State v. Arghittu

• Decision Date: 29 January 2015
• Docket Number: No. 20130677–CA.,20130677–CA.
• Citation: 343 P.3d 709,2015 UT App 22
• Parties: STATE of Utah, Plaintiff and Appellant, v. Richard ARGHITTU, Defendant and Appellee.
• Court: Utah Court of Appeals

343 P.3d 709

2015 UT App 22

STATE of Utah, Plaintiff and Appellant

v.Richard ARGHITTU, Defendant and Appellee.

No. 20130677–CA.

Court of Appeals of Utah.

Jan. 29, 2015.

Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, for Appellant.

Richard P. Mauro, Salt Lake City, for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

PEARCE, Judge:

¶ 1 The State charged Richard Arghittu with distribution of a controlled substance analog, money laundering, and participating in a pattern of unlawful activity. The charges stemmed from his alleged distribution of a form of synthetic marijuana known as AM–2201. After Arghittu's preliminary hearing, a district court judge, acting as a magistrate, concluded that AM–2201 was not an analog of the controlled substance JWH–018 as the State had alleged. The magistrate found probable cause to bind Arghittu over on one lesser, but uncharged, count of drug possession not involving AM–2201. The State declined to amend the information to charge the single lesser count, and the magistrate dismissed the information at the State's request.¹ The State appeals from the order of dismissal. We reverse and remand for further proceedings.

BACKGROUND²

¶ 2 Arghittu, acting through two businesses that he owned or co-owned, packaged and distributed synthetic marijuana, commonly known as “spice.” As of mid–2010, the psychoactive ingredient in Arghittu's products was the synthetic cannabinoid JWH–018. Arghittu would purchase the spice in bulk, package it in small plastic jars or ziplock foil bags, and ship it to smoke shops, gas stations, and novelty stores across the country. At that time, JWH–018 was not listed as a controlled substance under Utah or federal law.

¶ 3 In November 2010, the United States Drug Enforcement Agency (the DEA) issued a notice of intent to temporarily categorize JWH–018 and several other synthetic cannabinoids as Schedule I controlled substances. In March 2011, the federal listing of JWH–018 as a controlled substance was finalized. Also in 2011, the Utah Legislature amended the Utah Code to expressly identify several synthetic cannabinoids, including JWH–018, as controlled substances. See Utah Code Ann. § 58–37–4.2 (LexisNexis Supp.2011) (effective Feb. 25, 2011). Utah Code section 58–37–4.2 stated that the substances enumerated therein, as well as “their analogs, homologs, and synthetic equivalents,” were “listed controlled substances.” Id. Utah Code section 58–37–2 defined a controlled substance analog as a substance that had a chemical structure “substantially similar” to that of a listed controlled substance and that either had, or was represented or intended to have, a “stimulant, depressant, or hallucinogenic effect ... substantially similar” to that of a listed controlled substance. Id. § 58–37–2(1)(g)(i).

¶ 4 Because JWH–018 had been classified as a controlled substance, Arghittu began looking for other chemical compounds that would serve as an effective substitute. He settled on a compound known as AM–2201. AM–2201 possessed a “similar effect” to JWH–018 but was not expressly listed as a controlled substance under Utah or federal law. Between February 25 and November 7, 2011, Arghittu packaged and distributed spice products containing AM–2201 as their psychoactive ingredient. Arghittu retained an independent laboratory to test his products to ensure that they contained only AM–2201 and not JWH–018 or other expressly banned substances. Although Arghittu labeled the products “not for human consumption,” he frequently discussed with others the potency or “level of high” that his products were capable of producing when ingested.

¶ 5 On November 7, 2011, the State executed a search warrant on Arghittu's warehouse in Murray, Utah. During the search, agents discovered and seized spice products, packaging materials, and financial records documenting recent spice shipments valued at more than $80,000. Testing revealed that most of the seized spice contained AM–2201. One tested product contained the synthetic cannabinoid JWH–122, and another contained the compound MDPV, both of which were expressly listed as controlled substances under the 2011 version of Utah Code section 58–37–4.2.

¶ 6 The State charged Arghittu with distributing a controlled substance analog, money laundering, and engaging in a pattern of unlawful activity. The charges were all first degree felonies, and each charge rested on the State's assertion that AM–2201 was an analog of the listed controlled substance JWH–018.

¶ 7 At the preliminary hearing, the State presented expert testimony from Scott McDaniel, a forensic scientist employed by the Utah Bureau of Forensic Services Laboratory System, also known as the State Crime Lab. McDaniel testified that the crime lab considers AM–2201 to be an analog of JWH–018 because the two substances are chemically “virtually identical.” He explained that AM–2201 and JWH–018 “have the exact same structure and composition, other than one atom.” Using a diagram comparing the two molecules, he explained that the only chemical difference between AM–2201 and JWH–018 is that AM–2201 contains a fluorine atom at the end of a pentyl chain instead of a hydrogen atom.

¶ 8 The State also presented testimony from Sergeant Stanton VanWagoner, a veteran narcotics officer. VanWagoner testified that, in his experience, AM–2201 users exhibited “the same symptomology that they would under the influence of JWH–018.” VanWagoner testified that AM–2201 had “similar lasting effects” on users, “just like JWH–018 would have.” VanWagoner based his testimony on his personal observations of and discussions with people who had used AM–2201. Another witness testified about his own experience with the psychoactive effects of AM–2201. That witness, an associate of Arghittu's, testified that AM–2201 was “actually more potent” than JWH–018, that “it's stronger, it takes less, [and] lasts longer,” and that it “pretty much shut your function.”

¶ 9 By the time of Arghittu's preliminary hearing, Utah Code section 58–37–4.2 had been amended to expressly list AM–2201 as a controlled substance. See Utah Code Ann. § 58–37–4.2 (LexisNexis 2012). The magistrate expressed concern that the amendment might have some bearing on whether AM–2201 could be considered an analog under the 2011 version of the statute and invited the parties to brief the issue.

¶ 10 After receiving the parties' briefs, the magistrate entered a written order concluding that the State had failed to demonstrate probable cause that, during the February to November 2011 time period charged in the information, AM–2201 was a banned controlled substance analog. The magistrate listed five reasons in support of this finding:

a. That JWH–018 was legal in the state of Utah until the legislature passed a bill outlawing that substance on February 26, 2011. AM–2201 was not made unlawful as an analog by the Utah Legislature until 2012.

b. Thus there was insufficient notice to [Arghittu] that AM–2201 was an unlawful substance between February 26, 2011 and November 7, 2011, the time period charged in the information.

c. The Court also finds relevant the testimony by [Arghittu] his intent in ensuring that he was complying with Utah law by having AM–2201 tested in a DEA sanctioned laboratory.

d. The Court rejects the supposition that it is the crime lab's responsibility to identify AM–2201 as an unlawful substance. The Court finds that the responsibility rests with the Legislature.

e. While the Court finds Mr. VanWagoner to be a knowledgeable and experienced police officer, the Court does not find that his testimony rises to the level of an expert regarding whether AM–2201 is an analog of JWH–018.

The magistrate found probable cause to bind Arghittu over on one count of constructive possession of the listed controlled substance MDPV, a third degree felony, and ordered the State to amend its information accordingly.

¶ 11 The State declined to amend the information and instead requested that the magistrate dismiss it entirely. The magistrate did. The State appeals from that dismissal order.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Arghittu filed a motion for summary dismissal of the State's appeal, arguing that we lack jurisdiction to entertain the appeal because the State itself sought dismissal of the information rather than amending to proceed on the constructive possession charge. Arghittu argues that the State has no right to appeal a dismissal it requested and should have pursued an interlocutory appeal of the magistrate's bindover order. “Whether appellate jurisdiction exists is a question of law” which we decide in the first instance. State v. Comer, 2002 UT App 219, ¶ 10, 51 P.3d 55 (citation and internal quotation marks omitted).

¶ 13 The State argues that the magistrate erred in refusing to bind over Arghittu as charged because the evidence before the magistrate demonstrated probable cause that AM–2201 is an analog of JWH–018. The magistrate's bindover decision “is a mixed determination that is entitled to some limited deference.” State v. Maughan, 2013 UT 37, ¶ 12, 305 P.3d 1058. However, the State is entitled to have a defendant bound over for trial if it presents “evidence sufficient to support a reasonable belief that the defendant committed the charged crime.” Id. ¶ 14 (citations and internal quotation marks omitted). In making the bindover determination, the magistrate “must view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Id. (citation and internal quotation marks omitted).

¶ 14 The State also argues that the magistrate exceeded the proper scope of the preliminary hearing when it concluded, apparently on constitutional grounds, that Arghittu lacked notice that AM–2201 was illegal as a controlled substance analog and that the responsibility to identify it as such rests with the legislature rather than the crime lab....