State v. Hill

688 P.2d 450, 1984 Utah LEXIS 823

• Court: Utah Supreme Court
• Decided: April 26, 1984
• Docket: No. 19275
• Status: Published

Opinions

HOWE, Justice:

Defendant Timmy Hill received $2,100 in cash from an undercover agent in exchange for one ounce of baking soda wrapped in newspaper that the defendant claimed was “good” cocaine. He now appeals from a jury conviction of theft by deception, a second degree felony in violation of U.C.A., 1953, § 76-6-405.

Defendant contends that he was improperly charged under § 76-6-405 of our criminal code, which provides in pertinent part:

(1) A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.

Instead, he claims he should have been charged under U.C.A., 1953, § 58-37b-4, contained in the Imitation Controlled Substances Act that specifically proscribes the conduct with which he was charged. That section provides:

Manufacture, distribution or possession of substance unlawful — Penalty. It is unlawful for any person to manufacture, distribute, or possess with intent to distribute, an imitation controlled substance. Any person who violates this section shall be guilty of a class B misdemeanor and upon conviction may be imprisoned for a term not exceeding six months, fined not more than $299, or both. [Emphasis added.]

Section 58-37b-2(4) of the same act defines:

(4) “Imitation controlled substance” means a substance that is not a controlled substance, which by overall dosage unit substantially resembles a specific controlled substance in appearance (such as color, shape, size, and markings), or by representations made, would cause a reasonable person to believe that the' substance is a controlled substance.

We adhere to the principle that when an individual’s conduct can be construed to be a violation of two overlapping statutes, the more specific statute governs. See Helmuth v. Morris, Utah, 598 P.2d 333 (1979). See also State v. Skondel, 22 Utah 2d 343, 453 P.2d 146 (1969), where we held that two statutes which interdicted the same conduct but imposed different penalties entitled the violator to the lessor punishment.

In this case, the foregoing principle is buttressed by U.C.A., 1953, § 58-37-19, which provides in relevant part:

[WJhenever the requirements prescribed, the offenses defined or the penalties imposed relating to substances controlled by this act shall be or appear to be in conflict with Title 58, Chapter 17 or any other laws of this state, the provisions of this act shall be controlling.

In State v. Hicken, Utah, 659 P.2d 1038 (1983), we affirmed the dismissal of an information charging the defendant with aiding and abetting the distribution of a-controlled substance for value because a specific provision of the controlled substance act, § 58 — 37—8(1) (a) (iv), which prohibits the arranging of a sale of controlled substances, directly covered the defendant’s conduct and thus exclusively governed the offense. We cited Helmuth v. Morris, Utah, supra, as controlling.

The Imitation Controlled Substances Act, Chapter 37b, Title 58, was enacted in 1982, years after enactment of the Utah Controlled Substances Act, Chapter 37, Title 58. Nonetheless, § 58-37-19 of the Controlled Substances Act is applicable to Chapter 37b offenses since the two acts are integrally connected. For example, in its definition section, the Imitation Controlled Substances Act cites to the Controlled Substances Act for definition. The more recent act also provides an exemption for persons registered under the Controlled Substances Act. Consequently, where specific conduct is proscribed by the Imitation Controlled Substances Act, its provisions should control as mandated by § 58-37-19.

Section 58-37b-4 proscribes defendant’s conduct. Unquestionably the defendant made representations that would have caused a reasonable person to believe that the baking soda was cocaine. The fact suggested by the State that ingested baking soda would not produce effects similar to cocaine is unavailing. The baking soda sufficiently resembled cocaine so that combined with defendant’s representations that it was “good” cocaine, it was an imitation controlled substance. (See U.C.A. § 58-37b-3 for considerations involved in determining whether a substance is an imitation controlled substance where appearance alone may be insufficient to establish that fact.)

By exchanging the baking soda for money, the defendant committed the distribution of an imitation controlled substance. The definition of “distribute” under § 58-37b-2 of the Imitation Controlled Substances Act is:

Distribute means the actual, constructive, or attempted sale, transfer, delivery, or dispensing to another of an imitation controlled substance.

Were it not for the inclusion of “sale” in the definition of distribute, the State’s argument that the defendant committed theft by deception of the $2,100 might be more persuasive. However, as the statutes are written, exchanging baking soda for money is distribution of an imitation controlled substance in violation of § 58-37b-4. That provision covered defendant’s conduct, and he should have been charged with its violation.

Judgment reversed.

STEWART and DURHAM, JJ., concur.