State v. Duncan

Citation414 N.W.2d 91
Decision Date21 October 1987
Docket NumberNo. 86-1833,86-1833
PartiesSTATE of Iowa, Appellant, v. Bryan Lee DUNCAN and Marlene Marie Duncan, Appellees.
CourtUnited States State Supreme Court of Iowa

Thomas J. Miller, Atty. Gen., David L. Dorff, Asst. Atty. Gen., and William E. Davis, Co. Atty., for appellant.

Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for appellees.

Considered en banc.

McGIVERIN, Chief Justice.

Defendants Bryan Lee Duncan and Marlene Marie Duncan were charged by trial information in four counts with delivery of an imitation controlled substance and with advertisement to promote distribution of an imitation controlled substance in violation of Iowa Code sections 204A.4(1), (2) and (3) (1985). Defendants moved to dismiss the trial information on the ground, inter alia, that Iowa Code chapter 204A is unconstitutionally vague in violation of their right to due process of law under the fourteenth amendment to the United States Constitution. After hearing, the trial court sustained their motion, finding chapter 204A unconstitutionally vague on its face, and dismissed the trial information. The State appeals from this ruling. We reverse and remand.

I. Background facts and proceedings. Defendants own a store in Davenport, Iowa, named the "Karate Chop Shop." After an investigation, defendants were jointly charged in one trial information with several violations of Iowa Code chapter 204A stemming from sales and advertisements in their store. In count I, Bryan Duncan was charged with delivery of an imitation controlled substance to a person under eighteen years of age who was at least three years his junior in violation of Iowa Code section 204A.4(3). In count II, Marlene Duncan was charged with delivery of an imitation controlled substance in violation of Iowa Code section 204A.4(1). Both defendants were charged in separate counts with posting an advertisement to promote distribution of an imitation controlled substance in violation of Iowa Code section 204A.4(2).

Defendants filed a pretrial motion to dismiss the trial information against them on the ground that chapter 204A was unconstitutionally vague and overbroad, thereby denying them due process of law as guaranteed by the fourteenth amendment to the United States Constitution. After hearing, the motion was sustained on the vagueness challenge alone, the court finding the provisions used to charge the defendants "so vague and indefinite that there cannot be due process in applying" them.

The minutes of testimony filed with the trial information in accordance with Iowa Rule of Criminal Procedure 5(3) indicate that the State expected to prove by its witnesses that defendants sold imitation controlled substances in their store. In addition, the expected testimony would show the following. The substances in the form of sundry pills, tablets, and capsules of various shapes and colors all contained either caffeine or ephedrine. One of the State's witnesses, a seventeen-year-old explorer scout who purchased two bottles of pink heart-shaped tablets, was told by defendant Bryan Duncan the tablets would give him a "good high." A second witness who purchased a bottle labeled "white crosses" from defendant Marlene Duncan was told that the pills labeled "357 magnums" would give him the "best high." The State also expected to prove that on the dates of both sales, a sign posted by defendants outside the store advertising "white crosses, black beauties, etc.," violated Iowa Code section 204A.4(2).

The State timely filed this appeal from the court's ruling sustaining defendants' motion to dismiss the trial information. The State contends that chapter 204A is not unconstitutionally vague as applied to defendants. We agree.

II. Vagueness challenge. The charging provisions of Iowa Code chapter 204A, 1 entitled Iowa Imitation Controlled Substance Act, state in section 204A.4:

1. It is unlawful for a person to manufacture, deliver, or possess with intent to deliver, an imitation controlled substance. Except as provided in subsection 3, a person who violates this subsection is guilty of an aggravated misdemeanor.

2. It is unlawful for a person to publish or to post or distribute in a public place, an advertisement or solicitation, if the person knows or reasonably should know the advertisement or solicitation is to promote the distribution of imitation controlled substances. A person who violates this subsection is guilty of a serious misdemeanor.

3. A person who is eighteen years of age or older who violates this section by delivering an imitation controlled substance to a person under eighteen years of age who is at least three years younger than the violator is guilty of a class "D" felony.

To define an "imitation controlled substance," section 204A.2(4) turns one first to the state board of pharmacy examiners list of controlled substances. If the substance in question is not one of the few listed by that board, see 620 Iowa Admin.Code 8.17(204) (1987), section 204A.2(4) then defines imitation controlled substance as "a substance which is not a controlled substance but which by color, shape, size, markings, and other aspects of dosage unit appearance, and packaging or other factors, appears to be or resembles a controlled substance." Finally, section 204A.3 adds:

When a substance has not been designated as an imitation controlled substance by the state board of pharmacy examiners and when dosage unit appearance alone does not establish that a substance is an imitation controlled substance the following factors may be considered in determining whether the substance is an imitation controlled substance:

1. The person in control of the substance expressly or impliedly represents that the substance has the effect of a controlled substance.

2. The person in control of the substance expressly or impliedly represents that the substance because of its nature or appearance can be sold or delivered as a controlled substance or as a substitute for a controlled substance.

3. The person in control of the substance either demands or receives money or other property having a value substantially greater than the actual value of the substance as consideration for delivery of the substance.

This is a case of first impression. Iowa's statute appears to be the first of its type to be challenged on vagueness grounds. Similar statutes of other states which have been challenged on vagueness grounds have been aimed at proscribing somewhat different behavior. See McCrary v. State, 429 So.2d 1121 (Ala.Crim.App.1982) (construing Alabama Code section 20-2-70(b) (1975) which defines a "counterfeit controlled substance" as one bearing the trademark or markings of another manufacturer without authorization); Morrow v. State, 704 P.2d 226 (Alaska Ct.App.1985) (interpreting Alaska Statute section 11.73.010(a) (1983) listing the actual chemicals an "imitation controlled substance" must contain); People v. Pharr, 696 P.2d 235 (Colo.1984) (interpreting Colorado Revised Statutes section 18-5-306 (Supp.1982) which defines a "counterfeit or imitation controlled substance" as any substance represented to be controlled); State v. Sharkey, 204 N.J.Super. 192, 497 A.2d 1291 (App.Div.1985) (interpreting New Jersey Statutes Annotated section 24:21-19.1a(3) concerning "look alike drugs" which are represented as genuine).

Notably, each of those statutes contained different scienter or guilty knowledge elements. The Alabama statute was declared unconstitutional because it criminalized mere possession of an imitation controlled substance without requiring any intent by the possessor to deliver the substance to another person. The only scienter element was the required knowledge by the violator that he or she possessed an imitation controlled substance.

Scienter in the other states' statutes, which all survived constitutional challenges, was in three parts. The accused individual must have (1) known that the substance possessed or delivered was an imitation controlled substance, (2) must have intended to deliver the substance to another person, and (3) must have intended to pass the imitation substance off as genuine. These statutes are intended to apply to individuals who, in order to avoid prosecution if apprehended, try to sell legal substances in the guise of controlled substances.

By contrast, Iowa's imitation controlled substance statute contains only the first two elements. 2 We have stated before that in construing statutes, courts should consider "the evil to be remedied and the objects or purposes the legislative enactment seeks to obtain." State v. Sullivan, 298 N.W.2d 267, 271 (Iowa 1980). The available legislative history indicates that Iowa's act is aimed at controlling different conduct than the statutes enacted by other states.

Chapter 204A was originally part of a larger enactment supplementing Iowa Code chapter 204, the existing controlled substance statute. See 1982 Iowa Acts ch. 1147. That bill introduced the definition of imitation controlled substance along with this definition of a "simulated controlled substance":

"Simulated controlled substance" means a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and which because of its nature, packaging, or appearance would lead a reasonable person to believe it to be a controlled substance.

This definition is now codified in chapter 204. See Iowa Code § 204.101(27). Appearance of both terms for the first time in the same legislative act indicates a legislative intent to treat imitation controlled substances differently than simulated controlled substances.

We believe the legislature intended that chapter 204A should proscribe "play drugs" that encourage the practice of controlled substance use. Some of the problems caused by...

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