State v. Whistler

• Decision Date: 30 July 2014
• Docket Number: No. 26588.,26588.
• Citation: 851 N.W.2d 905,2014 S.D. 58
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Sean WHISTLER, Defendant and Appellant.

851 N.W.2d 905

2014 S.D. 58

STATE of South Dakota, Plaintiff and Appellee,

v.Sean WHISTLER, Defendant and Appellant.

No. 26588.

Supreme Court of South Dakota.

Argued March 24, 2014.

Reassigned April 18, 2014.

Decided July 30, 2014.

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

G. Matthew Pike of Lawrence County Public Defender's Office, Deadwood, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] Defendant appeals his convictions for possession of a controlled substance in violation of SDCL 22–42–5 (2012) and ingestion of a substance for the purpose of becoming intoxicated in violation of SDCL 22–42–15. He challenges South Dakota's statutory scheme defining a controlled substance to include an altered state of a drug or substance absorbed into the human body. He also alleges insufficient evidence to prove venue, and asserts error in the circuit court's jury instructions. We affirm.

Background

[¶ 2.] On March 9, 2012, Spearfish Police Officer Aaron Jurgenson, followed by Officer Colin Simpson, saw a pickup traveling on Main Street in Spearfish during the early morning hours with only its running lights on. The officers initiated a traffic stop. Officer Jurgenson approached the pickup and identified the driver as Sean Whistler. Dispatch reported that Whistler's driver's license was suspended. Officer Jurgenson asked Whistler to speak with him in his patrol car. Once in the car, the officer observed signs of alcohol consumption and smelled the odor of marijuana. After Whistler failed certain sobriety tests, Officer Jurgenson placed him under arrest for driving under the influence, possession of marijuana, and possession of drug paraphernalia. A search of Whistler's person incident to arrest uncovered a bag of marijuana in one of Whistler's pants pockets and loose marijuana leaves in Whistler's coat pocket. Officer Simpson later conducted an inventory search of Whistler's pickup, during which he seized marijuana leaves and a package of rolling papers.

[¶ 3.] At the police station, Whistler provided urine and blood samples. The test of his blood sample revealed a blood alcohol content of .221. A grand jury indicted Whistler for alternative counts of driving while under the influence of alcohol or driving with .08 percent or more by weight of alcohol in the blood, possession of marijuana, and ingestion of a substance other than alcohol for the purpose of becoming intoxicated. After the results of the urinalysis revealed the presence of a metabolite of cocaine, a superseding indictmentadded the charges of possession of a controlled substance (cocaine) and possession of a suspended license.

[¶ 4.] At the jury trial, Officers Jurgenson and Simpson testified about the stop. Forensic examiner Richard Wold testified that the plant material retrieved from Whistler's person and pickup tested to be marijuana. Forensic chemist Kathryn Engle told the jury that Whistler's urine tested positive for the presence of the metabolites of marijuana and cocaine. She said that Whistler's urine sample contained 0.90 micrograms per milliliter of benzoylecgonine, the major metabolite of cocaine. She explained that this cocaine metabolite could remain inside the body for approximately three days and that it is impossible to determine from a urinalysis how long ago someone had ingested the cocaine.

[¶ 5.] At the close of the State's case, Whistler moved for a judgment of acquittal on all charges. The court granted Whistler's motion on the charges of driving under suspension and possession of drug paraphernalia. During the settling of the jury instructions, Whistler objected to Instruction 13, which stated: “Possession occurs if a person knowingly possesses an altered state of a drug or substance absorbed into the human body,” and to Instruction 17, which stated: “In a charge of knowing possession of a controlled substance, a positive urinalysis that reveals the presence of a controlled substance in a defendant's urine may be sufficient in and of itself to support a conviction.” The court denied Whistler's objections and submitted the case to the jury. The jury returned a verdict of guilty on all counts. The court sentenced Whistler to four years in prison, suspended upon serving eighty days in jail and abiding by certain terms and conditions.

[¶ 6.] On appeal, Whistler asserts that prosecution for possession in violation of SDCL 22–42–5 (2012), based solely on the presence of a metabolite of a controlled substance in urine, is contrary to legislative intent. He believes an ingestion conviction precludes a possession conviction on the same substance and constitutes double jeopardy. He also contends that the State failed to prove venue. Finally, Whistler argues that the court committed reversible error in instructing the jury, because Whistler asserts that Instructions 13 and 17 removed the State's burden of proving that Whistler knowingly possessed a controlled substance.

Analysis and Decision

[¶ 7.] Whistler first argues that South Dakota's ingestion statute, SDCL 22–42–15, precludes a conviction for possession under SDCL 22–42–5 (2012) when the only evidence is a positive urinalysis. Statutory construction is a question of law reviewed de novo. State v. Schroeder, 2004 S.D. 21, ¶ 5, 674 N.W.2d 827, 829 (citation omitted). Whistler concedes that we specifically held in Schroeder that a defendant could be convicted of unauthorized possession of a controlled substance when the only evidence of possession is from the ingested or absorbed substance in the defendant's urine. See id. ¶ 14. Yet he claims that Schroeder did not address the specific issue he presents for review: whether a conviction for ingestion precludes a conviction for possession. See id. ¶ 9 (“There is still no need to decide this related issue of whether an ingestion statute precludes a conviction for possession when the only evidence is a positive urinalysis.”). Therefore, Whistler asserts that Schroeder need not be overruled to decide this issue. In support of his claim that a conviction for ingestion precludes a conviction for possession, Whistler cites cases from other jurisdictions. He contends that South Dakota is the only state in the nation that makes the crime of possession by ingestion a felony and that doing so “bends decades of common law rule beyond its breaking point.”

[¶ 8.] It is within the province of the Legislature to define what conduct constitutes a crime in this State. State v. Burdick, 2006 S.D. 23, ¶ 18, 712 N.W.2d 5, 10. “We pass only on the permissible scope of legislative regulation, not its wisdom.” Meinders v. Weber, 2000 S.D. 2, ¶ 28, 604 N.W.2d 248, 260. Indeed, “[t]he separation of powers would be meaningless if the judiciary were able to create exceptions to a criminal law based upon its notion of fairness.” Burdick, 2006 S.D. 23, ¶ 18, 712 N.W.2d at 10. Here, the Legislature clearly and unambiguously defined the crime of unauthorized possession of a controlled substance under SDCL 22–42–5 (2012) to include the possession of “an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body[.]” SDCL 22–42–1(1).

[¶ 9.] Still, Whistler insists that the Legislature never intended SDCL 22–42–5 (2012) to allow prosecution for possession based solely on the presence of a metabolite in the human body, and therefore, his conviction should be reversed. He directs us to a record of the hearing before the Judiciary Committee of the South Dakota House of Representatives related to the 2001 amendment. Relying on this record, Whistler asks us to reinterpret what the Legislature meant when it amended SDCL 22–42–1(1) in 2001. “This Court does not, however, review legislative history when the language of the statute is clear.” Bertelsen v. Allstate Ins. Co., 2009 S.D. 21, ¶ 15, 764 N.W.2d 495, 500 (citing Clark Cnty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 28, 753 N.W.2d 406, 417). Because a plain reading of the statutes at issue reveals that nothing precludes a conviction of unauthorized possession when the controlled substance is ingested and thereby absorbed into the human body, we reject Whistler's argument.

[¶ 10.] Whistler also contends that he faced double jeopardy by being convicted of both possession of a controlled substance, by way of an altered state of cocaine absorbed into the body,¹ and ingestion of a substance other than alcohol for the purposes of becoming intoxicated.² He argues that both of these convictions rested upon the same evidence: the presence of a metabolite of cocaine in his body. However, at trial, the jury heard evidence that Whistler smelled of marijuana, that loose marijuana leaves were on his person and in his pickup, and that his urine tested positive for the metabolite of marijuana. The jury could have concluded that Whistler ingested marijuana, a conclusion that would not preclude a separate conviction for possession of the metabolite of cocaine. Hence, we need not address in this case whether convicting a defendant of both possession and ingestion of cocaine, stemming from a single act of ingesting cocaine, violates the constitutional prohibition against double jeopardy. See generally Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

[¶ 11.] Whistler next argues that venue for the crime of unauthorized possession cannot be proved by the mere presence of a metabolite of a controlled substance in one's urine, and therefore, the State presented insufficient evidence that he possessed cocaine in Lawrence County, South Dakota. He contends that the Legislature was without authority to statutorily create venue for the crime of ingestion to include where the substance was detected in the body. SeeSDCL 22–42–15.

[¶ 12.] In all criminal prosecutions, the defendant has a constitutional right to be tried by...