What is “knowing” possession of synthetic marijuana?
To convict soeone of possessing a controlled substance, the government must prove the person knew what they had. (With the possible exception of–where else?–Florida.) In other words, if a person thinks has marijuana in their hand but they think it is oregano, they aren’t guilty of possession of a controlled substance. This does not mean the government needs to prove a person knew it was against the law to possess the drug. Ignorance of the law is no excuse, so telling the police that you didn’t know cocaine was illegal is not going to help you out. But, if you genuinely thought that what you possessed was sugar and not cocaine, then you may have a defense.
This principle can present interesting legal challenges, particularly when it comes to newly criminalized drugs like synthetic marijuana. Part of the problem is that what is sold as “synthetic marijuana” is not necessarily always the same chemical. A person may buy something marketed as “synthetic marijuana” without knowing what the intoxicant in it is or whether or not it has been made criminal.
In these cases, what, exactly, does the government need to prove knowledge of? Is enough to say that a person knew what they possessed has an intoxicating effect? (If so, what about legal intoxicants like alcohol, tobacco or even caffeine?) Is it sufficient to prove a person knew they were buying “synthetic marijuana,” even if they didn’t know what chemical was in it? (Would the answer change if 1/2 of the chemicals marketed as “synthetic marijuana” were still legal to possess and sell while the other 1/2 had been criminalized?)
Yesterday, a Missouri appeals court addressed some of these issues in rejecting a challenge to a conviction for possession of synthetic marijuana.
Here are the facts:
Paul presented testimony at trial that she hosted a “card party” at her home on November 17, 2011. When Paul left her party briefly “for a beer run,” her guests called her and asked if they could burn “K2” or “Mr. Happy” — both brand names for synthetic marijuana. One of Paul’s guests had purchased the “Mr. Happy” at a gas station. Paul testified that she instructed her guests to wait until she got home because she was not familiar with the product.
When Paul returned home, she inspected the package. Paul testified that the substance’s label warned that its contents were “not for human consumption,” and that the label stated “probably three times” that its contents were “one hundred percent legal.” After reading the “Mr. Happy” package, Paul allowed the cigarette to be burned in the ashtray “like . . . incense.” Paul testified that no one actually smoked the substance.
In rejecting Paul’s appeal, the court held that “the State is required to prove that the defendant had knowledge of the general character of the substance — “i.e., that the substance was a drug of some sort, and not just baking power” — the State is not required to prove that the defendant knew the substance was illicit.”
To the extent Paul is arguing that there was insufficient evidence to prove that she had knowledge of the substance’s general character, that argument also fails. While there was testimony at trial supporting Paul’s position, when properly viewing the record in the light most favorable to the verdict, the evidence is sufficient to prove beyond a reasonable doubt that Paul had knowledge of the general nature of the substance found in her kitchen. When Chief Garton found the substance in Paul’s home, it was in an ashtray and was rolled up in a paper in a manner commonly used to smoke marijuana. Additionally, Paul testified that the “Mr. Happy” package referred to its contents as “hash”— a common slang term for marijuana and the short form of “hashish,” which is the resin extract of the cannabis plant. See State v. Reiley, 476 S.W.2d 473, 473 (Mo. banc 1972). Finally, the substance’s label made multiple statements regarding its legality. Based on this evidence, the circuit court could reasonably infer that Paul was not under the impression that the “Mr. Happy” product was simply incense and that she was aware of the substance’s drug-like nature. Accordingly, the court did not err in failing to sustain Paul’s motion for judgment of acquittal. The point on appeal is denied.
While there may be a sound basis for the court’s decision, I think its cursory discussion of Paul’s arguments is problematic. To be sure, the government does not need to prove Paul knew that possession of synthetic marijuana was illegal. But it did need to prove she knowingly possessed the substance. If all Paul knew was that the substance was named “Mr. Happy” and might be an intoxicant, however, I’m not sure that necessarily tells us she knowingly possessed a controlled substance.