Legal Causation

The [ge Element in Drug Cases:

Some Final Thoughts on Shelton and Adkins

by Richard Sanders

I n Chicone v. State, 684 So. 2d 736, 745-46 (Fla. 1996), the court held "knowledge of the illicit nature of the suhstance" is an element of

possession offenses under §893.13. The court reaffirmed that holding in Scott v. State, 808 So. 2d 166 (Fla. 2002). Shortly after Scott, the legislature enacted §893.101, which provides: (D...Scott...and Chicone...were contrary to legislative intent.

(2)...[K]nowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) [When] a defendant asserts th[is] af- firmative defense[J possession of a controlled substance...shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance....

In Shelton v. Sec'y, Dep't of Corrections, 802 F. Supp. 2d 1289, 1293 (M.D. Fla. 2010), reversed, 691 F.3d 1348 (11th Cir. 2012), cert, denied sub nom, Shel- ton u. Crews, _ U.S. _ , 133 S. Ct. 1856 (2013), a federal trial judge declared that, in light of §893.101, "section 893.13 is

unconstitutional on its face."' Two state circuit court judges soon agreed; all other Florida lower court judges disagreed.^ In State V. Adkins, 96 So. 3d 412 (Fla. 2012), a fractured court rejected the Shelton analysis and held §893.13 was constitu- tional. The federal circuit court reversed Shelton on procedural grounds, without reaching the merits.^ The U.S. Supreme Court denied certiorari in hoth cases.''

This article analyzes Shelton and Adkins. The article argues that the Shelton court started with two flawed premises and then reasoned, in a logi- cal fashion, to a flawed conclusion. The author helieves that, while the Adkins court reached the right result, some of the analysis in the opinions is flawed.

The basic prohlem is the use of "offense analysis" rather than "element analysis" to analyze such issues. By its nature, offense analysis fails to recognize the complexity in issues such as the one ad- dressed here; thus, using offense analysis can lead to erroneous results. Courts should always use element analysis when addressing such issues.

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Element Analysis and Offense Analysis

Element analysis, championed by the Model Penal Code, is as follows: There are five generic elements in all criminal offenses: actus reus, mental element, harmful result, cau- sation, and attendant circumstances {e.g., the victim was under a certain age). Not all offenses have all five elements. But each physical element has a corresponding mental element, and "different elements of the same offense can require different mental

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elements."« There are five possible mental elements: intent (or "purpose," in the Model Penal Code), knowledge, recklessness, negligence, and "no ele- ment" (i.e., strict liability).*'

The actus reus element always has a mental element of intent or knowledge: The state must prove one intentionally or knowingly did some- thing. Even with offenses that punish omissions (e.^., failure to register as a sex offender), the state must prove one intentionally or knowingly did the act that triggers the registration requirement {e.g., for sex offenders, changed residence).

The recklessness and negligence mental elements apply to either a causation element or an attendant circumstances element. If causing harm is an element of an offense, the state must prove one committed the act and either: 1) intentionally or knowingly caused the harm; or 2) recklessly or negligently ignored the possibility that the harm might oc- cur. If the existence of an attendant circumstance is an element of the of- fense, the state must prove one either 1) knew that the circumstance existed; or 2) recklessly or negligently ignored the possibility that the circumstance existed.

The no-element mental element (i.e., strict liability) invariably ap- plies to an attendant-circumstance element.' An attendant-circumstance element is a strict-liability element if the state only needs to prove that the circumstance existed. It is irrelevant, not only that the defendant did not know the circumstance existed, but also that he or she believed in good faith and for good reason that the circumstance did not exist.

Offense analysis assumes all offens- es have a singular mental element. The most common and troublesome aspect of offense analysis is the use of the terms "specific intent" and "gen- eral intent." While courts continue to use these terms, this distinction is "an artificial irrationality widely condemned by the authorities"» be- eause the distinction fails to recognize the reality of offenses with multiple elements. "[OJffense analysis can ac- curately describe the culpability ele- ments of an offense only if the same

level of culpability {e.g., intention) [apphes to] each element of an offense. But where different culpability levels are appropriate for different elements, offense analysis...obscure[s] but do[es] not eliminate the confusion."' As discussed below, another troubling example of offense analysis is the way it defines a strict-liability offense — this was the primary flaw in Shelton.

Two Flawed Premises in Shelton The first flawed premise in Shel-

ton is that §893.101 "eliminated] mens rea as an element of [the] drug offense[s]" in §893.13, rendering those offenses strict-liability offenses.'" The second flawed premise is that "a strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct.""

As to the second flawed premise, although courts recognize that there are due process limits on a state's abil- ity to create strict-liability offenses, they have not laid out those limits in any detail. ̂ ^ But there is no three-part test to determine whether a statute creating a strict-liability offense is valid. The article discusses this second flawed premise after discussing the first flawed premise, which concerns the meaning of "strict-liability of- fense."

• Flaw One: The Meaning of "Strict Liability Offense" — Using element analysis, the proper definition of a strict-liabihty offense is an offense that has a strict-liability element. If one uses this definition, then the Shel- ton court was correct in concluding that §893.101 rendered the offenses in §893.13 strict-liability offenses. As discussed below, §893.101 eliminated a mental element for one of the ele- ments in the §893.13 offenses, ren- dering that element a strict-liability element (and rendering the offenses strict-liabihty offenses). But this con- clusion has no constitutional signifi- cance; many offenses that are clearly constitutional are strict-liability of- fenses under the proper definition.

The Shelton court did not use the proper definition. Although the court did not define what it meant by "strict-

42 THE FLORIDA BAR JOURNAiyJULY/AUGUST 2014

liability offense," it implied a definition — an offense that has "[no] mens rea element."^^ The implication here is that, after §893.101, the offenses in §893.13 have no mental element at all.

Element analysis exposes the fiaw: An offense with a strict-liability ele- ment still has an actus reus element with a mental element of knowledge or intent. As the U.S. Supreme Court has recognized, if we define a strict- liability offense as being one that has no mental element at all, then this "use of the term 'strict liability' is really a misnomer...."" It is also an example of offense analysis. The un- stated premise is that a strict-liability offense has a singular mental element (albeit a "no-element" element).

Many Florida offenses have strict- liability elements. Sex offenses in- volving minors do not require proof of knowledge of the victim's age.̂ ^ To prove residential burglary, the state need not prove one knew that the structure entered was a dwelling. To prove grand theft, the state need not prove one knew the stolen property was worth more than $300. In fire- arm and weapon offenses, the state need not prove one knew the item possessed or carried was considered a firearm or weapon. Properly defined, "strict-liability offense" includes many offenses, the constitutionality of which is unquestioned.

As to the offenses in §893.13, start with the most basic offense: posses- sion of a controlled substance. This offense has an actus reus element (possession of a substance) and an a t t e n d a n t - c i r c u m s t a n c e element (the substance was a controlled substance). Each element has a cor- responding mental element. The actus reus element of possession has two components: knowledge of the pres- ence of substance and the ability to control it.̂ '̂ This presence-knowledge component is a mental element.'^'

Chicone added a second mental ele- ment to the attendant-circumstance element of the offense: knowledge that the substance was a controlled substance. Section 893.101 elimi- nated the second mental element. But the presence-knowledge mental element remains, meaning the pos-

session offense in §893.13 still has a mental element. The other offenses in §893.13 — sale, delivery, etc. — also have an inherent mental element in the actus reus element. Thus, while §893.101 did render the offenses in §893.13 strict-liability offenses as that term is properly defined, the statute did not "eliminate mens rea as an ele- ment of... drug offense [s],"!** if by that we mean these offenses now have no mental element at all.

The Shelton court used the term "mens rea" rather than "mental ele- ment."^^ The two phrases should be synonymous in this context. But the use of the term mens rea in this con- text is troublesome, given the numer- ous and evolving definitions that have been used over the years:

[I]n early law mens rea doubtless meant little more than a general immorality of motive. The early conception of mens rea has also been described as a general notion of moral blameworthiness, an evil-meaning mind, and a vicious will....

[T]he view of mens rea generally has shifted from a vague notion of wicked- ness to a more definite requirement of a specific state of mind. Mens rea to-day means something quite different from im- morality of motive. It means a particular kind of intent...a criminal intent, that is, the intent to commit a crime...an intent to do that which, whether the defendant knew it or not, constitutes a breach of the criminal law....

[I]t is quite futile to seek to discover the meaning of mens rea by any common principle of universal application running alike through all the cases. A mens rea does not mean a single precise state of mind which must be proved as a prerequisite for all criminality. Mens rea, chameleon-like, takes on different colors in different sur- roundings. While the old notion of "wicked- ness" may well have been satisfied by an identical showing for different offenses, the new notion of a specific state of mind could require a different state of mind for each crime or each general group of crimes.... [T]here is no single precise state of mind common to all crime....The old conception of mens rea must be discarded, and in its place must be substituted the new concep- tion of mentes reae. ̂ °

Thus, mens rea is an elastic and variegated concept. The phrase may have had some utility in an era when criminal offenses were created by courts. As applied to statutes, how- ever, mens rea should mean "only a subjective state of mind required by the definition of an offense" or "the mental element necessary for the particular crime."^^ Injecting notions

of "moral blameworthiness," "wicked- ness," and the like is not helpful to element analysis.

Using the term mens rea is a form of offense analysis. The unspoken premise is that criminal offenses have a singular mental element called, for all offenses, the mens rea element. There is no such universal element; rather, there are a variety of mental elements that apply to the various

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The phrase "mens rea" may have had some utility in an era when criminal offenses were created by courts. As applied to statutes, however, mens rea should mean ''only a subjective state of mind required by the definition of an offense" or '%e mental element necessary for the particular crime.

elements of various offenses. In sum, the first flaw in Shelton is its

use of "offense analysis" rather than "element analysis," particularly as to the meaning of strict-liability offense. As to the second flaw:

• Flaw Two: The Three-part Due Process Test for Strict-liability Of- fenses — The second flaw in Shelton is its assertion that "a strict liahility offense has only been held constitu- tional if: (1) the penalty imposed is shght; (2) a conviction does not result in substantial stigma; and (3) the stat- ute regulates inherently dangerous or deleterious conduct. See Staples v. United States, 511 U.S. 600,619-20...

Staples does not support this as- sertion. Staples applied basic rules of statutory construction to conclude Congress did not intend to create a strict-liability element in a firearm offense. 2ä In the pages from Staples t h a t the Shelton court cited, the Staples court stated: "[O]ur holding is a narrow one.... 'Neither this Court nor...any other has undertaken to de- lineate a precise line or set forth com- prehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.'.. .We attempt no definition here, either.. .."̂ ''

Nothing in Staples supports the three-part test Shelton used; nor do the other cases Shelton cites on this point.2^ As the Shelton circuit court noted when reversing, the cases the district court relied on are "not square due process holdings":

Rather, those cases avoid the due process question, sometimes invoking the rule of lenity, hy reading a mens rea require- ment into otherwise silent or ambiguous statutes. As [section 893.101] is explicit in its partial elimination of mens rea, those rulings are no aid [to] SheltonD....

Constitutional avoidance is little help to someone in search of clearly established constitutional law.̂ i"

The Shelton district court's con- clusion flowed naturally from the flawed premises. The "strict-liability offenses" in §893.13 fail the three-part due process test because 1) §893.13 imposes severe penalties; 2) convic- tions under it create substantial social stigma; and 3) it "regulates inherently innocent conduct."" On the latter point, the court said:

[Section] 893.13 cannot survive constitu- tional scrutiny when considered in relation to the conduct it regulates — the delivery of-any substance.... [T]here is a long tradi- tion...of lawful delivery and transfer of containers that might contain substances under [many] circumstances: carrying lug- gage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial trans- portation. Under [§893.13], that conduct is rendered immediately criminal if it turns out that the substance is a controlled sub- stance, without regard to the deliverer's knowledge or intent.^*

But §893.13 does not outlaw "the delivery oí any substance"; it outlaws the delivery of controlled substances. On its face, §893.13 does not "regu- late inherently innocent conduct"; it regulates drug-related conduct, which is not innocent. When the Shelton court said §893.13 regulates innocent conduct, it meant the following people who do not know what is in the pack- ages they delivered, and who engaged in what they thought was, and what appeared to be, innocent conduct, might be convicted under §893.13 because they unknowingly delivered a controlled substance in an opaque package.

We can easily avoid this problem by defining "delivery" to require proof

that one knows one is delivering the substance (as opposed to knowing one is delivering an opaque package that contains the substance). The statutory definition of delivery—"the actual, constructive, or attempted transfer from one person to another of a controlled substance"^^ — does not expressly contain a knowing- delivery-of-substance element. But we can read one in without violating §893.101. To prove a delivery, the state need not prove one knew the nature of the substance one was delivering, just that one knew one was deliver- ing that substance. This is merely the presence-knowledge element of possession applied to deliveries.^"

Indeed, failing to read a presence- knowledge element into delivery of- fenses would lead to absurd results. The ignorant courier could not be convicted of possession because he or she did not know of the presence of the substance; however, he or she could be convicted of the more seri- ous delivery offense, even though he did not know of the presence of the substance. Surely, the rule of statu- tory construction that requires courts to interpret statutes to avoid both absurd results and constitutional problems can be deployed here.^^ So C£ui the rule of lenity''^ and the rule of construction that says courts will as- sume that the legislature intended to include a mental element in a statute that imposes serious penalties, even though the statute does not expressly include i

In sum, the Shelton court started with fiawed premises and then rea- soned to a flawed conclusion. Post- §893.101, the offenses in §893.13 still have mental elements and, thus, are not strict-hability offenses as the Shelton court was using the term. How ever we define strict-liability offense, there is no three-part due pro- cess test for determining the validity of such offenses. Finally, the Shelton court's parade-of-horribles concerns can be easily avoided with basic rules of statutory construction.

Adkins: Right Result, Some Questionable Reasoning

In Adkins, Justice Canady wrote for the three-person plurality; Justice

44 THE FLORIDA BAR JOURNAL/JULY/AUGUST 2014

Pariente concurred in the result in a separate opinion; and Justice Perry wrote a dissent. Justice Lewis con- curred separately and Justice Quince dissented separately, but neither wrote an opinion or gave any indi- cation of whether they agreed with anything in any of the opinions.

Justice Perry's dissent essentially followed the Shelton logic.̂ ^ Both the plurality and the concurrence seem to recognize the importance of using ele- ment analysis to decide such issues. The author believes these opinions reached the right result, hut does not agree with all of the reasoning.

The plurality began by using ele- ment analysis to note that §893.101 "eliminates knowledge of the illicit nature of the controlled substance as an element[, but] does not eliminate the element of knowledge of the pres- ence of the substance...."^^ The plu- rality then said the legislature "has broad discretion to omit a mens rea element," although in "a limited cat- egory of circumstances, the omission of a mens rea element.. .violate [s] due process."^^ As examples, the plurality cited cases that dealt with laws that 1) might infringe on First Amendment rights, or 2) require people convicted of certain offenses to register with the authorities.^'' The plurality found these cases distinguishable because §893.13 neither infringes on a consti- tutional right nor "penalize [s] without notice a failure to act that absent the statutes otherwise amounts to essen- tially innocent conduct, such as living in a particular municipality without registering."^*

Thus, the plurality avoided the flaws in Shelton and laid the ground- work for a quick and easy conclusion: The offenses in §893.13 still contain a sufflcient mental element to satisfy due process. But another aspect of the plurality's reasoning is troubling.

The plurality noted four of the court's prior cases that declared laws invalid as violating substantive due process because those laws outlawed "entirely innocent conduct.''^' In particular, those laws outlawed the possession of 1) private aircraft with oversize fuel tanks not approved by FAA; 2) credit card embossing ma- chines; 3) prescription drugs not in

the original container; and 4) spear fishing equipment.*" The plurality said these cases did not apply to the issue under discussion because "sec- tions 893.13 and 893.101 — unlike the provisions we invalidated in [those cases] — are rationally related to the [legislature's goal of controlling [dangerous] substances..., and the statutes do not interfere with any constitutionally protected rights."*'

The logic in these due process cases is irrelevant in the present context. The laws in these cases, on their face, outlawed conduct that, in itself, caused no social harm; rather, they outlawed conduct that may indicate the person will commit in the future, or has committed in the past, a crime. For example, one may possess a plane with oversized fuel tanks to smuggle drugs; one may possess an embossing machine to make counterfeit credit cards, etc., but there are also "entirely innocent" reasons for possessing such items. In these cases, "entirely inno- cent conduct" refers to conduct that does not cause the tjrpe of social harm that justifies state interference with the liberty to engage in the conduct. Thus, under principles of substantive due process, there is no rational basis for banning the conduct.

Section 893.13 is not such a law. On its face, §893.13 outlaws conduct that clearly causes social harm. The cases the plurahty cites are irrelevant for present purposes. The fact that the legislature cannot outlaw conduct that causes no social harm tells us nothing about the due process limits on a legislature's ability to include a strict-liability element in an offense that does outlaw conduct that causes social harm.

In her concurrence. Justice Pari- ente recognized this problem and "disagree [d] with the [plurality's] broad pronouncement that due pro- cess will not ordinarily preclude the [l]egislature from creating criminal offenses that dispense with the mens rea requirement":

The [plurality's] analysis...is flawed be- cause it appears to be based on whether tbe [llegislature has a rational basis for imposing criminal liability. In fact, there are constitutional limitations on the [Uegislature's ability to create crimes that dispense with mens rea and in effect

criminalize actions that could be charac- terized as innocent conduct where such crimes carry substantial penalties.*^

Justice Pariente found §893.13 to be constitutional "only because it (1) continues to require the [sjtate to prove...knowledge of the presence of the controlled substance as an ele- ment of drug-related offenses and (2) expressly authorizes [the] affirmative defense."*^ Asserting 1) "the require- ment t h a t an accused act with a

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culpable mental state is an axiom of criminal jurisprudence that must be emphasized"; 2) "offenses dispensing with mens rea are generally disfa- vored"; and 3) "the guilty knowledge requirement [i]s a fundamental tenet of criminal law," she nonetheless con- cluded that §893.13 does not "codify true strict liability crimes" because of the affirmative defense.^^

The author agrees with Justice Pa- riente's analysis of the plurality's use of the substantive due process cases. The author will not quarrel with her assertion that the constitutionality of §893.13 depends on the combination of the facts that 1) presence knowl- edge is still an element, and 2) the affirmative defense is available. If the legislature eliminated the defense and left presence knowledge as the only mental element, there would be a much closer due process question. It is quite possible that one might know of (and thus possess) a substance {e.g., a bottle of nondescript white pills) but not know (and have no reason to sus- pect) that the substance is a controlled substance. Imprisoning someone on such facts without allowing the lack- of-nature-knowledge defense would raise serious due process concerns. But this is not the statute we now have, so we need not decide if the existence of the defense is required to make the statute constitutional.

But Justice Pariente also uses ex- pressions like "dispense with mens rea," "culpable mental state," and "the guilty knowledge requirement" without defining any of these terms.'*'' She also says §893.13 does not "codify true strict liability crimes" because of the affirmative defense.̂ "̂ Here we see some possible indications of offense analysis.

Justice Pariente did not explain why the existence of the defense means that §893.13 does not "codify true strict liability crimes." The im- plication is that, if the defense were eliminated, the offenses in §893.13 would be "true strict liability crimes." As Justice Pariente recognized, even without the defense there are still mental elements in these offenses. What exactly is a "true" strict-liability crime and what is the constitutional significance of labeling an offense as

such? Justice Pariente did not address these questions.

Nor did she define "culpahle men- tal state" or "the guilty knowledge requirement." Is the presence-knowl- edge mental element, which is still part of §893.13, a culpahle mental state or a guilty knowledge require- ment? Presence knowledge is the mental element necessary to prove the defendant guilty — to prove cul- pability of committing the charged offense. Is this sufficient to satisfy due process? If not, what more is needed? And what does it mean to say the legislature has "dispensed with mens rea"? Does this mean 1) "created a strict-liability element" (i.e., elimi- nated mens rea as to that element); or 2) "eliminated all mens rea" (i.e., created an offense that has no mental element whatsoever)?

The clear implications are that some- thing more than mere presence knowl- edge is needed to satisfy due process, and that "something more" is the affirmative defense. But Justice Pariente does not explain why this is so.

Of course, no other court has yet attempted to explain exactly what due process requires in the way of a mental element. This probably cannot be explained in any general terms, divorced from the factual context of the statute under review. But using terms like "mens rea," "culpable men- tal state," and "the guilty knowledge requirement" are not helpful. Such terms have too many overtones of offense analysis; Shelton clearly il- lustrates the potential prohlems in using offense analysis."

Conclusion While courts say there are due

process limits on the types of strict- liability elements a legislature can in- clude in a criminal statute, they have not attempted to define those limits, and a definition need not be offered. It is enough to note that, whatever those limits, the current Florida drug laws do not violate them.

It may be troubling, at first glance, to think one can be imprisoned for possessing something without requir- ing the state to prove one had at least some idea of what it was. But as a practical matter, this does not seem

to be a real problem. A quick thought experiment proves the point: Of all the people in Florida who currently possess a controlled substance — who know of its presence and have the ability to control it — how many do not know that what they possess is a controlled substance? The number is no doubt miniscule. If anything, the percentage is even smaller with the other offenses outlawed in §893.13; generally, people selling or delivering (as defined above) controlled sub- stances know exactly what they are doing. The defense in drug cases is al- most always some variation of "that's not my stuff" or "I wasn't involved in the deal," along with the occasional entrapment claim. It is very rare to see a case in which the defense is "yes, I possessed and sold that substance, but I didn't know what it was."

In the end, the issue here can be succinctly framed: Does the due pro- cess clause require the state to prove, as an element of all drug offenses, a fact that it rarely disputed at trial? Thus phrased, the question answers itself. Unfortunately, if offense analy- sis, and terms such as "mens rea," "guilty knowledge," and the like, are used, we can find ourselves reach- ing a flawed conclusion. We need to avoid such problems by using element analysis in all future cases. •

' FLA. STAT. §893.101(2) eliminated the knowledge-of-the-nature-of-the-substance element for "the offenses in this chapter," which includes the trafficking offenses in §893.135. However, both Shelton and Adkins expressly addressed only the §893.13 offenses. This article will continue that narrower focus, with the understand- ing that the same logic applies as to the §893.135 offenses.

2 See Adkins, 96 So. 3d at 416; State v. Washington, 114 So. 3d 182, 184 (Fla. 3d DCA 2012) and authorities cited therein.

3 Shelton, 691 F.3d at 1349 (reversing because "the state court did not unrea- sonably apply clearly established federal law, as determined by the U.S. Supreme Court....").

•* Shelton v. Crews, _ U . S . _ , 133 S. Ct. 1856 (2013). Adkins did not go to the U.S. Supreme Court, but many other cases raising the same issue did. E.g., Coon v. Florida, _ U . S . _ , 185 S. Ct. 817 (2013).

•' Staples V. United States, 511 U.S. 600, 609 (1994); accord, Liparota v. United States, 471 U.S. 419, 423, n.5 (1985) ("The required mental state may be different for different elements of a crime.").

46 THE FLORIDA BAR JOURNAL/JULY/AUGUST 2014

" See generally Paul Robinson & Jane Grail, Element Analysis in Defining Crimi- nal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681 (1983). Florida statutes contain other mental elements, such as malice, willful, and depraved mind. But it still remains true that each physical element must have a corresponding mental element.

' One could have a strict-liability-caused- a-result element. Causation includes both a caused-in-fact and a proximate-cause component, and the proximate-cause component requires proof of negligence. E.g., Schuette v. State, 822 So. 2d 1275, 1282 (Fla. 2002). If we eliminate the proximate-cause component and impose liability solely on the basis of one's causing in fact the prohibited result, this would be a strict-liability element.

8 Linehan v. State, Aie, So. 2d 1262,1267 (Fla. 1985) (Shaw, J., dissenting); see also Frey v. State, 708 So. 2d 918, 921-25 (Fla. 1998) (Anstead, J., concurring in part and dissenting in part); Jerome Hall, Intoxica- tion and Criminal Responsibility, 57 HARV. L. REV. 1045,1064 (1944); 1 PAUL H . ROBIN- SON, CRIMINAL LAW DEFENSES §65(e) (1984).

" Robinson & Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. at 689, n.6.

1» Shelton, 802 F. Supp. 2d at 1295. " Id. at 1298. '2 Other than cases involving laws that

possibly infringe on First Amendment rights [e.g.. Smith v. California, 361 U.S. 147 (1959)), the only U.S. Supreme Court case that struck down a law for failing to include a mental element is Lambert V. California, 355 U.S. 225 (1957), which held an ordinance that required felons coming into the city to register with the police violated due process notice require- ments because it did not require the state to prove the defendant knew she had to register. Lambert was a 5-4 decision and it is not clear whether the Court is declaring the law unconstitutional on its face or as applied. See id. at 227. Since Lambert, the Supreme Court has "steadfastly resisted efforts to extend Lambert's reach." United States V. Meade, 175 F.3d 215, 225 (1st Cir. 1999). Indeed, the Court has said that Lambert's "application has been limited, lending some credence to [the] prediction in dissent that the case would stand as 'an isolated deviation from the strong current of precedents — a derelict on the waters of the law.'" Texaco, Inc. v. Short, 454 U.S. 516, 537 n. 33 (1982) (quoting 355 U.S. at 232 (Frankfurter, J., dissenting)).

1' Shelton, 802 F. Supp. 2d at 1293,1295. " Staples, 511 U.S. at 607, n.3. 1= FLA. STAT. §800.04(3) (2013). I'' See Chicone, 684 So. 2d at 739-40. " The ability-to-control component of the

element of possession also has an inherent mental element. "Ability to control" means "more than the mere ability of the defen- dant to reach out and touch the item of contraband." Martoral v. State, 946 So. 2d 1240,1243 (Fla. 4th DCA 2007). Rather, it involves a more conscious intention to ex- ercise something akin to a right (recogniz-

ing that one cannot have legally enforce- able "rights" in contraband) of ownership, or agency, or bailment in the substance. See, e.g., Reynolds v. State, 111 So. 285, 286 (Fla. 1926); State u. Snyder, 635 So. 2d 1057, 1058-59 (Fla. 2d DCA 1994); Hons V. State, 467 So. 2d 829, 830 (Fla. 2d DCA 1985); see also United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986); State V. Atkinson, 620 N.W.2d 1, 4-5 (Iowa 2000). This implies a mental state of knowledge or intent; one intends to exercise control over the substance and knows one is doing that. " Shelton, 802 F. Supp. 2d at 1295. '̂ In the crucial portions of the opinion,

the Shelton court asserted: 1) FLA. STAT. §893.101 "expressdy] eliminate[s] mens rea as an element of a drug offense"; 2) "In the absence of a mens rea requirement, de- livery of cocaine is a strict liability crime"; and 3) §893.13 "impo[ses] harsh penalties without proof of mens rea...." Shelton, 802 F. Supp. 2d at 1295,1308. In other parts of the opinion, the court also-and often-refers to mens rea, but then also uses "scienter," "intent," "mental element," and "knowl- edge." Id. at 1297-99. The court does not address the question of whether all these terms are meant to be synon3rmous.

'"' Robinson & Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L . REV. at 685-88) (footnotes and internal quotation marks omitted).

'̂ Id. at 686, nn. 21 and 22 (citations omit- ted).

22 Shelton, 802 F. Supp. 2d at 1298. '^ Staples, 511 U.S. at 605-07. 2* Id. at 619-20 (citations and footnote

omitted). 25 Shelton cited United States a X-cite-

ment Video, 513 US. 64, 68 (1994); United States u. U.S. Gypsum, 438 US. 422, 437- 38 (1978); Morissette v. United States, 342 U.S. 246, 250 (1952); and United States a Balint, 258 U.S. 250, 254 (1922). Shelton, 802 F. Supp. 2d at 1297-1300. These cases all addressed questions of statutory con- struction. The only case that noted a pos- sible constitutional issue was X-citement Video. That was a child pornography case with First Amendment implications. At one point, the Court noted that, when constitutional rights may be impacted, courts should interpret statutes in a man- ner to avoid any constitutional problems. X-citement Video, 513 US. at 78.

2" Shelton, 691 F.3d at 1355 (footnote omitted).

2' Shelton, 802 F. Supp. 2d at 1300-02. 2̂ Id. at 1305 (emphasis added). 2s FLA. STAT. §893.02(6) (2013) (emphasis

added). "" Citing the §893.02(6) definition of de-

livery, the Shelton court said, "On its face the statute punishes...delivery without any proof of knowledge — not only of the illicit nature of the substance but, appar- ently, even of its delivery in fact." Shelton, 802 F. Supp. 2d at 1306. Even if this is an accurate reading of the face of the statute, the Shelton court did not consider the pos- sibility of reading a presence-knowledge mental element into the actus reus ele- ment of delivery.

In approving post-Ad^ms changes to the standard jury instructions, the Florida Supreme Court said: "In Adkins, ... the [clourt held that the guilty knowledge element, in light of..section 893.101...is limited to knowledge of the presence of the substance sold, purchased, manufactured, delivered, or brought into the state." In re Standard Jury Instructions in Criminal Cases, 112 So. 3d 1211, 1211 (Fla. 2013) (emphasis added). The emphasized state- ment is dicta but it indicates the court's thinking on this issue: Knowledge of the presence of the substance delivered is an element of the delivery offense. " E.g., State V. Iacovone, 660 So. 2d 1371,

1373 (Fla. 1995). 32 FLA. STAT. §775.021(1) (2013). '3 E.g., Staples, 511 U.S. at 605-06. 3* Adkins, 96 So. 3d at 431-35 (Perry, J.,

dissenting). '̂s Id. at 416.

3« Id. at 418-19.

3' Id. at 419-20 (citing, among others, the Lambert and Smith cases noted in endnote 12). 3" Id. at 420-21 (citations and internal

brackets and quotation marks omitted). 3" Id. at 422. "» See cases cited at id. at 420-21. The

court also noted Schmidt v. State, 590 So. 2d 404 (Fla. 1991), which declared part of the child pornography statute invalid because it outlawed the possession of in- nocent photos of naked children. That case is distinguishable from the present context because of the First Amendment values at stake. " Id. at 421-22 (citations omitted). *2 Id. at 425. *=' Id. at 424 (Pariente, J., concurring in

the result) (emphasis added). " Id. at 427-30 and n.4. « Id. at 427-30. ••« Id. at 430. " Although the Florida Legislature has

not adopted the Model Penal Code, or element analysis itself, element analysis is not one of two reasonable alternative approaches to the same problem. Rather, element analysis is a recognition of what is true, whether one realizes it or not. We may declare that 2+2=5, but if we act on that declaration, our math will invari- ably be off. Similarly, we may declare that criminal offenses have a singular mental element, and further declare that "specific intent," "general intent," "strict HabiUty," are valid singular mental elements. But such declarations do not alter the reality that each physical element of an offense has its own mental element; it merely ensures that, when addressing issues such as the present one, our math will not add up.

Richard Sanders graduated from the University of Pennsylvania Law School in 1982. He currently works in the appel- late division of the 10th Circuit Public Defender's Office.

THE FLORIDA BAR J0URNAL7JULY/AUGUST 2014 47

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