A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana.” Ricardo sits next to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down search of Jean. He discovers that Jean has a large baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for marijuana possession. Ricardo was within one hundred feet of marijuana as prohibited by the statute, but Ricardo should not be prosecuted for marijuana possession. No evidence exists to indicate that Ricardo knew Jean, or knew that Jean possessed marijuana. Thus Ricardo does not have the criminal intent or mens rea for possession, and the state’s possession statute should not be enforced against him.
KEY TAKEAWAYS
- The elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and attendant circumstances. Only crimes that specify a bad result have the elements of causation and harm.
- Criminal act is usually an unlawful bodily movement that is defined in a statute, or a case in jurisdictions that allow common-law crimes.
- The criminal act must be voluntary and cannot be based solely on the status of the defendant or the defendant’s thoughts.
- An exception to the criminal act element is omission to act.
- Omission to act could be criminal if there is a statute, contract, or special relationship that creates a legal duty to act in the defendant’s situation.
- Actual possession means that the item is on or very near the defendant’s person. Constructive possession means that the item is within the defendant’s control, such as inside a house or vehicle with the defendant.
- In most states, the defendant must be aware that he or she possesses the item to be convicted of possession.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?
- Read Olerv. State, 998 S.W.2d 363 (1999). In Oler, the defendant was convicted of possession of a controlled substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid, a controlled substance, from four different physicians without informing them that he already had a prescription for Dilaudid. The defendant appealed, arguing that he had no legaldutyto disclose his previous receipt of the drug to the physicians, and was therefore unlawfully punished for an omission to act. Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not? The case is available at this link: http://connecticut%20jury%20instructions%20no.%202.11-1%2C%20accessed%20february%2013%2C2011%2Chttp//www.jud.ct.gov/ji/criminal/part2/2.11-1.htm.
- Read Staples v. U.S., 511 U.S. 600 (1994). In Staples, the defendant was convicted o f possession of an unregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the conviction was improper because the prosecution did not prove that he knewthe weapon was automatic, and the prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court reverse the defendant’s conviction? Why or why not? The case is available at this link: https://www.law.cornell.edu/supct/html/92-1441.ZO.html
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