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 the matter is, that proof just simply wasn't in the record,” Caviness said, describing the two people involved as friends who had multiple phone calls that day and one who had loaned the other her car.

Caviness urged the court to harmonize the law by effectively importing the elements the Tennessee Supreme Court used to define casual exchange (from State v. Helton) into the definition of felony delivery so that the jury must be instructed on those elements up front. He argued that would avoid the practical problem caused by the trial court’s sequencing of instructions—where a jury may find the greater offense and never reach the lesser-included casual-exchange instruction—and would create a pattern instruction clarifying what “delivery” means for juries.

Will Lundy, arguing for the State of Tennessee, replied that the statutory mens rea for delivery is knowing and that requiring proof of premeditation or a preconceived plan would impermissibly increase the mens rea beyond what the legislature wrote. “The state must prove that the defendant knowingly transferred a controlled substance to the victim,” Lundy said, adding that “the defendant makes no argument that that didn't happen.” He told the panel that the trial record supported a finding that the conduct was more than a spontaneous casual exchange, citing the defendant’s admissions and the fact the meeting occurred at a rehabilitation center where access to drugs requires smuggling.

Judges on the panel pressed both sides on remedial options. One judge asked whether the acquittal-first sequential instruction the courts use could remedy the problem. Caviness acknowledged that the jury-instruction issue can present as plain error on appeal but urged the court to address the substantive sufficiency question as well. Several judges contemplated whether the appellate opinion could give guidance to trial courts or pattern-instruction committees without rewriting statutory elements that belong to the legislature.

Both counsel referenced precedent. Caviness cited State v. Helton and a recent Tennessee Supreme Court decision in State v. Fleming to support statutory harmonization and to argue against absurd results where the elements of a lesser offense can be used to define a greater one. Lundy cited cases upholding the constitutionality and appropriateness of sequential consideration of greater and lesser offenses, and argued that juries in this case heard the casual-exchange instruction and rejected it.

No formal ruling was announced at argument. The panel discussed whether the claim could clear the plain-error standard and whether any appellate opinion should suggest revised pattern instructions to reduce future confusion about the order and content of delivery and casual-exchange instructions.

Background: Robert Atkins was tried in Knox County on multiple counts; he was acquitted of the homicide-related charge but convicted of felony delivery based on the transfer of a very small quantity of a fentanyl-acetyl fentanyl mixture. At oral argument, counsel debated whether the statutory definition of delivery (Tenn. Code Ann. § 39-17-417) should be read to include additional elements that would distinguish it from the misdemeanor casual-exchange doctrine (addressed in State v. Helton).

What’s next: The panel took argument and posed follow-up questions; no decision was announced at the oral argument recorded in the transcript.