State v. Jeffries

2009 UT 57
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080009
Plaintiff and Appellee,
v.
F I L E D
Edgar Jeffries,
Defendant and Appellant. 	September 1, 2009
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Third District, Salt Lake
The Honorable Judith S. Atherton
No. 071903257
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Karen A. Klucznik,
Asst. Att’y Gen., Jacey Skinner, Salt Lake City,
for plaintiff
Linda M. Jones, Wesley J. Howard, Salt Lake City,
for defendant
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On Certification from the Utah Court of Appeals
WILKINS, Justice:
INTRODUCTION
¶1 	Defendant Edgar Jeffries appeals his conviction for
distribution of a counterfeit substance and asks us to determine
whether his actions fall under the definition of a counterfeit
substance as defined in the Utah Controlled Substance Act, Utah
Code section 58-37-2(1)(i), or an imitation controlled substance
as defined in the Imitation Controlled Substance Act, Utah Code
section 58-37b-2(3).
BACKGROUND
¶2 	On April 30, 2007, Officer Earl Rose was working
undercover near 200 South and 500 West in Salt Lake City. 	At
about 6:00 p.m., Officer Rose saw a woman walking with Mr.
Jeffries. 	The woman approached Officer Rose and asked what he
wanted. 	Officer Rose replied that he was “looking for a $20.00

1 The Utah Controlled Substances Act applies to the
distribution of both controlled and counterfeit substances.
Inasmuch as this opinion deals only with the counterfeit
provisions of that act, we refer to it as the “Counterfeit Act.”
No. 20080009 	2
rock,” which is street slang for a unit of crack cocaine. 	The
woman then walked over to Mr. Jeffries and spoke with him.
Shortly thereafter, Mr. Jeffries approached Officer Rose with a
small package referred to as a “twist,” the common way of
packaging crack cocaine. 	Officer Rose did not see inside the
package before exchanging $20 for it. 	When he opened the
package, Officer Rose quickly discovered that it contained small
chunks of drywall instead of cocaine.
¶3 	The State charged Mr. Jeffries with unlawful
distribution of a counterfeit substance, a second degree felony.
After a preliminary hearing, Mr. Jeffries was bound over as
charged. 	Mr. Jeffries filed a motion to quash and argued that
the State should have instead charged him with unlawful
distribution of an imitation controlled substance, a class A
misdemeanor. 	The district court denied the motion, whereupon Mr.
Jeffries entered a conditional guilty plea to an amended charge
of attempted unlawful distribution of a counterfeit substance, a
third degree felony, and reserved the right to challenge the
district court’s ruling on appeal. 	Mr. Jeffries brought his
timely appeal before the court of appeals, and the court of
appeals certified the case to this court.
STANDARD OF REVIEW
¶4 	The issue on appeal is a matter of statutory
interpretation that we review for correctness, “affording no
deference to the district court’s legal conclusions.” 	State v.
Gallegos, 2007 UT 81, ¶ 8, 171 P.3d 426.
ANALYSIS
¶5 	On appeal, Mr. Jeffries maintains his argument that the
State improperly charged him with a felony offense under the Utah
Controlled Substances Act (Counterfeit Act). 1 	Under that Act, a
counterfeit substance is defined as follows:
(i) any substance or container or
labeling of any substance that without
authorization bears the trademark, trade
name, or other identifying mark, imprint,
number, device, or any likeness of them, of a

3 	No. 20080009
manufacturer, distributor, or dispenser other
than the person or persons who in fact
manufactured, distributed, or dispensed the
substance which falsely purports to be a
controlled substance distributed by, any
other manufacturer, distributor, or
dispenser; or
(ii) any substance that is represented
to be a controlled substance.
Utah Code Ann. § 58-37-2(1)(i) (Supp. 2008). 	In charging Mr.
Jeffries, the State relied on section 58-37-2(1)(i)(ii).
¶6 	Mr. Jeffries asserts that he should have instead been
charged with a misdemeanor offense under the Imitation Controlled
Substances Act (Imitation Act). 	That Act defines an imitation
substance as “a substance that is not a controlled substance or
counterfeit controlled substance, and which by overall dosage
unit substantially resembles a specific controlled substance in
appearance, including its color, shape, or size.” 	Id. § 58-37b-
2(3) (2007).
I. 	RULES OF STATUTORY INTERPRETATION
¶7 	When interpreting statutes, we first look to the plain
language of the statute and give effect to that language unless
it is ambiguous. 	Stephens v. Bonneville Travel, Inc., 935 P.2d
518, 520 (Utah 1997). 	Thus, a statutory provision should be read
literally, unless it would result in an unreasonable or
inoperable result. 	Id. 	“When examining the statutory language
we assume the legislature used each term advisedly and in
accordance with its ordinary meaning.” 	State v. Martinez, 2002
UT 80, ¶ 8, 52 P.3d 1276.
¶8 	Our duty to give effect to the plain meaning of a
statute, however, should give way if doing so would work a result
so absurd that the legislature could not have intended it. 	See
Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242.
Where a statute’s plain language creates an absurd, unreasonable,
or inoperable result, we assume the legislature did not intend
that result. 	To avoid an absurd result, we endeavor to discover
the underlying legislative intent and interpret the statute
accordingly. 	See Evans v. State, 963 P.2d 177, 184 (Utah 1998)
(“[O]ur primary goal is to give effect to the legislature’s
intent in light of the purpose the statute was meant to
achieve.”); State ex rel. Z.C., 2007 UT 54, ¶ 12, 165 P.3d 1206
(“In defining the parameters of what constitutes an absurd
result, we note the inherent tension in this canon of

No. 20080009 	4
construction between refraining from blind obedience to the
letter of the law that leads to patently absurd ends and avoiding
an improper usurpation of legislative power through judicial
second guessing of the wisdom of a legislative act.”).
¶9 	A further exception to the plain meaning rule arises
with our duty to read and interpret statutory provisions in
harmony with other provisions in the same statute and with other
related statutes. 	State v. Moreno, 2009 UT 15, ¶ 10, 203 P.3d
1000. 	In essence, “statute[s] should be construed . . . so that
no part [or provision] will be inoperative or superfluous, void
or insignificant, and so that one section will not destroy
another.” 	Brickyard Homeowners’ Ass’n Mgmt. Comm. v. Gibbons
Realty Co., 668 P.2d 535, 538 (Utah 1983)(quoting 2A Sutherland
Statutory Construction, § 46.06 (1973)). 	Therefore, to the
extent that conflict exists or arises within statutory language,
our duty is to interpret the language, affording each provision a
meaningful purpose and separating convoluted statutes with a
meaningful distinction.
II. CONFLICT BETWEEN THE COUNTERFEIT ACT AND THE IMITATION ACT
¶10 	The problem we encounter in this case is that taking
section 58-37-2(1)(i)(ii) as written on its face would lead to
absurd results and impermissible overlap between the Counterfeit
Act and the Imitation Act. 	We note that the legislature enacted
both the Imitation Act and the Counterfeit Act, and it
necessarily follows that the legislature must have intended some
meaningful distinction between the two. 	We therefore interpret
the two Acts so that the statutes do not work an absurd result
and so that the Acts are sufficiently independent from each
other. 	In light of that objective, the only acceptable
interpretation is to read section 58-37-2(1)(i)(ii) as applying
only to substances masquerading as legitimate substances. 	Thus,
for the reasons set out below, we read the Counterfeit Act to be
applicable when a defendant tries to pass off a substance as
something legitimate or lawful.
¶11 	First, looking at the statute as a whole, our
interpretation of section 58-37-2(1)(i)(ii) is consistent with
the overall purpose of the Counterfeit Act. 	Because a literal
interpretation of the “any substance that is represented to be a
controlled substance” language in section 58-37-2(1)(i)(ii) would
reach an exceptionally broad range of substances and
circumstances--far beyond those defined in section 58-37-
2(1)(i)(i)--we determine that such could not have been the
legislature’s intent, and we decline to read section 58-37-
2(1)(i)(ii) as a catchall provision. 	We note that if section 58-

2 In 1987, the legislature amended the definition of
counterfeit substance as follows:
(a) any [controlled] substance or container
or labeling of any [controlled] substance
that[,] without authorization bears the
trademark, trade name, or other identifying
mark, imprint, number, [or] device, or any
likeness [thereof] of them, of a
manufacturer, distributor, or dispenser other
than the person or persons who in fact
manufactured, distributed, or dispensed the
substance which [thereby] falsely purports
[or is represented] to be [the product of, or
to have been] a controlled substance
distributed by, [such] any other
manufacturer, distributor, or dispenser; or
(b) any substance that is represented to be a
controlled substance.
1987 Utah Laws 1106.
5 	No. 20080009
37-2(1)(i)(ii) were to encompass any substance represented by
words or conduct as a controlled substance, section 58-37-
2(1)(i)(i) would be rendered superfluous because there would be
virtually no circumstances where behavior covered by subsection
(i) would not also be covered by subsection (ii). 	Thus, we read
the statute to contain a more meaningful distinction, such that
each provision is attributed a significant and operative purpose.
Section 58-37-2(1)(i)(i) is essentially limited to the
distribution of “look alike” pharmaceuticals, and section 58-37-
2(1)(i)(ii) should therefore refer to something along the same
lines.
¶12 	Second, to avoid absurd results, we must assume that
section 58-37-2(1)(i)(ii) contains a falsity element regarding
the representation of a substance as a legitimate or lawful
controlled substance. 	Notably, if any substance could qualify as
a counterfeit based on either a true or a false representation,
then even an accurate and otherwise lawful representation of a
prescription drug could violate the statute. 	A broad
interpretation of section 58-37-2(1)(i)(ii), taken to its logical
conclusions, would therefore result in criminalizing legitimate
behavior. 	Prior to 1987, only false representations were
punishable under the Counterfeit Act. 2 	In 1987, the legislature
split the definition of counterfeit substance into two parts.
While section 58-37-2(1)(i)(i) preserved the falsity language,
the second part of the statute, section 58-37-2(1)(i)(ii), did
not. 	We assume, however, that the legislature did not intend to
criminalize the legitimate distribution of controlled substances.

3 The job of the legislature is to define crimes, prescribe
penalties, and establish guidelines for prosecutors, judges, and
juries for enforcing the law. 	See Grayned v. City of Rockford,
408 U.S. 104, 108-09 (1972); State v. Angus, 581 P.2d 992, 994-95
(Utah 1978). 	Where the distinction between crimes is
insufficient, the danger arises that police officers,
prosecutors, and juries may pursue their personal predilections
in violation of due process. 	See Kolender v. Lawson, 461 U.S.
352, 358 (1983); Greenwood v. City of North Salt Lake, 817 P.2d
816, 819 (Utah 1991). 	But see State v. Mohi, 901 P.2d 991, 1003
(Utah 1995) (“Selecting a charge to fit the circumstances . . .
is a necessary step in the chain of any prosecution” and
“requires a legal determination . . . as to which elements of an
offense can likely be proved at trial.”).
No. 20080009 	6
Therefore, to avoid absurd results, we assume that the falsity
language unintentionally slipped out of section 58-37-2(1)(i)(ii)
when the legislature amended the definition.
¶13 	Third, we note that the classification of a substance
as an imitation substance focuses on the substance’s appearance.
Thus, for there to be a distinction between the Imitation Act and
the Counterfeit Act, counterfeit substances must be classified by
attributes or characteristic beyond mere presentation or
appearance. 	While it may be theoretically possible to see a
distinction between the two Acts based on the subtle difference
between representation by description or presentation and
representation by appearance alone, we decline to adopt that
interpretation. 	Doing so would allow distribution of benign
“look alike” substances to be punishable under the Imitation Act,
while the same behavior would also be punishable under the
Counterfeit Act if the distributer made an affirmative
representation that the substance was a controlled substance. 	It
seems implausible that distribution of a “look alike” substance
would occur without some false representation as to its identity
or contents. 	Thus, in many instances, the prosecutor could
choose between charging a felony or a misdemeanor offense based
on identical behavior. 3
¶14 	Thus, the distinction that we reason was intended by
the legislature between the Imitation Act and the Counterfeit Act
differentiates between the statutes based on the type of
substance regulated and not on the type of representation used by
the defendant. 	This conclusion illuminates a clear and necessary
distinction between the statutes by delineating the definition of
“imitation” drugs as those falsely represented to be illicit
substances and “counterfeit” drugs as those falsely represented
to be legitimate substances. 	Thus, substances falsely
represented to be from a manufacturer, distributor, or dispenser

7 	No. 20080009
are exclusively regulated within the provisions of the
Counterfeit Act (representation by appearance or packaging under
section 58-37-2(1)(i)(i) and representation by oral or other
means under section 58-37-2(1)(i)(ii)). 	In other words, if a
substance appears to be legitimate due to any false verbal or
written communication, then it is a counterfeit. 	In contrast, an
imitation substance is one that appears to be an illicit
substance of the variety which would probably never be identified
by branding or manufacturer’s marks.
III. 	THE SHONDEL DOCTRINE
¶15 	The Shondel doctrine, set fourth in State v. Shondel,
453 P.2d 146 (Utah 1969), and its progeny, states that “where two
statutes define exactly the same penal offense, a defendant can
be sentenced only under the statute requiring the lesser
penalty.” 	State v. Bluff, 2002 UT 66, ¶ 33, 52 P.3d 1210.
Further, this rule is restricted to circumstances where two
statutes contain the same elements and proscribe the exact same
conduct. 	See State v. Gomez, 722 P.2d 747, 749 (Utah 1986).
¶16 	Mr. Jeffries contends that if the definition of
counterfeit substance is interpreted broadly, he would
nevertheless be entitled to proceedings under the Imitation Act
because the Shondel doctrine would apply. 	In light of our
interpretation of section 58-37-2(1)(i)(ii), which creates a
distinction between the Counterfeit Act and the Imitation Act,
there is no overlap between the acts, and we need not address the
issue of whether Shondel applies in this case.
CONCLUSION
¶17 	We conclude that the definition of counterfeit
substance found in Utah Code sections 58-37-2(1)(i)(i) and 58-37-
2(1)(i)(ii) is limited to substances falsely represented to be
legitimate controlled substances. 	Hence, section 58-37-
2(1)(i)(ii) only encompasses substances falsely represented, by
means other than false markings, to be from a legitimate
manufacturer, distributor, or dispenser. 	Accordingly, a
substance falsely represented to be an illicit street drug does
not fall under the definition of counterfeit substance, but would
fall under the definition of imitation substance.
¶18 	Consistent with this opinion, the holding of the
district court is reversed and the case is remanded for
proceedings under the Imitation Controlled Substances Act.
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No. 20080009 	8
¶19 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.