#28025-a-SLZ
2017 S.D. 65

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

CHRISTOPHER MARTIN,                       Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                 ****

                     THE HONORABLE WALLY EKLUND
                             Retired Judge

                                 ****

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


MATTHEW T. STEPHENS
Rapid City, South Dakota                  Attorney for defendant
                                          and appellant.


                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON AUGUST 28, 2017
                                          OPINION FILED 11/01/17
#28025

ZINTER, Justice

[¶1.]        Christopher Martin appeals from his conviction of unlawfully

possessing a controlled substance. He contends the State’s evidence was

insufficient to prove he knowingly possessed oxycodone. We affirm.

[¶2.]        On September 15, 2015, Rapid City Police Officer Eric Holmquist

located an abandoned vehicle that Martin had reported stolen. While waiting for

Martin to arrive, Holmquist determined Martin had an outstanding arrest warrant.

When Martin arrived, he was arrested on the warrant and searched incident to

arrest. Holmquist found twenty-three oxycodone pills in Martin’s pocket, along

with ten $100 bill and a combination of smaller bills. The pills appeared to be

prescription medication but they were wrapped in cellophane from cigarette

packaging. Martin claimed that the pills belonged to “a friend or friends,” and that

he was unaware of what they were.

[¶3.]        Detective Jim Ganser started a follow-up investigation. Martin told

Ganser the pills belonged to “Jessica,” but Martin did not provide a last name.

Martin claimed Jessica must have dropped the pills in the pickup he was driving

when he went to her residence to talk to her about his stolen vehicle. However,

Martin inconsistently stated that Jessica never got into the pickup and that she

only talked to him through the passenger window. Although Martin also indicated

he had been to Jessica’s home several times, he claimed he did not know her

address—so he drew a map. Because the map did not lead to Jessica’s home,

Ganser used a property management company to determine Jessica’s last name and

address.


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#28025

[¶4.]         Jessica’s statements to Ganser was more incriminatory than

exculpatory. She told Ganser that Martin was driving a motorcycle, not a pickup,

when he came to her home. At trial, Jessica also disclosed she kept prescription

oxycodone and other similar looking pain medication in her house. She explained

that she had been taking oxycodone for approximately three or four years for

chronic pain. Although Jessica was on probation for attempting to obtain more

oxycodone by calling in her own prescription, she denied selling or giving any of her

medications to Martin.1 She did, however, testify that Martin had access to her

home. She testified Martin was a close acquaintance that she had known for at

least a year and a half. She also testified that she had given Martin a key to her

home prior to travelling to Utah in the late summer of 2015; and the day before his

arrest, Martin had been in her home discussing his stolen vehicle.

[¶5.]         Martin moved for judgments of acquittal at the close of the State’s

evidence and after the jury verdict. Both motions were denied. Martin now

appeals. He concedes he knowingly possessed the pills, but he contends the

evidence was insufficient to prove he knowingly possessed oxycodone, a controlled

drug.

[¶6.]         In reviewing the denial of a motion for judgment of acquittal, “we

determine ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the




1.      Detective Ganser indicated it was hard to determine if there was a shortage
        of oxycodone in Jessica’s prescription bottle. Her pills were unorganized and
        her oxycodone prescription bottle contained both oxycodone and another pain
        medication that was similar in appearance to oxycodone.
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#28025

crime beyond a reasonable doubt.’” State v. Uhing, 2016 S.D. 93, ¶ 10, 888 N.W.2d

550, 553-54 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763,

765). “We will not ‘resolve conflicts in the evidence, assess the credibility of

witnesses, or reevaluate the weight of the evidence.’” State v. Hauge, 2013 S.D. 26,

¶ 12, 829 N.W.2d 145, 149 (quoting State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d

98, 100). “If the evidence, including circumstantial evidence and reasonable

inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict

will not be set aside.” Id. This is a question of law that we review de novo. State v.

Linson, 2017 S.D. 31, ¶ 5, 896 N.W.2d 656, 659.

[¶7.]         Under South Dakota law, “[n]o person may knowingly possess a

controlled drug or substance unless the substance was obtained directly or pursuant

to a valid prescription or order from a practitioner . . . .” SDCL 22-42-5. Affording

the most natural reading to language like that found in SDCL 22-42-5, “the word

‘knowingly’ applies not just to the statute’s verb[ ] [(“possess”)] but also to the object

of [that] verb[ ]—‘a controlled substance.’” See McFadden v. United States, ___U.S.

___, 135 S. Ct. 2298, 2304, 192 L. Ed. 2d 260 (2015) (citations omitted) (extending

the “knowing” requirements found in 21 U.S.C. § 841(a)(1) (2010)2 to controlled

substance analogues under 21 U.S.C. § 813 (2012)3). In interpreting our statutory



2.      21 U.S.C. § 841(a)(1) (2010) states that “[I]t shall be unlawful for any person
        knowingly or intentionally . . . to manufacture, distribute or dispense, or
        possess with intent to manufacture, distribute or dispense, a controlled
        substance[.]”

3.      21 U.S.C. § 813 (2012) states “A controlled substance analogue shall, to the
        extent intended for human consumption, be treated, for the purposes of any
        Federal law as a controlled substance in schedule I.”

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#28025

language, we have also stated the State must prove the defendant “knowingly

possessed a controlled substance.”4 See State v. Toben, 2014 S.D. 3, ¶ 10, 842

N.W.2d 647, 649 (emphasis added) (citing SDCL 22-42-5). Thus, we have indicated

“possession requires that an individual be aware of the presence and character of

the [drug].” State v. Riley, 2013 S.D. 95, ¶ 16, 841 N.W.2d 431, 436 (quoting State v.

Mattson, 2005 S.D. 71, ¶ 22, 698 N.W.2d 538, 547); accord Toben, 2014 S.D. 3, ¶ 13,

842 N.W.2d at 651 (quoting Dawkins v. State, 547 A.2d 1041, 1046 n.10 (Md. 1988))

(“Most states adopting the Uniform Controlled Substances Act, like South Dakota,

hold that ‘the accused must not only know of the presence of the substance but also

of the general character of the substance.’”); see also State v. Barr, 237 N.W.2d 888,

891 (S.D. 1976) (citing State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551 (1971))

(recognizing the Court has held knowledge of the drug’s character is an element of

the charge of unlawful possession). But we also agree with many other jurisdictions

holding that a defendant need not “know the exact nature of the substance in his




4.    The South Dakota Legislature defines the mens rea requirement for all
      crimes involving the mental state of “knowledge” or “knowingly.”
             The words, “knowledge, knowingly,” and all derivatives thereof,
             import only a knowledge that the facts exist which bring the act
             of omission within the provisions of any statute. A person has
             knowledge if that person is aware that the facts exist which
             bring the act or omission within the provisions of any statute.
             Knowledge of the unlawfulness of such act or omission is not
             required[.]
      SDCL 22-1-2(1)(c).

                                          -4-
#28025

possession, only that it was a controlled substance of some kind.” United States v.

Martin, 274 F.3d 1208, 1210 (8th Cir. 2001).5

[¶8.]         Therefore, the question in this appeal is whether the evidence was

sufficient to prove Martin knew the pills he possessed were a controlled substance of

some kind. Although there was no direct evidence on that point, the State was

entitled to prove that element “through circumstantial evidence.” Uhing, 2016 S.D.

93, ¶ 11, 888 N.W.2d at 554. Here, when Martin was arrested, he was not just

carrying prescription pills in his pocket, he was carrying pills wrapped in cellophane

together with a large number of $100 dollar bills. Thereafter, he offered a number

of inconsistent and demonstrably false stories concerning the source of the drugs.

There was also evidence that Martin had access to Jessica’s prescription oxycodone.

Jessica was unorganized in how she stored her pills; Martin had a key to Jessica’s



5.      See also United States v. De La Torre, 599 F.3d 1198, 1204 (10th Cir. 2010)
        (“The Government can establish the mens rea for the possession element by
        proving only that the defendant knew he possessed some controlled
        substance.”); United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009)
        (“[T]he law is settled that a defendant need not know the exact nature of a
        drug in his possession . . . [only that he] possesses some controlled
        substance.”); United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“A
        defendant can be convicted of [importing or possessing a drug] if he believes
        he has some controlled substance in his possession.”); United States v.
        Carrera, 259 F.3d 818, 830 (7th Cir. 2001) (“The government need only prove
        that the defendant was aware that some controlled substance was involved.”);
        United States v. Leavitt, 878 F.2d 1329, 1337 (11th Cir. 1989) (“[T]he
        government need not prove that [the defendant] actually knew that the
        substance involved was methaqualone as long as he knew he was importing a
        controlled substance.”). As the Virginia Court of Appeals noted in a case
        involving a similar statute, “a defendant need know only that he is possessing
        a controlled substance to be guilty.” Sierra v. Commonwealth, 722 S.E.2d 656,
        662 (Va. Ct. App. 2012); see also State v. Neujahr, 540 N.W.2d 566, 572 (Neb.
        1995) (“[T]he state must prove that [the defendant] knew the pills he
        possessed were a controlled substance, not that he knew the pills were
        clorazepate.”).
                                             -5-
#28025

residence; she had recently been away in Utah; and the pills in Martin’s pocket

were of the same appearance as the type in Jessica’s prescription bottle.

Ultimately, Martin’s own defense enabled the jury to infer he knew the pills were

oxycodone. Jessica was Martin’s friend and acquaintance for over a year; she had

been taking prescription oxycodone for chronic pain during this friendship; she was

on probation for trying to illegally obtain more; and the pills Martin possessed

appeared to be the same type as Jessica’s oxycodone. From this evidence, the jury

could have believed that Martin was in possession of Jessica’s pills, and if that was

the case, he certainly would have known that they were oxycodone.

[¶9.]        “Ultimately, it was for the jury to resolve the factual conflicts, weigh

credibility, and sort out the truth.” State v. Guthmiller, 2014 S.D. 7, ¶ 27, 843

N.W.2d 364, 372. When viewed cumulatively and taken in a light most favorable to

the jury’s verdict, there was sufficient evidence and inferences therefrom for a

rational jury to have found that Martin knew the pills he possessed were a

controlled substance.

[¶10.]       Affirmed.

[¶11.]       GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,

and WILBUR, Retired Justice, concur.




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