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Possession with Intent to Deliver: the state's special jury instruction

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by: Ryan Scott • December 21, 2016 • no comments

I wrote about this back in 2011, after the COA had approved a state's instruction on possession with intent to delivery in State v. Schwab. Here's what I wrote, edited somewhat:

[T]he challenge to the instruction was very limited and therefore the COA's holding was narrow. ("In short, the issue that defendant frames on appeal — whether a jury instruction that indicates that a person may be found guilty of delivery of a controlled substance based solely on the quantity of the substance found — is not actually properly before this court.") The Supreme Court denied review, but another strange thing happened. There was a written concurrence to the denial of review, an event I don't know if I've ever seen before. (Dissents, yes, though primarily from SCOTUS. I'm sure it's happened before, but never, for me at least, memorably.)

The concurrence first quoted the instruction at issue:

"Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances."

Then the concurrence said this about the instruction:

"The second sentence of the trial court's instruction told the jury that, if it found that defendant possessed 'a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances,' then an attempted transfer had occurred. In my view, that part of the instruction improperly converted a permissible factual inference into a mandatory finding. To be sure, if a jury finds that a defendant possessed a larger amount of a controlled substance than a person ordinarily would possess for personal use, then the jury may but is not required to infer that the defendant possessed the controlled substance with the intent to sell or transfer it.(1) A judge, however, may not instruct a jury that it must draw that inference. The United States Supreme Court held over 30 years ago that such an instruction would violate the Due Process Clause. See Sandstrom v. Montana, 442 US 510, 513, 523-24, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (holding that the instruction that '[t]he law presumes that a person intends the ordinary consequences of his voluntary acts' violates due process)."

State v. Schwab.

I was and am grateful for the two Justices who expressed those concerns. There is no formal mechanism for the justices to alert defense attorneys that they are letting a good argument get by. Sometimes the appellate judges will - within a footnote - mention something like "we were not asked to rule whether X violates Y, so we aren't going to express an opinion on it," which attorneys who read the opinions will take as a subtle encouragement. So good for the Justices in this case.

But (you knew there would be a but), the concurrence implies that an instruction that suggests a permissible inference is kosher, as long as it doesn't make that inference mandatory. To be precise, it says that there may not be a constitutional infirmity to an instruction that merely permits an inference. Yeeeasss, but . . . Why should a trial judge - out of the many permissible inferences that can be drawn in any case - ever highlight (and give approval of) an inference that favors the state (or the defense for that matter)? That is the stuff of argument and the judge should stay out of it.

Furthermore, it's a problem - albeit a statutory one - because it's a comment on the evidence. As I have written regarding Robbery I w/ a Firearm and Comments on the Evidence:

"A trial court is not permitted to comment on the evidence. Or. R. Civ. P. 59 E; Or. Rev. Stat. § 136.330(1). Or. R. Civ. P. 59 E is applicable in criminal cases. A court impermissibly comments on the evidence when it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue. A court also impermissibly comments on the evidence if it instructs the jury to draw an inference against the defendant that shifts the burden of proof from the state to the defendant. An inference cannot relieve the state of its burden of proving each element of the crime beyond a reasonable doubt."

State v. Hayward, 327 Or 397 (1998)[emphasis added]

Note that the line after the highlighted line begins "A court also impermissibly. . . " It's clear that those two sentences describe two separate - and equally impermissible - ways that a court can comment on the evidence. So the trial judge impermissibly comments simply by telling the jury how a fact (the quantity of the controlled substance) relates to a legal conclusion (the intent to deliver). In order to find an impermissible comment on the evidence, there is no requirement in Hayward that the jury is told that the inference is mandatory, only that they are told by the judge how the evidence might support that conclusion.

The prosecutor will make that argument, of course. Both lawyers are supposed to comment on the evidence. Closing argument is nothing but. The trial court, however, shouldn't give tacit approval to the inference the prosecutor is asking them to draw.

A few months ago, five years after the above concurrence, the COA -- in its opinion regarding consideration when used in the context of Commercial Drug Offenses -- wrote this:

In State v. Boyd, 92 Or App 51, 54, 756 P2d 1276, rev den, 307 Or 77 (1988), we held that the possession of an amount of drugs inconsistent with personal use, together with other indicia of drug trafficking, was sufficient to prove that the defendant took a "substantial step" towards the transfer of a controlled substance and had, therefore, attempted to deliver the drugs. See also State v. Alvarez-Garcia, 212 Or App 663, 666, 159 P3d 357 (2007) ("Possessing a controlled substance with the intent to transfer it may constitute a substantial step toward actually transferring it."). [Emphasis added.]

Note the "may." Whether possession with intent to deliver is sufficient is a question for the jury. The state can argue it. But a judge should not be leading the jury to that conclusion.