*1 repentance despite and ex- be examined responsibility Utah, Appellee, trust and pungement. Great Plaintiff and STATE in- peace in our officers. Public placed persons so certified terest demands that MOORE, Lonnie L. impeccable qualifications. have and hired Appellant. and scrutiny major of the This well include background. person’s in a events No. 870470. I which have reached conclusions Supreme Court of Utah. opinion interpretation accord with Judge our statute Chief given to Oct. 1989. Depart- Thompson Aldon J. Anderson in Alcohol, Treasury, ment Bureau Firearms, F.Supp. Tobacco and (D.Utah 1982), correctly ob- where he universally did not
served that statute opinion in prior convictions. his
erase case, Judge Anderson observed: explanation legisla- no in the
There is history changes
tive statute, nor have there been
amended
any construing new cases statute. language, especially when con- new light language,
strued of the former place limitation on
seems to the ef- judicial pardon ex- and
fect of in- Though legislative pungement. clear, entirely must
tent is not the court changed
conclude that the statute was purpose, a purpose; and that change, evidently substance judicial limit
was to the effect of Hence, expungement.
pardon and judicial pardon expunge-
since 1980 a
ment under 77-18-2 is section
complete expungement unqualified prior
that erases the conviction suffi- petitioner
ciently Thompson to relieve disabilities.
from his firearms added.)
(Italics By ignoring disregard- significant legislative history, the
ing this in-
majority misconstrues the statute and if had
terprets it as the 1980 amendment made. I would reverse the trial
never been
court. J.,
STEWART, in the concurs HOWE,
dissenting opinion Associate
C.J. *2 Mortensen, Phoenix,
Paul W. for defen- appellant. dant and Wilkinson, Sjogren, David L. Sandra L. City, plaintiff Salt Lake appellee. HOWE, Associate Chief Justice: appeals Defendant Lonnie L. Moore degree felony a first jury conviction for distribution of a controlled substance public value within feet of a violation of Utah Code Ann. 37—8(l)(a)(ii)(Supp.1986) giv- and was § 58— pursuant en an enhanced sentence to Utah 58-37-8(5) process rights his violates due 58-37-8(5)(a)-(d) (Supp.1986) Code fifth and fourteenth may guaranteed years and which not less than five United States Constitu- amendments for life.1 be I, article section 7 of tion and met September On *3 by imposing pen- an enhanced Constitution agent liquor enforcement and law narcotics place alty that take within for violations in Kelley (“agent”) A. defendant’s Don 1,000 equal the feet of a school and violates Moab, in Daniel J. Ward home Utah. the amend- protection clauses of fourteenth informant”) (“confidential them introduced ment the United States and to Constitution infor- present. was The confidential and I, section of the Utah Constitu- article buy defen- to narcotics from mant offered unequal of effect on resi- tion because its dant, it would and stated that defendant towns; (4) dents small and Utah Code of agent and the confidential cost $275. 58-37-8(5)(d) pro- Ann. violates the due § paid that to him. Three informant amount cess and clauses the United States Utah pay- the friends witnessed of defendant’s by precluding Constitutions the defense of attempted evening, defendant ment. That by eliminating lack the knowledge and eighth persons “an purchase from third to requirement proximity the mens rea to methamphetamine for his crystal” of the school and his distribution of narcot- so, to he returned to buyers. Unable do points ics. shall consider these We seri- purchase home. He next endeavored to his atim. He was unsuccessful. then cocaine but agreed he hold suggested and was that overnight try purchase money and to
the I morning. methamphetamine the next trial, requested At that defendant agent met and the Defendant with given defining following instructions be day ap- at informant the next confidential for value” what is “distribution within home, is in p.m. his which proximately at convicted, the statute under which he was 1,000 central Moab and is located within 58-37-8(l)(a)(ii): section County feet of the Middle School. Grand from the His home is 482 feet inches Instruction No. approach on one and 568 feet middle school voluntary instructed that You are gave the 7 inches on another. Defendant unlawful ob- sharing of an substance (a piece informant a “bindle” confidential a party by from a third narcotics tained envelope) shape in paper folded agent person a who has officer or methamphetamine requested the officer or the substance for obtained (one usage) “line” from the bindle. con- agent party from the third does not provided the line. confidential informant within the stitute “distribution value” they them return Defendant told that could meaning of statute. purchase later and more controlled sub- Subsequently, was stances. defendant Instruction No. tried, and
charged,
convicted.
you may
(1)
that before
appeal,
complains:
You are instructed
On
that the
beyond
in
reasonable doubt
error
find
trial court committed reversible
methamphetamine
refusing
defendant distributed
give
proposed instructions
his
value,
the defen-
you
must find that
embodying his contention that he distribut-
value,
simply make an ac-
did more than
drugs
receiving
a lesser
dant
ed
without
offense;
to obtain
metham-
(2)
commodation call
the court should have
included
law,
phetamine on
of the narcotics offi-
found,
he
behalf
as matter of
was
agent.
(3)
cer
entrapped;
Ann.
Code
196, 1; 1989 Utah Laws
§
Laws ch.
at the
of defen
1986 Utah
This statute was
effect
time
1.
2;
illegal
§ 1. See
of narcotics within
Utah Laws ch.
dant's
distribution
ch.
pertinent
public
(Supp.1989).
school. The
feet of
58-37-8
Utah Code
have been amended.
sections of this statute
These
to an
He
instructions were refused
the tri-
undercover officer.
took
offi-
al court.
him
cer’s
to wait at
told
$120
apartment
defendant’s
until he returned.
requested
in-
also
his
We held that whether the defendant real-
stated,
given
struction No. 3
be
“[I]t
at
profit
ized a
or not was irrelevant.
Id.
is a lesser
offense to the crime
included
case,
Similarly,
134.
instant
defen-
included in the
for a
information
agreed
purchase
dant
narcotics for $275.
commit the crime of distribution of a con-
agent’s money,
He
attempted
received the
trolled
value.”
in-
substance without
This
purchase
times,
given
entirety
struction
several
its
as the
narcotics
court’s
6.
agent
overnight
instruction No.
told the
wait
while de-
trial,
money.
fendant retained the
At
he
*4
The court
jury
also instructed the
as to
portion
testified
no
the
that he retained
the definition of “distribute” and “distrib-
upon
purchase
re-
$275
the
and sale and
ute for value.” Instruction No. 5 read:
only
ceived
a line of the
as
substance
In construing
interpreting these in-
and
agreed. Defense counsel’s motion to dis-
structions,
following
definitions shall
miss on the
basis
defendant did not
apply:
receive value for himself was denied. The
actual,
A. “To
means the
distribute”
stated,
court
“I
the record
he
see
shows
attempted
a
constructive or
transfer of
part
received
and
$275.00
of the substance
person.
controlled
to
substance
another
only
and he was the
one that received it.
meaning
B. The
of the term “distribute
any-
There’s
no record
it ever went to
for value”
to deliver a
means
controlled
body else.” In accord with our
holding
exchange
compensation,
substance in
Udell,
receipt
defendant’s
of $275 satisfies
consideration,
value,
item of
or
or a
the definition of “distribution for value”
promise therefor.
regardless
profit.
of his realization of a
While a
is
defendant
entitled to an in-
Fixel,
744 P.2d
State v.
case,
theory
struction on his or her
of the
(Utah 1987), we held that evidence was
McCumber,
State v.
622 P.2d
support
sufficient to
the conviction of the
(Utah 1980), he
not
multiple
entitled to
distributing
defendant for
a controlled sub-
setting
theory.
instructions
forth the same
stance for
value where
defendant was
Miller,
(Utah
State v.
727 P.2d
approached
request
with
to
marijua-
sell
1986).
adequately
The court
defined distri-
police
na to an undercover
officer:
bution for
in instruction
value
No. 5. The
quoted
agreed,
selling
court then did
need to
define what is
price,
personally
and then
delivered the
purposes
not value for
of the statute since
money
contraband and received the
at his
any distribution
did not
come within
apartment.
purport merely
He did not
the definition of “for value” would be
find, direct, and introduce the
officer
“without value.”
drug
another
dealer. The trial court was
Furthermore,
requested
defendant’s
in-
required
to believe defendant’s claim
structions No. 1
No. 2
and
were flawed
any
that he did
or
not receive
benefit
they
premise
because
were based on the
keep any
money
he
received for
acceptance
that defendant’s
of the $275
making the sale.
paid
could not be value if he thereafter
all
Fixel,
Similarly,
jury
mental person. normal Code Ann. Defendant contends 496, (Utah 58-37-8(5)(a)-(d) (Supp.1986)violates his 599 P.2d 503 Taylor, v. State rights in arbitrari- 1979) (footnote omitted). process due In v. substantive State (1) creating 315, (Utah capriciously an irrebutt- Ct.App. ly Wright, 744 P.2d 318-19 wit- that children will be 1987), presumption able the court held that the undercover drug transactions marijuana nesses to or victims purchase of cocaine and officer’s presence or regard the actual while the officer was without from the defendant (2) children, subjecting de- accompanied by stepbrother of another absence town, fendant, to a of a small special a resident capitalize on the defendant did 502 arbi- that the statute
higher culpability increased Defendant contends risk of criminal trarily and an irrebutt- capriciously creates large than the residents of cities. wit- presumption
able
that children will be
1
drug
nesses to or victims
transactions
regard
presence
to the actual
without
A
convicted under subsec
His
that his
absence of children.
claim
(5)(a)
58-37-8
tion
of Utah Code Ann.
rights
process
are violated
substantive due
degree felony and shall be
guilty of a first
ground
The stat-
on this
is without merit.
imprisoned
an enhanced term.2
for
presence
presume the
of chil-
ute does not
upheld
This
the discretion of
Court has
transaction,
during
drug
nor does
dren
penal-
legislature
criminal
to enhance
Instead,
require it.
envisions
statute
example,
specific
conduct. For
ties
safety
plausible
risks to the health and
consistently
habitual criminal statute has
participants
of children
become
who
challenge.
survived
constitutional
Cf.
drug
and victims of
transactions.
Williams,
1368,
v.
State
773 P.2d
1374
Holland,
v.
F.2d
United States
810
Johnson,
v.
(Utah 1989);
771
State
P.2d
denied,
1215,
cert.
(D.C.Cir.),
1222
481 U.S.
1071,
1989);
Stilling,
(Utah
State
1074
2199,
(1987),
95
S.Ct.
L.Ed.2d 854
(Utah 1989) (the
P.2d
sentence
selling
con
defendant was convicted
criminal should be
being
a habitual
trolled
within
feet of
substances
merged
underlying
with the sentence of
public
in the District of Columbia.
offense to
one enhanced
substantive
create
challenged
congressional
on
He
statute
Bailey,
sentence);
P.2d
grounds,
the irra
several
one of which was
Carter,
(Utah
1986);
P.2d
presumption
tional and
that the
irrebutable
(Utah 1978).
statutes en-
Other
*6
perpetrator
deserving
punish
greater
is
of
penalties
hance
for crimes committed while
ordinarily
ment
than
tolerated.
would
be
Angus,
v.
firearms,
using
581 P.2d
congressional
He assailed the
determina
(Utah 1978) (construing
992
Utah Code
1,000
drugs
tion that those who sell
within
Speer,
v.
(1953));
Ann.
76-3-203
a
commit
serious
feet of
school
a more
(Utah 1988) (construing
503 Florida, 184, McLaughlin 379 189- away U.S. facilities for children cational 222, 90, 283, 287, parental re- 13 L.Ed.2d 226- their homes it assumes 85 S.Ct. Burnison, (1964); States v. sponsibility furnish them an education- 339 United 27 crime as 87, 95, 503, 507-08, al environment as free from 70 94 L.Ed. U.S. S.Ct. Lewis, reasonably protection make it. Its 675, (1950); it can Malan v. P.2d is most needed within the school Matheson, them 661, (Utah 1984); Baker surroundings. And it proximate and its (Utah 1979). 607 P.2d general understanding that is a matter of All defendants state-wide who distribute villages average in cities and con- our a controlled substance for value within public trolled zones around structures 1,000 public governed feet of a school are feet. usually extend 1000 Absent by susceptible this statute and to its en- protection problem, punish- equal penalties. argue cannot hanced is to be ment allowed statute] [the any any differently that he is treated than under and is well within reviewed similarly who other situated individual broad, unlimited, though discretion drugs proscribed deals within the location. Congress Eighth under the Amendment city. Consequently, in He resides a small degree punishment pro- to fix the yard readily the school be more locat- portion particular crime. to this ed within of his residence and his feet Holland, United States v. 810 F.2d at drug-dealing activities than is the case with omitted). (citation However, drug larger dealers in cities. case, police pow the instant under proximity de- this increased does not make er, legislature the state has taken mea him fendant dissimilar and therefore entitle health, protect public safety, sures to Clearly, he could dissimilar treatment. of children of Utah from the welfare have distributed controlled substances out- potential danger presumed extreme created zone, the defined school whether side drug on or near a when transactions occur unincorporated Moab or the area outside See also United States ground. Further, its limits. defendant has not (2d Cir.1985), Agilar, 779 F.2d similarly drug that a situated dealer shown denied, 475 U.S. cert. 106 S.Ct. dissimilarly treated Moab has been (1986) (the proscription L.Ed.2d 609 “bright line test” defendant. The is based *7 sales within the environs schools is a school, regard- strictly on distance from reducing easy rational means of the risk of population configura- or less of the town’s acquisition by availability that can lead to constitutional. See is tion. a test Such Cunningham, v. children); United States 459, Ogar, 229 N.J.Super. A.2d State v. 551 519, (S.D.N.Y.1985) F.Supp. 615 520-21 1037, (1989). 1042 direct (statute require endanger does in re Nieves, of review this ease v. children); The standard United States ment of v. Bish quires only a rational basis. 1147, (S.D.N.Y.1985) F.Supp. 608 1149 (Utah 1986); United (statute 261, op, valid pre irrebuttable 266 creates 717 P.2d Holland, 1,000 1219; sumption drug v. that offenses within 810 F.2d at States children). 429, Brown, endanger N.J.Super. feet of a school 547 A.2d 227 Rodriguez, 225 State v. 743, (1988); 747 2 966, (1988). 466, A.2d 967-68 N.J.Super. 542 rationally to the le is related The statute Defendant’s contention that protect governmental interest of gitimate protection it equal statute violates because drug-related activity ing from its minors drug in towns differ treats dealers small profound harm to the drug use. The large in cities ently from those is without people young minds and bodies of principle A of both merit. fundamental drug activity, and not from related results equal protection provi and federal state activity, be ade incidentally criminal should persons is that the law should treat sions poten presumed quately prevented. similarly situated in a similar fash who are custom risk that children could become dissimilarly situ tial persons who are ion ground alone dissimilarly. E.g., suppliers is a sufficient ers or ated be treated should 504 culpability.” court rationally legislation. Fur such acts affected support
to lack of knowl ther, legis the defendant’s that this held that defendant’s contention lack of knowl edge the statute itself and against lation discriminates small-town edge to was not an disingenuous: proximity the school drug providing dealers is leeway drug criminal conduct: greater to the small-town excuse for provide greater would in to dealer turn risk Congress’ easily It concluded here that is small-town children. This Court cannot heightened protecting in children interest city rule that children in the of Moab and the direct from both indirect protected less than in a should be children perils drug amply supports traffic its Thus, city. larger Utah the rational basis showing require decision not passes for this statute muster state-wide. proximity rea school. mens A know that reasonable would IV trafficking stringent drug subject is public regulation seriously it can because contention, that Defendant’s last community’s threaten the health and 58-37-8(5)(d) his Utah Code violates safety, particularly it relates as process rights precludes due because community’s heightened concern for the knowledge defense of lack of about health, safety and its welfare of children. school, proximity of the is without also knowledge And because of [the statute] provides merit. The for strict crim statute law, presumed it is reasonable for liability: inal Congress drug expected to have traffick- (d) prosecution It is not a to a defense proximity ers to ascertain their that the actor mis- under subsection operations schools and remove their takenly that location believed ... these areas or assume the risk their was as de- where act occurred to do so. failure (5)(a) un- scribed in subsection or was the location where the act aware Holland, 810 F.2d at United States described occurred subsection (emphasis added); see also 1223-24 United (5)(a). 791, (2d Ofarril, F.2d 792 States v. 779 Cir.1985) curiam), denied, (per 475 cert. may The fact not have 1231, U.S. S.Ct. L.Ed.2d 340 penalty of the enhanced for distrib- known Falu, (1986); States v. F.2d United uting controlled with- substances value (2d Cir.1985); Brown, see also State County feet of the Grand Middle N.J.Super. A.2d prox- not have known of the School (1988) (state legislature legitimate had a imity to the of his domicile school is not basis for the termination of reasonable defense. proximity the school’s rea about mens dealing selling convictions of Cases *8 protective purpose shield achieve its 21 drugs under 845a have held U.S.C.A. § from the violent and dan children requirement dispensing the of that with milieu); gerous criminal narcotic pro was a violation of mens rea not due 72, 769, Morales, N.J.Super. 224 539 A.2d comparable is cess. federal statute (statute posses (1987) prohibited 776 Utah’s statute. In United States v. Hol 1,000 within sion controlled substances of (D.C.Cir.), land, 1215, 810 F.2d 1222 cert. property feet did not violate due of school denied, 1057, 2199, 107 95 481 U.S. S.Ct. despite fact that law process rights, the the (1987), upheld 854 the court a stat L.Ed.2d proximity require knowledge did of imposing punishment upon ute enhanced school). distributing those convicted of controlled Congress past, has rendered crimi feet of In the substances within a school. type nal of conduct that reasonable argued that the vio The defendant statute subject stringent know provided person it should is process due en lated because seriously threat public regulation and punishment regard for acts hanced without safety. community’s or Li en health or actor or had a the to whether not the “knew 433, States, 419, 471 U.S. parota probability knowing that v. United reasonable
505
2084, 2092,
434, 444-
105 S.Ct.
85 L.Ed.2d
session and distribution of a controlled sub-
(1985);
Freed,
58-37-8(5)
45
see also United States
merely
stance. Section
enhanc-
601,
1112,
tion. See State (Utah 1989). from the ma
My point departure court suggestion that the trial
jority is its requested given the two
could not have say majority seems to instructions. GILLMAN, of the Es Trustee Duane H. Udell, our decision that under Corpora America tate of West Credit (Utah 1986), a defendant P.2d Thrift and and America tion West against a distribution-for- cannot defend Loan, Appellant, and Plaintiff all of the charge by showing that value turned over money given to him or her was given drugs that were then
to another for
DEPARTMENT
FINANCIAL INSTI
OF
holding
purchaser. That is not
to the
UTAH,
the STATE OF
TUTIONS OF
There,
at
the defendant was
of Udell.
Appellee.
hold
bring
under the
tempting to
himself
No. 20515.
Ontiveros,
P.2d 103
ing
of State v.
Supreme
of Utah.
1983),
Court
(Utah
we held that there
where
support a convic
evidence to
sufficient
25, 1989.
Oct.
value,
distributing
but that
tion for
“arranging”
a distri
evidence did show
bution for value. quite different from
facts in Udell were Ontiveros, simply held that
those in and we Udell, there was sufficient evidence jury’s that Udell did
sustain the verdict when he acted as the
distribute for value
seller, money pur took sum
chaser, bought gasoline some out of that drugs, returned with
money, and later there was no uncontested evidence
when drugs paid same amount for the
that he purchaser. charged
as he Ontiveros,
Accordingly, under
Udell
Fixel,
as well 1987),
(Utah majority, also cited on a seeking to avoid conviction by showing charge
distribution-for-value guilty only the lesser
that he or she is properly arranging charge quite
included things argue jury to the that one
can arranging crime an
that makes the that the defen- for value is distribution money all the over to another
dant turned something the did drugs, evidence *10 Because compellingly show Udell. true, certainly not error for
this is it is jury. judge to so instruct a
trial