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State v. Alley

Court of Appeals of Idaho

February 11, 2014

STATE of Idaho, Plaintiff-Respondent,
Morgan Christopher ALLEY, Defendant-Appellant.

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[Copyrighted Material Omitted]

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Pitcher & Holdaway, PLLC, Logan, Utah, for appellant. Ryan L. Holdaway argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.


Morgan Christopher Alley appeals from his judgment of conviction for manufacturing and delivery of a controlled substance and possession of paraphernalia with intent to deliver, enhanced for being a repeat offender of the controlled substances laws. Alley challenges the district court's orders denying his motion to dismiss one of his charges and motion to reconsider. He specifically alleges that the district court erred in determining that one of the active ingredients in the product he produced was a controlled substance and that the controlled substances statute was not unconstitutionally vague as applied to his case. For the reasons set forth below, we affirm, albeit on different grounds than those expressed by the district court.



In September 2011, Alley owned and operated a small " head shop" that sold drug paraphernalia and a product he had created called Twizted Potpourri. Although this product (commonly referred to as " spice" ) was marketed as incense or potpourri, it was sold to undercover police officers as if it were intended to be smoked. Samples of this product were collected through controlled buys, through trash picks, and as the result of a search warrant executed at the shop. Testing of these samples indicated the presence of three different chemicals: JWH-019, JWH-210, and AM-2201. The state determined that all three were schedule I controlled substances under the version of I.C. § 37-2705(d)(30)(ii)(a) then in effect.[1] Alley

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was subsequently charged with, among other things, one count of conspiracy to manufacture, deliver, or possess a controlled substance with intent to deliver. I.C. §§ 37-2732(a), (f), and 18-1701. Alley filed a motion to dismiss the indictment, arguing that one of the chemical compounds he was using to make his product, AM-2201, was not a controlled substance under Idaho law at the time. He also argued that the statute was unconstitutionally vague as applied to him. The district court denied the motion, holding that the legislature intended to ban all chemicals used in spice that mimic the effects of marijuana, including AM-2201, and that the statute was clear in providing fair notice of that to persons of ordinary intelligence. Alley filed a motion for reconsideration, which the district court also denied.

Alley conditionally pled guilty to manufacturing and delivery of a controlled substance, I.C. § 37-2732(a), and possession of paraphernalia with intent to deliver, I.C. § 37-2734B, with an enhancement for being a repeat offender of the controlled substance laws, I.C. § 37-2739(a). As part of a plea agreement, he preserved his right to appeal the district court's denial of his motion to dismiss and motion to reconsider.[2] The district court sentenced Alley to concurrent unified terms of ten years, with minimum periods of confinement of two years. Alley appeals.



A. Mootness

The state raises the question of mootness as a preliminary issue. This Court may dismiss an appeal when it appears that the case involves only a moot question. A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. In other words, a case is moot if it presents no justiciable controversy and a judicial determination will have no practical effect upon the outcome. State v. Manzanares, 152 Idaho 410, 419, 272 P.3d 382, 391 (2012); State v. Long, 153 Idaho 168, 170, 280 P.3d 195, 197 (Ct.App.2012). Even where a question is moot, there are three exceptions to the mootness doctrine: (1) when there is the possibility of collateral legal consequences imposed on the person raising the issue; (2) when the challenged conduct is likely to evade judicial review and thus is capable of repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest. State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010); State v. Hoyle, 140 Idaho 679, 682, 99 P.3d 1069, 1072 (2004).

The state argues that the issue of whether AM-2201 is a schedule I controlled substance is moot because, by pleading guilty, Alley admitted to manufacturing and delivering substances containing JWH-019 and JWH-210, both of which he admits were controlled substances within the scope of former I.C. § 37-2705(d)(30). Thus, the state argues that this appeal is moot because Alley admitted that he violated the statute irrespective of any determination that AM-2201 is or is not a controlled substance. Alley responds that the issue is not moot because he was charged with possessing all three chemicals in a single count. He argues that, if this Court holds that AM-2201 was not a schedule I controlled substance under the statute in effect in 2011, he would be able to withdraw his guilty plea and proceed to trial with a mistake of fact defense-specifically,

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that he intended only to possess AM-2201 and believed that was all he possessed, negating the mens rea required for possession of JWH-019 and JWH-210. As a result, although not explicit, Alley argues that the first exception to the mootness doctrine should apply because the determination of whether AM-2201 is a schedule I controlled substance will have a collateral legal consequence for him by eliminating a potential defense he could raise at trial. We agree. Although a holding by this Court that AM-2201 is not a controlled substance would not resolve Alley's legal issues, it would provide him with a potential defense and a decision to the contrary would definitively eliminate that possibility. Thus, there remain collateral legal consequences dependent on a decision in this case. As a result, we hold that the issue presented in this case is not moot and will consider the substantive basis for this appeal.

B. Scope of Controlled Substance Statute

Alley argues that his motion to dismiss should have been granted because AM-2201 was not a controlled substance under the version of I.C. § 37-2705(d)(30)(ii)(a) that was in effect at the time. He raises several points of error, all of which focus around the district court's interpretation of former I.C. § 37-2705(d)(30)(ii)(a).

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.App.2003). Where the statutory language is plain and unambiguous, this Court will give effect to the clearly expressed intent of the legislative body without engaging in statutory construction. State v. Doe, 140 Idaho 271, 274, 92 P.3d 521, 524 (2004); State v. Palmer, 138 Idaho 931, 940, 71 P.3d 1078, 1087 (Ct.App.2003). The language of the statute is to be given its plain, obvious, and rational meaning. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999). If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.App.2000). When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001). To ascertain the intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation that will not render it a nullity. Id. A court must also give effect to all the words and provisions of the statute if possible, so that none will be void, superfluous, or redundant. State v. Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007). Constructions of an ambiguous statute that would lead to an absurd result are disfavored. Doe, 140 Idaho at 275, 92 P.3d at 525.

Additionally, if a criminal statute is ambiguous, the rule of lenity applies and the statute must be construed in favor of the accused. State v. Dewey, 131 Idaho 846, 848, 965 P.2d 206, 208 (Ct.App.1998); State v. Martinez, 126 Idaho 801, 803, 891 P.2d 1061, 1063 (Ct.App.1995). However, where a review of the legislative history makes the meaning of the statute clear, the rule of lenity will not be applied. State v. Bradshaw, 155 Idaho 437, 440, 313 P.3d 765, 768 (Ct.App.2013); State v. Jones, 151 Idaho 943, 947, 265 P.3d 1155, 1159 (Ct.App.2011). The rule of lenity applies only when grievous ambiguity or uncertainty in a criminal statute that is not resolved by ...

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