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Criminal Jury Instructions

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8.1-5  Illegal Distribution of a Controlled Substance near School, Public Housing, or Day Care Center -- 21a-278a (b)

Revised to May 10, 2012

The defendant is charged [in count __] with the illegal distribution of a controlled substance near a (school / public housing project / licensed child day care center).  The statute defining this offense imposes punishment on any person who (sells / possesses with the intent to sell)1 to another person any controlled substance in or on, or within one thousand five hundred feet of the real property comprising (a public or private elementary or secondary school / a public housing project / a licensed child day care center that is identified as a child day care center by a sign posted in a conspicuous place).

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Sold or possessed with intent to sell a controlled substance
The first element is that the defendant (sold / possessed with the intent to sell) to another person a controlled substance, specifically <insert type of substance>.2

"Sale" is any form of delivery, which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.

[<If possession with intent to sell is alleged:>  "Possession"3 means either actual possession or constructive possession.  Actual possession means actual physical possession, such as having the object on one's person.  Constructive possession means having the object in a place under one's dominion and control.

Possession also requires that the defendant knew that (he/she) was in possession of the <insert type of substance>.  That is, that (he/she) was aware that (he/she) was in possession of it and was aware of its nature.  The state must prove beyond a reasonable doubt that the defendant knew that (he/she) was in possession of <insert type of substance>.  <See Knowledge, Instruction 2.3-3.>

<If some form of constructive possession is alleged, see Possession, Instruction 2.11-1.>

Conviction for possession of a <insert type of substance> with the intent to sell requires proof of the specific intent to sell the <insert type of substance>.  A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result.  <See Intent: Specific, Instruction 2.3-1.>

You should consider all of the surrounding circumstances in determining whether the defendant had the intent to sell.4]   

Element 2 - Within 1500 feet
The second element is that the defendant (sold / intended to sell) the <insert type of substance> in or on, or within 1500 feet of the real property of <insert as appropriate:>

  • a (public / private) (elementary / secondary) school.

  • a public housing project.

  • a licensed child day care center that is identified as a child day care center by a sign posted in a conspicuous place.

<Insert appropriate definition(s):>

  • An elementary school is a school for any combination of grades below grade seven.  A secondary school is a school for any combination of grades seven through twelve, and may also include any separate combination of grades five and six or grade six with grades seven and eight.5

  • A public housing project means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer.6

  • A child day care center means a center that offers or provides a program of supplementary care to more than twelve related or unrelated children outside their own homes on a regular basis.7

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant (sold / possessed with the intent to sell) <insert type of substance>, and 2) occurred the defendant (sold / intended to sell) the <insert type of substance> in or on, or within 1500 feet of the real property of <insert type of property>.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of the illegal distribution of a controlled substance near (a school / public housing / a day care center), then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
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1 See Drug Transactions in the Introduction to this section.

2 See Defining the Controlled Substance in the Introduction to this section.

3 Ascertain from counsel what form of possession is alleged.  The definition should be narrowly tailored to the allegations.

4 See State v. Avila, 166 Conn. 569, 579-80 (1974) (the possession of a quantity of narcotics far greater than the amount a drug user would usually possess for his or her own use is sufficient to prove the intent to sell); State v. Brown, 90 Conn. App. 835, 840, cert. denied, 276 Conn. 901 (2005) (defendant's presence in area known for drug activity, his possession of cash and a cellular phone, and the packaging of the drugs were all indicia of the intent to sell); see also State v. Brown, 14 Conn. App. 605, 616-17, cert. denied, 208 Conn. 816 (1988) (evidence of intercepted phone conversations regarding drug sales was sufficient evidence to support a probable cause determination).

5 See General Statutes 10-282.

6 See General Statutes 21a-278a (b).

7 See General Statutes 19a-77 (a) (1).

Commentary

"[T]he plain language of 21a-278a (b) dictates only one construction.  While 'knowledge' on the part of the defendant as to location is not an element of 21a-278a (b), the state is required to prove that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within 1000 [now 1500] feet of an elementary or secondary school."  State v. Denby, 235 Conn. 477, 483 (1995); see also State v. Vasquez, 66 Conn. App. 118, 129, cert. denied, 258 Conn. 941 (2001); State v. Knight, 56 Conn. App. 845, 850-51 (2000). The intent to sell in a proscribed area cannot be inferred merely from possession in that area. State v. Lewis, 303 Conn. 760, 772-73 (2012).

Section 21a-278a (b) creates a separate crime from 21a-278 (b).  State v. Player, 58 Conn. App 592, 596-98 (2000) (rejecting defendant's claim that it was a sentence enhancement); but see State v. Polanco, 301 Conn. 716, 721 n.3 (2011) (questioning the validity of Player's conclusion).
 


 

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