State v. Nikolas Sherman

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40995

STATE OF IDAHO, ) 2014 Opinion No. 27
)
Plaintiff-Respondent, ) Filed: April 1, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
NIKOLAS LEE SHERMAN, )
)
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. John P. Luster, District Judge. Hon. James Stow,
Magistrate.

Order of the district court affirming the magistrate’s denial of motion to
dismiss, affirmed.

John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy Public
Defender, Coeur d’Alene, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Nikolas Lee Sherman appeals from the district court’s appellate decision affirming the
magistrate’s order denying his motion to dismiss and refusing his requested jury instruction. We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A resident contacted police after finding an intoxicated male on his property. When a
police officer arrived at the property, the intoxicated male attempted to flee and was restrained
by the officer. The individual was identified as Sherman and the officer found two prescription
drug bottles in Sherman’s pockets, one bottle prescribed to Sherman and one bottle prescribed to
Mr. Gallegos. Sherman initially told the officer that he was holding the prescription drugs for a
female friend. The police officer arrested Sherman and transported him to the police station,

1
where Sherman changed his story and told the officer he was holding the prescription drugs for a
friend named Mr. Wilhelm. The officer returned the prescription drug bottle to Mr. Gallegos.
The prescription drugs may have been in Mr. Gallegos’ vehicle which was parked outside his
home and left unlocked. The officer located Sherman’s vehicle near Mr. Gallegos’ home and
was informed that Sherman had been seen in the area prior to the officer’s arrival.
Sherman was charged with the unlawful possession of a prescription drug, Idaho Code
§ 54-1732(3)(c). He filed a motion to dismiss, claiming that I.C. § 54-1732(3)(c) violated his
substantive due process rights both on its face and as applied to him. The magistrate denied
Sherman’s motion to dismiss. Sherman filed a motion to reconsider the magistrate’s decision.
The magistrate declined to revisit its prior ruling, but invited argument on an issue involving the
jury instructions. Specifically, Sherman requested that the court provide an instruction regarding
the warehousemen exception to unlawful possession of prescription drugs found in I.C. § 54-
1734(2)(f). After argument, the magistrate declined Sherman’s request to provide the
instruction.
Thereafter, Sherman entered a conditional guilty plea, pursuant to Idaho Criminal
Rule 11, to the unlawful possession of a prescription drug. The magistrate imposed a term of
180 days in jail with 174 days suspended, with Sherman to serve sixteen hours in the sheriff’s
labor program in lieu of six days in jail. The magistrate also imposed a two-year term of
unsupervised probation and imposed a fine. Sherman’s sentence was stayed pending his appeal.
Sherman appealed to the district court. The district court, in its intermediate appellate
capacity, affirmed the magistrate’s denial of Sherman’s motion to dismiss and the magistrate’s
denial of Sherman’s proposed jury instruction. Sherman timely appeals.
II.
ANALYSIS
Sherman claims that I.C. § 54-1732(3)(c) is unconstitutional on its face and as applied to
him. He also contends that the district court erred in affirming the magistrate’s decision to deny
his proposed instruction informing the jury of the warehousemen exception to the statute. 1
When reviewing the decision of a district court sitting in its appellate capacity, our standard of
review is the same as expressed by the Idaho Supreme Court:

1
Sherman withdrew his challenge to the proposed jury instruction at oral argument;
therefore, we need not address it.

2
The Supreme Court reviews the trial court (magistrate) record to determine
whether there is substantial and competent evidence to support the magistrate’s
findings of fact and whether the magistrate’s conclusions of law follow from
those findings. If those findings are so supported and the conclusions follow
therefrom and if the district court affirmed the magistrate’s decision, we affirm
the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
A. Constitutionality
The United States and Idaho Constitutions protect against State deprivation of a person’s
“life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1; Idaho
CONST. art. 1, § 13; Idaho Dairymen’s Ass’n, Inc. v. Gooding County, 148 Idaho 653, 661, 227
P.3d 907, 915 (2010). In order for a defendant to prevail on a substantive due process claim, the
State action that deprived the defendant of life, liberty, or property must be arbitrary, capricious,
or without a rational basis. Idaho Dairymen, 148 Idaho at 661, 227 P.3d at 915. A substantive
due process violation will not be found if the State action “bears a reasonable relationship to a
permissible legislative objective.” Id.
Constitutional questions are questions of law over which we exercise free review.
Hernandez v. Hernandez, 151 Idaho 882, 884, 265 P.3d 495, 497 (2011). This Court presumes
the constitutionality of challenged statutes and we are obliged to seek an interpretation of the
statute that upholds its constitutionality. Id. The party challenging the statute bears the burden
of proving the statute unconstitutional. Id. “A party may challenge a statute as unconstitutional
‘on its face’ or ‘as applied’ to the party’s conduct.” American Falls Reservoir Dist. No. 2 v.
Idaho Dep’t of Water Res., 143 Idaho 862, 870, 154 P.3d 433, 441 (2007) (quoting State v.
Korsen, 138 Idaho 706, 712, 69 P.3d 126, 132 (2003)).
1. Facial constitutional challenge
Sherman filed a motion to dismiss with the magistrate court, claiming that I.C. § 54-
1732(3)(c) was facially unconstitutional. The magistrate denied the motion, finding that the
State had a rational basis for regulating the possession of controlled substances. The district

3
court, in its intermediate appellate capacity, determined that the statute could be constitutionally
applied and thus, was not facially unconstitutional. Specifically, the district court stated that the
statute was not vague because it addressed specific conduct and that the statute did not infringe
upon a fundamental right.
A facial challenge to a statute is purely a question of law. State v. Cobb, 132 Idaho 195,
197, 969 P.2d 244, 246 (1998). Generally, a facial challenge is mutually exclusive from an as
applied challenge. American Falls, 143 Idaho at 870, 154 P.3d at 441. The United States
Supreme Court has debated the appropriate standard to be applied to facial challenges to state
statutes. 2 In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court stated that “[a]
facial challenge to a legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under which
the Act would be valid.” Salerno, 481 U.S. at 745. 3 In a later case, Justice Stevens stated that
the Supreme Court had never actually applied the strict Salerno standard and noted that
Broadrick v. Oklahoma, 413 U.S. 601 (1973), applied a significantly lesser standard providing
that a statute would be invalidated if the overbreadth of the statute was real and substantial in
relation to the statute’s plainly legitimate sweep. Washington v. Glucksberg, 521 U.S. 702, 740

2
Additionally, the United States Supreme Court has expressed caution about determining
the constitutionality of statutes in the context of facial challenges. See Washington State Grange
v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (stating that facial challenges
are disfavored for several reasons, including that facial challenges raise the risk of premature
interpretation of statutes and threaten to short circuit the democratic process by preventing duly-
enacted laws from being implemented in a constitutional manner).
3
Sherman claims that the standard articulated in United States v. Salerno, 481 U.S. 739
(1987), only applies in the civil context. Sherman asserts that Salerno specifically stated that the
standard did not apply to statutes that criminalize behavior but only to statutes that regulate state
functions. We find no such limitation in the Salerno opinion. In that case, Salerno argued that
the Bail Reform Act of 1984 violated his substantive due process because the pretrial detention
authorized by the Act constituted impermissible punishment before trial. As an initial matter, the
Supreme Court determined that the statutory scheme authorizing pretrial detention was a
regulatory function and not a punitive function. The Supreme Court then stated that the
government’s interest in preventing crime by arrestees is both legitimate and compelling.
Accordingly, the Court found that the Act was not facially invalid under the Due Process Clause.
Salerno, 481 U.S. at 752. In so holding, the Court never articulated that the enunciated standard
only applied in non-criminal matters. We do recognize that substantive due process challenges
typically occur in the civil context, but we are not convinced that the Salerno standard applies
exclusively in the civil realm.

4
n.7 (1997) (Stevens, J., concurring) (citing Broadrick, 413 U.S. at 615). The United States
Supreme Court again recognized the different standards applicable to substantive due process
challenges in United States v. Stevens, 559 U.S. 460 (2010). In that case, the Court stated:
To succeed in a typical facial attack, Stevens would have to establish that
no set of circumstances exists under which [§ 48] would be valid, or that the
statute lacks any plainly legitimate sweep. Which standard applies in a typical
case is a matter of dispute that we need not and do not address . . . .

Stevens, 559 U.S. at 472 (citations omitted) (quotations omitted).
Idaho Appellate Courts have also applied different standards for facially unconstitutional
challenges. In Hernandez, 151 Idaho at 884, 264 P.3d at 497, the Idaho Supreme Court stated,
“To succeed on a facial challenge, one must demonstrate that under no circumstances is the
statute valid.” Id. The Idaho Supreme Court has also applied the rational basis test in
determining if a statute violated the substantive due process clause. In State v. Bennett, 142
Idaho 166, 125 P.3d 522 (2005), the Supreme Court said:
Legislative acts that do not impinge on fundamental rights or employ suspect
classifications are presumed valid, and this presumption is overcome only by a
“clear showing of arbitrariness and irrationality.” Kawaoka v. City of Arroyo
Grande, 17 F.3d 1227, 1234 (9th Cir. 1994). Moreover, in a substantive due
process challenge, we do not require that the [government’s] legislative acts
actually advance its stated purposes, but instead look to whether “the
governmental body could have had no legitimate reason for its decision.” Id.
Additionally, “[i]f it is ‘at least fairly debatable’ that the [government’s] conduct
is rationally related to a legitimate governmental interest, there has been no
violation of substantive due process.” Halverson v. Skagit County, 42 F.3d 1257,
1262 (9th Cir. 1994) (quoting Kawaoka, 17 F.3d at 1234).

Bennett, 142 Idaho at 169, 125 P.3d at 525.
On appeal, Sherman contends that I.C. § 54-1732(3)(c) is violative of substantive due
process because the law is irrational and arbitrary in its scope. Idaho Code § 54-1732(3)(c)
provides:
(3) The following acts, or the failure to act, and the causing of any
such act or failure are unlawful:
....
(c) The possession or use of a legend drug or a precursor by
any person unless such person obtains such drug on the prescription or
drug order of a practitioner.

5
Pursuant to I.C. § 54-1734(2), pharmacists, practitioners, hospitals, manufacturers, wholesalers,
carriers, and warehousemen are exempt from the crime of possession of a legend drug in the
usual and lawful course of their business.
Sherman argues that the statute is arbitrary because it criminalizes the possession of
prescription drugs 4 unless the drugs were prescribed specifically to the person in possession. 5
According to Sherman, the statute criminalizes ordinary everyday actions, such as a person
getting prescription drugs for a spouse or dependent. Sherman also claims that the law is
unconstitutional because it infringes upon a parent’s right to care for a sick child by prohibiting
the parent from getting medication from the pharmacy that is prescribed to the child. Thus,
Sherman asserts that limiting the legal possession of prescription drugs to the individual
prescribed is irrational.
The State claims that the legislature created the statute with the permissible objective of
promoting and protecting the public health and welfare. The State asserts that the statute
mitigates the potential for prescription drug misuse and abuse. Thus, the State argues that
Sherman is unable to demonstrate that the statute is facially unconstitutional. Additionally, the
State points out that “prescription drug order” was, at the time of Sherman’s arrest, defined as “a
lawful written or verbal order of a practitioner for a drug or device for an ultimate user of the

4
Legend drug is defined synonymously with prescription drug.
5
Sherman points to Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955) superseded by
statute, I.C. § 6-611, as an example of an arbitrary law being held unconstitutional. In Smith, a
conservation officer shot and killed a dog and claimed former I.C. § 37-1407 as an affirmative
defense. Idaho Code § 37-1407 provided that “any dog running at large in territory inhabited by
deer, is hereby declared to be a public nuisance and may be killed at such time by any game
conservation officer . . . .” The Idaho Supreme Court stated that the phrase “territory inhabited
by deer” could refer to the majority of the state, including farmland. This could make any
farmer’s dog a public nuisance and at risk of being shot by a conservation officer. Accordingly,
the Court held that the statute was an “arbitrary, unreasonable and unconstitutional regulation.”
Smith, 77 Idaho at 209, 290 P.2d at 744. Based on Smith, Sherman argues that I.C. § 54-
1732(3)(c) must be found to be arbitrary unless that State can show that the population of Idaho
is so disposed as to misuse and abuse any medication which it possesses. Sherman misconstrues
the applicable standard. A law is arbitrary if the law bears no substantial relationship to the
health, safety, morals, and general welfare of the public. Dry Creek Partners, LLC v. Ada
County Comm’rs, ex rel. State, 148 Idaho 11, 19, 217 P.3d 1282, 1290 (2009).

6
drug or device, issued and signed by the practitioner.” I.C. § 54-1705(32) (emphasis added). 6
Based on the phrase “ultimate user,” the State claims that a person may lawfully pick up a
prescribed medication at a pharmacy for another, such as a spouse or child.
We conclude that the district court did not err in affirming the magistrate’s decision to
deny Sherman’s motion to dismiss. Even applying the lesser substantive due process standard,
we conclude that I.C. § 54-1732(3)(c) is not facially unconstitutional.
The statute is reasonably related to the State’s legitimate interest of stopping the abuse
and misuse of prescription drugs. The Idaho Supreme Court has stated that the legislature may
enact laws concerning the health, safety, and welfare of the people: “The State legislature, under
the broad concept of police power, may enact laws concerning the health, safety and welfare of
the people so long as the regulations are not arbitrary or unreasonable.” Van Orden v. State,
Dep’t of Health and Welfare, 102 Idaho 663, 667, 637 P.2d 1159, 1163 (1981). A law is
arbitrary if the law bears no substantial relationship to the health, safety, morals, and general
welfare of the public. Dry Creek Partners, LLC v. Ada County Comm’rs, ex rel. State, 148 Idaho
11, 19, 217 P.3d 1282, 1290 (2009).
Idaho’s legislature recognized the need to regulate the use, possession, manufacture, and
distribution of prescription drugs when it enacted the Idaho Pharmacy Act, I.C. §§ 54-1701 to
54-1771. In its statement of purpose, the legislature stated, “It is the purpose of this act to
promote, preserve and protect the health, safety and welfare of the public by and through the
effective control and regulation of the practice of pharmacy . . . .” I.C. § 54-1703. Idaho Code
§ 54-1732(3)(c) directly relates to the legislative purpose by criminalizing an act that the
legislature determined to be detrimental to public health and welfare. Limiting the possession of
prescription drugs to those who are authorized to manufacture and distribute drugs, and to those
who are lawfully prescribed drugs, mitigates the potential for individuals to misuse or abuse

6
In 2013, Idaho Code § 54-1705(32) was recodified as I.C. § 54-1705(36) and amended to
state, “‘Prescription drug order’ means a valid order of a practitioner for a drug or device for an
ultimate user of the drug or device.”

7
prescription drugs. 7 Accordingly, the State had a legitimate interest and a rational basis for
enacting the statute.
Sherman concedes that the State has a legitimate interest in stopping the misuse and
abuse of prescription drugs. However, he claims I.C. § 54-1732(3)(c) is absurd because the State
has no legitimate interest in preventing caregiving and ordinary everyday actions. 8 Even
applying the lesser substantive due process standard, we conclude that any overbreadth of the
statute is not substantial in relation to the rational and legitimate interest the State had in enacting
the statute.
In addition, we do not read the statute as broadly as Sherman contends. Sherman argues
that pursuant to the plain language of the statute, nearly every Idaho citizen will at some point
commit a misdemeanor by possessing another person’s prescription medication. This Court
exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho
502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and
unambiguous, this Court must give effect to the statute as written, without engaging in statutory
construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar,
134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be given their plain, usual,

7
Prescription drug abuse has been recognized throughout the country as an act detrimental
to the public health, safety, and welfare:
Prescription drug abuse is the fastest growing drug problem in the United
States. Although public perception sees prescription medications as inherently
safer than illicit street drugs, prescription opioids caused 14,800 deaths in 2008,
which is more than cocaine and heroin combined. Prescription drug abuse is even
more prevalent than most illicit drug use, and prescription drug-related deaths
have increased over 300-fold from 1999 to 2008.

Michael C. Barnes & Gretchen Arndt, The Best of Both Worlds: Applying Federal Commerce
and State Police Powers to Reduce Prescription Drug Abuse, 16 J. HEALTH CARE L. & POL’Y
271, 271-72 (2013).
8
Sherman also contends that I.C. § 54-1732(3)(c) is unconstitutional because it violates a
parent’s right to raise children by criminalizing the act of administering prescription drugs to a
child. He also claims that it is absurd to criminalize those administering medication to family
members, but give immunity to warehouse workers who could be just as likely to abuse
prescription drugs. Nonetheless, the statute bears a reasonable relation to a legitimate state
interest; thus, Sherman’s facial constitutional challenge fails.

8
and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho
827, 829, 25 P.3d 850, 852 (2001).
Idaho Code § 54-1732(3)(c) criminalizes the possession of prescription drugs by any
person unless such person obtains the drugs on the prescription or drug order of a practitioner.
At the time of Sherman’s arrest, “prescription drug order” was defined, in relevant part, in I.C.
§ 54-1705(32) as a “lawful written or verbal order of a practitioner for a drug or device for an
ultimate user of the drug or device, issued and signed by a practitioner.” The term “ultimate
user” is not defined in Title 54. 9 However, the plain and ordinary meaning of the term “ultimate
user” is the person intended, through the prescription, to use the drug. Thus, I.C. § 54-1732(3)(c)
does not criminalize a person who, by presentation to a pharmacist of a prescription, obtains a
prescription medication for the final person authorized to use the medication. Accordingly,
many of the scenarios Sherman suggests would be criminal--such as picking up prescription
medications for a grandparent, spouse, or child--are not criminalized by the plain language of the
statute. As a result, any overbreadth of the statute is not constitutionally substantial.
Therefore, the magistrate did not err in denying Sherman’s motion to dismiss based on
his facially unconstitutional challenge and the district court properly affirmed the magistrate’s
decision.
2. As applied constitutional challenge
In order for Sherman to prevail in his as applied challenge, he must demonstrate that the
statute is unconstitutional as applied in his specific instance. Hernandez, 151 Idaho at 884, 265
P.3d at 497. Sherman contends that I.C. § 54-1732(3)(c) is unconstitutional as applied because
the statute criminalized his asserted non-criminal conduct of storing medication for his friend.

9
Idaho Code § 37-2701(ee) defines “ultimate user” as “a person who lawfully possesses a
controlled substance for his own use or for the use of a member of his household or for
administering to an animal owned by him or by a member of his household.” We recognize that
statutory definitions “provided in one act do not apply ‘for all purposes and in all contexts but
generally only establish what they mean where they appear in that same act.’” State v.
Yzaguirre, 144 Idaho 471, 477, 163 P.3d 1183, 1189 (2007) (quoting Maguire v. Yanke, 99 Idaho
829, 836, 590 P.2d 85, 92 (1978). Nonetheless, the common meaning of “ultimate” is “last in a
progression or series; final” or “original.” Merriam-Webster.com. Merriam-Webster, n.d. Web.
10 Mar. 2014. http://www.merriam-webster.com/dictionary/ultimate. Further, “user” is defined
as “a person or thing that uses something.” Merriam-Webster.com. Merriam-Webster, n.d. Web.
10 Mar. 2014. http://www.merriam-webster.com/dictionary/user. Based on these definitions, the
term “ultimate user” is the person who was intended to use the prescription drug.

9
Sherman argues that his conduct was not reasonably related to the objectives of the statute, and
therefore to criminalize his asserted non-criminal conduct would be unconstitutional. Sherman
also contends that his role of storing the prescription drugs is similar to the role of a
warehouseman who stores prescription drugs prior to distribution. He argues that there is no
rational basis to exempt warehousemen from criminal liability, and yet punish him for
performing the same task that warehousemen perform. The State claims that the statute’s
regulation of prescription medication possession is reasonably related to the State’s legitimate
interest in promoting and protecting public health and welfare and applied here to clearly
criminal conduct.
The only evidence submitted to the magistrate at the hearing for Sherman’s motion to
dismiss was a police report detailing the facts of Sherman’s arrest. The police report stated that
upon arrival at the location, the police officer found an intoxicated male who identified himself
as Wilhelm. He attempted to flee and was detained by the officer. The officer asked him if he
had anything in his pockets and he stated that he had one of his female friend’s prescription drug
bottles on him. He stated that the female friend left the prescription drug bottle with him earlier
that day. The officer removed two prescription drug bottles, one prescribed to Mr. Gallegos and
one prescribed to Sherman. The officer removed the male’s wallet and identified him as
Sherman. Sherman then changed his story and told the officer that a male named Wilhelm left
the prescription bottle in his car. The officer arrested Sherman and contacted Mr. Gallegos.
Mr. Gallegos reported that his vehicle was left outside unlocked; but was not certain if the
prescription drug bottle was left inside the vehicle. The officer returned the prescription drug
bottle to Mr. Gallegos. The officer also discovered Sherman’s vehicle parked near Mr. Gallegos’
residence and a neighbor informed the officer that Sherman was in the area prior to the officer’s
arrival. At the police station, Sherman again altered his account, stating that he was playing
Frisbee golf with Wilhelm earlier in the day and Wilhelm asked him to hold the prescription drug
bottle because he did not have any pockets. Sherman also denied parking his car near
Mr. Gallegos’ residence.
At the hearing on Sherman’s motion to dismiss, the magistrate found that the reasonable
conclusion from the facts in the police report was that Sherman “improperly acquired” the drugs
and that Sherman had “in fact stolen the prescription bottle” from Mr. Gallegos’ vehicle or
residence. The magistrate arrived at this conclusion based on the police report and the

10
“connective facts,” such as Sherman referencing that the prescription bottle belonged to a female
when a male’s name was on the label, and then Sherman changing his story and claiming that the
bottle belonged to Wilhelm, which still did not match the label on the bottle. Additionally,
Sherman never indicated that the bottle was given to him by Mr. Gallegos. Therefore, the
magistrate stated that the facts of the case were not that Sherman was storing the prescription
medication for another, but that Sherman stole the bottle from Mr. Gallegos. 10 Accordingly, the
magistrate found that the statute was not unconstitutional as applied and denied Sherman’s
motion to dismiss. The district court affirmed the magistrate’s decision.
Substantial evidence supports the magistrate’s finding that Sherman was not simply
storing the prescription drugs for a friend. Sherman’s contradicting accounts, his vehicle’s
location, Mr. Gallegos’ statements, and the neighbor identifying Sherman as being near
Mr. Gallegos’ residence indicates that Sherman, at the very least, did not come into possession of
Mr. Gallegos’ prescription drug bottle through a friend while playing Frisbee golf. Accordingly,
Sherman’s argument that I.C. § 54-1732(3)(c) was unconstitutional as applied to him because he
was simply storing the drugs for a friend is belied by the record. Certainly, the legislature has a
rational basis to regulate the unauthorized and unlawful possession of prescription drugs in order
to prevent the abuse and misuse of prescription drugs. Therefore, the district court did not err in
affirming the magistrate’s decision to deny Sherman’s motion to dismiss based on his as applied
constitutional challenge.
III.
CONCLUSION
Sherman has failed to demonstrate reversible error. The magistrate properly denied
Sherman’s motion to dismiss. Accordingly, the district court’s order affirming the magistrate’s
decision is affirmed.
Chief Judge GUTIERREZ and Judge LANSING CONCUR.

10
By presenting his motion, based upon the police report, Sherman called upon the
magistrate to resolve the issues of fact concerning how Sherman acquired the drugs. He has not
claimed below or on appeal that these factual issues were for resolution by a jury.

11