Argued on Oct. 1, 2013.
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.
[¶ 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.
[¶ 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 preparation" containing " any quantity of ... AM 2201," including its " homologues[.]" See SDCL 34-20B-14(46).
[¶ 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 " 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. 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 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 ...