State v. Toben

• Decision Date: 29 January 2014
• Docket Number: No. 26570.,26570.
• Citation: 2014 S.D. 3,842 N.W.2d 647
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jason D. TOBEN, Defendant and Appellant.

842 N.W.2d 647

2014 S.D. 3

STATE of South Dakota, Plaintiff and Appellee,

v.Jason D. TOBEN, Defendant and Appellant.

No. 26570.

Supreme Court of South Dakota.

Argued on Oct. 1, 2013.

Decided Jan. 29, 2014.

Marty J. Jackley, Attorney General, Bethanna M. Feist, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Steve Miller, Sioux Falls, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Jason D. Toben was convicted of possessing and distributing synthetic marijuana. He had been selling these products when they were legal, but they became illegal after emergency legislation took effect. His defense at trial was that he mistakenly believed that the products had no illicit substances in them based on the package labeling and the representations from the commercial distributors. In closing arguments, the prosecutor contended that ignorance of the law was no excuse, comparing the charges to a speeding violation. Yet the crucial question for the jury was not whether Toben had knowledge of the law, but whether he had knowledge of the nature and character of the substances he was selling. He claims plain error in the circuit court's failure to properly instruct the jurors on the element of knowledge.

Background

[¶ 2.] Toben was employed as a manager at The Chicago Avenue Bar in Goodwin, South Dakota. The bar, owned by Phil Plunkett, openly sold synthetic marijuana to those at least eighteen years in age. The products available for sale were posted on a board by name and price, and the cash obtained from the sales was placed in the cash register. Both Toben and Plunkett knew that South Dakota had pending legislation banning synthetic marijuana. Indeed, on February 23, 2012, the Governor signed into law a bill with an emergency clause making illegal “synthetic cannabinoids,” defined as “[a]ny material, compound, mixture, or preparation” containing “any quantity of ... AM 2201,” including its “homologues[.]” SeeSDCL 34–20B–14(46).¹

[¶ 3.] Before the new law was enacted, the South Dakota Division of Criminal Investigation and local law enforcement officers had received complaints about patrons at the Chicago Avenue Bar being under the influence of synthetic marijuana. In response to these complaints, the Division began an investigation. Agent Tyler Neuharth conducted a controlled buy on January 19, 2012. He observed the open sale of synthetic marijuana, and he himself purchased the product. He also saw patrons smoking the product in the bar.

[¶ 4.] Agent Neuharth conducted a second controlled buy in February 2012, during which he discussed with Toben the legality of synthetic marijuana. Agent Neuharth asked Toben if the pending change in the law was going to affect their business. Toben replied, “They are not going to slow us down.” The state laboratory tested the product purchased in February and found it to contain a compound called AM 2201, which was soon to become illegal.

[¶ 5.] On March 6, 2012, after the law change, Agent Neuharth returned to the bar and purchased two more products from Toben. The packaging on one product displayed the following: “100% cannabinoid free—DEA compliant” and “legal in 50 States. Does not contain any banned substances.” Another package displayed the language, “100% compliant guaranteed” and “non cannabinoid.” One product was called Hydro Kush, and the other, Tiger's Blood/Kryptonite. After the controlled buy, state chemist Roger Mathison analyzed these products. Mathison later testified that Tiger's Blood/Kryptonite contained AM 2201, and Hydro Kush contained MAM 2201, which is apparently a homologue of AM 2201, making both illegal as of February 23, 2012.²SeeSDCL 34–20B–14(46).

[¶ 6.] Toben was arrested and charged with two counts of unauthorized drug possession in violation of SDCL 22–42–5, one count of unauthorized drug possession or distribution in violation of SDCL 22–42–2, and one count of unauthorized drug possession or distribution in a drug free zone in violation of SDCL 22–42–19. A jury trial was held in September 2012. Agent Neuharth testified about the controlled purchases, confirming that the products were sold openly and that the cash from the sales was placed in the cash register. He told the jury that there was nothing on the packaging to inform Toben that the products contained banned substances. And both Agent Neuharth and state chemist Mathison conceded that laypersons would not know the chemical structure of these substances: the determination requires a chemist, lab equipment, and expert knowledge.

[¶ 7.] In his testimony, Toben admitted that he openly sold the products at the bar and that he, like the patrons, smoked them and became “high.” Yet he maintained that he did not know the products sold at the bar contained controlled substances. He explained that before and after the February 23 law change, he had several conversations with Plunkett about the legality of the products. He said that Plunkett was concerned that his products would no longer be legal under the new law. Therefore, he purchased different products from a company in Minnesota and obtained a laboratory report stating that a product did not contain certain listed synthetic cannabinoids, including AM 2201. Toben had seen this report, which was entered into evidence at trial through Agent Jeff Bellon, who testified that it was recovered during a search of Plunkett's car. The report indicated that the tested product was “Zombie Matter Novelty Sachet.” There were no identifying marks on the report indicating the location of the laboratory or the name of the chemist who performed the analysis, but there was a statement declaring that “AI BioTech cannot be held responsible for misuse of this report, or misrepresentation of the finding presented in this report.”

[¶ 8.] In his closing argument, the prosecutor compared the charges against Toben to a speeding violation:

Wouldn't it be nice to tell an officer after you get caught speeding and he pulls you up and you say, but, Officer, I was told the speed limit doesn't apply during daylight hours. And he said, where did you get that from? Well, this person told me that I can speed on this road during daylight hours; and, therefore, I'm not guilty of speeding. That's his defense. That's not the law. Ignorance of the law is no defense.

Defense counsel did not object.³

[¶ 9.] Toben's sole justification was that he made a mistake of fact. His trial attorney told the jurors that the question they had to decide was “whether [Toben] knew that these packets or this substance had the illegal chemicals in them, which made them a controlled substance.” In support of this argument, counsel noted that the printing on the packets themselves indicated that the products were legally compliant. And Toben relied on the laboratory report, as well as the representations from the commercial distributors in Minneapolis that the products contained no illegal substances.

[¶ 10.] The State was required to show that Toben “knowingly possessed a controlled substance[.]” SeeSDCL 22–42–5. It is not a crime to possess a substance known simply as “synthetic marijuana,” because, as the State's expert conceded, there are certain substances used to make synthetic marijuana that are legal. Thus, knowledge of the presence of an illicit substanceis an essential element to possession. The circuit court gave two separate instructions on the question of knowledge:

Instruction 12: The word “knowledge” or “knowingly” (or any derivative thereof) means only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. It does not require knowledge of the unlawfulness of the act or omission.

Instruction 13: In the crime of unauthorized possession of controlled substance, as alleged in counts one and two, the defendant must have criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does an act which the law declares to be a crime, the person is acting with criminal intent, even though the person may not know the conduct is unlawful.

There is no dispute that the circuit court's Instruction 12 is consistent with the statutory definition of “knowingly” in SDCL Title 22, SDCL 22–1–2(1)(c), and South Dakota's criminal pattern jury instruction 1–11–2.⁴

[¶ 11.] During deliberations, the jury submitted the following question to the circuit court:

Is there further definition of the statement “It does not require knowledge of the unlawfulness of the act or omission,” does this refer to the knowledge of the law, or knowledge of committing a legal/illegal act?

The court responded by instructing the jury to consider its instructions as a whole and declined to give further guidance. The jury later submitted a second question:

Do counts # 1 and # 2 refer specifically to the substance(s) AM 2201 and MAM 2201 or any controlled drug or substance?

The court again declined to give further guidance, told the jury that the “instructions previously given set forth all counts and the law which applies to those counts.” In its third question, the jury asked:

Can we have the minutes on the questioning of the defendant?

The court responded, “A transcript cannot be prepared. The jury must rely on its collective memory of questions and testimony.”

[¶ 12.] Toben was convicted of all four counts. In seeking a new trial, he argued that there was insufficient evidence to prove he “knowingly possessed” a controlled substance. His motion was denied, and the court sentenced him to concurrent terms of nine years on the first three counts, with five years suspended, and a consecutive sentence of nine years with four suspended on the fourth count. Toben appeals asserting that the circuit court plainly erred when it gave the jury misleading and incomplete jury instructions on what is required to prove “knowing possession” of a...