688 P2D 450 - State v. Hill

HALL, Chief Justice

¶1(dissenting):

¶2I do not share the view of the Court that the deception engaged in by the defendant in violation of U.C.A., 1953, § 76-6-4051 also constituted a violation of the Utah Imitation Controlled Substances Act.2

¶3The defendant unequivocally represented the baking soda as being “good” cocaine. He made no representation whatsoever that the baking soda was an “imitation controlled substance” as defined by statute.3 Indeed, baking soda has none of the properties of cocaine and only resembles it in general appearance.

¶4Utah’s Imitation Controlled Substances Act is patterned closely after the Model Imitation Controlled Substances Act drafted by the Drug Enforcement Administration (DEA), United States Department of Justice.4 The Prefatory Note to the Model Act5 states the reasons it was felt necessary to draft legislation dealing with lookalike drugs. In sum, the clear thrust of the Act is to reach dealers who sell tablets, capsules, powders and liquids that “closely resemble or even duplicate the appearance of well-known, brand name controlled substances, but which contain only non-controlled over-the-counter drugs such as caffeine, ephedrine, phenylpropanolamine, acetaminophen, or some combination of these *453substances.”6 These look-alikes are being advertised and widely circulated, particularly among the school age population as “the ‘safe’ legal way to get high.”7 This contributes to the growing drug problems in our schools by fostering acceptability of drug ingestion, which, in turn, often leads to experimentation with controlled drugs or to tragic accidents when the real thing is ingested by mistake.

¶5Thus, the clear intention of the Act is to deal with manufacturers, distributors and users of drugs that are not claimed to be the real thing but that look like the real thing and have a like effect. Certainly, baking soda does not fit that category, nor is there any indication that the DEA intended to reach persons who were selling non-drug substances, such as baking soda, representing them as controlled substances, such as cocaine. Similarly, there is no indication that the Utah Legislature intended the Imitation Controlled Substances Act to apply other than to the conduct discussed by the DEA.

¶6I view the Imitation Controlled Substances Act as not having any application to defendant’s conduct, and I would therefore affirm his conviction of theft by deception.

OAKS, J., concurs in the dissenting opinion of HALL, C.J.

¶7. That theft by deception is a legitimate charge, see, e.g., Pritchard v. State, Alaska App., 673 P.2d 291 (1983); Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978).

¶8. U.C.A., 1953, § 58-37b-1, et seq.

¶9. U.C.A., 1953, § 58-37b-2(4).

¶10. A number of other states have adopted some form of the Model Act. See, e.g., Alaska Stat. § 11.73.010, et seq. (Supp.1983); Ariz.Rev.Stat. Ann. § 13-3451-1 (Supp.1983); Colo.Rev.Stat. § 18-5-601 (Supp.1983). However, to date no court has interpreted the progeny of the Model Act and only one court has mentioned it in passing. McCrary v. State, Ala.Cr.App., 429 So.2d 1121 (1982).

¶11.October, 1981, p. 2a.

¶12. Id.

¶13. Id.

OAKS, Justice

¶14(dissenting):

¶15Representing baking soda as cocaine, defendant sold an ounce to an undercover agent for $2,100. The majority now reverses his conviction of the second degree felony of theft by deception, U.C.A., 1953, § 76-6-405, on the basis that he should have been charged with a violation of the Imitation Controlled Substances Act, § 58-37b-4, a Class B misdemeanor. The apparent holding that a Criminal Code conviction will be reversed when the defendant could have been charged under any of the statutes regulating drugs is a principle that can work untold mischief in the administration of the criminal law. That principle should not be adopted without the clearest direction from the Legislature or the prior decisions of this Court. Neither the statute nor the case relied on by the majority dictates that principle, and I dissent from the Court’s establishing it in this case.

¶16Section 20 of the Utah Controlled Substances Act of 1971, codified at § 58-37-19, quoted by the majority, makes the provisions of that Act “controlling” in case of any conflicts with tit. 58, ch. 17 (the licensing of pharmacists and the sale of drugs and medicines) “or any other laws of this state .... ” Even if that section would cause the Controlled Substances Act to prevail over conflicts with the later-enacted Criminal Code of 1973, section 20 cannot reasonably be read to supersede the effect of a Criminal Code provision that covers the same crime treated in the Imitation Controlled Substances Act of 1982, §§ 58-37b-l to -8, an entirely different enactment. The majority applies the 1971 provision to the 1982 Act on the basis that “the two acts are integrally connected,” but it does not explain what that means or why it dictates this result. In contrast, I suggest that a rule that conduct made felonious by the Criminal Code shall no longer be punishable under that Code is sufficiently radical that it should only be inferred from a clear legislative direction. There is no such direction as to the Imitation Controlled Substances Act relied on by the majority.

¶17 Helmuth v. Morris, Utah, 598 P.2d 333 (1979), provides no support for the reversal of defendant’s conviction or for the general rule espoused by the majority. That case only concerned the lawfulness of the sentence imposed on the petitioner for the felony of uttering a forged prescription under the Controlled Substances Act. Id. at 335. Petitioner attacked the legality of that sentence by habeas corpus, contending that he was “entitled to the lesser punishment” prescribed in the Criminal Code for the misdemeanor of forgery. Id.The Court rejected that contention because (1) *454the two offenses were “of an entirely different nature” (a ground that applies just as well to the theft and distribution offenses involved in this case), and (2) the Controlled Substances Act “takes precedence” over the Criminal Code in this circumstance because it “applie[d] more specifically” to petitioner’s offense. Id.

¶18Helmuth’s holding that the petitioner was not entitled to the lesser sentence under the Criminal Code obviously falls far short of dictating that the present defendant’s conviction under the Criminal Code should be reversed because he might have been charged with a lesser offense under the Imitation Controlled Substances Act. Helmuthsurely does not establish what the majority refers to as “the principle that when an individual’s conduct can be construed to be a violation of two overlapping statutes, the more specific statute governs” (p. 2).

¶19I would affirm defendant’s conviction for theft by deception.