#26588-a-DG

2014 S.D. 58

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

SEAN WHISTLER,                            Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                   LAWRENCE COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE RANDALL L. MACY
                                Judge

                                 ****

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.


                                 ****
                                          ARGUED ON MARCH 24, 2014
                                          REASSIGNED APRIL 18, 2014
                                          OPINION FILED 07/30/14
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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.


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[¶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 indictment added 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


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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


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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


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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




1.       SDCL 22-42-5 (2012); SDCL 22-42-1(1).

2.       SDCL 22-42-15.

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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. See SDCL 22-

42-15.

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

be tried by a jury in the county where the crime was alleged to have been

committed. S.D. Const. art VI, § 7; SDCL 23A-16-3 (Rule 18). Venue must be

shown by the evidence and need only be demonstrated by a preponderance of the

evidence. See State v. Iwan, 2010 S.D. 92, ¶¶ 8-9, 791 N.W.2d 788, 789 (citing State

v. Greene, 86 S.D. 177, 192 N.W.2d 712, 183 (1971)). Here, because a controlled

substance is defined to include the altered state of a drug absorbed into the human

body, venue was established for the crime of unauthorized possession in violation of

SDCL 22-42-5 (2012) through the evidence that Whistler possessed the altered state

of cocaine absorbed into his body in Lawrence County, South Dakota. Venue was

also established for the crime of intentional ingestion of a substance for purposes of

becoming intoxicated in violation of SDCL 22-42-15, because the odor of marijuana


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was detected on Whistler in Lawrence County, he possessed marijuana leaves on

his person in Lawrence County, and the metabolite of marijuana was detected in his

urine.

[¶13.]       Finally, Whistler argues that the trial court erred in submitting

Instructions 13 and 17 to the jury. “A trial court has discretion in the wording and

arrangement of its jury instructions, and therefore we generally review a trial

court’s decision to grant or deny a particular instruction under the abuse of

discretion standard.” State v. Hauge, 2013 S.D. 26, ¶ 17, 829 N.W.2d 145, 150

(quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263). “However, no

court has discretion to give incorrect, misleading, conflicting, or confusing

instructions[.]” State v. Zephier, 2012 S.D. 16, ¶ 9, 810 N.W.2d 770, 772 (quoting

Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 10, 807 N.W.2d 612, 615-16). To

constitute reversible error, an instruction must be shown to be both erroneous and

prejudicial, such that “in all probability they produced some effect upon the verdict

and were harmful to the substantial rights of a party.” State v. Cottier, 2008 S.D.

79, ¶ 7, 755 N.W.2d 120, 125 (citation omitted). Accordingly, “jury instructions are

to be considered as a whole, and if the instructions when so read correctly state the

law and inform the jury, they are sufficient. This is a question of law reviewed de

novo.” State v. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113 (citation omitted).

[¶14.]       Whistler asserts that Instruction 13 misquotes and significantly

deviates from the legal standard in Schroeder, and therefore constitutes reversible

error. See 2004 S.D. 21, 674 N.W.2d 827. Instruction 13 stated, “Any person who

knowingly possesses a controlled drug or substance is guilty of a crime. Possession


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occurs if a person knowingly possesses an altered state of a drug or substance

absorbed into the human body.” This Court in Schroeder stated that “possession

may now occur if a person knowingly possesses ‘an altered state of a drug or

substance absorbed into the human body.’” Id. ¶ 14 (citing SDCL 22-42-1(1); SDCL

22-42-5). Whistler argues that Jury Instruction 13 improperly changed the

permissive language of “possession may now occur” found in Schroeder to an

implied mandatory directive to the jury. See id.

[¶15.]       Whistler’s argument on this point misconstrues the context of the

quoted language in Schroeder. When we used the phrase “may now occur,” we were

not describing whether a jury was permitted or mandated to reach a certain verdict,

as Whistler asserts. Instead, we were explaining that an amendment to the

definition of “controlled drug or substance” created two potential ways in which

possession occurred. See id.; 2001 S.D. Sess. Laws ch. 116, § 1 (adding altered state

of enumerated drugs or substances absorbed into body to definition of “[c]ontrolled

drug or substance”). The word “may” expressed possibility of criminal activity by

the defendant, not permissiveness of action by the jury. As in, it is possible for

possession to occur one of two ways—possession of the substance itself or possession

through absorption of an altered state of the drug in the body. A plain reading of

SDCL 22-42-1(1) and SDCL 22-42-5 (2012), as they were written at the time of




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Whistler’s conviction 3 reveals that Jury Instruction 13 correctly stated the elements

of possession of a controlled substance. 4

[¶16.]         Whistler also asserts that Instruction 17 misstated the law and created

reversible error by removing the State’s burden of proving the mens rea element of

“knowing” possession. Instruction 17 stated: “In a charge of knowing possession of a

controlled substance, a positive urinalysis that reveals the presence of controlled

substances in a defendant’s urine may be sufficient in and of itself to support a

conviction.” Whistler argues that the phrase “in and of itself” replaces the State’s

burden of proving knowing possession with simply proving presence of a metabolite

in Whistler’s body. In response, the State contends that the court’s instructions

taken as a whole accurately state the law. We agree.

[¶17.]         First, we note that Instruction 17 does not facially misstate the law.

Cf. State v. Evans, 12 S.D. 473, 81 N.W. 893 (1900) (remanding where instruction

stated wrong burden of proof). We have never held that a positive urinalysis, as a



3.       SDCL 22-42-5 (2012) read:
              No 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, while acting in
              the course of the practitioner’s professional practice or except as
              otherwise authorized by chapter 34–20B. A violation of this
              section is a Class 4 felony.

         SDCL 22-42-1(1) defines controlled drug or substance to include “an altered
         state of a drug or substance listed in Schedules I through IV absorbed into
         the human body[.]”

4.       It would be incorrect to state that “knowingly possessing an altered state of a
         drug or substance absorbed into the body may be a crime.” That act is a
         crime—as clearly defined by the Legislature. SDCL 22-42-1(1); SDCL 22-42-
         5 (2012).

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matter of law, mandates a conviction for knowing possession. However, Jury

Instruction 17 did not say that a positive urinalysis mandates a conviction for

knowing possession of a controlled substance, as a matter of law. Instead, the

instruction set forth the law with respect to the sufficiency of evidence necessary to

support a conviction for knowing possession of a controlled substance. In State v.

Mattson, 5 we stated that “in the context of 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 is sufficient in and of itself to support a conviction

due to the language of SDCL 22-42-1(1).” 2005 S.D. 71, ¶ 54, 698 N.W.2d 538, 554.

See id. ¶ 57, 698 N.W.2d at 555 (also holding that “refusal to provide a urine sample

was sufficient to support an inference of knowing possession through ingestion”).

Instruction 17 used nearly identical language—that a positive urinalysis “may be

sufficient in and of itself to support a conviction” for possession—to inform the jury

of this legal concept. See id. ¶ 54, 698 N.W.2d at 554. Accordingly, we cannot

conclude that the instruction misstated the law.

[¶18.]         Unlike other cases where this Court has found reversible error, this is

not a case where the jury instructions as a whole never included the necessary mens

rea element. Cf. State v. Jones, 2011 S.D. 60, ¶ 15, 804 N.W.2d 409, 414 (reversing

and remanding conviction for failure to include mens rea element in jury

instructions). Nor does Instruction 17 contradict the other instructions given as to

the burden of the State or the required elements of the crime. Cf. Evans, 12 S.D.



5.       The trial court relied on Schroeder as supporting the pattern instruction, but
         the language of the instruction more closely reflects that in Mattson.

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473, 81 N.W. 893. 6 Instruction 17 addressed but one aspect of the law, i.e., that the

jury was permitted to find Whistler guilty even if the State could not produce

evidence of actual drugs seized. Viewed in isolation, this lone rule of law presented

in Instruction 17 gives an incomplete statement of the law under which to convict a

defendant. Yet, our precedent clearly indicates that each individual instruction

need not apprise the jury of the whole of the law. Rather, we examine the

instructions as a whole to determine whether they accurately reflect the law. See

Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d at 113; Cottier, 2008 S.D. 79, ¶ 7, 755

N.W.2d at 125; State v. Eagle Star, 1996 S.D. 143, ¶ 13, 558 N.W.2d 70, 73; State v.

Olson, 408 N.W.2d 748, 753 (S.D. 1987).

[¶19.]         The jury in this case was instructed that they must consider the

instructions as a whole. 7 As a whole, the jury instructions thoroughly informed the

jury of the mens rea requirement and that the State bore the burden of proving

every element of the crime. Jury Instruction 2 instructed the jury that “[t]he state

has the burden of proving every element of the offense charged beyond a reasonable




6.       In Evans, this Court reversed and remanded a conviction for grand larceny,
         because the jury was given two plainly contradicting instructions. The first
         stated that the defendant was “presumed to be innocent of the charge of
         grand larceny until his guilt is established by the state to your satisfaction,
         by a preponderance of the evidence.” 12 S.D. at 473, 81 N.W. at 893-94. The
         jury was also instructed that they “must be satisfied of the guilt of the
         accused beyond a reasonable doubt[.]” Id. at 473, 81 N.W. at 894.

7.       Instruction 4 stated in part, “You must accept and apply the law as stated in
         these instructions which you must consider as a whole. You should not
         disregard any instruction, or give special attention to any one instruction, or
         question the validity of any rule of law.”

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doubt.” Jury Instruction 15 set forth those elements:

             The elements of the crime of possession of a controlled drug or
             substance, namely cocaine, each of which the state must prove
             beyond a reasonable doubt, are that, at the time and place
             alleged:

                   1. The defendant knowingly possessed the controlled
                      drug or substance cocaine.

                   2. The drug or substance was not obtained directly
                      pursuant to a valid prescription or order from a
                      practitioner, while acting in the course of his
                      professional practice.

Jury Instruction 16 reiterated the mens rea element, stating that the “defendant

must be shown to have knowingly been in possession of cocaine.” (emphasis added).

Jury Instruction 13 also instructed the jury that possession required the person to

“knowingly possess[ ] an altered state of a drug or substance absorbed into the

human body.” Taken together, these instructions sufficiently informed the jury that

the State was required to prove each element of the crime, including the mens rea,

beyond a reasonable doubt. Because the jury was sufficiently instructed, we

conclude the challenged jury instructions did not create reversible error.

                                    Conclusion

[¶20.]       For the above stated reasons, we affirm the trial court’s decision on all

issues.

[¶21.]       WILBUR, Justice, concurs.

[¶22.]       ZINTER, Justice, concurs specially.

[¶23.]       KONENKAMP and SEVERSON, Justices, dissent.




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ZINTER, Justice (concurring specially).

[¶24.]        I join the opinion of the Court. I write only to address the dissent’s

contention that Instructions 13 and 17 were irreconcilable on the requirement of

proving knowing possession.

[¶25.]        As the Court points out, Instruction 13 (as well as Instructions 2, 15,

and 16) required the State to prove that Whistler knowingly possessed the

controlled drug or substance. The dissent, however, contends that Instruction 17

contradicted Instruction 13 by “eliminat[ing] the State’s burden of proving that the

possession was knowing.” See infra Dissent ¶ 29. The dissent describes Instruction

17 as eliminating the knowledge requirement because the instruction indicates

“‘that [a positive urinalysis] may be sufficient in and of itself’ to prove . . . knowing[]

ingest[ion of] the . . . substance[].” See infra Dissent ¶ 29. The dissent

mischaracterizes Instruction 17.

[¶26.]        Contrary to the dissent’s characterization, Instruction 17 did not

indicate that a positive urinalysis proved the “knowing possession” element of the

offense. Instruction 17 provided that “[i]n a charge of knowing possession of a

controlled substance, a positive urinalysis that reveals the presence of controlled

substances in a defendant’s urine may be sufficient in and of itself to support a

conviction.” (Emphasis added.) The permissive words of the instruction—“may . . .

support a conviction”—indicated that the presence of controlled substances may,

but did not necessarily, support a conviction.

[¶27.]        Instruction 17 did not mention, and therefore did not link, a positive

urinalysis with any element of the offense. Therefore, it did not give “the jury the


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option of disregarding an essential element of the offense.” See infra Dissent ¶ 31.

Instruction 17 was silent on proof of the elements of the offense. As the Court

points out, Instructions 2, 13, 15, and 16 identified and specifically required the jury

to find proof of the elements of the offense, including knowing possession, beyond a

reasonable doubt. Permissive Instruction 17 did not contradict these four

mandatory instructions.

[¶28.]       When correctly characterized and considered together, the instructions

were complementary rather than irreconcilable. I therefore join the opinion of the

Court.



KONENKAMP, Justice (dissenting).

[¶29.]       Diligent jurors following the trial court’s instructions in this case could

reasonably conclude that, based solely on a positive urinalysis, the law allows a

conviction for knowing possession of a controlled substance, even if the jurors hold a

reasonable doubt whether the defendant knowingly ingested that substance. The

court told the jury in Instruction 17: “In a charge of knowing possession of a

controlled substance, a positive urinalysis that reveals the presence of controlled

substances in a defendant’s urine may be sufficient in and of itself to support a

conviction.” (Emphasis added.) Imagine applying this rule in any other context: a

positive urinalysis proves that victims of date rape drugs knew they were taking

incapacitating drugs and that diners stricken with food poisoning knew they were

eating contaminated food. If the substances were found in their bodies, then, to

parrot the court’s instruction, “that may be sufficient in and of itself” to prove they


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knowingly ingested the harmful substances. This instruction eliminated the State’s

burden of proving that the possession was knowing. Possession of a controlled

substance thus became a strict liability offense.

[¶30.]       Two instructions here were irreconcilable. Instruction 13 informed the

jury that “Possession occurs if a person knowingly possesses an altered state of a

drug or substance absorbed into the human body.” (Emphasis added.) Instruction

17 then contradicted Instruction 13, telling the jury that the presence of a controlled

substance in the urine “may be sufficient in and of itself to support a conviction” for

“the charge of knowing possession.” A positive urinalysis can indeed prove the

presence of a substance in the body, but it cannot “in and of itself” prove knowing

possession. And simply because this language was extracted from our opinion in

Mattson, does not mean it was proper to use it as a jury instruction. 2005 S.D. 71, ¶

54, 698 N.W.2d at 554.

[¶31.]       Jurors are, of course, required to consider the instructions as a whole,

and error cannot be predicated upon a single instruction that might be objectionable

when considered in isolation. Yet many courts, including ours, have long held that

when instructions as a whole conflict, such constitutes prejudicial error. State v.

Moschell, 2004 S.D. 35, ¶ 54, 677 N.W.2d 551, 567 (citation omitted); State. v.

Evans, 12 S.D. 473, 81 N.W. 893, 894 (1900). Instruction 17 directly linked

Whistler’s positive urinalysis to a conviction for knowing possession. It gave the

jury the option of disregarding an essential element of the offense. The instruction

began with, “In a charge of knowing possession . . . ,” and then told the jury that it

may convict Whistler of that charge — knowing possession — based solely on the


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positive urinalysis, not because the jury believed that the State had met its burden

of proof. The instruction was “incorrect, misleading, conflicting, [and] confusing,”

and our Court errs in not reversing and remanding for a new trial. See State v.

Packed, 2007 S.D. 75, ¶ 17, 736 N.W.2d 851, 856 (citations omitted).

[¶32.]       SEVERSON, Justice, joins this dissent.




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