State v. Arghittu

2015 UT App 22
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellant,
v.
RICHARD ARGHITTU,
Defendant and Appellee.

Opinion
No. 20130677-CA
Filed January 29, 2015

Third District Court, Salt Lake Department
The Honorable William W. Barrett
The Honorable Elizabeth A. Hruby-Mills
The Honorable Robin W. Reese
No. 121900103

Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellant

Richard P. Mauro, Attorney for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and STEPHEN L. ROTH concurred.

PEARCE, Judge:

¶1 The State charged Richard Arghittu with distribution of a
controlled substance analog, money laundering, and participating
in a pattern of unlawful activity. The charges stemmed from his
alleged distribution of a form of synthetic marijuana known as
AM-2201. After Arghittu’s preliminary hearing, a district court
judge, acting as a magistrate, concluded that AM-2201 was not an
analog of the controlled substance JWH-018 as the State had
alleged. The magistrate found probable cause to bind Arghittu over
on one lesser, but uncharged, count of drug possession not
 State v. Arghittu

involving AM-2201. The State declined to amend the information
to charge the single lesser count, and the magistrate dismissed the
information at the State’s request.1 The State appeals from the order
of dismissal. We reverse and remand for further proceedings.

BACKGROUND2

¶2 Arghittu, acting through two businesses that he owned or
co-owned, packaged and distributed synthetic marijuana,
commonly known as “spice.” As of mid-2010, the psychoactive
ingredient in Arghittu’s products was the synthetic cannabinoid
JWH-018. Arghittu would purchase the spice in bulk, package it in
small plastic jars or ziplock foil bags, and ship it to smoke shops,
gas stations, and novelty stores across the country. At that time,
JWH-018 was not listed as a controlled substance under Utah or
federal law.

¶3 In November 2010, the United States Drug Enforcement
Agency (the DEA) issued a notice of intent to temporarily
categorize JWH-018 and several other synthetic cannabinoids as
Schedule I controlled substances. In March 2011, the federal listing
of JWH-018 as a controlled substance was finalized. Also in 2011,
the Utah Legislature amended the Utah Code to expressly identify

1. Judge Barrett conducted the preliminary hearing and ruled
orally that Arghittu could be bound over solely on the single lesser
count. Judge Hruby-Mills signed the findings of facts and conclu-
sions of law that implemented that ruling. Judge Reese entered the
order dismissing the information.

2. “At a preliminary hearing, ‘[t]he magistrate should view the
evidence in a light most favorable to the prosecution and resolve all
inferences in favor of the prosecution.’” State v. Graham, 2013 UT
App 109, ¶ 2 n.1, 302 P.3d 824 (alteration in original) (quoting State
v. Hawatmeh, 2001 UT 51, ¶ 3, 26 P.3d 223). Accordingly, we recite
the background facts in a light most favorable to the State. See id.

20130677-CA 2 2015 UT App 22
 State v. Arghittu

several synthetic cannabinoids, including JWH-018, as controlled
substances. See Utah Code Ann. § 58-37-4.2 (LexisNexis Supp. 2011)
(effective Feb. 25, 2011). Utah Code section 58-37-4.2 stated that the
substances enumerated therein, as well as “their analogs,
homologs, and synthetic equivalents,” were “listed controlled
substances.” Id. Utah Code section 58-37-2 defined a controlled
substance analog as a substance that had a chemical structure
“substantially similar” to that of a listed controlled substance and
that either had, or was represented or intended to have, a
“stimulant, depressant, or hallucinogenic effect . . . substantially
similar” to that of a listed controlled substance. Id. § 58-37-2(1)(g)(i).

¶4 Because JWH-018 had been classified as a controlled
substance, Arghittu began looking for other chemical compounds
that would serve as an effective substitute. He settled on a
compound known as AM-2201. AM-2201 possessed a “similar
effect” to JWH-018 but was not expressly listed as a controlled
substance under Utah or federal law. Between February 25 and
November 7, 2011, Arghittu packaged and distributed spice
products containing AM-2201 as their psychoactive ingredient.
Arghittu retained an independent laboratory to test his products to
ensure that they contained only AM-2201 and not JWH-018 or
other expressly banned substances. Although Arghittu labeled the
products “not for human consumption,” he frequently discussed
with others the potency or “level of high” that his products were
capable of producing when ingested.

¶5 On November 7, 2011, the State executed a search warrant
on Arghittu’s warehouse in Murray, Utah. During the search,
agents discovered and seized spice products, packaging materials,
and financial records documenting recent spice shipments valued
at more than $80,000. Testing revealed that most of the seized spice
contained AM-2201. One tested product contained the synthetic
cannabinoid JWH-122, and another contained the compound
MDPV, both of which were expressly listed as controlled
substances under the 2011 version of Utah Code section 58-37-4.2.

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 State v. Arghittu

¶6 The State charged Arghittu with distributing a controlled
substance analog, money laundering, and engaging in a pattern of
unlawful activity. The charges were all first degree felonies, and
each charge rested on the State’s assertion that AM-2201 was an
analog of the listed controlled substance JWH-018.

¶7 At the preliminary hearing, the State presented expert
testimony from Scott McDaniel, a forensic scientist employed by
the Utah Bureau of Forensic Services Laboratory System, also
known as the State Crime Lab. McDaniel testified that the crime lab
considers AM-2201 to be an analog of JWH-018 because the two
substances are chemically “virtually identical.” He explained that
AM-2201 and JWH-018 “have the exact same structure and
composition, other than one atom.” Using a diagram comparing
the two molecules, he explained that the only chemical difference
between AM-2201 and JWH-018 is that AM-2201 contains a fluorine
atom at the end of a pentyl chain instead of a hydrogen atom.

¶8 The State also presented testimony from Sergeant Stanton
VanWagoner, a veteran narcotics officer. VanWagoner testified
that, in his experience, AM-2201 users exhibited “the same
symptomology that they would under the influence of JWH-018.”
VanWagoner testified that AM-2201 had “similar lasting effects” on
users, “just like JWH-018 would have.” VanWagoner based his
testimony on his personal observations of and discussions with
people who had used AM-2201. Another witness testified about his
own experience with the psychoactive effects of AM-2201. That
witness, an associate of Arghittu’s, testified that AM-2201 was
“actually more potent” than JWH-018, that “it’s stronger, it takes
less, [and] lasts longer,” and that it “pretty much shut your
function.”

¶9 By the time of Arghittu’s preliminary hearing, Utah Code
section 58-37-4.2 had been amended to expressly list AM-2201 as a
controlled substance. See Utah Code Ann. § 58-37-4.2 (LexisNexis
2012). The magistrate expressed concern that the amendment might
have some bearing on whether AM-2201 could be considered an

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 State v. Arghittu

analog under the 2011 version of the statute and invited the parties
to brief the issue.

¶10 After receiving the parties’ briefs, the magistrate entered a
written order concluding that the State had failed to demonstrate
probable cause that, during the February to November 2011 time
period charged in the information, AM-2201 was a banned
controlled substance analog. The magistrate listed five reasons in
support of this finding:

a. That JWH-018 was legal in the state of Utah until
the legislature passed a bill outlawing that substance
on February 26, 2011. AM-2201 was not made
unlawful as an analog by the Utah Legislature until
2012.

b. Thus there was insufficient notice to [Arghittu]
that AM-2201 was an unlawful substance between
February 26, 2011 and November 7, 2011, the time
period charged in the information.

c. The Court also finds relevant the testimony by
[Arghittu] his intent in ensuring that he was
complying with Utah law by having AM-2201 tested
in a DEA sanctioned laboratory.

d. The Court rejects the supposition that it is the
crime lab’s responsibility to identify AM-2201 as an
unlawful substance. The Court finds that the
responsibility rests with the Legislature.

e. While the Court finds Mr. VanWagoner to be a
knowledgeable and experienced police officer, the
Court does not find that his testimony rises to the
level of an expert regarding whether AM-2201 is an
analog of JWH-018.

20130677-CA 5 2015 UT App 22
 State v. Arghittu

The magistrate found probable cause to bind Arghittu over on one
count of constructive possession of the listed controlled substance
MDPV, a third degree felony, and ordered the State to amend its
information accordingly.

¶11 The State declined to amend the information and instead
requested that the magistrate dismiss it entirely. The magistrate
did. The State appeals from that dismissal order.

ISSUES AND STANDARDS OF REVIEW

¶12 Arghittu filed a motion for summary dismissal of the State’s
appeal, arguing that we lack jurisdiction to entertain the appeal
because the State itself sought dismissal of the information rather
than amending to proceed on the constructive possession charge.
Arghittu argues that the State has no right to appeal a dismissal it
requested and should have pursued an interlocutory appeal of the
magistrate’s bindover order. “Whether appellate jurisdiction exists
is a question of law” which we decide in the first instance. State v.
Comer, 2002 UT App 219, ¶ 10, 51 P.3d 55 (citation and internal
quotation marks omitted).

¶13 The State argues that the magistrate erred in refusing to bind
over Arghittu as charged because the evidence before the
magistrate demonstrated probable cause that AM-2201 is an analog
of JWH-018. The magistrate’s bindover decision “is a mixed
determination that is entitled to some limited deference.” State v.
Maughan, 2013 UT 37, ¶ 12, 305 P.3d 1058. However, the State is
entitled to have a defendant bound over for trial if it presents
“evidence sufficient to support a reasonable belief that the
defendant committed the charged crime.” Id. ¶ 14 (citations and
internal quotation marks omitted). In making the bindover
determination, the magistrate “must view all evidence in the light
most favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” Id. (citation and internal
quotation marks omitted).

20130677-CA 6 2015 UT App 22
 State v. Arghittu

¶14 The State also argues that the magistrate exceeded the
proper scope of the preliminary hearing when it concluded,
apparently on constitutional grounds, that Arghittu lacked notice
that AM-2201 was illegal as a controlled substance analog and that
the responsibility to identify it as such rests with the legislature
rather than the crime lab. These issues present questions of law,
which we review for correctness. See State v. Briggs, 2008 UT 83,
¶ 11, 199 P.3d 935 (“A challenge to the constitutionality of a statute
presents a question of law, which we review for correctness.”); State
v. Virgin, 2006 UT 29, ¶ 16, 137 P.3d 787 (characterizing “the
appropriate legal standard for a preliminary hearing” as a
“question[] of law, which we review for correctness”).

ANALYSIS

I. Appellate Jurisdiction

¶15 After the State filed its notice of appeal, Arghittu filed a
motion for summary disposition in this court, arguing that we lack
appellate jurisdiction to consider the State’s appeal. In the motion,
Arghittu argues that the magistrate bound him over for
trial—albeit on a single, lesser, uncharged offense—and that the
State’s motion to dismiss the information represented a
discretionary request pursuant to rule 25 of the Utah Rules of
Criminal Procedure. See Utah R. Crim. P. 25(a) (“In its discretion,
for substantial cause and in furtherance of justice, the court may,
either on its own initiative or upon application of either party,
order an information or indictment dismissed.”). Under those
circumstances, Arghittu contends, the State has no appeal of right
from the dismissal order but rather was required to seek an
interlocutory appeal of the magistrate’s bindover order. See Utah
R. App. P. 5.

¶16 We disagree with Arghittu’s characterization of the
dismissal motion and order. Although the State’s motion did not
cite any particular rule as the basis for dismissing the information,

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 State v. Arghittu

it was filed in response to the magistrate’s bindover ruling “[i]n
lieu of amending the Information.” The dismissal order
acknowledged the absence of probable cause for the charged
crimes and the State’s refusal to amend the information.3 It then
stated, “[T]he Court hereby dismisses the Information . . . pursuant
to rule 7(i)(3), Utah Rules of Criminal Procedure.” (Emphasis
added.)

¶17 Rule 7(i)(3) provides, “If the magistrate does not find
probable cause to believe that the crime charged has been
committed or that the defendant committed it, the magistrate shall
dismiss the information and discharge the defendant.” By statute,
the State “may, as a matter of right, appeal from . . . a final
judgment of dismissal, including a dismissal of a felony
information following a refusal to bind the defendant over for
trial.” Utah Code Ann. § 77-18a-1(a) (LexisNexis 2012). The
magistrate’s dismissal of the information pursuant to rule 7(i)(3)
constitutes “a dismissal of a felony information following a refusal
to bind the defendant over for trial.” See id. Thus, section
77-18a-1(a) provides the State the ability to appeal, and we have
jurisdiction to consider the State’s direct appeal from the dismissal
order.4

3. Arghittu argues that the magistrate entered an order binding
him over on the lesser, uncharged offense. The magistrate’s minute
entry, however, provided that the State “is to file an amended
information,” “which the Court will bindover for arraignment.”
The bindover was therefore conditioned upon the State amending
the information.

4. This conclusion is consistent with prior cases involving voluntary
dismissals by the State. See State v. Harrison, 2011 UT 74, ¶ 13, 269
P.3d 133 (observing that the State has “an unquestioned right to
appeal from the dismissal of the greater offense” where dismissal
occurs after the State refuses to amend the information to a reduced
charge); State v. Gomez, 722 P.2d 747, 748–49 (Utah 1986) (“The
(continued...)

20130677-CA 8 2015 UT App 22
 State v. Arghittu

II. Probable Cause

¶18 The State argues that the magistrate erred in refusing to bind
Arghittu over on the three counts charged in the information. Each
of the three charged counts required the State to prove that
AM-2201 was a controlled substance analog during the charged
time frame.5 The magistrate’s bindover order concluded that the
State had not furnished evidence to establish probable cause that
AM-2201 constituted a controlled substance analog under the 2011
version of Utah Code section 58-37-4.2.

¶19 “To support the bindover of a defendant for trial, the
prosecution must put forward enough evidence at the preliminary
hearing to establish probable cause.” State v. Graham, 2013 UT App
109, ¶ 8, 302 P.3d 824; see also Utah R. Crim. P. 7(i)(2) (requiring
bindover when the magistrate “finds probable cause to believe that
the crime charged has been committed and that the defendant has
committed it”). “[A] showing of ‘probable cause’ entails only the
presentation of ‘evidence sufficient to support a reasonable belief
that the defendant committed the charged crime.’” State v. Ramirez,
2012 UT 59, ¶ 9, 289 P.3d 444 (quoting State v. Virgin, 2006 UT 29,
¶ 17, 137 P.3d 787). In the bindover context, the “reasonable belief”
standard “parallels the standard for an arrest warrant, meaning
that the level of evidence that the prosecution must show is less
than that required to prove guilt beyond a reasonable doubt.”
Graham, 2013 UT App 109, ¶ 8. “All that is required is reasonably
believable evidence—as opposed to speculation—sufficient to

4. (...continued)
effect of the trial court’s ruling was to block prosecution and, in
effect, to dismiss the original charges. Under these circumstances,
the State properly suggested that the trial court formally dismiss
the information and then appealed ‘[f]rom a final judgment of
dismissal.’” (alteration in original)).

5. The other elements of the charged crimes are not in dispute for
purposes of this appeal.

20130677-CA 9 2015 UT App 22
 State v. Arghittu

sustain each element of the crime(s) in question.” Id. (citation and
internal quotation marks omitted).

¶20 The applicable version of Utah Code section 58-37-4.2
specifically enumerated various chemical compounds, including
JWH-018, and stated that “[those] substances, their analogs,
homologs, and synthetic equivalents are listed controlled
substances.” Utah Code Ann. § 58-37-4.2 (LexisNexis Supp. 2011).
Utah Code section 58-37-2 defined a “[c]ontrolled substance
analog” as “a substance the chemical structure of which is
substantially similar to the chemical structure of a controlled
substance,” and which either “has” or, “with respect to a particular
individual, is represented or intended to have,” “a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to the stimulant, depressant, or hallucinogenic
effect on the central nervous system of controlled substances.” Id.
§ 58-37-2(1)(g)(i). Thus, to have Arghittu bound over as charged,
the State was required to provide reasonably believable evidence
that AM-2201’s chemical structure was “substantially similar” to
JWH-018’s chemical structure and that AM-2201 either had a
substantially similar effect as JWH-018 or was “represented or
intended” to have such an effect.

¶21 To demonstrate that AM-2201 and JWH-018 have
substantially similar chemical structures, the State presented expert
testimony from McDaniel, a forensic scientist with the State Crime
Lab. McDaniel testified that the chemical structure of AM-2201 and
the chemical structure of JWH-018 are “virtually identical,”
explaining that AM-2201 and JWH-018 “have the exact same
structure and composition, other than one atom.” He also
presented a comparative diagram of the two molecules
demonstrating that the two compounds share an identical shape
and structure and differ only in that AM-2201 replaces a hydrogen
atom at the end of a pentyl chain with a fluorine atom.

¶22 This evidence supports a reasonable belief that AM-2201
satisfies section 58-37-4’s requirement that a controlled substance

20130677-CA 10 2015 UT App 22
 State v. Arghittu

analog share a “substantially similar” chemical structure with a
listed controlled substance. See Utah Code Ann. § 58-37-2(1)(g)(i).
To the extent that the State’s evidence left any question that
AM-2201 shares a substantially similar chemical structure with
JWH-018, the “magistrate must view all evidence in the light most
favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” State v. Clark, 2001 UT 9,
¶ 10, 20 P.3d 300 (citation and internal quotation marks omitted).
Viewed in a light most favorable to the State, McDaniel’s testimony
provided “reasonably believable evidence” that the chemical
structure of AM-2201 is substantially similar to that of JWH-018. See
Graham, 2013 UT App 109, ¶ 8 (citation and internal quotation
marks omitted).

¶23 The State also demonstrated probable cause that AM-2201
has a substantially similar effect on the central nervous system as
JWH-018. VanWagoner, a veteran narcotics officer, testified that
AM-2201 produced “the same symptomology that [users] would
[exhibit] under the influence of JWH-018” and that AM-2201 had
“similar lasting effects” on users, “just like JWH-018 would have.”
VanWagoner based his testimony on his personal interactions with
people who had used AM-2201.

¶24 An associate of Arghittu’s also described his own
experiences with both JWH-018 and AM-2201, testifying that
AM-2201 has similar effects but is “stronger, it takes less, lasts
longer.”6 He described AM-2201’s effect on him: “[I]t pretty much
shut your function. . . . [Y]ou couldn’t just lift up your hand and
move this. You just kind of stare at it and say I’d like to move that
but I really can’t right now.” This testimony, viewed in the light

6. Arghittu suggests that this testimony does not support the
proposition that the effects of AM-2201 and JWH-018 are substan-
tially similar, because the same witness testified that their effects
are “different.” However, reviewing the testimony as a whole, it is
clear that the stated difference between the effects of the two
substances was one of potency, not of psychoactive effect.

20130677-CA 11 2015 UT App 22
 State v. Arghittu

most favorable to the State, establishes probable cause that
AM-2201 produces a substantially similar “stimulant, depressant,
or hallucinogenic effect on the central nervous system” as the listed
controlled substance JWH-018.7

¶25 Despite the State’s evidence demonstrating probable cause
of the substantial similarity in chemical structure and effect of
AM-2201 and the controlled substance JWH-018, the magistrate
concluded that AM-2201 was not a controlled substance analog in
2011 and refused to bind Arghittu over as charged. The magistrate
identified five reasons in support of the conclusion that AM-2201
was not a controlled substance analog during the charged time
frame.

¶26 The magistrate first reasoned that “JWH-018 was legal in the
state of Utah until the legislature passed a bill outlawing that
substance on February 26, 2011” and that “AM-2201 was not made
unlawful as an analog by the Utah Legislature until 2012.”
Although the magistrate is correct that AM-2201 was not expressly
enumerated as a controlled substance until 2012, see Utah Code
Ann. § 58-37-4.2 (LexisNexis 2012), the State’s evidence
demonstrated probable cause that AM-2201 met the 2011 definition
of a banned “controlled substance analog” as discussed above, see
id. § 58-37-2(1)(g)(i) (Supp. 2011).

¶27 The magistrate next reasoned that because AM-2201 was not
expressly banned until 2012, “there was insufficient notice to
[Arghittu] that AM-2201 was an unlawful substance between
February 26, 2011 and November 7, 2011, the time period charged
in the information.” This reasoning again focuses on the specific

7. The State also presented evidence demonstrating probable cause
that Arghittu “represented or intended” AM-2201 to have the same
effect as one or more controlled substances. See Utah Code Ann.
§ 58-37-2(1)(g)(i)(B) (LexisNexis Supp. 2011). This evidence
included Arghittu’s discussions of the “potency” of his AM-2201
products when ingested.

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 State v. Arghittu

controlled substances enumerated in section 58-37-4.2 rather than
on the definition of a controlled substance analog found in section
58-37-2. Arghittu may have believed that AM-2201 was not illegal
because it was not specifically listed in section 58-37-4.2. However,
in light of AM-2201’s potential to qualify as a controlled substance
analog under section 58-37-2, such a belief would have constituted
a mistake of law, which in most circumstances is no bar to criminal
liability. See State v. Steele, 2010 UT App 185, ¶ 30, 236 P.3d 161
(“‘[A] good faith or mistaken belief that one’s conduct is legal does
not relieve a person of criminal liability for engaging in proscribed
conduct.’” (quoting 21 Am. Jur. 2d Criminal Law § 137 (2008))).

¶28 The magistrate’s finding regarding notice could also be
interpreted as a ruling that Utah’s statutes governing
unenumerated controlled substance analogs were
unconstitutionally vague. See, e.g., State v. Johnson, 2009 UT App
382, ¶ 40, 224 P.3d 720 (“A law is unconstitutional and void for
vagueness if its prohibitions are not clearly defined . . . .”).
However, article 1, section 12 of the Utah Constitution provides
that “the function of a [preliminary hearing] is limited to
determining whether probable cause exists unless otherwise
provided by statute.” Utah Const. art. 1, § 12.8

¶29 Arghittu does not directly respond to the State’s article 1,
section 12 argument. Instead, he relies heavily on State v. Gallion,
572 P.2d 683 (Utah 1977), wherein the Utah Supreme Court upheld
a district court order quashing an information because the drug law
on which it was based unconstitutionally delegated legislative
authority to the Utah Attorney General. See id. at 685–90. However,
Gallion did not address a magistrate’s refusal to bind a defendant
over for trial after a preliminary hearing; rather, it upheld a district
court order granting the defendant’s motion to quash. Id. at 685.
Thus, Gallion provides no support for the proposition that

8. The State asserts that no Utah statute authorizes a magistrate to
consider constitutional issues at a preliminary hearing. Arghittu
does not refute that contention.

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 State v. Arghittu

magistrates may consider constitutional arguments at the bindover
stage.9

¶30 By its plain language, article 1, section 12 of the Utah
Constitution limits preliminary hearings to determinations of
probable cause. See also Utah R. Crim. P. 7(i) (governing
preliminary hearings); cf. State v. Holm, 2006 UT 31, ¶¶ 92–93, 137
P.3d 726 (explaining that criminal jurisdiction should be
determined by the trial court “after the bindover order is issued
and the information is transferred to the trial court”). Arghittu has
not provided this court with any case or other authority suggesting
a magistrate may consider arguments challenging the
constitutionality of a criminal statute at a preliminary hearing. In
the absence of such authority, we conclude that the appropriate
place to raise such a challenge is in the district court, after bindover
has occurred. See Gallion, 572 P.2d at 685 (upholding a district court
order granting the defendant’s motion to quash information based
on a constitutional challenge to a criminal statute). Accordingly, to
the extent that the magistrate’s bindover order was intended to
operate as a ruling that the applicable controlled substances
statutes are void for vagueness, we conclude that the ruling
exceeded the scope of Arghittu’s preliminary hearing and was an
inappropriate basis for denying bindover.

¶31 The magistrate also found that Arghittu demonstrated his
intent to comply with Utah law “by having AM-2201 tested in a
DEA sanctioned laboratory.” This may be a reasonable inference,
but it is an inference in Arghittu’s favor. At the preliminary hearing
stage, the magistrate must “draw all reasonable inferences in favor
of the prosecution.” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300

9. Even if Gallion had addressed a magistrate’s bindover order, the
case was decided seventeen years before Utah voters approved the
constitutional amendment limiting the function of a preliminary
hearing to a determination of probable cause. See Utah Code Ann.,
Utah Const. art. 1, § 12 amendment notes (LexisNexis Supp. 2014)
(amendment effective Jan. 1, 1995).

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 State v. Arghittu

(citation and internal quotation marks omitted). A competing
reasonable inference is that Arghittu’s product testing reflected his
desire to provide an unadulterated and potent intoxicant to his
customer base. Thus viewed in the light most favorable to the State,
Arghittu’s actions in testing for AM-2201 support a finding of
probable cause and should not have precluded bindover.

¶32 The magistrate also “reject[ed] the supposition that it is the
crime lab’s responsibility to identify AM-2201 as an unlawful
substance” and stated that the responsibility to identify controlled
substances “rests with the Legislature.” We agree with the
magistrate that the Utah Legislature may not delegate to the
executive branch unfettered authority to declare chemical
compounds to be controlled substances. See Gallion, 572 P.2d at
687–90; cf. State v. Green, 793 P.2d 912, 913–17 (Utah Ct. App. 1990)
(holding that state statute could not delegate authority to
determine controlled substances to the United States Attorney
General). However, as discussed above, article I, section 12 of the
Utah Constitution precludes evaluation of a statutory scheme’s
constitutionality at the preliminary hearing stage. The magistrate
therefore erred in denying bindover on delegation grounds.

¶33 Finally, despite an acknowledgment that VanWagoner was
“a knowledgeable and experienced police officer,” the magistrate
did not consider VanWagoner to be a qualified expert on “whether
AM-2201 is an analog of JWH-018.” However, even assuming that
the magistrate properly discounted VanWagoner’s testimony, the
remainder of the State’s evidence sufficiently established probable
cause that AM-2201 was a controlled substance analog.

¶34 The State presented testimony from a crime lab forensic
scientist, McDaniel, that AM-2201 and JWH-018 shared a
substantially similar structure. As to the psychoactive effects of
AM-2201, Arghittu’s associate described his own use of AM-2201
and declared it “stronger” than JWH-018. Alternatively, testimony
about Arghittu’s statements and business practices supported at
least a reasonable inference that Arghittu represented or intended
that AM-2201 had effects substantially similar to those of one or

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 State v. Arghittu

more controlled substances. Thus, even in the absence of
VanWagoner’s testimony, the State presented “evidence sufficient
to support a reasonable belief” that AM-2201 was a controlled
substance analog and that Arghittu committed the charged
offenses. See State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058
(citation and internal quotation marks omitted).

¶35 We conclude that the State demonstrated probable cause
that AM-2201 was a controlled substance analog pursuant to Utah
Code section 58-37-2(1)(g)(i) when Arghittu possessed and
distributed it in 2011. We reverse the magistrate’s orders denying
bindover and dismissing the information. We remand this matter
for further proceedings.

CONCLUSION

¶36 We conclude that we have appellate jurisdiction over the
State’s appeal, that the State demonstrated probable cause to
believe that Arghittu committed the crimes charged in the
information, and that any constitutional rulings contained in the
magistrate’s bindover order exceeded the scope of a preliminary
hearing under article 1, section 12 of the Utah Constitution.10 For
those reasons, we reverse the magistrate’s bindover and dismissal
orders and remand this matter for further proceedings against
Arghittu as charged in the information.

10. Our conclusion that constitutional arguments fall outside the
scope of a preliminary hearing does not foreclose Arghittu from
pursuing those same arguments before the district court on
remand. We express no opinion on the merits of any of the
constitutional arguments that may be suggested in the magistrate’s
ruling or this opinion.

20130677-CA 16 2015 UT App 22