               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40550

STATE OF IDAHO,                                  )      2014 Unpublished Opinion No. 810
                                                 )
       Plaintiff-Appellant,                      )      Filed: November 10, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
CADEE JO PETERSON,                               )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Respondent.                     )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Order granting new trial, reversed.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for appellant.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for respondent.

                   ________________________________________________
LANSING, Judge
       Cadee Jo Peterson was convicted of conspiracy to manufacture, deliver, or possess with
intent to deliver a controlled substance. After a jury trial, the district court granted Peterson’s
motion for a new trial, holding that it had erred by giving an improper jury instruction regarding
mistakes of law. The State appeals and argues that the jury instruction given by the district court
was proper.
                                                I.
                                        BACKGROUND
       Peterson was involved in the “spice” distribution enterprise discussed by this Court in
State v. Alley, 155 Idaho 972, 318 P.3d 962 (Ct. App. 2014) and by the Idaho Supreme Court in
State v. Goggin, 157 Idaho 1, 333 P.3d 112 (2014) and State v. Taylor, ___ Idaho ___, 335 P.3d




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31 (2014). Indeed, Peterson’s case was consolidated with Taylor and Goggin’s cases in the
district court. The basic facts were summarized in Goggin:
                In September 2011, in response to a tip regarding suspicious activity, the
       Boise Police Department began investigating a warehouse in Boise leased by a
       man named Morgan Alley. The police conducted surveillance of the warehouse,
       observing who came and went, and seized trash discarded outside the warehouse
       on multiple occasions. Upon obtaining a warrant, Detective Joseph Andreoli
       searched the warehouse and found synthetic cannabinoids and the materials
       necessary to manufacture products containing synthetic cannabinoids. Andreoli
       testified that the warehouse contained “all of the items necessary” to manufacture
       synthetic marijuana, “including chemical; plant material; acetone, which is used
       as a solvent; and tobacco flavoring.” The warehouse also contained “the
       packaging materials, such as the small plastic containers, lids, and sticker labels”
       necessary to package a finished synthetic marijuana product. In fact, the
       warehouse was set up in an assembly line fashion and contained synthetic
       marijuana in various stages of completion. The warehouse also contained
       finished synthetic marijuana products in small plastic containers labeled with
       stickers reading “Twizted Potpourri.”
                During the course of the investigation, the police expanded their
       surveillance to include the Red Eye Hut (the Red Eye), a Boise store owned by
       the limited liability company for which Morgan Alley was the registered agent.
       Detective Andreoli stated that the Red Eye “appeared to be a head shop” due to
       the nature “of the items for sale inside.” The shop contained various types of
       pipes, concealment containers, grinders, digital scales, drug testing kits, and
       “body-cleansing solutions to defeat drug tests.” At one point, Detectives Kevin
       Holtry and Jason Harmon entered the Red Eye in an undercover capacity and
       purchased three containers of Twizted Potpourri and a metal pipe from Goggin.
       Testing showed that one of these containers contained plant material treated with
       JWH-019 and the other two containers contained plant material treated with AM-
       2201. Both JWH-019 and AM-2201 are synthetic cannabinoids. Thereafter, the
       police executed search warrants on the warehouse and the Red Eye, seizing
       approximately 30,000 containers of Twizted Potpourri from the warehouse and
       over 9,000 containers of Potpourri and 340 pipes from the Red Eye.

Goggin, 157 Idaho at 3-4, 333 P.3d at 114-15 (footnotes omitted).
       At trial, the State’s evidence showed that Peterson worked in the warehouse packaging
“spice.” It also showed that Peterson was carrying a bag containing “spice” and a pipe when
found by police. When questioned by police, Peterson did not deny her involvement with the
sale of the substance, but stated that she was unaware that the substance was illegal in Idaho.
Nevertheless, the State charged Peterson with conspiracy to manufacture, deliver, or possess
with intent to deliver a controlled substance. At trial, Peterson requested a mistake of fact
instruction, arguing that because conspiracy was a specific intent crime, the State was obligated

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to show that Peterson intended to commit an illegal act. In essence, Peterson argued that her
mistaken belief that the substance was legal in Idaho was a defense to the charge of conspiracy to
sell a controlled substance. At trial, the court gave both a general mistake of fact instruction and
a mistake of law instruction. The mistake of fact instruction acknowledged that “[e]vidence was
offered that at the time of the alleged offense the defendant mistakenly believed certain facts,”
and directed that the jury “should consider such evidence in determining whether the defendant
had the required intent.” The mistake of law instruction informed the jury as follows: “When
the evidence shows that a person voluntarily did that which the law declares to be a crime, it is
no defense that the person did not know that the act was unlawful or that the person believed it to
be lawful.” Thereafter, the jury found Peterson guilty of the conspiracy charge.
       Following the trial, Peterson filed a motion for acquittal or a new trial, continuing to
argue that the State was required to prove that she knew that it was illegal to sell the product in
question. The district court held that it had erred by instructing the jury that a mistake of law
was not a defense to the conspiracy charge because “a good faith belief that the object crime was
not illegal is a defense to conspiracy.” On that basis it granted the motion for a new trial.
       The State appeals the district court’s order for a new trial pursuant to Idaho Appellate
Rule 11(c)(8). 1 The State argues that a conspiracy conviction requires that the State prove that a
person agreed to “perform some act that is illegal” and that it need not prove that the defendant
knew that the act was illegal.
                                                 II.
                                            ANALYSIS
       This appeal was stayed, pending the disposition of Taylor, ___ Idaho ___, 335 P.3d 31,
because the parties acknowledged that the issues on appeal in this case were substantively the
same as the issues raised in Taylor. In the trial court, Peterson and Taylor were represented by
the same attorney, who filed substantially similar motions for acquittal or a new trial in both
cases. Likewise, in both cases the district court granted the motion and the State appealed.
       After reviewing the briefing in this case, we find no basis to distinguish this case from
Taylor and Goggin. On appeal, Peterson argues that because conspiracy is a specific intent


1
       Idaho Appellate Rule 11(c)(8) states: “An appeal as a matter of right may be taken . . .
[f]rom the following judgments and orders of the district court in a criminal action . . . . An
order granting or denying a motion for new trial.”

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crime, her mistake of law, believing that Idaho’s law did not prohibit the possession or sale of
the compounds in question, was a defense.           Peterson’s argument, that the court erred by
instructing the jury that ignorance or mistake of law is not a defense to a conspiracy charge, is
foreclosed by the Idaho Supreme Court’s decision in Goggin, 157 Idaho at 13, 333 P.3d at 124
(2014), where the Court said:
       A person commits an illegal act by engaging in the activities prohibited by statute.
       Therefore, a person will have committed conspiracy when she agrees with another
       person to engage in activities prohibited by statute.
               For example, a person is guilty of conspiracy to deliver a controlled
       substance under Idaho Code section 37-2732(f) when she and another person
       agree to deliver a controlled substance. The statute does not require the State to
       prove that the defendant knew it was illegal to deliver a controlled substance.
       Under this analysis, then, to be convicted of conspiracy, a defendant must have
       simply intended to engage in the acts necessary to commit the underlying
       substantive offense. Thus, whether the defendant knows the acts are illegal is
       irrelevant.
               ....
               Other courts have interpreted similar conspiracy statutes to mean that the
       defendant must, with the mental state required by the underlying offense, only
       agree to engage in the conduct prohibited by the underlying offense, not that the
       defendant must know the acts are illegal. In U.S. v. Feola, the defendant was
       convicted of conspiracy under 18 U.S.C. § 371, which defines conspiracy as
       occurring when “two or more persons conspire . . . to commit any offense against
       the United States, . . . and one or more of such persons do any act to effect the
       object of the conspiracy.” 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975).
       In considering this issue, the Supreme Court found “no textual support for the
       proposition that to be guilty of a conspiracy a defendant in effect must have
       known that his conduct violated federal law.” Id. at 687, 95 S. Ct. at 1265, 43
       L. Ed. 2d at 554. Indeed, the conspiracy statute
               makes it unlawful simply to “conspire . . . to commit any offense
               against the United States.” A natural reading of these words would
               be that since one can violate a criminal statute simply by engaging
               in the forbidden conduct, a conspiracy to commit that offense is
               nothing more than an agreement to engage in the prohibited acts.
       Id. The Court also noted that in the past, it had “declined to require a greater
       degree of intent for conspiratorial responsibility than for responsibility for the
       underlying substantive offense.” Id. at 688, 95 S. Ct. at 1266, 43 L. Ed. 2d at 555
       (citing United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356
       (1971)). Similarly, in U.S. v. Haldeman, a case the district court relied on when it
       decided to grant a new trial, the Circuit Court of Appeals for the District of
       Columbia stated: “a defendant does not have to be aware that he was violating a
       particular law, such as 18 U.S.C. § 371, so long as he had the conscious intent to
       do that which the law in fact forbids.” United States v. Haldeman, 559 F.2d 31,
       117 (D.C. Cir. 1976).

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              In this case, because neither Idaho Code section 18-1701 nor Idaho Code
       section 37-2732(f) contain specific language providing for a mistake of law
       defense, Goggin's argument fails.

Id. In Taylor, the Idaho Supreme Court applied the rule in Goggin and reversed the district
court’s order granting Taylor a new trial on the conspiracy charges. Taylor, ___ Idaho at ___,
335 P.3d at 40.    Therefore, we conclude that both the rule announced in Goggin and the
application of that rule in Taylor establish that the district court erred in granting Peterson’s
motion for a new trial.
       The order for a new trial is reversed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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