851 N.W.2d 905
S.D.2014Background
- Early-morning traffic stop in Spearfish; officers found Sean Whistler driving with running lights only and learned his license was suspended. He displayed signs of intoxication; marijuana odor was detected.
- Arrest yielded marijuana on Whistler’s person and in his pickup; breath/blood test showed .221 BAC. Urinalysis later detected benzoylecgonine (a cocaine metabolite) and marijuana metabolites.
- Grand jury indicted Whistler on DUI-related counts, possession of marijuana, and ingestion; a superseding indictment added possession of a controlled substance (cocaine) based on urine metabolite and driving on a suspended license.
- At trial the State presented testimony and forensic results; defense moved for acquittal on multiple counts (some granted). Jury convicted Whistler of possession of a controlled substance (under SDCL 22‑42‑5 as including an altered state absorbed into the body) and ingestion (SDCL 22‑42‑15).
- Whistler appealed, arguing (1) statutory interpretation — ingestion convictions should preclude possession convictions based solely on urinalysis metabolites; (2) double jeopardy; (3) insufficient venue proof; and (4) erroneous jury instructions (Instructions 13 and 17 allegedly removing the knowing‑possession mens rea).
Issues
| Issue | Whistler's Argument | State's/Prosecution Argument | Held |
|---|---|---|---|
| Whether ingestion conviction precludes conviction for possession when possession is proved only by a urine metabolite | Ingestion under SDCL 22‑42‑15 should preclude a possession conviction based solely on metabolite in urine; legislative intent did not authorize possession-by-ingestion | Legislature plainly defined “controlled substance” to include an altered state absorbed into the body; court must enforce statutory text | Affirmed: possession conviction valid; statute unambiguous and allows possession by altered/absorbed substance |
| Whether double jeopardy bars convictions for both ingestion and possession based on same metabolite evidence | Convictions for ingestion and possession (same substance/metabolite) constitute double jeopardy | Evidence also showed marijuana on person and metabolite of marijuana in urine; convictions could rest on distinct evidence/species; Blockburger framework applies | Court did not decide the broader double jeopardy question; affirmed convictions because jury could have convicted on separate evidence (marijuana vs. cocaine) |
| Whether venue in Lawrence County established for possession based on urine metabolite found in person in that county | Presence of metabolite in body cannot establish venue where body was tested; Legislature lacked authority to create venue this way | Statutory definition treats altered/absorbed state as a controlled substance; evidence showed altered state present while defendant was in Lawrence County | Venue proven by preponderance; Lawrence County proper venue for possession and ingestion counts |
| Whether jury instructions (esp. Instr. 13 and 17) misstated law or removed State’s burden to prove knowing possession | Instruction 13 altered permissive language; Instruction 17 (urinalysis "may be sufficient in and of itself") removed mens rea and allowed strict liability | Instructions read as a whole included mens rea and burden of proof; Instruction 17 accurately reflected precedent that urinalysis alone can be sufficient to support conviction | No reversible error: instructions, taken together, correctly stated law and preserved mens rea/burden of proof |
Key Cases Cited
- State v. Schroeder, 674 N.W.2d 827 (S.D. 2004) (held possession may include an altered state of a drug absorbed into the body)
- State v. Mattson, 698 N.W.2d 538 (S.D. 2005) (stated a positive urinalysis can be sufficient in itself to support a knowing‑possession conviction)
- Blockburger v. United States, 284 U.S. 299 (1932) (double jeopardy test for multiple statutory offenses)
- State v. Burdick, 712 N.W.2d 5 (S.D. 2006) (courts defer to legislature in defining crimes)
- State v. Iwan, 791 N.W.2d 788 (S.D. 2010) (venue in criminal cases must be proved by a preponderance)
- Meinders v. Weber, 604 N.W.2d 248 (S.D. 2000) (separation of powers and judicial limits on rewriting statutes)