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SD man appeals synthetic marijuana conviction

SIOUX FALLS (AP) — A lawyer for the first South Dakota resident charged with selling synthetic marijuana told the state Supreme Court the man did not know the products were illegal.

Synthetic marijuana was sold at a bar managed by Jason Toben in the eastern South Dakota town of Goodwin before and after the passage of an emergency state ban on many of the chemicals used to make the product.

After an investigation, Toben was convicted on drug charges and sentenced to nine years in prison. Toben appealed, asking the Supreme Court to overturn his conviction because the trial jury was improperly told Toben didn't have to know the products were illegal in order to be convicted. The jurors were told that ignorance of the law was no excuse.

Toben's lawyer, Steve Miller, told the Supreme Court on Tuesday that the jury instruction ran counter to a standard set by the high court for drug cases, The Argus Leader reported. Miller said Toben sold the products openly, thinking they were free of any banned substances.

"These jury instructions ignore what you say is the law," Toben told the justices.

But Assistant Attorney General Bethanna Feist asked the Supreme Court to uphold Toben's convictions.

Toben and the bar's owner had switched their product supplier once the ban took effect, meaning they knew there was an element of criminality to their sales, she said. When taken as a whole, the general intent instructions to the jury were proper, Fiest said.

"They were feigning compliance with the law," Feist told the high court.

The Supreme Court will decide the case later in a written opinion.

Justice John Konenkamp asked Tuesday how Toben's actions were any different than those of a grocer who sold a bag of cocaine mislabeled as flour.

"The crime is that he knowingly sold" those two substances, Konenkamp said. "There's no evidence he knew that, is there?"

Fiest said Toben clearly knew he was selling a product being scrutinized by law enforcement officials. Detectives had approached him before the ban, and officials learned that he had smoked the product and allowed his customers to do so in the bar, she said.