State v. Whistler , 851 N.W.2d 905 ( 2014 )

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2014 S.D. 58
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
SEAN WHISTLER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE RANDALL L. MACY
Judge
****
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
G. MATTHEW PIKE of
Lawrence County Public
Defender’s Office
Deadwood, South Dakota Attorneys for defendant
and appellant.
****
ARGUED ON MARCH 24, 2014
REASSIGNED APRIL 18, 2014
OPINION FILED 07/30/14
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GILBERTSON, Chief Justice (on reassignment).
[¶1.] Defendant appeals his convictions for possession of a controlled
substance in violation of SDCL 22-42-5 (2012) and ingestion of a substance for the
purpose of becoming intoxicated in violation of SDCL 22-42-15. He challenges
South Dakota’s statutory scheme defining a controlled substance to include an
altered state of a drug or substance absorbed into the human body. He also alleges
insufficient evidence to prove venue, and asserts error in the circuit court’s jury
instructions. We affirm.
Background
[¶2.] On March 9, 2012, Spearfish Police Officer Aaron Jurgenson, followed
by Officer Colin Simpson, saw a pickup traveling on Main Street in Spearfish
during the early morning hours with only its running lights on. The officers
initiated a traffic stop. Officer Jurgenson approached the pickup and identified the
driver as Sean Whistler. Dispatch reported that Whistler’s driver’s license was
suspended. Officer Jurgenson asked Whistler to speak with him in his patrol car.
Once in the car, the officer observed signs of alcohol consumption and smelled the
odor of marijuana. After Whistler failed certain sobriety tests, Officer Jurgenson
placed him under arrest for driving under the influence, possession of marijuana,
and possession of drug paraphernalia. A search of Whistler’s person incident to
arrest uncovered a bag of marijuana in one of Whistler’s pants pockets and loose
marijuana leaves in Whistler’s coat pocket. Officer Simpson later conducted an
inventory search of Whistler’s pickup, during which he seized marijuana leaves and
a package of rolling papers.
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[¶3.] At the police station, Whistler provided urine and blood samples. The
test of his blood sample revealed a blood alcohol content of .221. A grand jury
indicted Whistler for alternative counts of driving while under the influence of
alcohol or driving with .08 percent or more by weight of alcohol in the blood,
possession of marijuana, and ingestion of a substance other than alcohol for the
purpose of becoming intoxicated. After the results of the urinalysis revealed the
presence of a metabolite of cocaine, a superseding indictment added the charges of
possession of a controlled substance (cocaine) and possession of a suspended license.
[¶4.] At the jury trial, Officers Jurgenson and Simpson testified about the
stop. Forensic examiner Richard Wold testified that the plant material retrieved
from Whistler’s person and pickup tested to be marijuana. Forensic chemist
Kathryn Engle told the jury that Whistler’s urine tested positive for the presence of
the metabolites of marijuana and cocaine. She said that Whistler’s urine sample
contained 0.90 micrograms per milliliter of benzoylecgonine, the major metabolite of
cocaine. She explained that this cocaine metabolite could remain inside the body for
approximately three days and that it is impossible to determine from a urinalysis
how long ago someone had ingested the cocaine.
[¶5.] At the close of the State’s case, Whistler moved for a judgment of
acquittal on all charges. The court granted Whistler’s motion on the charges of
driving under suspension and possession of drug paraphernalia. During the
settling of the jury instructions, Whistler objected to Instruction 13, which stated:
“Possession occurs if a person knowingly possesses an altered state of a drug or
substance absorbed into the human body,” and to Instruction 17, which stated: “In a
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charge of knowing possession of a controlled substance, a positive urinalysis that
reveals the presence of a controlled substance in a defendant’s urine may be
sufficient in and of itself to support a conviction.” The court denied Whistler’s
objections and submitted the case to the jury. The jury returned a verdict of guilty
on all counts. The court sentenced Whistler to four years in prison, suspended upon
serving eighty days in jail and abiding by certain terms and conditions.
[¶6.] On appeal, Whistler asserts that prosecution for possession in violation
of SDCL 22-42-5 (2012), based solely on the presence of a metabolite of a controlled
substance in urine, is contrary to legislative intent. He believes an ingestion
conviction precludes a possession conviction on the same substance and constitutes
double jeopardy. He also contends that the State failed to prove venue. Finally,
Whistler argues that the court committed reversible error in instructing the jury,
because Whistler asserts that Instructions 13 and 17 removed the State’s burden of
proving that Whistler knowingly possessed a controlled substance.
Analysis and Decision
[¶7.] Whistler first argues that South Dakota’s ingestion statute, SDCL 22-
42-15, precludes a conviction for possession under SDCL 22-42-5 (2012) when the
only evidence is a positive urinalysis. Statutory construction is a question of law
reviewed de novo. State v. Schroeder, 2004 S.D. 21, ¶ 5, 674 N.W.2d 827, 829
(citation omitted). Whistler concedes that we specifically held in Schroeder that a
defendant could be convicted of unauthorized possession of a controlled substance
when the only evidence of possession is from the ingested or absorbed substance in
the defendant’s urine. See id. ¶ 14. Yet he claims that Schroeder did not address
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the specific issue he presents for review: whether a conviction for ingestion
precludes a conviction for possession. See id. ¶ 9 (“There is still no need to decide
this related issue of whether an ingestion statute precludes a conviction for
possession when the only evidence is a positive urinalysis.”). Therefore, Whistler
asserts that Schroeder need not be overruled to decide this issue. In support of his
claim that a conviction for ingestion precludes a conviction for possession, Whistler
cites cases from other jurisdictions. He contends that South Dakota is the only
state in the nation that makes the crime of possession by ingestion a felony and that
doing so “bends decades of common law rule beyond its breaking point.”
[¶8.] It is within the province of the Legislature to define what conduct
constitutes a crime in this State. State v. Burdick, 2006 S.D. 23, ¶ 18, 712 N.W.2d
5, 10. “We pass only on the permissible scope of legislative regulation, not its
wisdom.” Meinders v. Weber, 2000 S.D. 2, ¶ 28, 604 N.W.2d 248, 260. Indeed, “[t]he
separation of powers would be meaningless if the judiciary were able to create
exceptions to a criminal law based upon its notion of fairness.” Burdick, 2006 S.D.
23, ¶ 18, 712 N.W.2d at 10. Here, the Legislature clearly and unambiguously
defined the crime of unauthorized possession of a controlled substance under SDCL
22-42-5 (2012) to include the possession of “an altered state of a drug or substance
listed in Schedules I through IV absorbed into the human body[.]” SDCL 22-42-1(1).
[¶9.] Still, Whistler insists that the Legislature never intended SDCL 22-42-
5 (2012) to allow prosecution for possession based solely on the presence of a
metabolite in the human body, and therefore, his conviction should be reversed. He
directs us to a record of the hearing before the Judiciary Committee of the South
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Dakota House of Representatives related to the 2001 amendment. Relying on this
record, Whistler asks us to reinterpret what the Legislature meant when it
amended SDCL 22-42-1(1) in 2001. “This Court does not, however, review
legislative history when the language of the statute is clear.” Bertelsen v. Allstate
Ins. Co., 2009 S.D. 21, ¶ 15, 764 N.W.2d 495, 500 (citing Clark Cnty. v. Sioux Equip.
Corp., 2008 S.D. 60, ¶ 28, 753 N.W.2d 406, 417). Because a plain reading of the
statutes at issue reveals that nothing precludes a conviction of unauthorized
possession when the controlled substance is ingested and thereby absorbed into the
human body, we reject Whistler’s argument.
[¶10.] Whistler also contends that he faced double jeopardy by being
convicted of both possession of a controlled substance, by way of an altered state of
cocaine absorbed into the body, 1 and ingestion of a substance other than alcohol for
the purposes of becoming intoxicated. 2 He argues that both of these convictions
rested upon the same evidence: the presence of a metabolite of cocaine in his body.
However, at trial, the jury heard evidence that Whistler smelled of marijuana, that
loose marijuana leaves were on his person and in his pickup, and that his urine
tested positive for the metabolite of marijuana. The jury could have concluded that
Whistler ingested marijuana, a conclusion that would not preclude a separate
conviction for possession of the metabolite of cocaine. Hence, we need not address
1. SDCL 22-42-5 (2012); SDCL 22-42-1(1).
2. SDCL 22-42-15.
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in this case whether convicting a defendant of both possession and ingestion of
cocaine, stemming from a single act of ingesting cocaine, violates the constitutional
prohibition against double jeopardy. See generally Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
[¶11.] Whistler next argues that venue for the crime of unauthorized
possession cannot be proved by the mere presence of a metabolite of a controlled
substance in one’s urine, and therefore, the State presented insufficient evidence
that he possessed cocaine in Lawrence County, South Dakota. He contends that the
Legislature was without authority to statutorily create venue for the crime of
ingestion to include where the substance was detected in the body. See SDCL 22-
42-15.
[¶12.] In all criminal prosecutions, the defendant has a constitutional right to
be tried by a jury in the county where the crime was alleged to have been
committed. S.D. Const. art VI, § 7; SDCL 23A-16-3 (Rule 18). Venue must be
shown by the evidence and need only be demonstrated by a preponderance of the
evidence. See State v. Iwan, 2010 S.D. 92, ¶¶ 8-9, 791 N.W.2d 788, 789 (citing State
v. Greene, 86 S.D. 177, 192 N.W.2d 712, 183 (1971)). Here, because a controlled
substance is defined to include the altered state of a drug absorbed into the human
body, venue was established for the crime of unauthorized possession in violation of
SDCL 22-42-5 (2012) through the evidence that Whistler possessed the altered state
of cocaine absorbed into his body in Lawrence County, South Dakota. Venue was
also established for the crime of intentional ingestion of a substance for purposes of
becoming intoxicated in violation of SDCL 22-42-15, because the odor of marijuana
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was detected on Whistler in Lawrence County, he possessed marijuana leaves on
his person in Lawrence County, and the metabolite of marijuana was detected in his
urine.
[¶13.] Finally, Whistler argues that the trial court erred in submitting
Instructions 13 and 17 to the jury. “A trial court has discretion in the wording and
arrangement of its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under the abuse of
discretion standard.” State v. Hauge, 2013 S.D. 26, ¶ 17, 829 N.W.2d 145, 150
(quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263). “However, no
court has discretion to give incorrect, misleading, conflicting, or confusing
instructions[.]” State v. Zephier, 2012 S.D. 16, ¶ 9, 810 N.W.2d 770, 772 (quoting
Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 10, 807 N.W.2d 612, 615-16). To
constitute reversible error, an instruction must be shown to be both erroneous and
prejudicial, such that “in all probability they produced some effect upon the verdict
and were harmful to the substantial rights of a party.” State v. Cottier, 2008 S.D.
79, ¶ 7, 755 N.W.2d 120, 125 (citation omitted). Accordingly, “jury instructions are
to be considered as a whole, and if the instructions when so read correctly state the
law and inform the jury, they are sufficient. This is a question of law reviewed de
novo.” State v. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113 (citation omitted).
[¶14.] Whistler asserts that Instruction 13 misquotes and significantly
deviates from the legal standard in Schroeder, and therefore constitutes reversible
error. See 2004 S.D. 21, 674 N.W.2d 827. Instruction 13 stated, “Any person who
knowingly possesses a controlled drug or substance is guilty of a crime. Possession
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occurs if a person knowingly possesses an altered state of a drug or substance
absorbed into the human body.” This Court in Schroeder stated that “possession
may now occur if a person knowingly possesses ‘an altered state of a drug or
substance absorbed into the human body.’” Id. ¶ 14 (citing SDCL 22-42-1(1); SDCL
22-42-5). Whistler argues that Jury Instruction 13 improperly changed the
permissive language of “possession may now occur” found in Schroeder to an
implied mandatory directive to the jury. See id.
[¶15.] Whistler’s argument on this point misconstrues the context of the
quoted language in Schroeder. When we used the phrase “may now occur,” we were
not describing whether a jury was permitted or mandated to reach a certain verdict,
as Whistler asserts. Instead, we were explaining that an amendment to the
definition of “controlled drug or substance” created two potential ways in which
possession occurred. See id.; 2001 S.D. Sess. Laws ch. 116, § 1 (adding altered state
of enumerated drugs or substances absorbed into body to definition of “[c]ontrolled
drug or substance”). The word “may” expressed possibility of criminal activity by
the defendant, not permissiveness of action by the jury. As in, it is possible for
possession to occur one of two ways—possession of the substance itself or possession
through absorption of an altered state of the drug in the body. A plain reading of
SDCL 22-42-1(1) and SDCL 22-42-5 (2012), as they were written at the time of
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Whistler’s conviction 3 reveals that Jury Instruction 13 correctly stated the elements
of possession of a controlled substance. 4
[¶16.] Whistler also asserts that Instruction 17 misstated the law and created
reversible error by removing the State’s burden of proving the mens rea element of
“knowing” possession. Instruction 17 stated: “In a charge of knowing possession of a
controlled substance, a positive urinalysis that reveals the presence of controlled
substances in a defendant’s urine may be sufficient in and of itself to support a
conviction.” Whistler argues that the phrase “in and of itself” replaces the State’s
burden of proving knowing possession with simply proving presence of a metabolite
in Whistler’s body. In response, the State contends that the court’s instructions
taken as a whole accurately state the law. We agree.
[¶17.] First, we note that Instruction 17 does not facially misstate the law.
Cf. State v. Evans, 12 S.D. 473, 81 N.W. 893 (1900) (remanding where instruction
stated wrong burden of proof). We have never held that a positive urinalysis, as a
3. SDCL 22-42-5 (2012) read:
No person may knowingly possess a controlled drug or substance
unless the substance was obtained directly or pursuant to a
valid prescription or order from a practitioner, while acting in
the course of the practitioner’s professional practice or except as
otherwise authorized by chapter 34–20B. A violation of this
section is a Class 4 felony.
SDCL 22-42-1(1) defines controlled drug or substance to include “an altered
state of a drug or substance listed in Schedules I through IV absorbed into
the human body[.]”
4. It would be incorrect to state that “knowingly possessing an altered state of a
drug or substance absorbed into the body may be a crime.” That act is a
crime—as clearly defined by the Legislature. SDCL 22-42-1(1); SDCL 22-42-
5 (2012).
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matter of law, mandates a conviction for knowing possession. However, Jury
Instruction 17 did not say that a positive urinalysis mandates a conviction for
knowing possession of a controlled substance, as a matter of law. Instead, the
instruction set forth the law with respect to the sufficiency of evidence necessary to
support a conviction for knowing possession of a controlled substance. In State v.
Mattson, 5 we stated that “in the context of a charge of knowing possession of a
controlled substance, a positive urinalysis that reveals the presence of a controlled
substance in a defendant[’]s urine is sufficient in and of itself to support a conviction
due to the language of SDCL 22-42-1(1).” 2005 S.D. 71, ¶ 54, 698 N.W.2d 538, 554.
See id. ¶ 57, 698 N.W.2d at 555 (also holding that “refusal to provide a urine sample
was sufficient to support an inference of knowing possession through ingestion”).
Instruction 17 used nearly identical language—that a positive urinalysis “may be
sufficient in and of itself to support a conviction” for possession—to inform the jury
of this legal concept. See id. ¶ 54, 698 N.W.2d at 554. Accordingly, we cannot
conclude that the instruction misstated the law.
[¶18.] Unlike other cases where this Court has found reversible error, this is
not a case where the jury instructions as a whole never included the necessary mens
rea element. Cf. State v. Jones, 2011 S.D. 60, ¶ 15, 804 N.W.2d 409, 414 (reversing
and remanding conviction for failure to include mens rea element in jury
instructions). Nor does Instruction 17 contradict the other instructions given as to
the burden of the State or the required elements of the crime. Cf. Evans, 12 S.D.
5. The trial court relied on Schroeder as supporting the pattern instruction, but
the language of the instruction more closely reflects that in Mattson.
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473, 81 N.W. 893. 6 Instruction 17 addressed but one aspect of the law, i.e., that the
jury was permitted to find Whistler guilty even if the State could not produce
evidence of actual drugs seized. Viewed in isolation, this lone rule of law presented
in Instruction 17 gives an incomplete statement of the law under which to convict a
defendant. Yet, our precedent clearly indicates that each individual instruction
need not apprise the jury of the whole of the law. Rather, we examine the
instructions as a whole to determine whether they accurately reflect the law. See
Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d at 113; Cottier, 2008 S.D. 79, ¶ 7, 755
N.W.2d at 125; State v. Eagle Star, 1996 S.D. 143, ¶ 13, 558 N.W.2d 70, 73; State v.
Olson, 408 N.W.2d 748, 753 (S.D. 1987).
[¶19.] The jury in this case was instructed that they must consider the
instructions as a whole. 7 As a whole, the jury instructions thoroughly informed the
jury of the mens rea requirement and that the State bore the burden of proving
every element of the crime. Jury Instruction 2 instructed the jury that “[t]he state
has the burden of proving every element of the offense charged beyond a reasonable
6. In Evans, this Court reversed and remanded a conviction for grand larceny,
because the jury was given two plainly contradicting instructions. The first
stated that the defendant was “presumed to be innocent of the charge of
grand larceny until his guilt is established by the state to your satisfaction,
by a preponderance of the evidence.” 12 S.D. at 473, 81 N.W. at 893-94. The
jury was also instructed that they “must be satisfied of the guilt of the
accused beyond a reasonable doubt[.]” Id. at 473, 81 N.W. at 894.
7. Instruction 4 stated in part, “You must accept and apply the law as stated in
these instructions which you must consider as a whole. You should not
disregard any instruction, or give special attention to any one instruction, or
question the validity of any rule of law.”
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doubt.” Jury Instruction 15 set forth those elements:
The elements of the crime of possession of a controlled drug or
substance, namely cocaine, each of which the state must prove
beyond a reasonable doubt, are that, at the time and place
alleged:
1. The defendant knowingly possessed the controlled
drug or substance cocaine.
2. The drug or substance was not obtained directly
pursuant to a valid prescription or order from a
practitioner, while acting in the course of his
professional practice.
Jury Instruction 16 reiterated the mens rea element, stating that the “defendant
must be shown to have knowingly been in possession of cocaine.” (emphasis added).
Jury Instruction 13 also instructed the jury that possession required the person to
“knowingly possess[ ] an altered state of a drug or substance absorbed into the
human body.” Taken together, these instructions sufficiently informed the jury that
the State was required to prove each element of the crime, including the mens rea,
beyond a reasonable doubt. Because the jury was sufficiently instructed, we
conclude the challenged jury instructions did not create reversible error.
Conclusion
[¶20.] For the above stated reasons, we affirm the trial court’s decision on all
issues.
[¶21.] WILBUR, Justice, concurs.
[¶22.] ZINTER, Justice, concurs specially.
[¶23.] KONENKAMP and SEVERSON, Justices, dissent.
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ZINTER, Justice (concurring specially).
[¶24.] I join the opinion of the Court. I write only to address the dissent’s
contention that Instructions 13 and 17 were irreconcilable on the requirement of
proving knowing possession.
[¶25.] As the Court points out, Instruction 13 (as well as Instructions 2, 15,
and 16) required the State to prove that Whistler knowingly possessed the
controlled drug or substance. The dissent, however, contends that Instruction 17
contradicted Instruction 13 by “eliminat[ing] the State’s burden of proving that the
possession was knowing.” See infra Dissent ¶ 29. The dissent describes Instruction
17 as eliminating the knowledge requirement because the instruction indicates
“‘that [a positive urinalysis] may be sufficient in and of itself’ to prove . . . knowing[]
ingest[ion of] the . . . substance[].” See infra Dissent ¶ 29. The dissent
mischaracterizes Instruction 17.
[¶26.] Contrary to the dissent’s characterization, Instruction 17 did not
indicate that a positive urinalysis proved the “knowing possession” element of the
offense. Instruction 17 provided that “[i]n a charge of knowing possession of a
controlled substance, a positive urinalysis that reveals the presence of controlled
substances in a defendant’s urine may be sufficient in and of itself to support a
conviction.” (Emphasis added.) The permissive words of the instruction—“may . . .
support a conviction”—indicated that the presence of controlled substances may,
but did not necessarily, support a conviction.
[¶27.] Instruction 17 did not mention, and therefore did not link, a positive
urinalysis with any element of the offense. Therefore, it did not give “the jury the
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option of disregarding an essential element of the offense.” See infra Dissent ¶ 31.
Instruction 17 was silent on proof of the elements of the offense. As the Court
points out, Instructions 2, 13, 15, and 16 identified and specifically required the jury
to find proof of the elements of the offense, including knowing possession, beyond a
reasonable doubt. Permissive Instruction 17 did not contradict these four
mandatory instructions.
[¶28.] When correctly characterized and considered together, the instructions
were complementary rather than irreconcilable. I therefore join the opinion of the
Court.
KONENKAMP, Justice (dissenting).
[¶29.] Diligent jurors following the trial court’s instructions in this case could
reasonably conclude that, based solely on a positive urinalysis, the law allows a
conviction for knowing possession of a controlled substance, even if the jurors hold a
reasonable doubt whether the defendant knowingly ingested that substance. The
court told the jury in Instruction 17: “In a charge of knowing possession of a
controlled substance, a positive urinalysis that reveals the presence of controlled
substances in a defendant’s urine may be sufficient in and of itself to support a
conviction.” (Emphasis added.) Imagine applying this rule in any other context: a
positive urinalysis proves that victims of date rape drugs knew they were taking
incapacitating drugs and that diners stricken with food poisoning knew they were
eating contaminated food. If the substances were found in their bodies, then, to
parrot the court’s instruction, “that may be sufficient in and of itself” to prove they
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knowingly ingested the harmful substances. This instruction eliminated the State’s
burden of proving that the possession was knowing. Possession of a controlled
substance thus became a strict liability offense.
[¶30.] Two instructions here were irreconcilable. Instruction 13 informed the
jury that “Possession occurs if a person knowingly possesses an altered state of a
drug or substance absorbed into the human body.” (Emphasis added.) Instruction
17 then contradicted Instruction 13, telling the jury that the presence of a controlled
substance in the urine “may be sufficient in and of itself to support a conviction” for
“the charge of knowing possession.” A positive urinalysis can indeed prove the
presence of a substance in the body, but it cannot “in and of itself” prove knowing
possession. And simply because this language was extracted from our opinion in
Mattson, does not mean it was proper to use it as a jury instruction. 2005 S.D. 71, ¶
54, 698 N.W.2d at 554.
[¶31.] Jurors are, of course, required to consider the instructions as a whole,
and error cannot be predicated upon a single instruction that might be objectionable
when considered in isolation. Yet many courts, including ours, have long held that
when instructions as a whole conflict, such constitutes prejudicial error. State v.
Moschell, 2004 S.D. 35, ¶ 54, 677 N.W.2d 551, 567 (citation omitted); State. v.
Evans, 12 S.D. 473, 81 N.W. 893, 894 (1900). Instruction 17 directly linked
Whistler’s positive urinalysis to a conviction for knowing possession. It gave the
jury the option of disregarding an essential element of the offense. The instruction
began with, “In a charge of knowing possession . . . ,” and then told the jury that it
may convict Whistler of that charge — knowing possession — based solely on the
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positive urinalysis, not because the jury believed that the State had met its burden
of proof. The instruction was “incorrect, misleading, conflicting, [and] confusing,”
and our Court errs in not reversing and remanding for a new trial. See State v.
Packed, 2007 S.D. 75, ¶ 17, 736 N.W.2d 851, 856 (citations omitted).
[¶32.] SEVERSON, Justice, joins this dissent.
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