#28025-a-SLZ 2017 S.D. 65
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRISTOPHER MARTIN, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE WALLY EKLUND Retired Judge
MARTY J. JACKLEY Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
MATTHEW T. STEPHENS Rapid City, South Dakota Attorney for defendant and appellant.
CONSIDERED ON BRIEFS ON AUGUST 28, 2017 OPINION FILED 11/01/17 #28025
ZINTER, Justice
[¶1.] Christopher Martin appeals from his conviction of unlawfully
possessing a controlled substance. He contends the State’s evidence was
insufficient to prove he knowingly possessed oxycodone. We affirm.
[¶2.] On September 15, 2015, Rapid City Police Officer Eric Holmquist
located an abandoned vehicle that Martin had reported stolen. While waiting for
Martin to arrive, Holmquist determined Martin had an outstanding arrest warrant.
When Martin arrived, he was arrested on the warrant and searched incident to
arrest. Holmquist found twenty-three oxycodone pills in Martin’s pocket, along
with ten $100 bill and a combination of smaller bills. The pills appeared to be
prescription medication but they were wrapped in cellophane from cigarette
packaging. Martin claimed that the pills belonged to “a friend or friends,” and that
he was unaware of what they were.
[¶3.] Detective Jim Ganser started a follow-up investigation. Martin told
Ganser the pills belonged to “Jessica,” but Martin did not provide a last name.
Martin claimed Jessica must have dropped the pills in the pickup he was driving
when he went to her residence to talk to her about his stolen vehicle. However,
Martin inconsistently stated that Jessica never got into the pickup and that she
only talked to him through the passenger window. Although Martin also indicated
he had been to Jessica’s home several times, he claimed he did not know her
address—so he drew a map. Because the map did not lead to Jessica’s home,
Ganser used a property management company to determine Jessica’s last name and
address.
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[¶4.] Jessica’s statements to Ganser was more incriminatory than
exculpatory. She told Ganser that Martin was driving a motorcycle, not a pickup,
when he came to her home. At trial, Jessica also disclosed she kept prescription
oxycodone and other similar looking pain medication in her house. She explained
that she had been taking oxycodone for approximately three or four years for
chronic pain. Although Jessica was on probation for attempting to obtain more
oxycodone by calling in her own prescription, she denied selling or giving any of her
medications to Martin.1 She did, however, testify that Martin had access to her
home. She testified Martin was a close acquaintance that she had known for at
least a year and a half. She also testified that she had given Martin a key to her
home prior to travelling to Utah in the late summer of 2015; and the day before his
arrest, Martin had been in her home discussing his stolen vehicle.
[¶5.] Martin moved for judgments of acquittal at the close of the State’s
evidence and after the jury verdict. Both motions were denied. Martin now
appeals. He concedes he knowingly possessed the pills, but he contends the
evidence was insufficient to prove he knowingly possessed oxycodone, a controlled
drug.
[¶6.] In reviewing the denial of a motion for judgment of acquittal, “we
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
1. Detective Ganser indicated it was hard to determine if there was a shortage of oxycodone in Jessica’s prescription bottle. Her pills were unorganized and her oxycodone prescription bottle contained both oxycodone and another pain medication that was similar in appearance to oxycodone. -2- #28025
crime beyond a reasonable doubt.’” State v. Uhing, 2016 S.D. 93, ¶ 10, 888 N.W.2d
550, 553-54 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763,
765). “We will not ‘resolve conflicts in the evidence, assess the credibility of
witnesses, or reevaluate the weight of the evidence.’” State v. Hauge, 2013 S.D. 26,
¶ 12, 829 N.W.2d 145, 149 (quoting State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d
98, 100). “If the evidence, including circumstantial evidence and reasonable
inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict
will not be set aside.” Id. This is a question of law that we review de novo. State v.
Linson, 2017 S.D. 31, ¶ 5, 896 N.W.2d 656, 659.
[¶7.] Under South Dakota law, “[n]o person may knowingly possess a
controlled drug or substance unless the substance was obtained directly or pursuant
to a valid prescription or order from a practitioner . . . .” SDCL 22-42-5. Affording
the most natural reading to language like that found in SDCL 22-42-5, “the word
‘knowingly’ applies not just to the statute’s verb[ ] [(“possess”)] but also to the object
of [that] verb[ ]—‘a controlled substance.’” See McFadden v. United States, ___U.S.
___, 135 S. Ct. 2298, 2304, 192 L. Ed. 2d 260 (2015) (citations omitted) (extending
the “knowing” requirements found in 21 U.S.C. § 841(a)(1) (2010)2 to controlled
substance analogues under 21 U.S.C. § 813 (2012)3). In interpreting our statutory
2. 21 U.S.C. § 841(a)(1) (2010) states that “[I]t shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance[.]”
3. 21 U.S.C. § 813 (2012) states “A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.”
-3- #28025
language, we have also stated the State must prove the defendant “knowingly
possessed a controlled substance.”4 See State v. Toben, 2014 S.D. 3, ¶ 10, 842
N.W.2d 647, 649 (emphasis added) (citing SDCL 22-42-5). Thus, we have indicated
“possession requires that an individual be aware of the presence and character of
the [drug].” State v. Riley, 2013 S.D. 95, ¶ 16, 841 N.W.2d 431, 436 (quoting State v.
Mattson, 2005 S.D. 71, ¶ 22, 698 N.W.2d 538, 547); accord Toben, 2014 S.D. 3, ¶ 13,
842 N.W.2d at 651 (quoting Dawkins v. State, 547 A.2d 1041, 1046 n.10 (Md. 1988))
(“Most states adopting the Uniform Controlled Substances Act, like South Dakota,
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#28025-a-SLZ 2017 S.D. 65
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRISTOPHER MARTIN, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE WALLY EKLUND Retired Judge
MARTY J. JACKLEY Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
MATTHEW T. STEPHENS Rapid City, South Dakota Attorney for defendant and appellant.
CONSIDERED ON BRIEFS ON AUGUST 28, 2017 OPINION FILED 11/01/17 #28025
ZINTER, Justice
[¶1.] Christopher Martin appeals from his conviction of unlawfully
possessing a controlled substance. He contends the State’s evidence was
insufficient to prove he knowingly possessed oxycodone. We affirm.
[¶2.] On September 15, 2015, Rapid City Police Officer Eric Holmquist
located an abandoned vehicle that Martin had reported stolen. While waiting for
Martin to arrive, Holmquist determined Martin had an outstanding arrest warrant.
When Martin arrived, he was arrested on the warrant and searched incident to
arrest. Holmquist found twenty-three oxycodone pills in Martin’s pocket, along
with ten $100 bill and a combination of smaller bills. The pills appeared to be
prescription medication but they were wrapped in cellophane from cigarette
packaging. Martin claimed that the pills belonged to “a friend or friends,” and that
he was unaware of what they were.
[¶3.] Detective Jim Ganser started a follow-up investigation. Martin told
Ganser the pills belonged to “Jessica,” but Martin did not provide a last name.
Martin claimed Jessica must have dropped the pills in the pickup he was driving
when he went to her residence to talk to her about his stolen vehicle. However,
Martin inconsistently stated that Jessica never got into the pickup and that she
only talked to him through the passenger window. Although Martin also indicated
he had been to Jessica’s home several times, he claimed he did not know her
address—so he drew a map. Because the map did not lead to Jessica’s home,
Ganser used a property management company to determine Jessica’s last name and
address.
-1- #28025
[¶4.] Jessica’s statements to Ganser was more incriminatory than
exculpatory. She told Ganser that Martin was driving a motorcycle, not a pickup,
when he came to her home. At trial, Jessica also disclosed she kept prescription
oxycodone and other similar looking pain medication in her house. She explained
that she had been taking oxycodone for approximately three or four years for
chronic pain. Although Jessica was on probation for attempting to obtain more
oxycodone by calling in her own prescription, she denied selling or giving any of her
medications to Martin.1 She did, however, testify that Martin had access to her
home. She testified Martin was a close acquaintance that she had known for at
least a year and a half. She also testified that she had given Martin a key to her
home prior to travelling to Utah in the late summer of 2015; and the day before his
arrest, Martin had been in her home discussing his stolen vehicle.
[¶5.] Martin moved for judgments of acquittal at the close of the State’s
evidence and after the jury verdict. Both motions were denied. Martin now
appeals. He concedes he knowingly possessed the pills, but he contends the
evidence was insufficient to prove he knowingly possessed oxycodone, a controlled
drug.
[¶6.] In reviewing the denial of a motion for judgment of acquittal, “we
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
1. Detective Ganser indicated it was hard to determine if there was a shortage of oxycodone in Jessica’s prescription bottle. Her pills were unorganized and her oxycodone prescription bottle contained both oxycodone and another pain medication that was similar in appearance to oxycodone. -2- #28025
crime beyond a reasonable doubt.’” State v. Uhing, 2016 S.D. 93, ¶ 10, 888 N.W.2d
550, 553-54 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763,
765). “We will not ‘resolve conflicts in the evidence, assess the credibility of
witnesses, or reevaluate the weight of the evidence.’” State v. Hauge, 2013 S.D. 26,
¶ 12, 829 N.W.2d 145, 149 (quoting State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d
98, 100). “If the evidence, including circumstantial evidence and reasonable
inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict
will not be set aside.” Id. This is a question of law that we review de novo. State v.
Linson, 2017 S.D. 31, ¶ 5, 896 N.W.2d 656, 659.
[¶7.] Under South Dakota law, “[n]o person may knowingly possess a
controlled drug or substance unless the substance was obtained directly or pursuant
to a valid prescription or order from a practitioner . . . .” SDCL 22-42-5. Affording
the most natural reading to language like that found in SDCL 22-42-5, “the word
‘knowingly’ applies not just to the statute’s verb[ ] [(“possess”)] but also to the object
of [that] verb[ ]—‘a controlled substance.’” See McFadden v. United States, ___U.S.
___, 135 S. Ct. 2298, 2304, 192 L. Ed. 2d 260 (2015) (citations omitted) (extending
the “knowing” requirements found in 21 U.S.C. § 841(a)(1) (2010)2 to controlled
substance analogues under 21 U.S.C. § 813 (2012)3). In interpreting our statutory
2. 21 U.S.C. § 841(a)(1) (2010) states that “[I]t shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance[.]”
3. 21 U.S.C. § 813 (2012) states “A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.”
-3- #28025
language, we have also stated the State must prove the defendant “knowingly
possessed a controlled substance.”4 See State v. Toben, 2014 S.D. 3, ¶ 10, 842
N.W.2d 647, 649 (emphasis added) (citing SDCL 22-42-5). Thus, we have indicated
“possession requires that an individual be aware of the presence and character of
the [drug].” State v. Riley, 2013 S.D. 95, ¶ 16, 841 N.W.2d 431, 436 (quoting State v.
Mattson, 2005 S.D. 71, ¶ 22, 698 N.W.2d 538, 547); accord Toben, 2014 S.D. 3, ¶ 13,
842 N.W.2d at 651 (quoting Dawkins v. State, 547 A.2d 1041, 1046 n.10 (Md. 1988))
(“Most states adopting the Uniform Controlled Substances Act, like South Dakota,
hold that ‘the accused must not only know of the presence of the substance but also
of the general character of the substance.’”); see also State v. Barr, 237 N.W.2d 888,
891 (S.D. 1976) (citing State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551 (1971))
(recognizing the Court has held knowledge of the drug’s character is an element of
the charge of unlawful possession). But we also agree with many other jurisdictions
holding that a defendant need not “know the exact nature of the substance in his
4. The South Dakota Legislature defines the mens rea requirement for all crimes involving the mental state of “knowledge” or “knowingly.” The words, “knowledge, knowingly,” and all derivatives thereof, import only a knowledge that the facts exist which bring the act of omission within the provisions of any statute. A person has knowledge if that person is aware that the facts exist which bring the act or omission within the provisions of any statute. Knowledge of the unlawfulness of such act or omission is not required[.] SDCL 22-1-2(1)(c).
-4- #28025
possession, only that it was a controlled substance of some kind.” United States v.
Martin, 274 F.3d 1208, 1210 (8th Cir. 2001).5
[¶8.] Therefore, the question in this appeal is whether the evidence was
sufficient to prove Martin knew the pills he possessed were a controlled substance of
some kind. Although there was no direct evidence on that point, the State was
entitled to prove that element “through circumstantial evidence.” Uhing, 2016 S.D.
93, ¶ 11, 888 N.W.2d at 554. Here, when Martin was arrested, he was not just
carrying prescription pills in his pocket, he was carrying pills wrapped in cellophane
together with a large number of $100 dollar bills. Thereafter, he offered a number
of inconsistent and demonstrably false stories concerning the source of the drugs.
There was also evidence that Martin had access to Jessica’s prescription oxycodone.
Jessica was unorganized in how she stored her pills; Martin had a key to Jessica’s
5. See also United States v. De La Torre, 599 F.3d 1198, 1204 (10th Cir. 2010) (“The Government can establish the mens rea for the possession element by proving only that the defendant knew he possessed some controlled substance.”); United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the exact nature of a drug in his possession . . . [only that he] possesses some controlled substance.”); United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“A defendant can be convicted of [importing or possessing a drug] if he believes he has some controlled substance in his possession.”); United States v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001) (“The government need only prove that the defendant was aware that some controlled substance was involved.”); United States v. Leavitt, 878 F.2d 1329, 1337 (11th Cir. 1989) (“[T]he government need not prove that [the defendant] actually knew that the substance involved was methaqualone as long as he knew he was importing a controlled substance.”). As the Virginia Court of Appeals noted in a case involving a similar statute, “a defendant need know only that he is possessing a controlled substance to be guilty.” Sierra v. Commonwealth, 722 S.E.2d 656, 662 (Va. Ct. App. 2012); see also State v. Neujahr, 540 N.W.2d 566, 572 (Neb. 1995) (“[T]he state must prove that [the defendant] knew the pills he possessed were a controlled substance, not that he knew the pills were clorazepate.”). -5- #28025
residence; she had recently been away in Utah; and the pills in Martin’s pocket
were of the same appearance as the type in Jessica’s prescription bottle.
Ultimately, Martin’s own defense enabled the jury to infer he knew the pills were
oxycodone. Jessica was Martin’s friend and acquaintance for over a year; she had
been taking prescription oxycodone for chronic pain during this friendship; she was
on probation for trying to illegally obtain more; and the pills Martin possessed
appeared to be the same type as Jessica’s oxycodone. From this evidence, the jury
could have believed that Martin was in possession of Jessica’s pills, and if that was
the case, he certainly would have known that they were oxycodone.
[¶9.] “Ultimately, it was for the jury to resolve the factual conflicts, weigh
credibility, and sort out the truth.” State v. Guthmiller, 2014 S.D. 7, ¶ 27, 843
N.W.2d 364, 372. When viewed cumulatively and taken in a light most favorable to
the jury’s verdict, there was sufficient evidence and inferences therefrom for a
rational jury to have found that Martin knew the pills he possessed were a
controlled substance.
[¶10.] Affirmed.
[¶11.] GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,
and WILBUR, Retired Justice, concur.
-6-