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.Themagistrate 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. The State appeals from the order 1

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 conclusions 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 controlledsubstance. 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.

20130677-CA 3 2015 UT App 22
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

betweenAM-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 testifiedthat 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 expressedconcernthat the amendment might

have some bearing on whether AM-2201 could be considered an

20130677-CA 4 2015 UT App 22
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 TheState 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 ananalog

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. It then 3

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 orthat 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 conclusionis 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. The magistrate’s bindover order concluded that the 5

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 Statepresentedexpert

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 ofJWH-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.” He described AM-2201’s effect on him: “[I]t pretty much

6

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 substantially 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 legalin 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 Themagistratenext reasoned that because AM-2201 wasnot

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 orintended” AM-2201 tohave 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.

20130677-CA 12 2015 UT App 22
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

adistrict court order quashing an information because the drug law

on which it was based unconstitutionally delegated legislative

authority to the Utah Attorney General. Seeid. 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).

20130677-CA 14 2015 UT App 22
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. Thusviewed 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. For 10

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 inthe magistrate’s

ruling or this opinion.

20130677-CA 16 2015 UT App 22