People v. Frantz, 02CA0463.

• Decision Date: 29 July 2004
• Docket Number: No. 02CA0463.,02CA0463.
• Citation: 114 P.3d 34
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. FRANTZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

114 P.3d 34

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. FRANTZ, Defendant-Appellant.

No. 02CA0463.

Colorado Court of Appeals, Div. II.

July 29, 2004.

As Modified on Denial of Rehearing January 13, 2005.

Certiorari Denied June 27, 2005.

Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, William J. Frantz, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a schedule II controlled substance and possession with intent to manufacture a schedule II controlled substance. We affirm.

In 2000, defendant's wife was arrested for shoplifting four packages of cold medicine. She told police that she and defendant extracted pseudoephedrine from cold medicine tablets by dissolving them in water, a preliminary stage in manufacturing methamphetamine, and that they intended to and had talked about exchanging the extraction with another person for methamphetamine. She consented to a search of their residence, showed police five discarded packages of cold tablets, and stated that the contents of the packages were placed in water in a jar identified as belonging to defendant. The police seized the jar, and the solution in it was later found to contain pseudoephedrine.

Before trial, defendant filed a motion asking the court to declare unconstitutional the relevant statutory definition of controlled substance analog. The court denied the motion.

Defendant also moved to dismiss the charges, contending pseudoephedrine is not a schedule II controlled substance, immediate precursor, or controlled substance analog. The court concluded the issue was a factual one that should be raised later in a motion for judgment of acquittal. At the close of the prosecution's evidence at trial, defendant renewed his motion making the same argument and the court denied his motion.

I.

Defendant first contends the trial court erred in denying his motion to declare unconstitutional the definition of controlled substance analog contained in § 18-18-102(6), C.R.S.2003. According to defendant, this definition is unconstitutionally vague on its face and as applied to him through §§ 18-18-405 and 18-18-204(2)(g), C.R.S.2003. We disagree.

Statutory interpretation is a question of law that we review de novo. See Hendricks v. People, 10 P.3d 1231 (Colo.2000)

; People v. Pierrie, 30 P.3d 816 (Colo.App.2001). We interpret statutory words and phrases according to their commonly accepted meanings. People v. Baer, 973 P.2d 1225 (Colo.1999); People v. Nix, 42 P.3d 41 (Colo.App.2001).

A statute is presumed to be constitutional, and the burden falls upon the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. See § 2-4-201(1)(a), C.R.S.2003; People v. Alexander, 663 P.2d 1024 (Colo.1983); People v. Nix, supra.

Statutes offend due process if they fail to give fair notice of the conduct prohibited and do not contain adequate standards to prevent arbitrary and discriminatory enforcement. See People v. Baer, supra. However, due process does not require mathematical exactitude in legislative draftsmanship. The inquiry in a void for vagueness challenge is whether the law in question either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. People v. Alexander, supra; People v. Nix, supra.

Where, as here, a statute does not burden protected speech, a court should sustain a facial challenge only where the enactment is impermissibly vague in all its applications. If the statute survives a facial challenge, a litigant may succeed on a vagueness claim only by demonstrating the statute is impermissibly vague as applied. People v. Baer, supra; People v. Nix, supra.

Colorado's Uniform Controlled Substances Act, § 18-18-101, et seq., C.R.S.2003 (the Act), was intended to control the illegal manufacture and distribution of substances that may have legitimate medical purposes, but are subject to abuse and have a detrimental effect. Drugs are divided into schedules based on their common characteristics. People v. Moran, 983 P.2d 143 (Colo.App.1999).

As relevant here, a controlled substance analog under the Act (1) is a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule II; and (2) has a stimulant... effect on the central nervous system substantially similar to the stimulant ... effect on the central nervous system of a controlled substance included in schedule ... II. Section 18-18-102(6)(a)(I), C.R.S.2003 (emphases added). The definition excludes any substance for which there is an approved drug application, so long as such substance is in its intended and unconverted form. Section 18-18-102(6)(b)(II), C.R.S.2003.

A schedule II controlled substance analog is treated as a schedule II controlled substance. Section 18-18-204(2)(g), C.R.S.2003. It is unlawful for any person knowingly to possess or to possess with intent to manufacture a controlled substance. Section 18-18-405(1)(a), C.R.S.2003.

The Act is similar to statutory schemes enacted by several other states and by Congress. Although the federal controlled substances statute uses the term controlled substance analogue, the federal definition in large part is nearly identical to that contained in our statute. See 21 U.S.C. § 802(32) (defining controlled substance analogue); 21 U.S.C. § 813 (controlled substance analogue shall be treated as a controlled substance); see also People v. Moran, supra, 983 P.2d at 147

.

Defendant acknowledges that similar language in the federal analogue statute survived a vagueness challenge in United States v. Granberry, 916 F.2d 1008 (5th Cir.1990). There, the court concluded that the definition of controlled substance analogue in 21 U.S.C. § 802(32) and as used in 21 U.S.C. § 813 was not unconstitutionally vague, that it was clear and specifically defined in terms readily comprehensible to the ordinary reader, and that it provided adequate notice of the prohibited conduct. The Granberry court reasoned:

The statute makes plain that drugs which have been chemically designed to be similar to controlled substances, but which are not themselves listed on the controlled substance schedules, will nonetheless be considered as schedule I substances if (1) they are substantially similar chemically to drugs that are on those schedules, (2) ... they produce similar effects on the central nervous system as drugs that are on those schedules, or (3) [they] are intended or represented to produce effects similar to those produced by drugs that are on those schedules. There is nothing vague about the statute.

United States v. Granberry, supra, 916 F.2d at 1010; see United States v. Fisher, 289 F.3d 1329 (11th Cir.2002)

(approving of reasoning in Granberry); United States v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993)(same); People v. Silver, 230 Cal.App.3d 389, 281 Cal.Rptr. 354, 357 (1991)(reaching same conclusion as to equivalent state statute); see also United States v. Roberts, 363 F.3d 118 (2d Cir.2004)(concluding federal analogue statute is not unconstitutionally vague as applied to a particular substance); United States v. Desurra, 865 F.2d 651 (5th Cir.1989)(same).

We are persuaded by the analysis in Granberry and adopt it as our own.

Defendant also contends the phrase substantially similar is unconstitutionally vague on its face in reference to both the chemical structure and the effect on the central nervous system. However, these arguments have been rejected by other jurisdictions, and we agree with those jurisdictions. See United States v. Hofstatter, 8 F.3d 316, 321 (6th Cir.1993)

(holding "substantially similar" language in federal analogue statute is sufficiently precise to withstand vagueness challenge); United States v. Brown, 279 F.Supp.2d 1238, 1240-43 (S.D.Ala.2003)(concluding phrase substantially similar to the chemical structure is neither unconstitutionally vague nor ambiguous); People v. Silver, supra, 281 Cal.Rptr. at 356 (acknowledging term substantially similar had no scientific meaning, but rejecting vagueness challenge to state analog statute); One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency v. State, 774 S.W.2d 17, 21 (Tex.App.1989)(rejecting contention that there is no ascertainable standard to determine the meaning of substantially similar).

We also disagree with defendant that these terms are unconstitutionally vague as applied to him. The prosecution's expert testified at trial that chemical similarity can be measured in a number of ways, such as by its component elements, the number and arrangement thereof, and the nature of the bonds between elements. However, she also testified that ephedrine and pseudoephedrine share the same chemical formula, have almost exactly the same structure, react with the same reagent and catalyst to produce methamphetamine, and are classified as stimulants. We therefore conclude the language of the statute was sufficiently clear to enable defendant to know pseudoephedrine is a controlled substance analog.

Defendant's reliance on United States v. Forbes, 806 F.Supp. 232 (D.Colo.1992), is misplaced. In Forbes, the prosecution charged the defendants with the distribution of alphaethyltryptamine (AET) as a controlled substance analogue under the federal statute, and the defendants contended the definition of a controlled substance analogue was unconstitutionally vague. The district court agreed the federal statute's definition was unconstitutionally vague as applied to AET because (1) there existed a great diversity of opinion whether the chemical structure of AET was substantially...