Petition for Writ of Certiorari — Holway v. South Dakota

Supreme » Wo.

~~ FILED

02 454 yy 302002

HE. GuaniS

IN THE SUPREME COURT OF PAHEGRITED STATES

TERM, 2002

NO.

Thomas Holway

and

Ellie Holway,

Petitioners,

-VS.-

State of South Dakota,

Respondent.

ON PETITION FOR A WRIT OF T OF CERTIORARI TO

THE SOUTH DAKOTA ‘SUPREME COURT

John R. Murphy Eric D. Whitcher

Counsel of Record Counsel of Record

for Thomas Holway for Ellie Holway

615 Kansas City Street - 615 Kansas City Street

Rapid City SD 57701 Rapid City, SD 57701

Phone: (605) 342-2909 Phone: (605) 341-7422

Facsimile: (605) 343-9760 Facsimile: (605) 343-9760

ATTORNEYS FOR PETITIONERS

Pi EN BODEE bes LE GBAAL 5. 4 0

QUESTION PRESENTED

I. WHETHER THE DECISION OF THE

SOUTH DAKOTA SUPREME COURT,

HOLDING THAT SDCL § 22-42A-4 IS

NOT UNCONSTITUTIONALLY VAGUE

BECAUSE SDCL § 22-42A-1 CREATES

AN OBJECTIVE STANDARD, VIOLATE

PETITIONERS' RIGHT TO PROCEDURAL

DUE PROCESS?

|

TABLE OF CONTENTS |

QUESTIONS PRESENTED. .................00000- i

TABLE OF ALIERIENMee 665260545 6556s ev ereesvn ill

ot Be re ee rere ere 2

Rk eto | nr rere ns ore ted ee 2

CONSTITUTIONAL PROVISION INVOLVED ....... 3

STATUTORY PROVISION INVOLVED ............ 3 |

SIATE MGs OF S0i Gee cnc ev avecndeeasen eke 7 |

REASON FOR GRANTING WRIT ................ 12

CONCLUSION ..............-55 rere srr rr cre 30

APPENDIX

App. A. Decision of the Supreme

Court of the State of South

Dakota. ¥

il

TABLE OF AUTHORITIES

CASES PAGE

Camille Corp. v. Phares, 705 F.2d 233 (7" Cir. 1983) . 26

Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8" Cir.), cert.

denied, 455 U.S. 1005 (1982) .......... ee eevees 19, 26

Florida Businessmen for Free Enterprises v. City of

Hollywood, 673 F. 2d 1213 (1 ot A. | 26

Grayed v. Rockford, 408 U.S. 104, 108-109 (1972) .... 13

Lady Ann’s Oddities, Inc. v. Macy, 519 F. Supp. 1140,

eo ps | eS Sere eee ee ee 19

Levas and Levas v. Village of Antioch, 684 F.2d 446, 452

ioe? a rrr ere rere or ee 19

Mid-Atlantic Trade Accessories Trade Association v.

Maryland, 500 F. Supp. 834, 844 (D. Md. 1980) ....... 19

New England Accessories Trade Assoc. Inc. v. City of

pees Gre F208 (1 Ce, 19EZ) ow. ccc sccccsccees 26

Pennsylvania v. Accessories Trade Association, Inc., 565 F.

Supp. 1568 1577 (M.D. Penn. 1983) ..............- 19

People v. Monroe, 515 N.E.2d 42 (Ill. 1987).......... 27

Posters ‘N’ Things Ltd. v. United States, 511 U.S. 513

re cua cab cea ness 21, 22, 24

lil

Record Head Corporation v. Sachen, 682 F.2d 672 (7" Cir.

FO xe bash 605.05 0h0 00 SNS SEERE ARSC EROR CO 16, 17

Record Revolution No. 6 v. City of Parma, 492 F. Supp.

See 6 bss be kds bd ced dabeeeesnecevekn 18

Stoianoff v. Montana, 695 F.2d 1214, 1220 (9" Cir. 1983)

Pee eT Ty er eer errr te Cer rT eee 19, 20, 25, 26

Tobacco Ac ries Novel men Mer

Ass’n v. Treen, 681 F.2nd 378, 385 (5™ Cir. 1982)18, 19, 20

Village of Hoffman Estates v. Flipside, 455 U.S. 489 - 506

ERE 8.6% 55. 4-05 V3uA nthe tase ecevan esos 13, 15, 16, 17

ATUTES PAGE

SDCL 22-42A-1 . 3, 6, 9, 10, 11, 12, 13, 14, 23, 24, 27, 29

SIS ios 6s es civeicens cea 6-

We NR oss dacdivenes saws cs ee 23

DEAS 3... 23

SDCL 22-42A-4 ..... 2, 7, 8, 9, 10, 11, 13, 14, 24, 25, 27

iV

Rene

IN THE SUPREME COURT OF THE UNITED STATES

TERM, 2002

Thomas Holway

and

Ellie Holway

Petitioners,

-VS.-

State of South Dakota,

Respondent.

Petition for Writ of Certiorari to

the Supreme Court of the State

of South Dakota

Petitioners, Thomas and Ellie Holway, respectfully

pray that a Writ of Certiorari issue to review the judgment

of the Supreme Court of the State of South Dakota entered

on May 1, 2002.

eerie 9 ee te

OPINION BELOW >

The judgment of the Supreme Court of the State of

South Dakota is included in the Appendix as App. 1.

JURISDICTION

Petitioners Thomas and Ellie Holway were found

guilty by a jury of three counts of delivery of drug

paraphernalia in violation of South Dakota Codified Law

(SDCL) 22-42A-4. On Count I, Thomas was sentenced to

90 days of Jail; Ellie was sentenced to 90 days home

detention. On Counts III and VII, both Thomas and Ellie

were sentenced to two (2) years in the state penitentiary,

with the sentence suspended. These sentences were

imposed by the Honorable James W. Anderson, Circuit

Court Judge, Sitting by Designation in the Seventh Judicial

Cirucit, State of South Dakota. The Supreme Court of the

State of South Dakota affirmed the sentence in a published

f

'

'

;

opinion at 2002 SD 50, filed on May 1, 2002. App. I. This

Court has jurisdiction to review the judgment of the

Supreme Court of the State of South Dakota pursuant to

Title 28, United States Code § 1254 (1).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a capital, or

other wise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases

arising in the land or naval forces , or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

STATUTORY PROVISIONS INVOLVED

SDCL § 22-42A-1, titled “Drug paraphernalia” defined,

provides that:

The term “drug paraphernalia” means any

equipment, products and materials of any kind

which are primarily used, intended for use or

3

designed for use by the person in possession of

them, in planting, propagating, cultivating, growing,

harvesting, manufacturing, compounding,

converting, producing, processing, preparing,

testing, analyzing, packaging, repackaging, storing,

containing, concealing, injecting, ingesting, inhaling

or otherwise introducing into the human body any

controlled substance or marijuana in violation of the

provisions of this chapter. It includes, but is not

limited to:

(1) Kits used, intended for use or designed for use in

plainting, propogating, cultivating, growing, or

harvesting of any species of plant which is a

controlled substance or marijuana of from which a

controlled substance can be derived;

(2) Kits used, intended for use or designed for use in

manufacturing, compounding, converting,

producing, processing or preparing controlled

substances;

(3) Isomerization devices used, intended for use or

designed for use in increasing the potency of

marijuana or any species of plant which is a

controlled substance;

(4) Scales and balances used, intended for use or

designed for use in weighing or measuring

controlled substances;

(5) Diluents and adulterants, sush as quinine

hydrochloride, mannitol, mannite, dextrose and

lactose, used, intended for use or designed for use in

cutting controlled substances;

(6) Separation grins and sifters used, intended for

use or designed for use in removing twigs and seeds

from, or in otherwise cleaning or refining,

marijuana;

(7) Capsules, balloons, envelopes and other

containers used, intended for use or designed for

use in packaging small quantitites of controlled

substances or marijuana;

(8) Containers and other objects used, intended for

use or designed for use in storing or concealing

controlled substances or marijuana;

(9) Hypodermic syringes, needles and other objects

used, intended for use or designed for use in

parenterally injecting controlled substances into the

human body; and

(10) Objects used, intended for use or designed for

use in ingesting, inhaling or otherwise introducing

marijuana, cocaine, hashish or hashish oil into the

human body, such as:

(a) Metal, wooden, acrylic, glass, stone, plastic or

ceramic pipes with or without screens, permanent

screens, hashish heads or punctured metal bowls;

(b) Water pipes;

(c) Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips: meaning objects used to hold

burning material, such as a marijuana cigarette, that

has become too small or too short to be held in the

hand;

- (f) Miniature cocaine spoons and cocaine vials;

(g) Chamber pipes;

(h) Carburetor pipes;

(i) Electric pipes;

(j) Air-driven pipes:

(k) Chillums;

(1) Bongs; and

(m) Ice pipes or chillers.

SDCL § 22-42A-2, titled “Factors considered in

determining whether an object is drug paraphernalia,”

provides that:

In determining whether an object is drug

paraphernalia as defined in SDCL § 22-42A-1,a

court or other authority shall consider, in addition to

all other logically relevant factors, the following:

(1) Statements by an owner of by anyone in control

of the object concerning its use;

(2) The proximity of the object, in time and space,

to a direct violation of this article;

(3) The proximity of the object to controlled

substances or marijuana;

(4) The existence of any residue of controlled

substances or marijuana on the object;

(5) Direct or circumstantial evidence of the intent of

an owner, or of anyone in control of the object, to

deliver it to any person whom he knows, or should

reasonably know, intends to use the object to

facilitate a violation of this article;

(6) Instructions, oral or written, provided with the

object concerning its use;

(7) Descriptions, oral or written, accompanying the

object which explains 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;

(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 for

the object in the community; and

(13) Expert testimony concerning its use.

SDCL § 22-42A-4, titled Delivery of Drug Paraphernalia as

Felony, provides that:

No person, knowing the drug related nature of the

object, may deliver, possess with intent to deliver, or

manufacture with intent to deliver, drug

paraphernalia, knowing, or under circumstances

where one reasonably should know, that it will be

used to plant, propagate, cultivate, grow, harvest,

manufacture, compound, convert, produce, process,

prepare, test, analyze, pack, repack, store, contain,

conceal, inject, ingest, inhale, or otherwise introduce

into the human body a controlled substance or

marijuana in violation of this chapter. Any person

who violates any provision of this section is guilty

of a Class 6 felony.

STATEMENT OF THE CASE

The Amended Information filed on June 7, 2001,

charged Petitioners with seven counts of Delivery of Drug

Paraphernalia in violation of SDCL § 22-42A-4. Clerk's

Docket, hereafter “D.No.,” 129. Petitioners were charged

with delivering items of drug paraphernalia on or about the

14" day of April, 2000, through the 25" day of April, 2000,

7

0

in the County of Pennington, State of South Dakota, in that

they did, knowing the drug related nature of the objects,

delivered, possessed with intent to deliver, drug

paraphernalia, knowing or under circumstances where one |

reasonably should know, that it will be used to plant,

propagate, cultivate, grow harvest, manufacture,

compound, convert, produce, process, prepare, test,

analyze, pack, repack, store, contain, conceal, inject, ingest,

inhale or otherwise introduce into the human body a

controlled substance or marijuana.

On June 6, 2001, Petitioners were convicted of three

counts of Delivery of Drug Paraphernalia following a two

day jury trial. On July 25, 2001, the Honorable James. W.

, Aundbuniit Circuit Court Judge, the Petitioners were

sentenced.

Petitioner argued on appeal that SDCL § 22-42A-4

failed to give persons of common intelligence fair notice of

what conduct is forbidden by the statute rendering it

unconstitutionally vague and that it encouraged arbitrary

enforcement by arresting and prosecuting authorities

rendering it unconstitutionally vague.

SDCL § 22-42A-1 defines the term “drug

paraphernalia,” in relevant part as:

any equipment, products and materials of any kind

which are primarily used, intended for use or

designed for use by the person in possession of

them, in planting, propagating . . . or otherwise

introducing into the human body any controlled

substance or marijuana...

Whereas, SDCL § 22-42A-4, in the penalty phase,

reads as follows:

It is unlawful for any person, knowing the drug

related nature of the object, to deliver, possess with

intent to deliver, or manufacture with intent to

deliver, drug paraphernalia, knowing, or under

circumstances where one reasonably should know,

that it will be used plant, propagate ... ingest,

inhale or otherwise introduce into the human body a

controlled substance or marijuana in violation of

this chapter.

SDCL § 22-42A-1 and SDCL § 22-42A-4 are both

based upon The Drug Enforcement Agency Model Act as

propounded, August 1979. (See, SR 54) The model act is

nearly identical to the South Dakota law but does have two

notable difference. The addition of the word "primarily" in

SDCL § 22-42A-1 and, the phrase "knowing the drug

related nature of the object" in SDCL § 22-42A-4.

Petitioner argued on appeal that the inclusion of "knowing

the drug related nature of the object" created an objective

classification of items. Since the objective classification

competed with the otherwise subjective intent requirements

found in the statutes, this rendered SDCL § 22-42A-4

unconstitutionally vague because the statute denied

Petitioner fair notice of what conduct was prohibited.

The South Dakota Supreme Court evaded the issue

and held in paragraph 18:

[T]he South Dakota statute provides ‘[t]he

term 'drug paraphernalia’ means any

equipment, products and materials of any

kind which are primarily used, intended for

10

use or designed for use’ with illegal drugs.

SDCL § 22-42A-1. While the South Dakota

provisions may consider the knowledge and

intent of the possessor, both provisions also

have objective standards for determining

what constitutes drug paraphernalia.

It is significant that the South Dakota Supreme

Court, as a basis for reaching its decision, omitted the

phrase "by the possessor" while citing SDCL § 22-42A-1.

The phrase “by the possessor” clearly creates a subjective

intent requirement.

Instead, the court held "[t]he objective standard

referred to by the language of SDCL § 22-42A-4 does not

conflict with the objective standard set forth in SDCL § 22-

42A-1. Nor does either of these standards conflict with the

mens rea requirement." § 18.

Therefore, the lower court evaded the issue of the

competing scienters in the definitional and penalty sections

by determining they both created an objective classification

of items which are drug paraphernalia. The lower ruling

11

ignored twenty years of jurisprudence interpreting statutes

patterned after the Model Act creating a split between

South Dakota and other courts of whether or not these

statutes require the intent of the possessor be proven before

an object is classified as drug paraphernalia. The South

Dakota Supreme Court's decision in this case further

confuses the issue of what must be proven for a conviction,

thereby denying Petitioner due process of the law

guaranteed to her under the Fifth Amendment to the United

States Constitution.

REASON FOR GRANTING WRIT

I. | THE DECISION OF THE LOWER COURT

ERRED IN HOLDING SDCL § 22-42A-1

CREATED AN OBJECTIVE STANDARD IN

DETERMINING WHAT IS DRUG

PARAPHERNALIA.

The Petitioners were denied due process of law

because the South Dakota Supreme Court erred by holding

~ SDCL § 22-42A-1 created an objective standard in

12

determining what is drug paraphernalia. The South Dakota

Supreme Court held:

[T]he South Dakota statute provides '[t]he term

'drug paraphernalia’ means any equipment, products

and materials of any kind which are primarily used,

intended for use or designed for use’ with illegal

drugs.” SDCL § 22-42A-1. While the South Dakota

provisions may consider the knowledge and intent

of the possessor, both provisions also have

objective standards for determining what constitutes

drug paraphernalia.

In so holding, the lower court determined "[t}he

objective standard referred to by the language of SDCL §

22-42A-4 does not conflict with the objective standard set

forth in SDCL § 22-42A-1. Nor does either of these

standards conflict with the mens rea requirement." § 18.

The standard for evaluating vagueness, recited by

this Court in Grayned v. City of Rockford, 408 U.S. 104,

108-109 (1972), was reaffirmed in Village of Hoffman

Estates v. Flipside, 455 U.S. 489, 498 (1982) :

Vague laws offend several important values. First,

Because We assume man is free to steer between

13

lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he

may act accordingly. Vague laws may trap the

innocent by not providing fair warning. Second, if

arbitrary and discretionary enforcement is to be

prevented, laws must provide explicit standards for

those who apply them. A vague law impermissibly

delegates basic policy matters to policeman and

juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and

discriminating applications.

Petitioners argued to the lower court that SDCL §

22-42A-1 created a subjective standard which conflicted

with the objective standard found in SDCL § 22-42A-4.

Although the lower court properly determined that the

language “knowing the drug related nature of the object”

created an objective standard in SDCL § 22-42A-4, the

court failed to properly interpret SDCL § 22-42A-1, and

thus did not recognize the competing scienters which prove

fatal to the South Dakota Statute on vagueness grounds.

Scienter is a necessary ingredient in drug

paraphernalia statutes patterned after the Model Act to

14

protect against vagueness. In Hoffman Estates, 45 U.S.

489, this Court rejected, inter alia, a vagueness challenge

and upheld the validity of the Village Hoffman Estates’

drug paraphernalia ordinance. In so doing, this Court

focused upon the scienter requirement contained in the

ordinance. This Court noted a scienter requirement may

obviate a law’s vagueness, especially with respect to the

adequacy of notice to the complainant that his conduct is

proscribed. 455 U.S. at 499. The penalty section of the

Hoffman Estates ordinance stated:

It shall be unlawful for any person or persons as

principal, clerk, agent, or servant to sell any items,

effects, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis or

drugs as defined by Illinois Revised Statutes,

without obtaining a license therefore.

455 US. at 506.

This court interpreted the language “marketed for

use” as unequivocally requiring scienter because “it

describes a retailer’s intentional display and marketing of

15

merchandise. . .The standard requires a scienter, since a

retailer could scarcely market item for a particular use

without intending that use.” 455 U.S. at 502. Because under

the Hoffman Estates ordinance the defendant business had

ample warning that its marketing activities required a

license, this Court concluded the ordinance was not

impermissibly vague. 455 U.S. at 503.

Applying this Court’s analysis in Hoffman Estates,

the Seventh Circuit in Record Head Corporation v. Sachen,

682 F.2d 672 (7th Cir. 1982), invalidated a Wisconsin drug

paraphernalia ordinance. The penalty section of the

ordinance, in relevant part provided:

It shall be unlawful for any person firm or

corporation to sell, offer to sell, dispense, give away

or display any instrument, simulated controlled

substance or simulated drug in or upon and

premises which . . .

The definition section of the ordinance defined

“instrument” as “a device designed for use or intended for

16

use in ingesting, smoking, administering or preparing any

controlled substance.”

The Record Head court determined the scienter

requirement contained in the Hoffman Estates ordinance

was not included in the Wisconsin ordinance. As a result,

the Seventh Circuit held the Wisconsin ordinance did not

contain a scienter standard, which would eradicate the

vagueness problem and provide fair notice of what conduct

was allowed.

Hoffman Estates and Record Head established that

the requirement of scienter in a drug paraphernalia law

allows that law to pass constitutional muster. This is so

because a scienter requirement provides fair notice of the

conduct proscribed.

This rational has universally been applied to statutes

patterned after the Model Act, holding that no item is per se

| illegal: instead, the intent of the acussed must be proven:

17

“To insure that innocently possessed objects are not

classified as drug paraphernalia, [the definition]

makes the knowledge of criminal intent of the

person in control of an object a key element in the

definition. Needless to say, inanimate objects are

neither ‘good’ nor ‘bad,’ neither ‘lawful’ nor

‘unlawful.’ Inanimate objects do not commit

crimes. But, wh ject i l l

who it il or who i it ill

r who desi i il e object

can be subject to control and the people subjected

to prosecution. [The definition] requires, therefore,

that an object be used, intended for use, or designed

for use in connection with illicit drugs before it can

be controlled as drug paraphernalia.

Record Revolution No.6 v. City of Parma, 492 F. Supp.

1157 (N.D. Ohio), rev’d., 638 F.2d 916 (6" Cir. 1980),

vacated and remanded, 541 US. 1013, 101 S.Ct. 2998

(1981), on remand decision at 638 F.2d 916, reinstated,

vacated and remanded, 456 U.S. 968 102 S. Ct. 2227 (1982),

on remand, 709 F.2d 534 (6" Cir. 1983), reinstating district

court’s original opinion, comment at page 1 166 (emphasis

added). See also Tobacco Accessories and Novelty

Craftsmen v. Treen, 681 F2d 378 (5" Cir. 1983); Levas and

18

Levas v. Village of Antioch, 684 F.2d 446, 452 (7" Cir.

1982); Stoianoff v. Montana, 695 F.2d 1214, 1220 (9" Cir.

1983); Tobacco Accessories and Novelty Craftsmen

Merchants Ass’n v. Treen, 681 F.2d 378, 385 (5" Cir. 1982);

Casbah, Inc. v. Thone, 651 F.2d 551, 559 (5" Cir.), cert.

Denied, 455 U.S. 1005 (1982);_Mid-Atlantic Trade

‘Accemories Trade Association v. Maryland, 500 F. Supp.

834, 844 (D. Md. 1980); Pennsylvania v. Accessories Trade

pang 565 F. Supp. 1568, 1577 (M.D. Penn.

1983); Lady Ann’s Oddities, Inc. v. Macy, 519 F. Supp.

1140, 1149 (W.D. Okl. 1981).

The courts have also determined that three different

parties could be charged under the law via the definition of

drug paraphernalia. The term “designed for use” refers to

the intent of the designer/manufacturer. The term |

“intended for use” refers to the intent of a seller/distributor.

The term “used” refers to a consuming third party public

19

person. See, Stoianoff v. Montana, 695 F.2d 1214, 1220 (9"

Cir. 1983) (“Thus, to be subject to prosecution, the user

merely is required to possess an item used to produce or

consume drugs (‘use’), a manufacturer must design an item

that objectively is for use with drugs (‘designed for use’),

and the retailer or distributor must sell or market an item

with the intent that it be used with drugs (‘intended for

use’)).

All of the above referenced courts have determined

that the subjective intent be proven before a ©

retailer/distributor be held accountable under the statute.

South Dakota has taken a contrary position. Petitioners

were charged with delivering drug paraphernalia.

Therefore, as a retailer/distributor, they must have sold the

item with the intent that it be used for illegal purposes. See,

Tobacco Accessories and Novelty Craftsmen Merchants

Ass’n v. Treen, 681 F.2d 378, 383 (5" Cir. 1982) (“The

20

‘intended for use’ language applies to the state of mind of

the individual charged with the offense of selling,

distributing, or displaying drug paraphernalia. The vendor

of an item which may be used innocently, incurs no

criminal vulnerability unless he believes or intends that the

ambivalent item will be used with a controlled substance.

No item bears the stigma of drug paraphernalia under

La.R.S. 40:1033(A) & (B), absent the seller’s intent that it

be used with a iidiaiuas substance.” (footnote omitted)).

However, the South Dakota Supreme Court

determined that “intended for use” created an objective

classification. The court relied upon this Court’s decision

in Posters-N-Things, Ltd. v. United States, 511 US 513,

(1994), stating, “[t]he United States Supreme Court, in

considering a federal statute defining drug paraphernalia as

“any equipment, product, or material of any kind which is

primarily intended or designed for use ‘with illegal drugs’

21

stated that the phrase ‘primarily intended’ constitutes an

objective standard for determining what is drug

paraphernalia.” § 17 (citing Posters, 511 US at 517-18

(quoting 21 USC § 857(d)).

This reliance is unfounded for two reasons. First,

this Court drew a distinction between the federal statute and

those patterned after the Model Act:

Congress did not include among the listed

factors a defendant’s statements about his

intent or other factors directly establishing

subjective intent. This omission is

significant in light of the fact that the parallel

list contained in the Drug Enforcement

Administration’s Model Drug Paraphernalia

Act, on which § 857 was based, includes

among the relevant factors “statements by

an owner...concerning [the object’s] use’

and ‘direct or circumstantial evidence of the

intent of an owner...to deliver it to persons

whom he knows, or should reasonably

know, intend to use the object to facilitate a

violation of this Act.’

Posters, 511 U.S. at 517-18.

Second, although the statutes contain similar words,

22

statutory construction illuminates two very separate mental

state requirements. Had the South Dakota Legislature

followed Congress and gutted the language germane to the

intent of the possessor, the lower court’s decision would be

appropriate. However, the South Dakota legislature not

only included “statements by an owner. . . concerning its

use” SDCL 22-42A-2(1), and “direct or circumstantial

evidence of the intent of an owner. . . to deliver it to persons

whom he knows, or should reasonably know, intend to use

the object to facilitate a violation of this article,” SDCL 22-

42A-2(5). It also stated “the term ‘drug paraphernalia’

means any equipment, products and materials of any kind

which are primarily used, intended for use or designed for

use by the person in possession of them, in planting,

propagating . . . any controlled substance or marijuana .. .

SDCL 22-42A-1 (emphasis added). Simple statutory

construction dictates that SDCL 22-42A-1 does not simply

23

state that drug paraphernalia is any object intended for use

with drugs. It clearly requires that any object is only drug

paraphernalia when the person in possession of the item

intends that it be used with drugs, thereby mandating that

the intent of the accused must be proven for the act to be

punishable under the statute. Therefore, applying this

Court’s reasoning in Posters-N-Things to the South Dakota

statute was plain error and runs counter to how every other

court which has reviewed a statute patterned after the

Model Act has determined. This misapplication has denied

Petitioners their due process right to have fair notice of

what conduct is prohibited.

Since the South Dakota Supreme Court ruled that

both SDCL 22-42A-1 and SDCL 22-42A-4 create objective

classifications of items that are drug paraphernalia, the court

evaded the Petitioners’ claim that SDCL 22-42A-4 is

unconstitutionally vague. The South Dakota statute is

24

unique because it contains two contradictory mental state

requirements. The Model Act is almost identical to the

South Dakota law, however, the South Dakota Legislature

put its fingerprints on the South Dakota Act by including in

SDCL § 22-42A-4, the language “knowing the drug related

nature of the object.” The legislature’s inclusion of this

fingerprint proves fatal to the South Dakota Act on

vagueness grounds.

The difference between the South Dakota statute

and other statutes which include the mental state of

constructive knowledge is illustrated in Stoianoff v.

Montana, 695 F. 2d 1214 (9th Cir. 1983). In that case, the

court upheld the validity of the Montana drug paraphernalia

statute challenged, inter alia, on grounds of vagueness. In

that case, the court held the statute contained two “state of

mind” requirements which the court analyzed as follows:

The first, for the merchant involved in sales of drug

paraphernalia, is that he or she must intend that the

25

item be used to produce or consume drugs. In

addition, under M.C.A. 45-10-104, the merchant

must, upon a delivery of an item, know or be in a

position where he or she “reasonably should know”

that the item will be used in the production or

consumption of drugs.

695 F.2d at 1220.

The Stoianoff court reasoned because the State

must prove the merchant first must intend that an item be

designed as drug paraphernalia, the statute contained a

specific mens rea element before the constructive

knowledge state of mind came in to play. 695 F. 2d at 1221.

The scienter requirement therefore alleviated any vagueness

problems in the statute. Id. Accord Camille Corporation v.

Phares, 705 F. 2d 233 (7th Cir. 1983); Florida Businessmen

for Free Enterprise v. City of Hollywood, 673 F.2d 1213

(11th Cir. 1982); New England Accessories Trade

Association v. City of Nashua, 679 F.2d 1 (1st Cir. 1982);

Cabash Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981); see 69

A.L.R. Fed. 15, 41.

26

In the drug paraphernalia acts from other

jurisdictions, both the definitional and the penalty sections

required scienter based upon the seller’s actual or

constructive knowledge regarding how the material would

be used. The same cannot be said concerning the South

Dakota Act. Section 22-42A-4 predicates criminal liability

on the defendant’s objective knowledge in addition to the

seller’s specific intent that the materials be used in

connection with drugs. Accordingly, the Act is not subject

to the same interpretation as ihe statutes upheld in the

foregoing cases because the mental state requiring the

objective knowledge of the drug related nature of the item

in the penalty section is contradictory to the specific intent

required by the definition of drug paraphernalia contained

in section 22-42A-1.

The identical issue of conflicting mental state was

raises in an Illinois Supreme Court decision, People v.

27

Monroe, 515 NE 2d 42 (Ill 1987). The Illinois law in

question defined drug paraphernalia as an item “peculiar to

and marketed for use” with a controlled substance. The

penalty section, however, only required that a seller

“reasonably should have known” an item to be drug

paraphernalia. The court held “while the legislature

apparently intended that scienter be included in the

definition of drug paraphernalia, the penalty section allows

for convictions based upon the constructive knowledge of

the seller.” Id. Thus, the court held the statute void for

vagueness.

The South Dakota Act defines drug paraphernalia

on a subjective basis, “intended for use” yet penalizes on an

objective basis, “knowing the drug related nature of the

object”. Therefore, as in the Illinois case, the definition in

the South Dakota Act requires scienter, whereas the penalty

section removes the specific intent by allowing for mere

28

constructive knowledge i.e. “reasonably should know.”

In contrast, rather than containing two consistent

and cohesive state of mind requirements as in the cases

from other jurisdictions discussed above, the South Dakota

Act contains two contradictory state of mind requirements

which effectively remove the scienter necessary to

withstand constitutional challenge. Moreover, the Act’s

contradictory state of mind requirements serve only to

confuse both the retailer and the prosecuting authorities.

As a result, unlike the laws from other jurisdictions, the

South Dakota statute is impermissibly vague.

Although the lower court properly determined that

“knowing the drug related nature of the object” creates an

objective classification, by incorrectly determining that

SDCL § 22-42A-1 also creates an objective classification of

items, denied Petitioner due process of law guaranteed her

under the Fifth Amendment to the United States

29

Constitution.

CONCLUSION

For the foregoing reasons, Petitioner prays that a

Writ of Certiorari issue to review the judgment of the South

Dakota Supreme Court.

Respectfully submitted September 10, 2002.

gente,

a :

Eric D. Whitcher

Attorney for Petitioner Ellie Holway

P.O. Box 3710

615 Kansas City Street

Rapid City, SD 57709

Telephone: 605-341-7422 Fax: 605-343-9760

LE bof

John R. Murphy

Attorney for Petitioner Thomas Holway

P.O. Box 5634

615 Kansas City Street

Rapid City, SD 57709

Telephone: 605-342-2909 Fax: 605-343-9760

30

APPENDIX A

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v.

THOMAS HOLWAY and ELLIE HOLWAY, Defendants

and Appellants.

# 22075, # 22079

SUPREME COURT OF SOUTH DAKOTA

2002 SD 50;644 N.W.2d 624;2002 S.D. LEXIS 55

March 25, 2002, Considered on Briefs

May 1, 2002, Opinion Filed

PRIOR HISTORY: [*1] APPEAL FROM THE CIRCUIT

COURT OF THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA. THE

HONORABLE JAMES W. ANDERSON Circuit Court

Judge of the Sixth Judicial Circuit, Sitting by Designation.

DISPOSITION: Decision of the trial court affirmed.

COUNSEL: MARK W. BARNETT Attorney General

JOHN M. STROHMAN Assistant Attorney General Pierre,

South Dakota Attorneys for plaintiff and appellee.

JOHN R. MURPHY Rapid City, South Dakota Attorney for

defendant and appellant Thomas Holway.

ERIC D. WHITCHER Rapid City, South Dakota Attorney

for defendant and appellant Ellie Holway.

JUDGES: GILBERTSON, Chief Justice. SABERS,

AMUNDSON and KONENKAMP, Justices, and GORS,

Acting Justice, concur. ZINTER, Justice, not having been a

member of the Court at the time this action was submitted

Page | of 14

to the Court, did not participate.

OPINIONBY: GILBERTSON

OPINION:

GILBERTSON, Chief Justice

[P1.] Thomas Holway and his ex-wife, Ellie Holway, were

co-defendants tried together and convicted of three counts

of delivery of drug paraphernalia in violation of SDCL 22-

42A-4 and SDCL 22-3-3. The Holways allege a violation of

procedural due process by claiming SDCL 22-42A-4 [*2] is

unconstitutionally vague. Both defendants also appeal the

sufficiency of the evidence as it relates to their intent to sell

the smoking devices to contain, conceal or inhale a

controlled substance, as well as their knowledge of the

objects’ drug-related nature. We affirm.

FACTS AND PROCEDURE

[P2.] Thomas Holway is a co-owner of Video Blue, an adult

bookstore in Rapid City, South Dakota. Ellie Holway is an

employee at Video Blue. The Holways attended a trade

show in Las Vegas and determined that it would be "very

lucrative" to carry certain smoking devices for sale in the

store. Thomas Holway contacted the Pennington County

State's Attorney, Glenn Brenner (Brenner), to determine if

selling the devices would be legal. Brenner read the statute

to him and informed him that if it could be proven that the

devices could be used for smoking marijuana, law

enforcement would be involved.

[P3.] When Thomas contacted Brenner a second time and

Page 2 of 14

showed him a "sample" pipe, Brenner referred him to Todd

Love, the drug prosecutor for the Attorney General's Office.

One of the Holways did contact Love with the same

questions presented to Brenner. Love informed the Video

Blue [*3] representative n1 that it is illegal to deliver, or to

possess with the intent to deliver, any drug paraphernalia.

He also informed him that he would not be able to claim

immunity based upon anything Brenner had said to them.

Love explained that the State Attorney General's Office

could prosecute Video Blue's owners and employees for

drug violations even if the Pennington County State's

Attorney did not.

nl. Love was not sure whether he talked to Thomas

Holway or Robert Holway, Thomas' father and co-owner of

Video Blue.

[P4.] In April 2000, the devices were put out for sale in two

display cases at Video Blue. The display cases contained

various items used for smoking including: pipes, water

pipes, bongs, wood dugouts, and carburetors. They also

contained roach clips and pipes disguised to look like

cigarette lighters, lipstick containers, and hi-liter felt tip

markers. Each display case had a sign stating "All

paraphernalia sales are only sold with the understanding

that the purchaser has only legal intent [*4] for its use." Yet,

no cigarette or pipe tobacco was sold in the store.

[P5.] On April 14, 2000, the South Dakota Division of

Page 3 of 14

Criminal Investigation (DCI) began investigating Video

Blue based on allegations that drug paraphernalia was being

sold there. Four officers were involved in the investigation:

Deputy Sheriff Jeff Whittle (Whittle), Deputy Sheriff

Martin Graves (Graves), Detective Dale McCabe (McCabe),

and DCI Supervising Agent Robert Overturf (Overturf).

[P6.] Whittle entered the store on April 14, 2000, and

purchased a "one-hitter," a small water pipe, and a wood

"dug-out" pipe from Ellie. Ellie gave him a free package of

screens, which are commonly used to prevent a marijuana

smoker from inhaling the seeds and stems. When Whittle

made a comment about how a friend of his got caught

selling items like these, Ellie pointed to the sign. Whittle

mockingly replied that he, of course, had only legal intent.

Ellie raised her hands and said, "Well, I don't want to know

about it." She also acknowledged Whittle's comment about

a wood dug-out being an "old standard."

[P7.] Graves entered the store on April 18, 2000, and

purchased a red bong and a metal pipe from Ellie. [*5]

McCabe also entered the store on April 18. He purchased a

school bus pipe and a blue hi-liter pipe from Ellie. McCabe

asked Ellie if they made a pipe that looked like a police car.

She replied "They would probably frown upon that."

McCabe also inquired whether he could get a discount. Ellie

spoke with Thomas, who agreed to the discount. She also

gave McCabe a free package of screens.

[P8.] Thomas and Ellie were each charged with seven

counts of delivery of drug paraphernalia in violation of

SDCL 22-42A-4 and SDCL 22-3-3. The two were tried

together before a jury on June 5-6, 2001. Thomas and Ellie

were each convicted on three of the seven counts and

Page 4 of 14

sentenced to 90 days in jail on count I, and two years in

prison on counts II] and VII. n2 The terms were to run

consecutively, with execution of the prison sentences:

suspended. Both defendants appeal the following issues:

1. Whether SDCL 22-42A-4 is unconstitutionally vague and

encourages arbitrary enforcement, thereby causing a

violation of procedural due process.

2. Whether the evidence was sufficient to convict Thomas and

Ellie Holway on counts [*6] I, III and VII of delivery of

drug paraphernalia.

n2. Thomas and Ellie Holway were convicted on count I for

delivering a cigarette bat, count III for delivering a "dug-

out" pipe, and on count VII for delivering a camouflaged hi-

liter pipe.

STANDARD OF REVIEW

[P9.] First, whether the enforcement of SDCL 22-42A-4

amounts to a violation of procedural due process is a

constitutional question reviewed by this Court de novo.

City of Pierre v. Blackwell, 2001 SD 127, P7, 635 N.W.2d

581, 584 (citing Steinkruger v. Miller, 2000 SD 83, P8, 612

N.W.2d 591, 595).

[P10.] Second, this case involves the statutory interpretation

Page 5 of 14

of the definition of "drug paraphernalia." This interpretation

is a question of law reviewed by this Court de novo. H& W

Contracting, LLC v. City of Watertown, 2001 SD 107, P17,

633 N.W.2d 167, 173 (citation omitted).

[P11.] Third, "in determining the sufficiency of the evidence

on review, the question [*7] presented is whether there is

evidence in the record which, if believed by the fact finder,

is sufficient to sustain a finding of guilt beyond a reasonable

doubt." State v. Buchholz, 1999 SD 110, P33, 598 N.W.2d

899, 905 (quoting State v. Knecht, 1997 SD 53, P22, 563

N.W.2d 413, 421). Therefore, we must accept the most

favorable inferences to be fairly drawn in favor of the

verdict. State v. Charles, 2001 SD 67, P10, 628 N.W.2d 734,

737 (citation omitted). We will not reweigh or resolve

conflicts in the evidence. State v. Karlen, 1999 SD 12, P49,

589 N.W.2d 594, 605. Nor will we pass on the credibility of

the witnesses. Jd. "No guilty verdict will be set aside if the

evidence, including circumstantial evidence and reasonable

inferences drawn therefrom, sustains-a-reasonable theory of

guilt." Buchholz, 1999 SD 110 at P33, 598 N.W.2d at 905

(quoting Knecht, 1997 SD 53 at P22, 563 N.W.2d at 421).

ANALYSIS AND DECISION

[P12.] 1. Whether SDCL 22-42A-4 is unconstitutionally

vague and encourages arbitrary enforcement, thereby

causing a violation of [*8] procedural due process.

[P13.] The standard for determining whether a statute is

unconstitutionally vague is whether it "gives a person of

ordinary intelligence fair notice that his contemplated

conduct is forbidden." State v. McGill, 536 N.W.2d 89, 95

(SD 1995). While a statute must define the crime with

Page 6 of 14

clarity and certainty, there is no bar to its broad application.

Id. (citation omitted). Furthermore, a party challenging the

constitutionality of a statute bears the burden of

overcoming a strong presumption to the contrary. State v.

Hoeft, 1999 SD 24, P15, 594 N.W.2d 323, 326.

There is a strong presumption that the laws enacted by the

Legislature are constitutional and the presumption is

rebutted only when it clearly, palpably and plainly appears

that the statute violates a provision of the constitution.

Further, the party challenging the constitutionality of a

statute bears the burden of proving beyond a reasonable

doubt that the statute violates a state or federal

constitutional provision.

State v. Hauge, 1996 SD 48, P4, 547 N.W.2d 173, 175

(quoting Sedlacek v. Teener Baseball Program, 437 N.W.2d

866, 868 (SD 1989)) [*9] (additional citations omitted).

[P14.] The Holways claim that SDCL 22-42A-4 is

unconstitutionally vague and encourages arbitrary

enforcement. Specifically, they allege that the scienter

requirement in SDCL 22-42A-1, the definitional section,

"competes" with the scienter requirement in SDCL 22-

42A-4, the penalty section. The Holways argue that, as a

result of this "contradiction," they did not have sufficient

notice of what conduct is prohibited.

[P15.] Notably, the Holways do not assert that the statute is

overbroad, but only that it is unconstitutionally vague as

applied to them. In essence, they claim that their right to

procedural due process has been violated. See Vill. of

Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.

489, 495, 102 S. Ct. 1186, 1192, 71 L. Ed. 2d 362, 369

Page 7 of 14

ee ee eee ae

Ce a ee a

(1982) (holding claimant cannot assert vagueness challenge

as applied to others unless statute proscribes

constitutionally protected conduct); People in the Interest

of P.B., 339 N.W.2d 121, 123 (SD 1983) (stating vagueness

challenge, when First Amendment rights are not involved,

is limited to the specific [*10] facts of the case). Therefore,

we must determine whether the scienter requirements of the

two sections, as applied to the facts of this case, actually

conflict and, therefore, failed to give the Holways sufficient

notice that selling certain smoking devices constitutes illegal

delivery of drug paraphernalia.

[P16.] The Holways assert that the language in SDCL 22-

42A-4 "knowing the drug[- ]related nature of the object"

creates an objective classification of drug-related objects

and, thereby, conflicts with the subjective intent

requirement in SDCL 22-42A-1. In addition, the Holways

claim that it has universally been held that all statutes

penalizing the delivery of drug paraphernalia must be based

upon the subjective intent of the possessor because no

object is per se illegal. This, however, is only partially true.

[P17.] While a drug paraphernalia statute may have a mens

rea element to ensure "that those acting in gocd faith are

not swept within a law's broad or ambitious language," it

must also have an objective standard for determining what

is drug paraphernalia. See Garner v. White, 726 F.2d 1274,

1278 (8thCir 1984) [*11] (rejecting constitutional challenge

to Arkansas drug paraphernalia statutes) (citations omitted).

This objective standard serves to avoid the very same

arbitrary enforcement that the Holways complain of herein.

The United States Supreme Court, in considering a federal

statute defining drug paraphernalia as "any equipment,

product, or material of any kind which is primarily intended

Page 8 of 14

eee =

or designed for use’ with illegal drugs" stated that the phrase

"primarily intended" constitutes an objective standard for

determining what is drug paraphernalia. Posters-N-Things,

Ltd. v. United States, 511 U.S. 513, 517-18, 114 S. Ct. 1747,

1750, 128 L. Ed. 2d 539, 547 (1994) (quoting 21 USC §§

857(d)). The Supreme Court upheld that statute as giving

sufficient notice as to what conduct is prohibited. Jd. at 526,

1148S. Ct. at 1754, 128 L. Ed. 2d at 552.

[P18.] Likewise, the South Dakota statute provides "the

term 'drug paraphernalia’ means any equipment, products

and materials of any kind which are primarily used,

intended for use or designed for use" with illegal drugs.

SDCL 22-42A-1. While the South Dakota provisions [* 12]

may consider the knowledge and intent of the possessor,

both provisions also have objective standards for

determining what constitutes drug paraphernalia.

Furthermore, as in Garner, the South Dakota law "is

virtually identical to the Model Drug Paraphernalia Act,

which has now been upheld by this circuit . . . and in every

other circuit considering its constitutionality." 726 F.2d at

1278-79 (citations omitted). The objective standard referred

to by the language of SDCL 22-42A-4 does not conflict

with the objective standard set forth in SDCL 22-42A-1.

Nor does either of these standards conflict with the mens

rea requirement.

[P19.] The Holways further maintain that SDCL 22-42A-4

encourages arbitrary enforcement because different

prosecutors may view the statutes differently. As explained

above, the very standard in SDCL 22-42A-1 that the

Holways complain is too objective is the same standard that

prevents such arbitrary enforcement. See, e.g., Gen. Stores

v. Bingaman, 695 F.2d 502 (10thCir 1982) (rejecting

Page 9 of 14

discriminatory enforcement [* 13] challenge on basis that

statute contained examples and relevant factors to provide

sufficient guidance for authorities in applying the Act

uniformly). All law enforcement requires some degree of

judgment. A law is not rendered unconstitutionally vague

merely because the decision of one official applying the

factors is different from that of another official applying

those same factors.

[P20.] 2. Whether the evidence was sufficient to convict

Thomas and Ellie Holway on counts I, III and VII of

delivery of drug paraphernalia.

[P21.] SDCL 22-42A-4 sets forth the elements for the crime

of delivering drug paraphernalia:

No person, knowing the drug[-]related nature of the object,

may deliver, possess with intent to deliver, or manufacture

with intent to deliver, drug paraphernalia, knowing, or

under circumstances where one reasonably should know,

that it will be used to . . . contain, conceal, inject, ingest,

inhale, or otherwise introduce into the human body a

controlled substance or marijuana in violation of this

chapter. Any person who violates any provision of this -

section is guilty of a Class 6 felony.

The definition of drug paraphernalia [*14] is found at

SDCL 22-42A-1:

The term "drug paraphernalia" means any equipment,

products and materials of any kind which are primarily

used, intended for use or designed for use by the person in

possession of them, . . . containing, concealing, injecting,

ingesting, inhaling or otherwise introducing into the human

Page 10 of 14

body any controlled substance or marijuana in violation of

the provisions of this chapter. It includes, but is not limited to:

* * *

(10) Objects used, intended for use or designed for use in

ingesting, inhaling or otherwise introducing marijuana,

cocaine, hashish or hashish oil into the human body, such as:

(a) Metal, wooden, acrylic, glass, stone, plastic or ceramic

pipes with or without screens, permanent screens, hashish

heads or punctured metal bowls;

(b) Water pipes;

(c) Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips: meaning objects used to hold burning

material, such as a marijuana cigarette, that has become too

small or too short to be held in the hand;

(f) Miniature cocaine spoons and cocaine vials;

(g) Chamber pipes;

(h) Carburetor pipes;

(i) Electric pipes;

(j) Air-driven pipes;

(k) Chillums; [*15]

Page 11 of 14

ae a Se ee PO eS Pe eet eT

(1) Bongs; and

(m) Ice pipes or chillers.

Therefore, to sustain a conviction, the State is required to

prove that: (1) the defendant delivered or possessed with

the intent to deliver an object; (2) that object is drug

paraphernalia; (3) the defendant knew of the drug-related

nature of the object; and (4) the defendant knew or

reasonably should have known that the object would be

used to introduce illegal drugs into the human body.

[P22.] The Holways claim that they cannot be guilty

because SDCL 22-42A-1 requires those in possession to

intend the objects for drug use. They claim that because

they did not intend the items for drug use and the

undercover officers to whom they sold the objects did not

intend or actually use them for drugs, the conviction cannot

be sustained. We disagree. The statute identifies drug

paraphernalia in the disjunctive. It includes objects

"primarily used" for drug use, objects intended for drug use

by the person in possession of them, or objects designed

for drug use by the person in possession of them. The

Holways cannot escape liability by pretending to ignore the

most common use of such objects.

[P23.] While [* 16] the Holways claim that the objects could

have been used to smoke tobacco, we agree with the trial

court's characterization of the items herein as being

"primarily used" to introduce illegal drugs into the human

body. The Holways also assert that they did not know of

the objects’ drug-related nature. But the jury was justifiably

incredulous. It is difficult to believe that those who chose to

Page 12 of 14

sell such items because they would be "very lucrative," but

who first made inquiries to the State's Attorney and the

Attorney General to determine how they could escape

liability, did not have a clue as to the drug-related and

illegal nature of such items.

[P24.] Furthermore, liability in this case is not affected by

the fact that one individual owned the store and supplied

the objects while the other actually made the sales. SDCL

22-3-3 provides that those who intend to promote or

facilitate a crime are to be held accountable as a principal to

the crime. SDCL 22-42A-2 provides that a court, in

determining whether an object is drug paraphernalia, may

consider statements by the person in possession of the

object, direct or circumstantial [* 17] evidence of intent,

national and local advertising concerning the object's use,

the manner in which the object is displayed, the existence

or scope of legitimate uses, and expert testimony.

[P25.] Ellie actually sold the items at issue. She gave both

Whittle and McCabe the free packages of screens, which

are commonly used for smoking marijuana, when they

purchased the pipes. She indicated that she recognized a

wood dug-out as being an "old standard." Yet, an expert

witness testified that it certainly is not an "old standard" for

smoking tobacco. When Whittle commented on the

possible illegality of selling the items, she pointed to the

sign and informed him that she did not want to know about

his supposedly "legal intent." Her reply to McCabe's

question of whether she had any pipes shaped like police

cars indicates that she knew law enforcement would "frown

upon" having a pipe, used for smoking marijuana, designed

in such a shape.

Page 13 of 14

[P26.] Thomas not only owned the store that the items were

sold in, but he was also intricately involved in stocking the

items for sale. His statements to Brenner are indicative of

his knowledge that the items he wished to sell were legally

questionable, [*18] at best. The fact that he approved the

discount to McCabe indicates he supervised the sales of the

items. There was evidence that he displayed the items at

issue with many others specifically enumerated within

SDCL 22-42A-1(10) as constituting drug paraphernalia.

Copies of Cannabis Culture and High Times, magazines

advocating drug use, show photographs advertising the

very same objects.

[P27.] The facts laid out above give sufficient reason for a

jury to believe, beyond a reasonable doubt, that not only

were the objects drug paraphernalia, but that Thomas and

Ellie knew or reasonably should have known of the objects'

drug-related nature. Accepting, as we must, the evidence

and the most favorable inferences to be drawn therefrom in

favor of the verdict, we do not see that the judgment was in

error. Therefore, we affirm the decision of the trial court.

{[P28.] SABERS, AMUNDSON and KONENKAMP,

Justices, and GORS, Acting Justice, concur.

[P29.] ZINTER, Justice, not having been a member of the

Court at the time this action was submitted to the Court, did

not participate.

Page 14 of 14