State v. McKean

Decision Date20 August 2015
Docket NumberNo. 41004.,41004.
Citation356 P.3d 368,159 Idaho 75
CourtIdaho Supreme Court
Parties STATE of Idaho, Plaintiff–Respondent, v. Shannon Marie McKEAN, aka Shannon Marie McKeam, Defendant–Appellant.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

HORTON, Justice.

Shannon McKean appeals from her judgment of conviction, entered following a jury verdict, for five counts of possession of a controlled substance with intent to deliver and two counts of aiding and abetting the delivery of a controlled substance. McKean argues the district court erred by determining that a substance known as AM–2201 was a controlled substance under the version of Idaho Code section 37–2705(d)(30) then in effect. McKean further argues that the district court erred by excluding laboratory reports relating to the products McKean was charged with possessing and delivering. These reports stated that test samples of the products did not show the presence of illegal synthetic cannabinoids. We affirm.


This appeal relates to McKean's possession and sale of the substance commonly known as "spice."1 In May of 2012, an undercover officer made two purchases of a product called Fire N' Ice from McKean at her place of business, Smoke Effects, in Caldwell. This product contained substances known as JWH–122 and JWH–210. On June 13, 2012, McKean was charged by indictment with two counts of aiding and abetting delivery of a controlled substance arising from her sales of the Fire N' Ice.

On June 6, 2012, officers executing warrants searched Smoke Effects and McKean's home. In McKean's home, officers discovered ninety-one packages of a product called Scooby Snax Potpourri,2 which contained AM–2201. Officers confiscated numerous packages of potpourri from Smoke Effects, including packages labeled Fire N' Ice, Mad Hatter, AK–47, Scooby Snax, and Down 2 Earth. The Fire N' Ice again contained JWH–122 and JWH–210. The Mad Hatter, AK–47, Scooby Snax, and Down 2 Earth each contained AM–2201.

McKean was indicted in August of 2012 on five counts of possession of a controlled substance with the intent to deliver and possession of drug paraphernalia in connection with the items seized in the searches. On October 1, 2012, the two cases were consolidated.

The consolidated cases went to trial. Before trial, the State filed a motion seeking a determination that JWH–122, JWH–210, and AM–2201 were Schedule I controlled substances because the substances were synthetic equivalents of substances contained in Cannabis. McKean did not dispute that JWH–122 and JWH–210 were controlled substances. However, she challenged the State's claim that AM–2201 was a controlled substance. Following an evidentiary hearing, the district court concluded that the question was one of statutory interpretation and that AM–2201 was a controlled substance.

The State filed a motion in limine requesting that the district court preclude McKean from presenting evidence and argument regarding ignorance of the law, mistake of fact, or lack of knowledge that the substances McKean possessed were controlled substances. The district court prohibited McKean "from presenting evidence that she did not know the substance she possessed was an illegal substance." The district court denied the State's motion to preclude McKean from presenting a mistake of fact defense, reasoning that the State needed to prove beyond a reasonable doubt that McKean "possessed the substance knowing the substance was a synthetic cannabinoid."

The jury trial took place in early February of 2013. During opening statements, defense counsel represented that McKean relied upon statements from laboratory reports (the Sample Test reports) provided by the internet websites where McKean purchased her products. The Sample Test reports indicated that samples of the products had been tested and that the samples did not contain "controlled substances." After the State objected, the district court excluded the Sample Test reports, concluding: (1) the Sample Test reports went to mistake of law, and as such, were irrelevant; (2) that the Sample Test reports were being offered for a hearsay purpose; and (3) the evidence should be excluded pursuant to I.R.E. 403 "because it's going to confuse the jury about the mistake of law and mistake of fact issues."

The jury found McKean guilty of five counts of possession of a controlled substance with the intent to deliver in violation of Idaho Code section 37–2732(a)(1)(B), and two counts of aiding and abetting delivery of a controlled substance. McKean was acquitted of possessing drug paraphernalia. Judgment was entered on April 25, 2013. McKean timely appealed.


"[I]nterpretation of a statute is a question of law over which this Court exercises free review." State v. Shackelford, 155 Idaho 454, 457, 314 P.3d 136, 139 (2013) (quoting State v. Payne, 146 Idaho 548, 575, 199 P.3d 123, 150 (2008) ). "The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion." State v. Sheldon, 145 Idaho 225, 228, 178 P.3d 28, 31 (2008) (quoting State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006) ).


McKean raises two issues on appeal. The first is whether the district court erred in concluding that AM–2201 was a controlled substance as a matter of law. The second issue is whether the district court erred by excluding evidence of the Sample Test reports. We address these issues in turn.

A. AM–2201 was a Schedule I controlled substance under the version of Idaho Code section 37–2705 in effect at the relevant time.

In March of 2011, the Legislature expanded the range of synthetic cannabinoids covered by Schedule I of the Uniform Controlled Substances Act. 2011 Idaho Sess. L. ch. 47, § 1, pp. 111–12. At the time of McKean's offenses, the statute provided:

(a) The controlled substances listed in this section are included in schedule I.
(d) Hallucinogenic substances. Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances....
(30) Tetrahydrocannabinols or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure such as the following:
i. Tetrahydrocannabinols:
ii. The following synthetic drugs:
a. Any compound structurally derived from 3–(1–naphthoyl)indole or 1H–indol–3–yl–(1–naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl or 2–(4–morpholinyl)ethyl, whether or not further substituted in the indole ring to any extent, whether or not substituted in the naphthyl ring to any extent.

I.C. § 37–2705 (2011).3

At the hearing on the State's motion for a determination that AM–2201 was a controlled substance, the district court received testimony from the parties' experts regarding the chemical structure of AM–2201. The State contended that AM–2201 constituted a "compound structurally derived from 3–(1–naphthoyl)indole ... by substitution at the nitrogen atom of the indole ring by alkyl." The experts agreed that AM–2201 has a base structure of 3–(1–naphthoyl)indole and that AM–2201 is created by substitution of the nitrogen atom of the indole ring with a "haloalkyl." The parties' experts had different opinions, however, as to the meaning of "alkyl." The State's expert opined that a haloalkyl falls under the "umbrella term alkyl." McKean's expert contended that a haloalkyl is distinct from an alkyl.

The district court concluded that AM–2201 was a controlled substance. However, the district court did not base its decision on the definition of alkyl. The district court explained:

[T]he discussion today and yesterday has really been whether, under subsection 37–2705[ (d)(30) ], whether the word alkyl encompasses haloalkyls, or whether haloalkyls are a different kind of substitution. And the Court finds that that is irrelevant, for purposes of this discussion. Because whether it is an alkyl or whether it is a haloalkyl merely broadens or narrows the examples of kinds of substances that the legislature intends and passed to be controlled substances.
And so whether it is an alkyl or a haloalkyl does not determine whether or not it is a controlled substance. It is a controlled substance because the lists of parent structures and substitutions are merely examples of the kinds of things that could be controlled substances. And so the Court finds that the statute is unambiguous, and that "such as" merely gives a list of examples, that it does not limit the statute to those substances listed.

The district court went on to explain that even if the statute was ambiguous, the legislative intent was to "cut as broad a swath, or to create as broad a category as it could to prohibit and limit controlled substances that were the synthetic equivalents of [the substances contained in Cannabis]." McKean contends that the district court erred in this analysis.

"Statutory interpretation begins with ‘the literal words of the statute, and this language should be given its plain, obvious, and rational meaning.’ " Seward v. Pac. Hide & Fur Depot, 138 Idaho 509, 511, 65 P.3d 531, 533 (2003) (quoting Jen–Rath Co. v. Kit Mfg. Co., 137 Idaho 330, 335, 48 P.3d 659, 664 (2002) ). "The objective of statutory interpretation is to give effect to legislative intent." State v. Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007). "Such intent should be derived from a reading of the whole act at issue." St. Luke's Reg'l Med. Ctr., Ltd. v. Bd. of Comm'rs of Ada Cnty., 146 Idaho 753, 755, 203 P.3d 683, 685 (2009). "If the statutory language is unambiguous, ‘the clearly expressed intent of...

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2 cases
  • State v. Gomez
    • United States
    • Idaho Court of Appeals
    • March 17, 2017
    ...a statute is not rendered ambiguous simply because a reading of the statute in more than one way is possible. See State v. McKean , 159 Idaho 75, 80, 356 P.3d 368, 373 (2015) ("[A]mbiguity is not established merely because different possible interpretations are presented to a court. If this......
  • State v. Heiner
    • United States
    • Idaho Court of Appeals
    • December 1, 2017
    ...a motion for a new trial based upon the district court's failure to issue Heiner's requested jury instruction. Citing State v. McKean , 159 Idaho 75, 356 P.3d 368 (2015), Heiner asserted that I.C. § 18-201 was the statutory basis for a defense based upon a mistake of fact, such that a defen......

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