word "attempt" means the same thing in the drug chapters as it does elsewhere, and therefore, guilt requires a "substantial step" towards delivery. Not just a step: a substantial step. So when the Court of Appeals decides that possession with intent is enough to survive MJOA, they are saying that a reasonable juror COULD find that possession with intent is a substantial step towards delivery. the coa is not finding that a juror HAS to find that it is a substantial step. A reasonable juror may in fact find that, under the facts of your case, it was a step, but a minimal step. For example, defendant had a little extra meth, after he'd consumed some, and thought that maybe he'd share it later with a pretty girl (no actual girl identified). When there's a jury instruction to the effect that possession with intent is an attempt it tells the jurors that they HAVE to find possession with intent is a substantial step. Prosecutors no longer have to prove a substantial step. Or more legalistically speaking, such an instruction relieves the prosecutor of the burden of proving an element of the crime (that a substantial step was taken). The following paragraph explains why this violates the due process clause, albeit in a very different context: The court held that the evidence was sufficient to support the convictions under Jackson v. Virginia. However, based on In re Winship, Sandstrom, and Estelle, the appellate court held that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the state of its burden of proof of an element of the crimes with which he was charged. The instructions were, at the very least, ambiguous on the question of whether the inmate could be convicted of murder and attempted murder on a theory of accomplice liability without proof beyond a reasonable doubt that the inmate knew that an accomplice intended to commit murder. The court held that there was a reasonable likelihood that the jury misapplied the ambiguous jury instructions. Relieving the state of its burden of proof on that issue was not harmless error. Saruasad v. Porter, 479 F.3d 671 (2007) So, what I recommend is a very brief memo, a page or two, that makes the argument above. I would submit it to the court when objecting to the instruction. When I speak to new lawyers, I try to convey the importance of memos, however succinct. Not only does it improve the chances of winning in front of the trial court, it dramatically improves the chances the appellate attorney will brief it. And if it wins on appeal, the vast majority of our clients are better off re-fighting a DCS charge three years from now.