State v. Freeman - 450 N.W.2d 826 (Iowa 1990)

Rule:

The gist of delivery of a simulated controlled substance is knowing representation of a substance to be a controlled substance and delivery of a non-controlled substance, rather than knowing misrepresentation and delivery.

Facts:

Defendant Robert Eric Freeman agreed to sell a controlled substance, cocaine, to Keith Hatcher. Unfortunately, said Keith Hatcher was cooperating with the government. Defendant was given $ 200 by Hatcher, thereafter, he gave the latter approximately two grams of what was supposed to be cocaine but turned out to be acetaminophen. Acetaminophen was not a controlled substance. Defendant was convicted at a bench trial of delivering a simulated controlled substance with respect to a substance represented to be cocaine, in violation of Iowa Code section 204.401(2)(a) (1987). Defendant challenged the judgment and argued that he could not have been convicted of delivering a simulated controlled substance when, in fact, he believed he was delivering and intended to deliver cocaine.

Issue:

Was the defendant’s conviction of delivering a simulated controlled substance, pursuant to Iowa Code § 204.401(2)(a) (1987) proper?

Answer:

Yes.

Conclusion:

On appeal, the court upheld the trial court's judgment convicting defendant of delivery of a simulated controlled substance. The court held that defendant's construction of § 204.401(2) would have converted the offense of delivery of a simulated controlled substance into one requiring knowing misrepresentation of the nature of the substance delivered. Thus, the court concluded that a person who delivered a substance that was not a controlled substance, but who knowingly represented the substance as a controlled substance, committed the offense of delivery of a simulated controlled substance regardless of whether the person believed that the substance was controlled or not controlled.