Rider

Joe, 21, had what he thought was cocaine, and he needed money. Joe knew that cocaine was a controlled substance. Joe’s dad is a lawyer, and so Joe also knew that it was illegal to sell imitation controlled substances. What Joe didn’t know though, was that the substance he had wasn’t actually cocaine but ephedrine. Joe cut the ephedrine with baby laxative and packaged it in little bags just like cocaine dealers do. Sally, 16, wanted some cocaine for a party she was going to, and a mutual friend brought her to Joe’s house. Joe offered her a baggy, telling her it was cocaine, and Sally bought a couple grams. Joe, thinking Sally was also 21, asked her to get a drink at a nearby bar with him. Sally said no and left. That Saturday night, after being embarrassed by having to run to the bathroom a couple of times during the party, Sally’s friend Julia reported Sally to the police as payback to Sally for giving her baby laxatives. Sally, in turn, told on Joe. Joe is charged under the following statute: § 11.73.030. Delivery of an imitation controlled substance to a minor
(a) Except as provided in AS 11.73.050, a person 19 years of age or older may not deliver
an imitation controlled substance to a person under 19 years of age, who is at least three
years younger than the person delivering the substance.
(b) A person who violates this section commits a class B felony.
§ 11.73.099. Definitions
In this chapter,
(1) “controlled substance” means a substance as defined in AS 11.71.900(4);
(2) “deliver” or “delivery” means the actual, constructive, or attempted transfer from one
person to another of an imitation controlled substance, whether or not there is an agency
relationship;
(3) “imitation controlled substance” means a substance containing ephedrine, ephedrine
sulfate, pseudoephedrine, pseudoephedrine hydrochloride, phenylpropanolamine,
caffeine, theophylline, lidocaine, procaine, tetracaine, dyclonine, acetaminophen,
salicylamide, doxylamine, diphenhydramine, pheniramine, chlorpheniramine, or
pryrilamine, or their salts, that is not a controlled substance, and that by dosage unit
appearance (including color, shape, size, and markings) and by representations would
lead a reasonable person to believe that the substance is a controlled substance; the term
“representations”, as used in this paragraph, includes
(A) statements made by an owner or by anyone else in control of the substance
concerning the nature of the substance, or its use or effect;
(B) statements made to the recipient that the substance may be resold for inordinate
profit;
(C) whether the substance is packaged in a manner normally used for controlled
substances;
(D) evasive tactics or actions used by the owner or person in control of the substance to
avoid detection by law enforcement authorities;
(E) the storage, packaging, presentation, display of, or reference to a controlled substance
with, near, or in connection with the activity involving the imitation controlled substance;
Analysis
Joe has made two mistakes: He thinks he was distributing a controlled substance, when
the powder was actually an imitation controlled substance, and he thinks that Sally is 21
when she is actually 16. Each of these mistakes pertains to an element in the statute: the
first pertains to “imitation controlled substance,” and the second pertains to “person
under 19 years of age, who is at least three years younger than the person delivering the
substance.”
This statute has no mens rea term, but the statute does not impose strict liability as to material elements because the crime is a felony. Therefore, recklessness is the mens rea term applicable to these elements. We don’t have enough facts to determine whether Joe consciously disregarded a substantial and unjustifiable risk that the substance he was selling was fake, rather than real, cocaine. Even if he was, it is very likely that this jurisdiction also makes it a felony to sell cocaine. So, after arguing that Joe was reckless about the nature of the substanace, the prosecutor will also argue that under §2.04(2), a mistake is not a defense “if the defendant would be guilty of another offense had the situation been as he supposed.” In addition, the prosecution must prove that Joe consciously disregarded a substantial and unjustifiable risk that Sally was younger than 19 and more than three years younger than he. Again, we don’t have enough facts to know whether Joe was aware of the risk and disregarded it, although the fact that he invited her to go get a drink with him suggests that he thought she was 21, the legal drinking age.

Source: http://law.uoregon.edu/assets/facultydocs/lharris/crimproblems/problem4.pdf