Appellate attorneys debate whether 'delivery' should require proof beyond a 'casual exchange' in Atkins drug conviction

“May it please the court? My name is Tyler Caviness, here representing the appellant, Robert Atkins,” appellate counsel Tyler Caviness told the three-judge panel at the start of oral argument, reserving five minutes for rebuttal.

Caviness asked the Tennessee Court of Criminal Appeals to construe the statutory word “deliver” in felony drug-delivery cases so that it requires proof of some preconceived plan or design, rather than permitting conviction on proof of a simple transfer that would also satisfy the misdemeanor offense of casual exchange. He said the overlap between the statutory definition of delivery and the court-defined meaning of casual exchange has produced an “absurd result” in which the State can prove a felony by proving less than what courts require for the misdemeanor alternative.

The argument matters because, Caviness said, the underlying facts here involved a very small amount of drugs—0.03 grams—comprised of a mixture of acetyl fentanyl (Schedule I) and fentanyl (Schedule II), and the trial record did not show money or other consideration exchanged or any evidence of a predetermined plan. “The fact of…