State of Louisiana VS Cody M. Beaudette
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FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL 6 FIRST CIRCUIT s J 2012 Kw os l STATE OF LOUISIANA VERSUS CODY M BEAUDETTE x X Jr X il k C JUDGMENT RENDERED July 13 2012 ON APPLICATION FOR SUPERVISORY WRIT OF REVIEW FROM THE 22ND JUDICIAL DISTRICT COURT PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NO 509573 HONORABLE RAYMOND S CHILDRESS JUDGE Rachel Yazbeck Counsel for Relator Cody M Beaudette Walter P District Reed Attorney BEFORE Counsel for Respondent State of Louisiana KiJHN GUIDRY AND PETTIGREW 7J PER CURIAM Relator seeks review of the denial of his motion to quash For the following reasons we deny the writ application Relatar was charged by bill of information with two counts of possession with intent to distribute a Schedule I controlled dangerous substance CDS or its analogue in violation of La R 40 Relator was alleged to have in his S 966 1 A possession Naphthalen also rnown as methanone 3 penrylindol 1 yl l 1 indole naphthoyl 1 3 018 Pentyl or JWH syntheric marijuana or its analogue yl 3 Pentylindol lyl Ethylnaphthalen 4methadone JWH The offenses 210 were alleged to have occurred on March 16 20ll and March 24 2011 Relator filed a motion to quash wherein he alleged that possession of JWH was not 210 illegal when he was arrested as it was not included in Schedule I at the time of the offenses After an evidentiary hearing the trial court denied the motion Relator makes three claims First he contends the trial court failed to properly interpret La R 40 Relator asserts that in order to enforce the S 966 1 A language of the statute the controlled dangerous substances or their analogues must be classified in Schedule L Relator argues that the trial court erred in ruling that it was illegal for relatar to possess with the intent to distribute JWH 210 without first deciding whether JWH was listed in Schedule I 210 La R 40 provides that it shall be unlawful for any person S 966 1 A knowingly or intentionally to possess with intent to distribute a CDS ar CDS analogue classified in Schedule I Prior to its amendment by 20ll La Acts No 420 1 and 2 La R 40 Schedule I included synthetic S 964 c 32 C cannabinoids and specifically listed 1 enrylindol Naphthalen yl yl 3 p 1 methanone also known as 1Pentyl or JWH indole naphthoyl l 3 018 1 The information regarding the chemical name ofthe analogue JWH was taken from the bill of information 210 La R 40 S 961 8defines a controlled substance analogue as a substance the chemical structure of which is substantiallv similar to the chemical structure of a controlled dangerous substance in Schedule I or II of R 40 which has a S 964 stimulant depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant depressant ar hallucinogenic effect on the central nervous system of a CDS in Schedule I or II At the hearing on the motion to quash Dr Mark Trudell a state witness who was qualified as an expert in organic chemistry explained the chemical makeup of the two compounds at issue JWH and JWH He stated that they are in 018 210 the same class of organic molecules and the only real difference between the two compounds was a carbon substituent According to Trudell the difference two did not substantially change the chemical structure of the two compounds but affected the potency and JWH was more potent Trudell stated both 210 compounds were cannabinoids and there was no doubt in his mind that the two compounds were substantially similar Trudell also testified that the JWH stood for the initials ofthe chemist who developed these rypes of synthetic cannabinoids 018 JWH was listed in Schedule I at the time the instant crimes were allegedly committed but JWH the compound possessed by relator was not 210 listed in Schedule L However under La R 40 it was unlawful to possess S 966 with the intent to distribute analogues of controlled dangerous substances listed in Schedule I According to Trudell JWH and JWH were substantially 018 210 similar to each other Thus JWH is an to JWH as defined by 210 analogue 018 La R 40 In reading the statutes together the only reasonable conclusion is S 96L that the legislature intended that it be illegal to possess any Schedule I drug as well as any substance with a substantially similar structure Because JWH was 210 3 an analogue to JWH possession of the substance at the time the instant crimes 018 were allegedly committed was illegal Thus this claim lacks merit In his second claim relator contends that charging relatar with illegal possession of JWH was an ex post facto application of the law as the 210 substance was not included in La R 40 at the time the alleged crime was S 964 committed Relator further argues that because the statute did not include analogues of the listed synthetic cannabinoids in Schedule I until the statute was revised and enacted on July 15 2011 it was clear that the legislature did not intend the ariginal version of the statute to include analogues Ex post facto laws are prohibited by Article I sections 9 and 10 of the United States Constitution and Article I section 23 of the Louisiana Constitution The focus of the e post facto inquiry is whether a new law redefines criminal x conduct or increases the penalty by which a crime is punishable State v Everett 2998 2000 La 5816 So 1272 1280 02 14 2d Because JWH was an analogue of JWH it was illegal to possess at 210 018 the time the crimes allegedly occurred Thus while the wording of the statute was amended to specifically include analogues of the listed synthetic cannabinoids in Schedule I in July 20l 1 analogues already were included based on a reading of all the involved statutes It is irrelevant that the legislature subsequently amended the statute Considering the above there was no ex post facto application of the law in this case In his third claim relator contends that La S 961 R 40 8 is unconstitutionally vague He sets forth that the definition of the controlled substance analogue relies on the phrase substantially similar but the legislature failed to define or quantify this term Relator argues that the mere fact the State had to call an expert to testify that JWH and JWH were substantially 018 210 4 similar proves that a person of common intelligence would not lrnow that possession of JWH was illegal According to relator lumping all drugs of a 210 large class together with the language of substantially similar without clearly defining the necessary relationship between the chemical structure and the effect of the parent drug and its alleged analogue makes the law unconstitutionally vague and subject to arbitrary and discriminatory enforcement A statute is presumed to be valid and its constitutionaliry should be upheld whenever possible State v Thomas 2004 La 1 891 So 1233 0559 OS 19 2d 1235 State v Griffin 495 So 1306 1308 La 1986 Louisiana criminal 2d statutes must be given a genuine construction according to the fair import of their words taken in their usual sense in connection with the context and with reference to the purpose of the provision La R 143 S It is well established that a vagueness challenge to a statute not involving First Amendment freedoms must be examined in the light of the facts of the case at hand and as applied to the particular defendant Maynard v Cartwright 486 U S 356 361 108 S 1853 1857 100 L 372 1988 United States v Ct 58 2d Ed Powell 423 U 87 92 96 S 316 319 46 L 228 1975 Under the S Ct 2d Ed vagueness for void doctrine a criminal statute must meet two requirements to satisfy due process 1 adequate notice to individuals that certain contemplated conduct is proscribed and 2 adequate standards for those charged with determining the guilt ar innocence of an accused The statute must not contain a standard so vague that the public is uncertain as to the proscribed conduct and the fact finder is unfettered by any legally fixed standards as to what is prohibited by the statute See State v Tur 2005 La 7 936 So 89 cert er 2425 Q6 10 2d denied 549 U 1290 127 S 1841 167 L337 2007 S Ct 2d Ed 5 Although La R 40 S 961 8does not contain a definition of substantially similar the words used in the statute may be easily understood when taken in their usual sense and with reference to the purpose of the provision See La S 3 R 14 The statute at issue gives adequate notice to individuals that certain contemplated activity is proscribed and sets forth adequate standards for determining the guilt or innocence of the accused Although the chemical makeup of the drugs are complex if notice is clearly given that certain forms of synthetic marijuana are illegal then it would be easily understood and adequate notice given that other substantially similar forms of synthetic marijuana are also illegal This claim lacks merit Considering the above it does not appear that the trial court erred in denying the motion to quash Accordingly this writ application is DENIED WRIT DENIED 6
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