State v. Toben, 2014 SD 3

Jason D. Toben managed a bar that openly sold products marketed as “synthetic marijuana.” Lawmakers enacted an emergency ban on "synthetic cannabinoids" (including AM 2201 and homologues) effective Feb 23, 2012.
Undercover agents purchased products from Toben before and after the law change; lab testing later showed the products contained AM 2201 and MAM 2201 (a homologue), making them illegal after the statute took effect.
Toben testified he relied on package labels and vendor assurances (and a lab report found in the owner’s car) indicating the products were cannabinoid-free; he also admitted he and patrons used and got high from the products.
At trial the court instructed the jury using South Dakota’s statutory/pattern definition of "knowingly," which states knowledge of unlawfulness is not required; defense did not request a mistake-of-fact instruction or object to instructions or the prosecutor’s closing analogy equating the case to a speeding (strict-liability) offense.
The jury asked during deliberations whether the instruction referred to knowledge of law or knowledge of the act’s legality and whether counts referred to specific chemicals; the court declined to clarify. Toben was convicted on all counts and appealed, claiming plain error in the jury instructions regarding the knowledge element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s generic statutory/pattern instruction on "knowingly" adequately informed the jury that the State must prove knowledge of the character and nature of the substance	State: the pattern/statutory definition is adequate; knowledge of unlawfulness is not required and instruction was correct	Toben: the jury should have been told explicitly that the State must prove he knew the nature/character of the substances (not merely that he acted)	Court held the generic instruction was not erroneous; it was adequate and consistent with precedent and statute
Whether the court committed plain error by failing sua sponte to give a mistake-of-fact instruction and by not correcting prosecutor’s analogy	State: no sua sponte duty to instruct on mistake of fact when mental-state instruction is proper; any error did not produce miscarriage of justice	Toben: combined prosecutor remarks, jury questions, and lack of specific instructions deprived him of a fair trial; plain error review should apply	Court held even if omission were error, it did not meet plain-error standard or warrant relief; evidence supported an inference Toben knew the substances’ nature and no miscarriage of justice was shown

State v. Barr, 90 S.D. 9, 237 N.W.2d 888 (S.D. 1976) (knowledge of the nature/character of the substance is required for unlawful possession)
Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) (discussing proof of mental state by inference)
People v. Low, 232 P.3d 635 (Cal. 2010) (upholding general statutory definition of "knowingly")
People v. Jennings, 237 P.3d 474 (Cal. 2010) (no sua sponte duty to give mistake-of-fact instruction when proper mental-state instruction given)
United States v. Sdoulam, 398 F.3d 981 (8th Cir. 2005) (a defendant cannot consciously avoid learning a substance’s nature to later claim ignorance)