State v. Williams

2007 UT 98
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. 20060517
Plaintiff and Petitioner,
v.
F I L E D
Brandon Williams,
Defendant and Respondent. 	December 21, 2007
---
Fourth District, Provo Dep’t
The Honorable Steven L. Hansen
No. 041403028
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Karen A. Klucznik,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Margaret P. Lindsay, Orem, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	May a person who possesses a controlled substance free
of any packaging or other form of drug paraphernalia be in peril
of conviction of a felony, while another person who possesses the
same controlled substance, but who, by design or happenstance,
stored the drug in a plastic bag may potentially be convicted of
only a misdemeanor? 	Both the district court and the court of
appeals concluded that the constitutional guarantees of equal
protection and uniform application of laws permitted this
outcome. 	By writ of certiorari to the court of appeals, we
agreed to review the court of appeals’ ruling and now reverse.
BACKGROUND
¶2 	Brandon Williams was arrested after he failed to return
to jail as ordered. 	During a search incident to arrest, a Utah
County deputy sheriff discovered a plastic bag containing
methamphetamine residue in Mr. Williams’ pocket. 	Relevant to

No. 20060517 	2
this case, Mr. Williams was charged by amended information with
one count of possession of a controlled substance in a drug-free
zone with prior convictions, a first degree felony in violation
of Utah Code section 58-37-8(2) (Supp. 2004).
¶3 	At his preliminary hearing, Mr. Williams successfully
moved to dismiss this charge in favor of the lesser charge of
misdemeanor possession of drug paraphernalia in violation of Utah
Code section 58-37a-5. 	Mr. Williams argued that because the
evidence could sustain a charge of either felony possession or
misdemeanor paraphernalia possession, he was entitled to the
lesser charge under State v. Shondel, 453 P.2d 146 (Utah 1969),
and its associated caselaw. 	The magistrate granted Mr. Williams’
motion and explained in response to the State’s objections that
[s]ince 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, . . .
the exact conduct is being prohibited.
Therefore, the Shondel [d]octrine does apply
in this case and the Defendant must be
charged with the offense carrying the lesser
penalty.
¶4 	The State petitioned for interlocutory appeal. 	We
transferred the State’s petition to the court of appeals. 	In an
unpublished decision, the court of appeals affirmed the district
court’s ruling. 	State v. Williams, 2006 UT App 181U. 	We granted
certiorari to consider whether the court of appeals correctly
applied what has come to be known as the Shondel doctrine.
ANALYSIS
I. 	THE COURT OF APPEALS’ ANALYSIS OF THE SHONDEL DOCTRINE
¶5 	The court of appeals took care to begin its analysis of
Mr. Williams’ case with an orthodox, plain language inquiry into
whether the elements of possession of a controlled substance
overlapped with the elements of possession of drug paraphernalia
and, if they did, by how much. 	The court first noted that in
order to convict Mr. Williams of the felony of possession of a
controlled substance, the State needed to show that he knowingly
or intentionally possessed the methamphetamine residue. 	The
court then turned its consideration to misdemeanor possession of
drug paraphernalia and observed that the statute made it unlawful
to possess a container used to store the controlled substance;
the presence of drug residue was one among many facts that could

3 	No. 20060517
be considered when attempting to discern whether a container,
such as a plastic bag, was innocent or illicit.
¶6 	Had the court of appeals stopped its analysis at this
point, it could have concluded that the plain language of the
statutes communicated this message: 	possession of a controlled
substance is a felony, while possession of drug paraphernalia--
which may be proven by the presence of the residue of a
controlled substance within a container--is a misdemeanor.
Clearly, the elements of the two offenses are not identical. 	To
be guilty of possession of a controlled substance, one need not
possess drug paraphernalia. 	Similarly, one may be guilty of
possessing drug paraphernalia while not being in possession of a
controlled substance.
¶7 	The court of appeals did not understand its Shondel
analysis to end here, however. 	Despite its recognition that the
Shondel doctrine appears to permit the Legislature to enact
statutes that impose different penalties for criminal conduct so
long as the statutory elements are not identical, the court of
appeals expanded the scope of its inquiry in Mr. Williams’ case
to include consideration of the specific facts. 	The court noted
that
[u]nder 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. . . .
Therefore, both charges--possession of a
controlled substance and possession of drug
paraphernalia--depend solely on Defendant’s
possession of methamphetamine residue.
State v. Williams, 2006 UT App 181U, para. 5. 	According to the
court of appeals’ interpretation of the Shondel doctrine, the
particular circumstances of a defendant’s conduct could trigger
the application of the doctrine even in the absence of perfect
congruity of the statutory elements of the crimes applicable to
that conduct.
¶8 	This line of reasoning led the court of appeals to hold
that the State was prohibited from prosecuting Mr. Williams for
the more serious offense, felony possession of a controlled
substance. 	The itinerary of the courts’ reasoning appears to
have taken it into realms quite distant from the equal protection
terrain in which the Shondel doctrine resides. 	See State v.
Shondel, 453 P.2d 146, 147 (Utah 1969). 	Central to the guarantee

No. 20060517 	4
of equal protection under the law is the notion that if a law has
the effect of treating differently classes of people subject to
the law, the government must adequately justify its disparate
treatment. 	E.g., State v. Merrill, 2005 UT 34, ¶ 31, 114 P.3d
585. 	As we will discuss, the Shondel doctrine is linked to equal
protection in an indirect and unusual way. 	The doctrine presumes
that the Legislature is never justified in enacting two criminal
statutes with identical elements but that carry different degrees
of severity and impose different penalties. 	Shondel, 453 P.2d at
148. 	Should the Legislature do so, it does not inevitably create
unconstitutional classifications of persons, but rather creates
the possibility that prosecutors may exploit the options
available to them by reason of the identical statutes and charge
persons under the statutes in a way that might create
discriminatory classifications. 	The purpose of the Shondel
doctrine, then, is to cut off the possibility of creating
unconstitutional classifications rather than to remedy
classifications actually created by identical criminal laws.
¶9 	As the court of appeals’ decision demonstrates, the
application of the Shondel doctrine in the cause of fending off
prosecutors’ power to create unconstitutional classifications of
defendants can itself create the perverse classification of
defendants described in the opening sentence of this opinion:
possessors of controlled substances without paraphernalia may
face felonies, while possessors of controlled substances who also
possess paraphernalia are shielded from the risk of a felony
conviction. 	That an entirely plausible and logical application
of the Shondel doctrine could have carried the court of appeals
to such an anomalous result suggests that a flaw lurks within the
doctrine itself and not in the way the court of appeals applied
it. 	Locating that flaw is the task to which we now turn our
attention.
II. 	THE SHONDEL/BATCHELDER DILEMMA
¶10 	The notion that a prosecutor may be empowered to charge
two people who have engaged in the same conduct with different
crimes carrying different penalties is one that offends our sense
of fairness. 	We have also found it to violate the guarantees of
equal protection of the law enshrined in the United States
Constitution. 	E.g., State v. Shondel, 453 P.2d 146, 147 (Utah
1969). 	We have characterized what has come to be known as the
Shondel doctrine this way: 	“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

5 	No. 20060517
prosecutor chooses to charge.” 	State v. Bryan, 709 P.2d 257, 263
(Utah 1985). 	That this core holding of Shondel would come to
claim the title of a “doctrine” is emblematic of its durability
and perceived significance. 	Having bestowed on Shondel the
status of doctrine, it would seem that we have an obligation to
explain our potentially contrary statement that
[t]he mere fact that one criminal episode may
arguably violate several criminal statutes,
thus giving the prosecutor discretion to
choose which of the violations to prosecute,
does not deny the accused equal protection of
the laws under the federal constitution
unless the prosecutor can be shown to have
impermissibly discriminated against a
particular class of defendants.
State v. Tuttle, 780 P.2d 1203, 1215 (Utah 1989) (citing United
States v. Batchelder, 442 U.S. 114, 124-25 (1979)).
¶11 	Perhaps the law can tolerate simultaneous commitments
to fending off unfettered prosecutorial license when deciding
which of two crimes with identical elements but different
penalties to charge and to permit the exercise of that very
prosecutorial license so long as the charging decision is not
discriminatory. 	Until now, we have been content to honor both
the Shondel doctrine and the teaching of Tuttle without
acknowledging their differences. 	This might not be of concern if
they offered different solutions to different problems, but they
do not. 	Instead, they present two discrete and contradictory
ways to solve the same legal problem. 	That problem exists
because the efforts of legislatures to define criminal conduct
and to prescribe the sanctions for those crimes have yielded laws
that overlap one another and provide disparate penalties for the
same offenses.
¶12 	There is nothing inherently wrong with criminal laws
that overlap. 	Indeed, overlapping criminal laws typically
advance legitimate and wholly defensible objectives. 	No one
would take issue, for example, with the legislative decision to
make both murder and felony murder crimes, despite the fact that
they overlap in their elements and expose those convicted of them
to different penalties. 	A legislature is clearly justified when
it determines that taking the life of another in the course of
committing an additional and distinct criminal act is more
reprehensible and worthy of more severe sanction than murder
committed under other circumstances. 	At the same time, the
enforcement of criminal laws with overlapping elements or with

No. 20060517 	6
disparate penalties for identical conduct is limited by
fundamental constitutional guarantees, most notably the
guarantees against double jeopardy and of equal protection of the
laws. 	The manner by which these constitutional guarantees have
come to limit the operation and application of overlapping
criminal laws is through the merger doctrine, the Shondel
doctrine, and the approach announced by the United States Supreme
Court in Batchelder and adopted by this court in Tuttle. 	Because
each of these doctrines and approaches owes its existence to the
statutory circumstance at issue here--the effect of overlapping
criminal laws--it is useful to our discussion to summarize the
content of each of these devices.
¶13 	The merger doctrine derives from the constitutional
guarantee that a person may not be held accountable twice for the
same criminal conduct. 	State v. Ross, 2007 UT 89, ¶ 63, ___ P.3d
___; see U.S. Const. amend. V. 	The Legislature codified the
merger doctrine in statute, providing that “[a] defendant may be
convicted of an offense included in the offense charged but may
not be convicted of both the offense charged and the included
offense.” 	Utah Code Ann. § 76-1-402(3) (2003). 	We conduct a
merger analysis “by comparing the statutory elements of the two
crimes as a theoretical matter, and, where necessary, by
reference to the facts proved at trial.” 	State v. Hill, 674 P.2d
96, 97 (Utah 1983).
¶14 	Both Shondel and Batchelder responded to equal
protection challenges to overlapping criminal statutes. 	Of the
analytic approaches announced in both cases, neither shares the
merger model’s use of both the elements of the relevant statutes
and the defendant’s affairs to conduct its assessment. 	The
Shondel doctrine limits its inquiry to the elements of the
criminal statutes which the defendant claims overlap and applies
only when “two statutes are wholly duplicative as to the elements
of the crime.” 	Bryan, 709 P.2d at 263. 	Unlike the merger
doctrine, the Shondel doctrine treats as irrelevant the conduct
of a particular defendant; only the content of the statutes
matters. 	Conversely, the approach relied on by the United States
Supreme Court in Batchelder limits its consideration of the
statutes at issue to a more familiar equal protection analysis.
442 U.S. at 124-25 & n.9. 	In Batchelder, for example, the Court
looked to whether the prosecutorial choice to pursue a conviction
under one statute instead of another--Mr. Batchelder was
convicted and sentenced to the maximum of five years in prison
under one statute that prohibited felons from possessing
firearms, while another seemingly identical statute limited the
penalty to two years of imprisonment--resulted in selective

7 	No. 20060517
enforcement using unconstitutional classification criteria like
race or religion. 	Id.
¶15 	The Shondel doctrine, then, presumes that unfettered
prosecutorial discretion to charge under two statutes with
identical elements but different penalties violates the guarantee
of equal protection under the law. 	Thus, a reviewing court need
only examine the statutes that are claimed to give rise to the
prosecutor’s discretion. 	Batchelder, by contrast, finds
unfettered prosecutorial discretion to choose among similar
statutes with disparate penalties benign unless the discretion
was exercised in an unconstitutional manner.
¶16 	If any doubt existed that the contradictions between
the Shondel doctrine and Batchelder cannot be sidestepped with
the rationale that they address different legal issues, that
doubt should be put to rest after examining two cases handed down
within six months of each other, one by this court and the other
by the Wyoming Supreme Court, that confronted equal protection
challenges to the felony murder and child abuse homicide statutes
of the respective states. 	In State v. Fedorowicz, 2002 UT 67, 52
P.3d 1194, we declined to apply the Shondel doctrine to Mr.
Fedorowicz’s claim that the trial court erred in instructing the
jury with respect to both felony murder, a first degree felony,
and child abuse homicide, a third degree felony, instead of just
the lesser charge. 	The exercise required an exquisitely detailed
dissection of the plain language of the two statutes to determine
whether the crime of felony murder contained a single element
that would sufficiently distinguish it from the crime of child
abuse homicide. 	Our efforts yielded a distinction that we found
to be adequate to keep the two statutes from being “wholly
duplicative.” 	Id. ¶ 58. 	Felony murder predicated on child abuse
required the victim to have sustained “serious physical injury,”
while child abuse homicide required the victim to have suffered
only “physical injury.” 	Id. ¶ 55. 	The legislative inclusion of
“serious” was enough, in our view, to make the two crimes
“completely dissimilar” and to secure the constitutionality of
Mr. Fedorowicz’s felony murder conviction. 	Id.
¶17 	We need not question the correctness of the result in
Fedorowicz to admit that the Shondel doctrine forced us to be
more strenuous in our parsing of relevant statutes than we would
have preferred. 	It likely overstates the case to label as
“completely dissimilar” a distinction between “serious physical
injury” and “physical injury” in the statutory formulation of two
crimes in which the person upon whom the injury, serious or
otherwise, is inflicted dies. 	We saw these exertions through to
the end, however, because the Shondel doctrine demanded it. 	The

No. 20060517 	8
result our efforts yielded, though defensible, was not
particularly satisfying.
¶18 	When the Wyoming Supreme Court was faced with an equal
protection challenge to its felony murder and child abuse
statutes, the court used the Batchelder analytical model instead.
Johnson v. State, 2003 WY 9, ¶¶ 26-33, 61 P.3d 1234 (Wyo. 2003).
Under the Wyoming child abuse statute then in effect, child abuse
included conduct resulting in death. 	Id. ¶¶ 1, 22. 	The Wyoming
statutes paralleled closely the Utah statutes we confronted in
Fedorowicz. 	By following Batchelder, however, the Wyoming court
avoided the need to perform the close dissection of statutory
language that, based on our experience in Fedorowicz, the Shondel
doctrine seemed to require. 	Instead, the court grounded its
holding in the same pronouncement from the Batchelder court which
we relied on in Tuttle that “‘when an act violates more than one
criminal statute, the Government may prosecute under either so
long as it does not discriminate against any class of
defendants.’” 	Johnson, 2003 WY 9, ¶ 28 (quoting Batchelder, 442
U.S. at 124).
III. 	FORGING A SHONDEL/BATCHELDER RECONCILIATION
¶19 	Because we conclude that the possession of a controlled
substance and the possession of drug paraphernalia statutes do
not overlap fully, the Shondel doctrine does not apply. 	This
determination is an adequate basis to support our result. 	We
feel constrained, however, to address the fate of the Shondel
doctrine in the face of its previously unacknowledged conflict
with United States v. Batchelder, 442 U.S. 114 (1979).
¶20 	Were we to conclude that Utah’s constitutional
guarantee of uniform operation of the laws was coextensive with
the equal protection guarantees found in the United States
Constitution, Batchelder would supplant the Shondel doctrine. 	We
have, however, determined that article I, section 24 of the Utah
Constitution, while embodying the same general principles as the
United States Constitution, may, under certain circumstances,
provide different and greater protection of individual rights.
See State v. Merrill, 2005 UT 34, ¶¶ 31, 33-34, 44 n.4, 114 P.3d
585.
¶21 	Batchelder has drawn criticism for its apparent,
although perhaps inadvertent, failure to recognize the potential
equal protection mischief that might occur when two criminal
statutes are identical in every respect except for their
respective penalties. 	Criminal law professors Wayne LaFave,

9 	No. 20060517
Jerold Israel, and Nancy King spoke to this flaw in their
treatise on criminal procedure:
In assaying the Batchelder reasoning, it is
useful to think about three types of
situations in which a defendant’s conduct may
fall within two statutes. 	They are: 	(1)
where one statute defines a lesser included
offense of the other and they carry different
penalties (e.g., whoever carries a concealed
weapon is guilty of a misdemeanor; a
convicted felon who carries a concealed
weapon is guilty of a felony); (2) where the
statutes overlap and carry different
penalties (e.g., possession of a gun by a
convicted felon, illegal alien or
dishonorably discharged serviceman is a
misdemeanor; possession of a gun by a
convicted felon, fugitive from justice, or
unlawful user of narcotics is a felony); (3)
where the statutes are identical (e.g.,
possession of a gun by a convicted felon is a
misdemeanor; possession of a gun by a
convicted felon is a felony). 	The Court in
Batchelder had before it a situation falling
into the second category, but [it] seems to
have concluded that the three statutory
schemes [were] indistinguishable for purposes
of constitutional analysis. 	But in terms of
either the difficulties which are confronted
at the legislative level in drafting statutes
or in the guidance which is given to a
prosecutor by the legislation, the three
schemes are markedly different.
The first of the three is certainly
unobjectionable. 	Such provisions are quite
common (robbery-armed robbery; battery-
aggravated battery; joyriding-theft;
housebreaking-burglary), and usually are a
consequence of a deliberate attempt by the
legislature to identify one or more
aggravating characteristics which in the
judgment of the legislature should ordinarily
be viewed as making the lesser crime more
serious. 	They afford guidance to the
prosecutor, but--as noted in Batchelder--do
not foreclose the prosecutor from deciding in

No. 20060517 	10
a particular case that, notwithstanding the
presence of one of the aggravating facts, the
defendant will still be prosecuted for the
lesser offense.
By contrast, the third of the three is highly
objectionable. 	It is likely to be a
consequence of legislative carelessness, and
even if it is not such a scheme serves no
legitimate purpose. 	There is nothing at all
rational about this kind of statutory scheme,
as it provides for different penalties
without any effort whatsoever to explain a
basis for the difference. 	It cannot be
explained in terms of giving assistance to
the prosecutor. 	Where statutes are identical
except for punishment, the prosecutor finds
not the slightest shred of guidance. 	It
confers discretion which is totally
unfettered and which is totally unnecessary.
And thus the Court in Batchelder is less than
convincing in reasoning that this third
category is unobjectionable simply because in
other instances, falling into the first
category, the need for discretionary
judgments by the prosecutor has not been and
cannot be totally eliminated.
As for the second of the three categories, it
clearly presents a harder case. 	Here as
well, the dilemma is likely to have been
created by legislative carelessness . . .
overlapping statutes are very common at both
the federal and state level, and it can
hardly be said that in every instance they
are a consequence of poor research or inept
drafting. 	Drafting a clear criminal statute
and still ensuring that in no instance could
it cover conduct embraced within any existing
criminal statute in that jurisdiction can be
a formidable task. 	(This fact alone may make
courts somewhat reluctant to find overlap per
se unconstitutional, although the consequence
of such a finding, limiting punishment to
that under the lesser of the two statutes
until such time as the legislature decides
what to do about the now-identified overlap,
is hardly a cause for alarm.) 	Moreover, in

11 	No. 20060517
the overlap scheme the two statutes will at
least sometimes assist the prosecutor in
deciding how to exercise his charging
discretion.
Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal
Procedure § 13.7(a) (2d ed. 2007), available at
http://www.westlaw.com (internal quotation marks omitted)
(emphasis in original). 	The third type of overlapping statutes
recognized by the professors is precisely the statutory scheme to
which the Shondel doctrine is properly directed, and we conclude
that the doctrine should endure to address this unusual and rare
phenomenon. 	In all other circumstances, including those
presented by Mr. Williams, we choose to follow Batchelder.
¶22 	Just as the Wyoming Supreme Court’s application of
Batchelder overcame Mr. Johnson’s equal protection challenge to
his conviction in Johnson v. State, 2003 WY 9, 61 P.3d 1234 (Wyo.
2003), our application of Batchelder to our possession of a
controlled substance and possession of drug paraphernalia
statutes turns back Mr. Williams’ claims. 	This result is based
not only on Batchelder’s rejection of the unrealized risk of
discriminatory prosecution as a reason to limit prosecutorial
discretion but also on the Batchelder Court’s willingness to look
to congressional intent to ascertain whether the overlapping
statutes were enacted in error or were purposely enacted to be
separately and fully enforceable. 	Following the Supreme Court’s
lead and undertaking a similar search for the Legislature’s
intent as implicated by Mr. Williams’ case, the result is clear.
We have no difficulty distinguishing between a statute directed
at the act of possessing a controlled substance and one targeting
the possession of drug paraphernalia. 	The Legislature clearly
conveyed its purpose; it intended to enact two separate and
independent criminal statutes. 	See Batchelder, 442 U.S. at 121.
That intent, drawn from the plain language of the statutes, is
sufficient to immunize the statutes from attack on equal
protection grounds. 	Id. 	We are also not left with the
impression that prosecutors are abandoned to their own
predilections when choosing to charge a defendant with one, or
both, of misdemeanor paraphernalia possession or felony
possession. 	Prosecutors are not. 	A prosecutor is foreclosed,
for example, from prosecuting for possession of drug
paraphernalia a defendant who possesses a controlled substance
free of paraphernalia regardless of the prosecutor’s sense of
mercy or compassion, deserved or otherwise, for the defendant.
CONCLUSION

No. 20060517 	12
¶23 	After considering and clarifying the proper scope of
the Shondel doctrine, we conclude that the court of appeals erred
in applying the doctrine in Mr. Williams’ case. 	As evidenced by
the intention of the Legislature, Utah’s felony possession
statute and misdemeanor possession of paraphernalia statute do
not sufficiently overlap to trigger the protections afforded by
the Shondel doctrine. 	The statutes were obviously intended to be
fully and separately enforceable. 	Reversed and remanded.
---
¶24 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.