Opinion
Case No. 20050098-CA.
Filed May 4, 2006. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 041403028 The Honorable Steven L. Hansen.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellant.
Richard P. Gale, Provo, and Margaret P. Lindsay, Orem, for Appellee.
Before Judges Greenwood, Davis, and McHugh.
MEMORANDUM DECISION
The State appeals from an order dismissing a first degree felony charge for possession of a controlled substance in a drug-free zone with prior convictions, see Utah Code Ann. § 58-37-8(2)(a)(i), (b), (c), -8 (4)(a), (c) (Supp. 2004), and binding over Defendant on a class A misdemeanor charge for possession of drug paraphernalia in a drug-free zone, see id. §§ 58-37a-5(1) (2002), 58-37-8(4)(a), (c). We affirm.
Defendant was arrested after he failed to return to jail as ordered. Defendant was searched incident to arrest, and a small plastic bag bearing methamphetamine residue was found in his pocket. Defendant was charged with felony possession of a controlled substance. At Defendant's preliminary hearing, defense counsel argued that, under State v. Shondel, 453 P.2d 146 (Utah 1969), the trial court was required to dismiss the felony possession charge and instead bind Defendant over on a misdemeanor charge for possession of drug paraphernalia. The trial court agreed. The State timely appealed, arguing that the trial court erred when it applied the Shondel doctrine to the facts of this case. "Our review under the Shondel [doctrine] focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Green, 2000 UT App 33, ¶ 5, 995 P.2d 1250 (quotations and citation omitted).
"Equal protection of the law guarantees like treatment of all those who are similarly situated. Accordingly, the criminal laws must be written . . . so that the exact same conduct is not subject to different penalties depending upon which of two statutory sections a prosecutor chooses to charge." State v. Bryan, 709 P.2d 257, 263 (Utah 1985). Therefore, the Shondel doctrine "requires that a prosecutor who elects to charge an individual with a crime carrying a higher penalty or classification [does] so knowing that the prosecutor will be required to prove at least one additional or different element to obtain a conviction for the higher-penalty crime." State v. Fedorowicz, 2002 UT 67, ¶ 48, 52 P.3d 1194; see also Bryan, 709 P.2d at 263 (applying Shondel doctrine because "the two statutes [were] wholly duplicative as to the elements of the crime, and the law does not permit a prosecutor to exercise the wholly unfettered authority to decide whether the crime should be charged as a misdemeanor or a felony").
To determine whether the instant charge for possession of a controlled substance requires "at least one additional or different element" than what is required to charge Defendant for possession of drug paraphernalia, "we must compare the plain language of the [two] statutes to resolve whether they prohibit the same conduct and whether the elements of each crime are `wholly duplicative.'" Fedorowicz, 2002 UT 67 at ¶¶ 48, 49 (citation omitted). To convict Defendant for possession of a controlled substance, the State here would be required to demonstrate that Defendant knowingly and intentionally possessed methamphetamine residue. See Utah Code Ann. § 58-37-8(2)(a)(i). Under Utah Code section 58-37a-5(1), Defendant may be convicted for possession of drug paraphernalia if he "use[d], or . . . possess[ed] with intent to use, drug paraphernalia." Id. § 58-37a-5(1). The definition of drug paraphernalia includes "[c]ontainers and other objects used, or intended for use to store . . . a controlled substance," id. § 58-37a-3(10) (2002), and when determining whether an object is drug paraphernalia, the trier of fact should consider "the existence of any residue of a controlled substance on the object," id. § 58-37a-4(5) (2002).
Here, the existence of methamphetamine residue found on the small plastic bag is the only reason that the bag constitutes drug paraphernalia. Under Utah Code section 58-37a-4,
[i]n determining whether an object is drug paraphernalia, the trier of fact, in addition to all other logically relevant factors, should consider:
(1) statements by an owner or by anyone in control of the object concerning its use;
(2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to a controlled substance;
(3) the proximity of the object, in time and space, to a direct violation of this chapter;
(4) the proximity of the object to a controlled substance;
(5) the existence of any residue of a controlled substance on the object;
(6) instructions whether oral or written, provided with the object concerning its use;
(7) descriptive materials accompanying the object which explain or depict its use;
(8) national and local advertising concerning its use;
(9) the manner in which the object is displayed for sale;
(10) whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(11) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(12) the existence and scope of legitimate uses of the object in the community; and
(13) expert testimony concerning its use.
Utah Code Ann. § 58-37a-4 (2002). Of these factors, the only one that is applicable to this case is the existence of residue of a controlled substance on the object. See id. § 58-37a-4(5).
Under the facts of this case, the State would be required to demonstrate exactly the same proof to convict Defendant for possession of a controlled substance or possession of drug paraphernalia. First, Defendant's mens rea is not an issue here — he clearly possessed the small plastic bag with the same intent as he possessed the methamphetamine residue contained therein. Furthermore, the only evidence supporting a charge for possession of a controlled substance is the existence of methamphetamine residue found on the small plastic bag. However, that same residue is also the only statutory reason that the bag constitutes drug paraphernalia. Therefore, both charges — possession of a controlled substance and possession of drug paraphernalia — depend solely on Defendant's possession of methamphetamine residue.
The State argues that the Shondel doctrine does not apply in this case because the existence of the methamphetamine residue is only one factor that may be considered when determining whether an object constitutes drug paraphernalia. See id. § 58-37a-4. However, the methamphetamine residue is the only factor that the State relied on in bringing its possession charge, and as the trial court held, "the existence of residue is the only evidence that can support a charge of either possession of drug paraphernalia or possession of a controlled substance." Therefore, the trial court did not err in applying the Shondel doctrine to this case. See, e.g., State v. Loveless, 581 P.2d 575, 577 (Utah 1978) (applying Shondel doctrine where defendant was convicted of aggravated sexual assault for sex with girl under fourteen because rape statute proscribed that same conduct and "the only matter relied upon by the State as an aggravating circumstance [was the victim's age]. Hence, the State's claim that an aggravating circumstance other than the victim's age could defeat defendant's contention [that the Shondel doctrine applied] is without merit").
Indeed, even the cases cited by the State support the trial court's reliance on the Shondel doctrine. For example, inState v. Sorensen, 2003 UT App 292, 2003 Utah App. LEXIS 328, *4-5 (Aug. 28, 2003) (mem.), we stated:
[Defendant] claims that he cannot be charged with both possession of methamphetamine and possession of paraphernalia because the methamphetamine charge stems from the presence of residue on the items the prosecution claims are paraphernalia. However, the items could be considered paraphernalia even without the residue. . . . Therefore, the residue can form the basis for the methamphetamine charge, independent of the paraphernalia charge.
Here, the small plastic bag could not be considered paraphernalia without the methamphetamine residue and, therefore, the residue cannot form the basis for the methamphetamine charge independent of the paraphernalia charge. Furthermore, the cases the State cites that stand for the proposition that a residual amount of a controlled substance may support a conviction for possession thereof did not involve the Shondel doctrine. See, e.g., State v. Vigh, 871 P.2d 1030, 1034-35 (Utah Ct.App. 1994); State v. Warner, 788 P.2d 1041, 1043-44 (Utah Ct.App. 1990).
Affirmed.
WE CONCUR: Pamela T. Greenwood, Associate Presiding Judge, Carolyn B. McHugh, Judge