#26570-a-JKK

2014 S.D. 3

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

JASON D. TOBEN,                             Defendant and Appellant.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     DEUEL COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE RONALD K. ROEHR
                                Judge

                                    ****

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.



                                    ****
                                            ARGUED ON OCTOBER 1, 2013

                                            OPINION FILED 01/29/14
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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




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preparation” containing “any quantity of . . . AM 2201,” including its

“homologues[.]” See SDCL 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



1.      “Synthetic marijuana, which initially appeared in the United States in late
        2008, typically consists of plant material laced with synthetic cannabinoids:
        chemicals that claim to provide the same effect as the active ingredient in
        marijuana, Δ9-tetrahydrocannabinol (THC).” See Jake Schaller, Not for
        Bathing: Bath Salts and the New Menace of Synthetic Drugs, 16 J. Health
        Care L. & Pol’y 245, 248, 267-68 (2013) (describing how regulators are
        “necessarily playing ‘catch-up’” with manufacturers who modify their
        formulas to circumvent state laws).

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“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. 2 See SDCL 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



2.      Although MAM 2201 is not specifically listed in Schedule I, Toben does not
        challenge its status as a controlled substance, and, in any event, it appears to
        be an AM 2201 homologue, prohibited by SDCL 34-20B-14(46). Mathison
        testified that MAM 2201 is in “the same structural group.”

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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




3.      Appellate counsel was not trial counsel.

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[¶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[.]” See SDCL 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 substance is 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.



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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?




4.       SDCL 22-1-2(1)(c) provides that knowingly “import[s] only a knowledge that
         the facts exist which bring the act or 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[.]”
         Similarly, South Dakota’s criminal pattern jury instructions provide that
         “[t]he 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.” SD Criminal Pattern Jury Instructions § 1, General
         Principals, 1-11-2.


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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 controlled substance.

             1. Proof of Knowledge

[¶13.]       On the question of knowledge, the State was required to prove, either

directly or inferentially, Toben’s mental state: his awareness of the character and

nature of the substances he was possessing and selling. See State v. Barr, 90 S.D. 9,

15, 237 N.W.2d 888, 891 (S.D. 1976); see also Posters ‘N’ Things, Ltd. v. United

States, 511 U.S. 513, 523, 114 S. Ct. 1747, 1753, 128 L. Ed. 2d 539 (1994). With the

State having the burden of proving knowledge beyond a reasonable doubt, the

prosecutor muddied the issue by equating a traffic offense with the charges against

Toben. Speeding is a strict liability offense requiring no particular knowledge.

State v. Caddy, 540 P.2d 1089 (Colo. 1975) (mistake due to defective speedometer no

defense). But as LaFave explains, “ignorance or mistake of fact or law is a defense




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when it negatives the existence of a mental state essential to the crime charged.”

Wayne R. LaFave, 1 Subst. Crim. L. § 5.6 (2d ed. 2013). 5

[¶14.]         Whether Toben’s claimed mistake was one of fact or law, the State had

to prove Toben’s “knowledge of that which he is [possessing and] distributing, not

knowledge that it is a substance defined as the controlled substance under” SDCL

34-20B-14(46). Barr, 90 S.D. at 18, 237 N.W.2d at 892. Simply put, the prosecution

had to disprove Toben’s claimed mistaken mental state. See Wayne R. LaFave, 1

Subst. Crim. L. § 5.6 (2d ed. 2013). Our law requires that unlawful possession be

knowing and intentional. It would be insufficient for the State to show that Toben

knowingly possessed a substance, but negligently believed it to be a harmless

substance. See State v. Hopper, 129 P.3d 1261, 1262 (Idaho Ct. App. 2005). Nor

would it be adequate to prove that he should have known the material was a

controlled substance. Id. A “knowing” act is one that is deliberate and conscious.

Black’s Law Dictionary 888 (8th ed. 2004).

[¶15.]         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.” Dawkins v. State, 547




5.       LaFave writes further, “It bears repeating here that the cause of much of the
         confusion concerning the significance of the defendant’s ignorance or mistake
         of law is the failure to distinguish two quite different situations: (1) that in
         which the defendant consequently lacks the mental state required for
         commission of the crime and thus, . . . has a valid defense; and (2) that in
         which the defendant still had whatever mental state is required for
         commission of the crime and only claims that he was unaware that such
         conduct was proscribed by the criminal law, which, . . . is ordinarily not a
         recognized defense.” Wayne R. LaFave, 1 Subst. Crim. L. § 5.6 (2d ed. 2013).

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A.2d 1041, 1046 n.10 (Md. Ct. App. 1988) (citing cases). Thus, it might have been

helpful for the jury if the circuit court here had given a more explicit definition of

“knowingly.” Telling the jury that Toben had to have known the “character and

nature” of the substance could have clarified a mistaken impression, especially with

the prosecutor’s inapt speeding analogy. Indeed, the jury’s first question to the

court during deliberations touched on this very point: did the court’s instruction on

knowledge “refer to the knowledge of the law, or knowledge of committing a

legal/illegal act?” The court declined to answer the question with any further

instructions. And Toben’s trial counsel neither objected nor proposed a clarifying

instruction.

[¶16.]         We have never found inadequate the general definition of “knowingly”

in our statute or in the South Dakota criminal pattern jury instructions. Other

courts have accepted a similar general definition of “knowingly.” See, e.g., People v.

Low, 232 P.3d 635, 645 (Cal. 2010). Toben relies on our holding in Barr, but that

case dealt with the trial court’s erroneous jury instruction that the law does not

require that the accused know the nature of the substance. See 90 S.D. at 14, 237

N.W.2d at 890. Although a pinpoint definition may have been more helpful, we

cannot say that the circuit court’s definition of “knowingly” was erroneous.

[¶17.]         A mistake of fact instruction also might have assisted the jury on the

knowledge question. South Dakota Criminal Pattern Jury Instruction 2-8-1

provides:

               An act is not a crime when committed or omitted under an
               ignorance or mistake of fact which disproves any criminal
               intent. Where a person honestly and reasonably believes certain
               facts, and acts or fails to act based upon a belief in those facts,

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             which, if true, would not result in the commission of a crime, the
             person is not guilty.

See SDCL 22-3-1(3); State v. Roach, 2012 S.D. 91, ¶ 12 n.3, 825 N.W.2d 258, 262 n.3

(citation omitted). But Toben’s trial counsel did not propose this instruction, and it

was not given.

             2. Plain Error

[¶18.]       Criminal defendants are entitled to instructions on their theory of the

case if there is evidentiary support and “‘a proper request is made.’” State v. Frey,

440 N.W.2d 721, 727 (S.D. 1989) (quoting United States ex. rel Means v. Solem, 646

F.2d 322, 328 (8th Cir. 1980)). Toben did not object to the court’s instructions or

propose any additional instructions, but he seeks to invoke the plain error doctrine

because he asserts that the circuit court’s generic definition of “knowingly” deprived

the jury of the necessary legal guidance on the elements of the offense.

[¶19.]       “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of a court.” SDCL 23A-44-15 (Rule

52(b)). Toben must show not only that the instructions were erroneous, but also

that the errors were prejudicial. See State v. Moran, 2003 S.D. 14, ¶ 15, 657 N.W.2d

319, 324. Prejudicial error occurs when “the jury probably would have returned a

different verdict if the faulty instruction had not been given.” Id. Toben also bears

an additional burden. Since his lawyer did not object to the court’s instructions or

propose alternative instructions, Toben must establish plain error. Plain error

occurs when there is “(1) error, (2) that is plain, (3) affecting substantial rights; and

only then may we exercise our discretion to notice the error if (4) it ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” State

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v. Robinson, 1999 S.D. 141, ¶ 17, 602 N.W.2d 730, 735 (quoting State v. Nelson,

1998 S.D. 124, ¶ 8, 587 N.W.2d 439, 443).

[¶20.]        To show how substantial the court’s error was, Toben points to the

questions the jurors asked, in which they sought guidance on what knowledge was

required in order to convict. Combining those questions with the prosecutor’s

closing argument — equating the requisite knowledge for possession of a controlled

substance with the strict liability attendant to a speeding offense — Toben

maintains that the result of the trial would have been different had the jury been

properly instructed.

[¶21.]        Since we have concluded that the court adequately instructed the jury

on the element of knowledge in the absence of a request for a more precise

definition, what remains to decide is whether it was plain error not to give a

mistake of fact instruction sua sponte. We have no precedent on this question, but

courts in California have held that a trial court has no sua sponte duty to instruct

on the doctrine of mistake of fact when knowledge is an element of the offense.

People v. Jennings, 237 P.3d 474, 517-18 (Cal. 2010); People v. Lee, 28 Cal. App. 4th

1724, 1733-34 (1994) (accord). These courts reason, we think persuasively, that

when a jury is properly instructed on the mental state element, any duty to give a

sua sponte instruction will not apply to a defense that serves only to negate the

mental state element of the charged offense.

[¶22.]        Even if the failure to instruct sua sponte on mistake of fact was plain

error and affected Toben’s substantial rights, we still exercise our discretion to

grant relief only if the error “seriously affects the fairness, integrity or public


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reputation of judicial proceedings.” See Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d at

443 (citations omitted). We invoke this discretion cautiously and only in

“‘exceptional circumstances.’” Id. (citations omitted). Such circumstances may

include instances in which “‘a miscarriage of justice would otherwise result,’” as in

cases of actual innocence. Id. (citations omitted). This is not such a case.

[¶23.]       Proof that Toben knew the substances he possessed and sold contained

banned substances can be inferred from the evidence. He sold products he believed

mimicked the effects of marijuana on users. And despite his claimed reliance on

packaging and vendor assurances of legality, he himself smoked the substances he

was selling and got high. Knowing that the Legislature was about to prohibit

synthetic marijuana, an ordinary person would be aware of the high probability

that a chemical substance designed to simulate the effects of marijuana might well

be included in the ban. Yet he told an undercover agent that changes in the law

were “not going to slow us down.” While the State never yields the burden of

proving knowing possession, one cannot consciously avoid learning the nature of a

substance to later assert ignorance of its nature. Barr, 90 S.D. at 18, 237 N.W.2d at

894; see also United States v. Sdoulam, 398 F.3d 981, 993 (8th Cir. 2005). Whether

requests for a more precise definition of “knowingly” and a mistake of fact

instruction, along with a timely objection to the prosecutor’s speeding analogy

would have resulted in a different verdict may remain matters for further

assessment. But these oversights hardly impugn the integrity or reputation of

judicial proceedings or establish a miscarriage of justice. Accordingly, as with most




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claims of deficient trial attorney performance, a petition for habeas corpus presents

the more appropriate avenue for relief.

[¶24.]       Affirmed.

[¶25.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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