         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01330-COA

MAGED MUTHANNA SALEH QASOON A/K/A                                            APPELLANT
MIKE A/K/A MAJED KASSOM A/K/A MAGED
QASOON A/K/A MAGEED QUASOON

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          08/31/2016
TRIAL JUDGE:                               HON. JUSTIN MILLER COBB
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    P. SHAWN HARRIS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                         BILBO MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED: 12/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Maged Qasoon was captured on video selling eight grams of synthetic marijuana or

“spice” to a confidential informant. Qasoon’s defense at trial was essentially that he did not

know the substance he was selling was illegal. On appeal, he focuses on the specific

language of his indictment, which described his offense as “sale of AB-FUBINACA,” and

on the testimony at trial establishing only that the substance Qasoon sold was AB-

FUBINACA “or a related isomer.” Because these contentions are made for the first time on

appeal, the record is largely undeveloped, but to the extent that the issues are preserved, we
find them to be without merit.

                                       DISCUSSION

       1.     Unconstitutionally Vague Statute

¶2.    In his first issue, Qasoon alleges that Mississippi’s schedule of controlled substances

is unconstitutionally vague. This issue is raised for the first time on appeal, and would

ordinarily be barred for that reason. But in Fulgham v. State, 47 So. 3d 698, 700 (¶6) (Miss.

2010), a four-justice plurality held that vagueness claims are exempt from procedural bars,

and the other two opinions in the case, comprising the remainder of the court, assumed the

same result. Therefore, this issue may be raised for the first time on appeal.

¶3.    However, Qasoon fails to adequately raise the issue. He does not support this

argument with any relevant authority concerning the void-for-vagueness doctrine, nor does

he frame his argument according to the vagueness test followed by Mississippi courts. See,

e.g., Nolan v. State, 182 So. 3d 484, 492 (¶¶28-31) (Miss. Ct. App. 2016). The failure to cite

and employ relevant authority waives this issue on appeal, irrespective of whether the claim

would ordinarily be excepted from procedural bars. See, e.g., Duncan v. State, 939 So. 2d

772, 779 n.3 (Miss. 2006) (“Where an assertion of error is not supported by authority, that

assertion is deemed abandoned.”).

¶4.    Notwithstanding that the issue has been waived, Qasoon’s contentions are without

merit. The challenged statute does not affect a constitutional right, and therefore our analysis

would begin by “applying the statute to the complainant’s conduct before considering any


                                               2
hypothetical scenarios.” Nolan, 182 So. 3d at 492 (¶31). Qasoon’s challenge is purely

hypothetical: he alleges that since our statute controls isomers1 of specifically listed

substances, and since isomers do not necessarily have the same or similar chemical properties

to the listed compounds, it is theoretically possible for inert or benign substances to be

controlled. Qasoon contends that the statute is unconstitutionally vague because a reasonable

person might not intuitively expect such compounds to be controlled, nor would he have the

means to verify compliance with the statute.

¶5.    Setting aside the question of whether that would actually make the statute

unconstitutionally vague, there is no reason to think anything like Qasoon’s hypothetical

actually happened here. It is true that the lab technician who analyzed the substance could

only say that it was “AB-FUBINACA or a related isomer,” but nothing suggested that the

substance was innocuous. It was referred to as “spice” and offered as a substitute for

marijuana. The active ingredient had been laced on plant material, mimicking the appearance

of marijuana. It was sold for a large amount of money ($200 for eight grams), and the

exchange was made in a parking lot approximately two miles from the convenience store

owned by Qasoon’s father, where Qasoon worked and, according to his defense, sold legal

marijuana substitutes. In the recording of the sale, Qasoon boasted of the substance’s

psychoactive potency; he said it was better than marijuana and what was sold at his store,


       1
        “Isomers are two or more compounds which have the same molecular formula but
different molecular structures. The variations in structure may give rise to different chemical
characteristics.” United States v. Hall, 552 F.2d 273, 274 (9th Cir. 1977).

                                               3
cautioned against smoking it too quickly, and even claimed it had been tested by a medical

professional.

¶6.    This issue is waived and without merit.

       2.       Sufficiency of Indictment

¶7.    Qasoon next contends that his indictment was insufficient because it alleged

possession of “AB-FUBINACA,” rather than the chemical description applicable to the

compound given in Schedule I of the Mississippi Uniform Controlled Substances Law.

¶8.    Qasoon’s indictment alleged that, in relevant part, he:

       did willingly, unlawfully, and feloniously and knowingly sell, barter, transfer,
       distribute or dispense approximately 7.90 gram(s) of AB-FUBINACA, a
       Schedule I controlled substance . . . , in violation of Section[s] 41-29-139 [and]
       41-29-113(c)(L)[2] of the Mississippi Code . . . .

¶9.    Qasoon did not challenge the sufficiency of his indictment at trial. While it is true that

“[c]hallenges to the substantive sufficiency of an indictment may not be waived and

consequently may be raised for the first time on appeal,” this does not include all challenges

to an indictment.     See Ross v. State, 954 So. 2d 968, 1015 (¶126) (Miss. 2007).

Nonjurisdictional defects in the indictment may not be attacked for the first time on appeal

absent a showing of cause and actual prejudice. Crawford v. State, 716 So. 2d 1028, 1050-51

(¶82) (Miss. 1998) (superceded by rule on other grounds, as recognized by Miss. Transp.

Comm’n v. McLemore, 863 So. 2d 31, 39 (¶22) (Miss. 2003)). Mississippi law recognizes


       2
        This is apparently a scrivener’s error, as the actual subsection is 41-29-
113(c)(55)(L).

                                               4
only two such jurisdictional defects: where the “indictment fails to charge a necessary

element of a crime or if there exists no subject matter jurisdiction.” Banana v. State, 635 So.

2d 851, 853 (Miss. 1994); see also Brown v. State, 37 So. 3d 1205, 1209-10 (¶9) (Miss. Ct.

App. 2009).

¶10.   Qasoon contends that the indictment “is insufficient because it fails to sufficiently

charge the defendant with notice of what substance he is charged with possessing.” He bases

this on two points: the use of the name “AB-FUBINACA” rather than the description used

in the statute, which is rather dense,3 and the fact that the indictment alleged transfer of AB-

FUBINACA rather than AB-FUBINACA or a related isomer as the proof showed.

¶11.   Both of these challenges are barred on appeal. An indictment that uses a code or trade

name for a controlled substance rather than a chemical description does not fail to allege an



       3
           The statute reads in relevant part:

       (55) Synthetic cannabinoids. Unless specifically excepted or unless listed in
       another schedule, any material, compound, mixture, or preparation which
       contains any quantity of a synthetic cannabinoid found in any of the following
       chemical groups, whether or not substituted to any extent, or any of those
       groups which contain any synthetic cannabinoid salts, isomers, or salts of
       isomers, whenever the existence of such salts, isomers, or salts of isomers is
       possible within the specific chemical designation, including all synthetic
       cannabinoid chemical analogues in such groups: . . . (L)
       3-carboxamide-1H-indazoles, whether or not substituted in the indazole ring
       to any extent and substituted to any degree on the carboxamide nitrogen and
       3-carboxamide-1H-indoles, whether or not substituted in the indole ring to
       any extent and substituted to any degree on the carboxamide nitrogen[.]

Miss. Code Ann. § 41-29-113(c)(55)(L) (Supp. 2016).

                                                 5
essential element; “[e]quivalent words of substantially the same meaning as those of the

statute may be substituted.” Gilmer v. State, 955 So. 2d 829, 837 (¶26) (Miss. 2007). AB-

FUBINACA is apparently a “code name” for a specific synthetic cannabinoid, derived

loosely from its chemical formula. The name appears to be in rather widespread use; the

drug was temporarily placed into the federal controlled substances Schedule I by that name

in February 2014. See 79 Fed. Reg. 7577-01 (Feb. 10, 2014). Grady Downey, a forensic

scientist with the Mississippi Crime Laboratory, testified that AB-FUBINACA is not

specifically listed in Schedule I of the Mississippi Uniform Controlled Substances Law, but

it is prohibited because it is a “compound which has a skeletal molecular structure which is

composed of an indazole carboxamide compound.” See Miss. Code Ann. § 41-29-

113(c)(55)(L) (Supp. 2016).

¶12.   Moreover, “[t]he purpose of the indictment is to provide the accused reasonable notice

of the charges against him so that he may prepare an adequate defense.” Warren v. State, 187

So. 3d 616, 621 (¶10) (Miss. 2016) (citation omitted). “The ultimate test, when considering

the validity of an indictment on appeal, is whether the defendant was prejudiced in the

preparation of his defense.” Id. at 621-22 (¶10) (citation omitted). From the record, it is

apparent that Qasoon’s defense was not prejudiced. No complaint was made about the

indictment, and from the transcript of the trial it is obvious that Qasoon’s attorney knew

exactly what AB-FUBINACA was, as he walked the State’s forensic scientist through its

history in an attempt to show that the drug was a recent invention and that it had only been


                                             6
prohibited in Mississippi for about six weeks at the time of the offense. Qasoon’s attorney

even presented a printout of the Wikipedia entry on AB-FUBINACA, which the witness

confirmed contained a generally accurate description of the substance and its history.

¶13.   Finally, the indictment sufficiently, albeit imperfectly, specified the code subsection

that was alleged to have been violated. The indictment pointed Qasoon to “§ 41-29-

113(c)(L)” of the Mississippi Code, which does not exist, as an apparent scrivener’s error

omitted the “(55)” from the subsection.            However, the correct subsection, 41-29-

113(c)(55)(L), is the only “(L)” in the section. Coupled with the specific allegation naming

AB-FUBINACA, this was adequate to put Qasoon on reasonable notice of the allegation

against him.

¶14.   As to Qasoon’s second contention, the exclusion of the words “or a related isomer,”

this was not a defect in the indictment, as the indictment, on its face, alleged a crime. Rather,

Qasoon’s complaint seems to be that there was a variance between the indictment and the

proof at trial. We will discuss that issue in turn.

       3.      Sufficiency of the Evidence / Variance

¶15.   Finally, Qasoon contends that his conviction was not supported by sufficient evidence.

He bases this argument not on his guilt or innocence under the statute, but on the particular

way the jury was instructed, which was to find him guilty if it found beyond a reasonable

doubt that he had distributed “AB-FUBINACA, a Schedule I controlled substance.” Qasoon

points out that the lab technician who examined the substance could only determine it was


                                               7
AB-FUBINACA or a related isomer. The statute expressly prohibits the transfer of isomers

of AB-FUBINACA, just as it does the substance itself. See Miss. Code Ann. § 41-29-

113(c)(55).

¶16.    This issue is also procedurally barred. “The supreme court has indicated that any

challenge to a variance between the proof and the indictment must be specifically alleged”

at trial. Hughey v. State, 729 So. 2d 828, 832 (¶19) (Miss. Ct. App. 1998). The defendant

must “specifically raise this question in the trial court in a motion for a directed verdict, in

a motion for a peremptory instruction or in a motion for a judgment [notwithstanding the

verdict],” or it is waived. Id. (quoting Cantrell v. State, 507 So. 2d 325, 331 (Miss. 1987)).

¶17.   Notwithstanding the procedural bar, the flaw in Qasoon’s argument is that we are not

reviewing the giving of the jury instruction, since that, too, was not challenged. “A

reviewing court’s limited determination on sufficiency review . . . does not rest on how the

jury was instructed. . . . All that a defendant is entitled to on a sufficiency challenge is for the

court to make a ‘legal’ determination whether the evidence was strong enough to reach a jury

at all.” Musacchio v. United States, 136 S. Ct. 709, 715 (2016). Of course, the State still had

to prove the offense alleged in the indictment, but the real question here is whether there was

a fatal variance between the indictment and the proof. See Graham v. State, 185 So. 3d 992,

1001 (¶25) (Miss. 2016) (citation omitted).

¶18.   Not all variances are fatal; error occurs only when the variance from the language of

the indictment is material. Id. at 1000 (¶23) (citation omitted). “A variance is material if


                                                 8
it affects the substantive rights of the defendant.” Burrows v. State, 961 So. 2d 701, 705

(¶11) (Miss. 2007) (citation omitted). The variance is not material if the State’s proof is

“practically and substantially, though not identically, the same as that alleged.” See Roney

v. State, 153 Miss. 290, 297, 120 So. 445, 446 (1929) (quoting Bowers v. State, 145 Miss.

832, 835, 111 So. 301, 301 (1927)).

¶19.   Our caselaw is replete with similar examples of minor substitutions of proof that were

not found to be material variances. In Roney, no error was found even though the indictment

alleged that the defendant committed an aggravated assault with “brass knucks,” and the

proof showed it was done with a crutch. See Roney, 153 Miss. at 298, 120 So. at 446. In

Bowers, the defendant was alleged to have struck the victim with a wrench when the proof

showed that the weapon was a stick. See Bowers, 145 Miss. at 835, 111 So. at 301. In

Burrows, the defendant was alleged to have digitally penetrated the victim, while the proof

showed he used an object. See Burrows, 961 So. 2d at 706 (¶14). And in Graham, the

allegation was that the defendant had performed fellatio on the victim, but it was adequate

to prove that the victim had performed fellatio on the defendant. See Graham, 185 So. 3d

at 998-99 (¶¶16-17). In these cases, the supreme court reasoned that the indictment had

sufficiently informed the defendant that he was alleged to have committed a certain offense,

and the proof had showed that the same crime had been committed, just in a somewhat

different way than alleged; and the defendant’s “ability to prepare and present a defense to

the [offense alleged] was not materially affected.” See Burrows, 961 So. 2d at 706 (¶14).


                                             9
¶20.   Here, Qasoon’s indictment alleged that the offense was committed in an admittedly

narrow way, but the indictment gave Qasoon adequate notice of the crime he was alleged to

have committed. The proof at trial showed that he did in fact commit that crime, as he was

just as guilty of the same offense had the substance been an isomer of AB-FUBINACA rather

than AB-FUBINACA itself. See § 41-29-113(c)(55). The distinction between AB-

FUBINACA and an isomer of AB-FUBINACA did not affect Qasoon’s defense; in fact, the

issue seems to have gone unnoticed until this appeal. We conclude that the variance between

the indictment and the proof was not material and therefore not fatal. This issue is without

merit in addition to being procedurally barred.

¶21.   AFFIRMED.

     LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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