1. CRIMINAL LAW — Dispensing Dangerous Drug — Intent to Dispense — THC — Admitted — Mental Culpability — Present — Mistake — Drug Actually Dispensed — Not Preclude Conviction. Where defendant admitted he intended to dispense the drug tetrahydrocannabinol (THC), the requisite mental culpability for the offense of dispensing a dangerous drug was established; consequently, even if defendant were mistaken as to the precise chemical nature or name of the dangerous drug he dispensed, or believed that he was dispensing THC when he was actually dispensing a different drug, his conviction was warranted.
Opinion by JUDGE ENOCH.
Defendant appeals his conviction of dispensing a dangerous drug, in violation of §§ 12-22-404 and 12-22-412, C.R.S. 1973. We affirm.
The information initially charged defendant with dispensing phencyclidine (PCP) and tetrahydrocannabinol (THC). At trial, the prosecution's evidence established that an undercover police agent bargained for and purchased a bag of "suspected" THC from defendant, and that at the time of the sale defendant indicated to the agent that the substance in the bag was, in fact, THC. Subsequent chemical analysis revealed, however, that the bag actually contained PCP. At the close of the prosecution's evidence the charge of dispensing THC was deleted from the information, and only the charge of dispensing PCP was submitted to the jury.
Defendant, in his testimony, confirmed the details of the sale. He also testified that he believed that the substance in question was THC and had no knowledge that the bag actually contained PCP.
Defendant asserts here that in order to establish his guilt under the amended information, the prosecution was required to prove beyond a reasonable doubt that he knew that the substance he delivered to the undercover agent was PCP. He argues that the evidence failed to establish that he knowingly dispensed PCP and that therefore the evidence was insufficient to sustain his conviction. We disagree.
Section 12-22-404, C.R.S. 1973 declares unlawful the dispensing of any dangerous drug, except in certain circumstances not applicable here. Both PCP and THC are dangerous drugs as defined by the Colorado Dangerous Drug Act. See § 12-22-403(7), C.R.S. 1973 and § 12-22-403(13.5)(a), C.R.S. 1973 (1976 Cum. Supp.). Knowledge of the nature of a dangerous drug is, of course, an essential element of the offense of dispensing a dangerous drug. See People v. Eades, 187 Colo. 74, 528 P.2d 382 (1974). Here, however, defendant admitted he intended to dispense THC. Thus, the requisite mental culpability was established.
[1] Even if defendant were mistaken as to the precise chemical nature or name of the dangerous drug he dispensed, or believed that he was dispensing THC when he was actually dispensing PCP, his conviction was warranted so long as he intended to dispense a dangerous drug. See People v. Puzzi, 42 Ill. App. 3d 537, 356 N.E.2d 186 (1976); People v. Jones, 38 Ill. App. 3d 596, 348 N.E.2d 295 (1976). Cf. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973).
[2] Based on the foregoing, we also reject defendant's assertions that the trial court's instructions to the jury as to the elements of the offense were erroneous and that the trial court erred in refusing to instruct the jury that actual knowledge that the substance was PCP was an essential element of the offense. The trial court did instruct the jury that the elements of dispensing a dangerous drug are "knowingly selling or delivering to any person a dangerous drug" and defined the term "knowingly" in accordance with Colo. J. I. — Crim. 6:1(2). These instructions were proper, and defendant's assertions to the contrary are without merit.
Judgment affirmed.
JUDGE KELLY and JUDGE STERNBERG concur.