                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40466

STATE OF IDAHO,                                   )      2014 Unpublished Opinion No. 809
                                                  )
       Plaintiff-Respondent,                      )      Filed: November 10, 2014
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
TASHINA MARIE ALLEY,                              )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      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.

       Judgment of conviction and sentence for conspiracy to manufacture, deliver, or
       possess with the intent to deliver a controlled substance and conspiracy to deliver
       or possess with the intent to deliver paraphernalia, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Tashina Marie Alley was convicted of conspiracy to manufacture, deliver, or possess
with the intent to deliver a controlled substance, namely “spice,” and conspiracy to deliver or
possess with the intent to deliver paraphernalia. On appeal, she contends that the district court
erred by denying her pretrial motion to dismiss wherein she argued that Idaho law did not
prohibit the sale of the substance she had sold. She also contends that the court erred by not
instructing the jury that mistake of law is a defense to conspiracy.
                                             I.
                                        BACKGROUND
       Alley 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) (Morgan Alley, 1 Tashina’s husband, was


1
       In the remainder of the opinion, we refer to Morgan Alley as “Morgan” and Tashina
Alley as “Alley.”
                                                 1
the defendant in that case) 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 31 (2014). Indeed, Alley’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).
       Before trial, Morgan filed a motion to dismiss, arguing that Idaho law did not prohibit the
sale of the “spice” he had produced. Alley joined the motion, but it was denied by the district
court and the case proceeded to trial.
       At trial, the State adduced evidence showing that Alley participated in her husband’s
“spice” business. Like the others involved in the business, Alley did not deny her involvement to


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police, but argued that selling spice was legal or, in the alternative, that she did not know it was
illegal. Over objection, the court instructed the jury that a mistake of law was not a defense.
        After the jury trial, Alley was convicted of conspiracy to manufacture, deliver, or possess
with the intent to deliver a controlled substance and conspiracy to deliver or possess with the
intent to deliver paraphernalia. She appeals from the judgment of conviction, arguing that the
court erred by denying the motion to dismiss and by giving an erroneous mistake of law
instruction.
                                                II.
                                           ANALYSIS
        We find no basis upon which we can distinguish Alley’s claims from the claims of her
co-conspirators that have previously been rejected by this Court or the Idaho Supreme Court.
A.      Motion to Dismiss
        As to the motion to dismiss, Alley concedes that her claim of error is identical to the
claim of error asserted by Morgan in a prior appeal. See Alley, 155 Idaho 972, 318 P.3d 962.
Alley acknowledges that she “simply joined Morgan’s arguments in the district court and the
issue was decided solely on the evidence and argument submitted by Morgan.” On appeal, when
addressing Morgan’s motions, this Court concluded that “the district court did not err in denying
[Morgan’s] motion to dismiss and motion to reconsider.” Alley, 155 Idaho at 983, 318 P.3d at
973. In our view, Morgan impermissibly attempted to resolve an issue of fact in a pretrial
motion to dismiss. Id. at 982, 318 P.3d at 972. 2 For the same reason Morgan’s claims of error
failed, Alley’s claims also fail.
B.      Jury Instruction
        On appeal, Alley argues that because conspiracy is a specific intent crime, her mistake of
law, believing that certain compounds were not illegal in Idaho, was a defense.             Alley’s
argument, that the court erred by instructing the jury that ignorance or mistake of law is not a



2
        It is unclear whether this Court’s rationale in Alley was overruled by State v. Goggin, 157
Idaho 1, 6 n.4, 333 P.3d 112, 117 n.4 (2014). In a footnote the Idaho Supreme Court remarked
that AM-2201 is a synthetic cannabinoid and the “plain language used by the Legislature banned
all forms of synthetic marijuana.” Irrespective of whether Goggin overruled a portion of Alley,
the claims in this appeal fail. If the Supreme Court decided that AM-2201 is illegal as a matter
of law, the district court did not err by denying the motion to dismiss. Therefore, because we can
hold that the motion to dismiss was properly denied under either theory, we need not determine
whether Alley was overruled.
                                                 3
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, 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).
               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. Accordingly, Alley was not entitled to a different mistake of fact instruction.

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                                              III.
                                       CONCLUSION
       Because both of Alley’s claims are foreclosed by recent authority from this Court or the
Supreme Court, further analysis is not warranted. The judgment of conviction is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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