Lead Opinion
Defendant was charged with the unlawful distribution of a controlled substance, lysergic acid diethylamide (LSD) in violation of SDCL 39-17-88. He was found guilty by a jury and was sentenced to two years’ imprisonment in the state penitentiary.
The state’s principal witness, one Naomi Church, also known as Kathy Clark, and as “Fat Kathy,” of whom we have written in State v. Barr,
Ms. Church then asked defendant how much chocolate mescaline he was getting and whether he could get her some. After defendant replied in the affirmative, she asked him the price. Defendant replied that, in the witness’ words, “ * * * it would be about two dollars a hit, and then he asked me how much I wanted and I told him about ten.” In response to Ms. Church’s inquiry about when he could get the chocolate mescaline for her, defendant “ * * * told me that this Mathiason, or whoever he was getting it from from Hill City, had already left to go back, so it was too late to get it then, and he [defendant] said he had to go to Sioux Falls and he’d be back some-time Wednesday or late Wednesday night, so it would be either Wednesday or Thursday that I could get it.”
Ms. Church testified that she next saw defendant on June 29, 1973, at approximately 12:35 p.m., when she went to his record store in Rapid City. After purchasing a record from one of defendant’s employees, Ms. Church approached defendant. According to her testimony:
“I don’t remember if I asked him or he told me that he’d got them, but then I — he asked me how many I wanted and I told him ten, and then I asked him — I asked him the price and he said two dollars, and then I said ten again * * * ”
Defendant then went into the back room of his store and returned with a cellophane bag containing some brown pills. Defendant told Ms. Church that there were nine pills in the bag, whereupon she paid him $18. Ms. Church then left the store and shortly thereafter turned the pills over to a deputy sheriff. A chemical
Defendant testified that he had seen Ms. Church in the Casino Bar on Monday night, June 25,1973. He admitted that he had made the statement that he had intended to turn on the members of the band, but testified that he was referring to providing them with liquor and not with drugs. In response to his attorney’s question, “Is it pretty much what happened?,” referring to Ms. Church’s testimony regarding the transaction that occurred in defendant’s store on June 29, 1973, defendant replied, “Yes, it is.” It was the thrust of defendant’s direct testimony that Ms. Church had importuned him to secure drugs for her on numerous occasions, that he had never distributed or sold drugs prior to June 29,1973, and that the idea of purchasing drugs for and selling them to Ms. Church had originated in her mind rather than his. On cross-examination, however, defendant admitted that he had seen one Fred Monson passing some white crosses to Ms. Church in the Casino Bar on the evening of June 25, that he learned that Fred Monson had put white crosses into his drink that evening, and that the conversation he had had with Ms. Church that evening concerning drugs may have taken place after he had seen Fred Monson passing some white crosses to Ms. Church. Defendant further admitted on cross-examination that he had obtained the drugs in question from one Dave Mathiason on June 28,1973, after the latter had come into defendant’s store and asked defendant whether he knew anyone who wanted to buy some of the chocolate mescaline that Mathiason had. According to defendant, he [defendant] replied, “ ‘No, I can’t think of anybody,’ and I went back to my business. Oh, it must not have been more than two minutes and I thought, ‘This is a good way to get rid of this girl.’ ” Defendant then bought all of the alleged mescaline that Mathiason had, consisting of nine pills, which defendant then sold to Ms. Church the following day for $18.
Defendant raises three principal questions on appeal. First, he contends that SDCL 39-17-88, which is a part of the state drugs and substances control act, is invalid because of this court’s decision in State v. Matteson,
In the case of State v. Barr, supra, we upheld the validity of SDCL 39-17 in the face of a similar challenge. We reaffirm that holding here.
Defendant contends that the trial court erred in giving, over defendant’s objection, Instruction No. 10, which informed the jury that:
“The crime of distribution of a controlled substance, as defined by the statutes of this state, does not require that a person distributing a controlled substance know the nature of such substance or that it is a controlled substance. Therefore, if a person does in fact distribute a controlled substance, he has committed the crime, even though he is unaware of the nature of such substance or that it is a controlled substance or is mistaken as to its identity.”
We agree with defendant’s contention that the court erred in giving this instruction. SDCL 39-17-88 provides that:
“Except as authorized by this chapter, it shall be unlawful for any person to manufacture, distribute, or dispense a substance controlled under this chapter, or to possess with intent to manufacture, distribute, or dispense, a substance controlled under this chapter.”
Although it is true that this statute does not specifically provide that knowledge is an element of the offense therein stated, we conclude that knowledge is an element of the offense of unlawful distribution of a controlled substance and that the jury should have been so instructed. We reach this conclusion for
First, we note that courts in other jurisdictions have held that notwithstanding the absence of the word “knowingly” in statutes prohibiting the unlawful possession and sale of narcotic drugs and controlled substances, knowledge is an element of those offenses. See, e.g., Thomas v. State, Alaska,
In State v. Kietzke,
Second, we note that SDCL 39-17-95 provides that:
“It is unlawful for any person knowingly or intentionally to possess a controlled drug or substance * * * ”
Notwithstanding the serious problem of drug abuse that prompted the legislature to adopt SDCL 39-17, it seems to us that it would be anomalous to hold that the legislature intended to require a lesser burden of proof on the part of the state in those offenses carrying the more serious maximum possible penalty than in those cases in which, e.g., the penalty could not exceed one year in the county jail, and, as a matter of common knowledge, often result in the imposition of a 30-day jail sentence, which is then suspended upon certain terms and conditions. Granted, the specific use of the words “knowingly or intentionally” by the legislature in the above enumerated sections of SDCL 39-17 could lend itself to the opposite interpretation, i.e., that the legislature by specifically using those words in the enumerated sections specifically intended to eliminate the requirement of knowledge as an element of the offense of unlawful distribution under SDCL 39-17-88. Were it not for the apparently uniform holdings of other courts — at least the state has called no contrary holding to our attention — that knowledge is an element of the uniformly regarded serious offense of selling or distributing a controlled substance,
Finally, the state does not contend that knowledge is not an element of the offense described in SDCL 39-17-88. On the contrary, the state argues that the defendant’s challenge to the instruction is based on an erroneous interpretation of the instruction. The state contends that the instruction merely states that a person distributing a substance need not know that such an act is illegal, i.e., that it is not necessary for the individual to have knowledge that the substance he is selling is listed in SDCL 39-17 as a controlled substance. In a word, the state contends that this instruction merely states that ignorance of the law does not excuse, and that the instruction cannot be construed to mean that a factual mistake removing criminal intent does not excuse. From this premise, the state submits that we should adopt the definition of “knowingly” found in South Dakota Pattern Jury Instructions (Criminal) 1-11-2, which states that “ ‘knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. It does not require knowledge of the unlawfulness of such act or omission.” This instruction, of course, is taken verbatim from the definition of “knowingly” set forth in SDCL 22-l-2(l)(b). This argument proves too much, however, for the instruction clearly does not admit of the interpretation suggested by the state, and the definition of “knowingly” set forth in the pattern jury instruction is essentially that definition of knowledge required of one charged under SDCL 39-17-88, i.e., knowledge of that which he is distributing, not knowledge that it is a substance defined as the controlled substance under the provisions of SDCL 39-17.
In holding that SDCL 39-17-88 includes knowledge as an element of the offense of distributing a controlled substance, we do not intend to overrule our earlier decisions that hold that knowledge is not an element of certain crimes. For example, in State v. Klueber,
What the Klueber, Fulks and Schull cases, supra, involved, however, were statutes that prohibited certain specified activity that the legislature clearly intended to protect certain classes of persons from, activity which the actor could not in any sense of responsible behavior engage in without perforce being aware of what he was doing, as compared with an act, e.g., the running of a traffic light, that one might commit without any specific awareness at the time. Likewise, under the rationale of these three cases, knowledge of the fact that the person was under the age of 18 years would not be an element of the offense giving rise to enhanced punishment under SDCL 39-17-93 and 39-17-94 for distributing a controlled drug or substance to a person under the age of 18 years.
Although we conclude that the trial court erred in giving the instruction in question, such error does not mandate reversal inasmuch as under the evidence presented it is highly unlikely that the jury would have reached a different result had an instruction setting forth the requirement of knowledge been given. The evidence, including defendant’s own testimony, points overwhelmingly to the fact that he had knowledge that the pills that he sold to Ms. Church contained a drug. Indeed, it is not possible to consider that a responsible, unbiased jury could have come to any other conclusion but that the defendant knew of this fact. That being the_ca.se, the outcome would not have been any
“We agree that the trial court erred in giving the objected to instruction and form of jury verdict in this case. Without proof that a defendant has knowingly possessed a narcotic drug, a defendant cannot be convicted of the crime of unlawful possession of narcotic drugs, and the jury in this case should have been so instructed. However, we do not think that the error in this case requires reversal. ‘Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ (citation omitted) In the present case, the evidence of the defendant’s knowledge of the presence of narcotics is clear and convincing. We do not think that a jury could reasonably have found the defendant not guilty in this case, and therefore, reversal is not justified.”35 Ill.2d at 192 ,220 N.E.2d at 190 .
See also, Thomas v. State, Alaska,
We have not overlooked defendant’s argument that because the evidence indicated that the substance that he sold
Finally, defendant contends that the trial court should have granted his motion for a directed verdict of acquittal because the state’s evidence was insufficient to overcome the defense of entrapment. We have set forth in greater than usual detail the evidence in this case because we think that it carries with it the refutation of defendant’s contention. With the trial court’s permission, defendant exercised great latitude in cross-examining Ms. Church with regard to her background, prior experience and personal history, including questions regarding tattoos on certain portions of her body. That done, defendant and his witnesses proceeded to corroborate by their own testimony almost all of Ms. Church’s testimony regarding dates, places, conversations, persons, etc. In addition, the court on its own motion instructed the jury that:
*21 “The testimony of an informer who acts for reasons of personal profit does not stand on the same footing as the testimony of an ordinary witness. The jury must evaluate the informer’s testimony with great care to determine whether it has been affected by her special motivations.”
Moreover, the court fully and fairly instructed the jury on the defense of entrapment. The jury obviously put credence in Ms. Church’s testimony and concluded that the intent to engage in the distribution of the controlled substance in question had originated in the mind of the defendant and that Ms. Church had merely afforded defendant an opportunity for the commission of the offense. Such a conclusion could properly have been drawn from the evidence taken as a whole, and thus the trial court correctly refused to rule as a matter of law that defendant had been the victim of entrapment. State v. Shearer,
The conviction is affirmed.
Notes
. Defendant did not offer a proposed instruction on the element of knowledge. Had his objection to Instruction No. 10 carried the day, he would hardly have • been in any better position inasmuch as the question of knowledge would have as effectively been removed from the consideration of the jury as it was under the objected-to instruction. Having failed to request an instruction on the element of knowledge, defendant will not be heard to claim that the trial court erred in not giving such an instruction. SDCL 15-6-51(a); State v. Barr, supra; State v. Greene,
. Had an instruction on knowledge been given, the jury might very well have reasonably inferred from all the facts and circumstances that defendant in fact knew that the pills contained LSD. See United States v. Moser, 7 Cir.,
Concurrence Opinion
(concurring specially).
I would concur in affirming the conviction. Instruction 10, which states that knowledge of a controlled substance was not an element of the crime, was error and would be grounds for reversal except for the fact that defendant’s knowledge or lack of knowledge that he was distributing a controlled drug was not an issue or a defense in the case. The only defense submitted to the jury was whether the defendant was entrapped by Naomi Church. The defendant testified on cross-examination as follows:
“Q Did you obtain them (controlled substances) in Rapid City?
“A I did.
*22 “Q Were they obtained in your store?
“A They were.
“Q Now, who did you obtain them from?
“A Dave Mathiason.
“Q Is he from Hill City?
“A He’s from anywhere. I don’t know.
“Q How do you happen to know him?
“A An acquaintance.
“Q How did you happen to obtain them from him as differentiated from somebody else?
“A He walked in my store, said, ‘Hi.’ I said, ‘Hi.’ We were busy, and he kind of pulled me off a little bit like a lot of these people do and says, ‘You know anybody that wants to buy some of this chocolate mescaline I have,’ and I said, ‘No, I can’t think of anybody,’ and I went back to my business. Oh, it must not have been more than two minutes and I thought, ‘This is a good way to get rid of this girl.’
“Q Just a moment. At this time was Kathy Clark or Naomi Church, the same person, was she in the store then?
“A No, not at this time. This was early morning.
“Q Of June 28th?
“A Right.
“Q So then what happened?
“A So then I bought them from him.
*23 “Q How many did you buy?
“A She’d asked me for ten, so I told him that I wanted ten and he said, T don’t have that many.’ So I bought what he had.
“Q Which was nine?
“A I don’t know. I know it was more than two and more than three and I know it was more than seven, but whether it was nine or ten or eight I don’t know.
“Q Did you sell all that you obtained to Naomi Church?
“A Sure did.”
Thus, defendant’s own testimony reveals that he knew he was buying a controlled substance from Dave Mathiason and that he was selling a controlled substance to Naomi Church. His only error is that he thought the controlled substance was mescaline instead of LSD. Thus instruction 10 could not be prejudicial to his defense.