In order to prove a defendant guilty of trafficking, the Commonwealth must prove five elements beyond a reasonable doubt:
- Possessed a certain substance.
- The first element the Commonwealth must prove beyond a reasonable doubt is that a defendant "possessed" a controlled substance. The law recognizes two kinds of possession — actual possession and constructive possession. A person who has physical control over an object and has the intent to exercise such control is in actual possession of it. A person who knowingly has direct physical control over an object at a given time is then in actual possession of it. Actual possession implies control and power over the thing or object.
- The substance was a controlled substance.
- The second element the Commonwealth must prove beyond a reasonable doubt is that the substance a defendant possessed was a controlled substance. As a matter of law, a controlled substance is defined in our general laws. The Commonwealth must therefore prove to you beyond a reasonable doubt that the substance the defendant allegedly possessed was in fact a controlled substance. The statute defining possession with intent to distribute a controlled substance does not require that the substance be in a pure form; any mixture that includes a controlled substance will suffice.
- Possessed that controlled substance knowingly or intentionally.
- The third element the Commonwealth must prove beyond a reasonable doubt is that a defendant possessed the controlled substance knowingly and intentionally. As to the knowledge requirement, the Commonwealth must prove beyond a reasonable doubt that a defendant knew that the substance in their possession was a controlled substance.
- Specific intent to distribute, manufacture, dispense or cultivate
- The fourth element the Commonwealth must prove beyond a reasonable doubt is that a defendant had the specific intent to distribute, manufacture, dispense or cultivate the controlled substance in their possession. In other words, that a defendant actually intended to distribute that controlled substance.
- The amount of substance
- The fifth element the Commonwealth must prove beyond a reasonable doubt is that the amount of substance was at a minimum, the statutory amount or more. In making this determination, it is the weight of the whole mixture and not just the weight of the substance in pure form.