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Qasoon v. State

Court of Appeals of Mississippi

December 12, 2017

MAGED MUTHANNA SALEH QASOON A/K/A MIKE A/K/A MAJED KASSOM A/K/A MAGED QASOON A/K/A MAGEED QUASOON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/31/2016

         LAUDERDALE COUNTY CIRCUIT COURT, HON. JUSTIN MILLER COBB TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: P. SHAWN HARRIS.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE.

          DISTRICT ATTORNEY: BILBO MITCHELL.

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. Maged Qasoon was captured on video selling eight grams of synthetic marijuana or "spice" to a confidential informant. Qasoon's defense at trial was essentially that he did not know the substance he was selling was illegal. On appeal, he focuses on the specific language of his indictment, which described his offense as "sale of AB-FUBINACA, " and on the testimony at trial establishing only that the substance Qasoon sold was AB-FUBINACA "or a related isomer." Because these contentions are made for the first time on appeal, the record is largely undeveloped, but to the extent that the issues are preserved, we find them to be without merit.

         DISCUSSION

         1. Unconstitutionally Vague Statute

         ¶2. In his first issue, Qasoon alleges that Mississippi's schedule of controlled substances is unconstitutionally vague. This issue is raised for the first time on appeal, and would ordinarily be barred for that reason. But in Fulgham v. State, 47 So.3d 698, 700 (¶6) (Miss. 2010), a four-justice plurality held that vagueness claims are exempt from procedural bars, and the other two opinions in the case, comprising the remainder of the court, assumed the same result. Therefore, this issue may be raised for the first time on appeal.

         ¶3. However, Qasoon fails to adequately raise the issue. He does not support this argument with any relevant authority concerning the void-for-vagueness doctrine, nor does he frame his argument according to the vagueness test followed by Mississippi courts. See, e.g., Nolan v. State, 182 So.3d 484, 492 (¶¶28-31) (Miss. Ct. App. 2016). The failure to cite and employ relevant authority waives this issue on appeal, irrespective of whether the claim would ordinarily be excepted from procedural bars. See, e.g., Duncan v. State, 939 So.2d 772, 779 n.3 (Miss. 2006) ("Where an assertion of error is not supported by authority, that assertion is deemed abandoned.").

         ¶4. Notwithstanding that the issue has been waived, Qasoon's contentions are without merit. The challenged statute does not affect a constitutional right, and therefore our analysis would begin by "applying the statute to the complainant's conduct before considering any hypothetical scenarios." Nolan, 182 So.3d at 492 (¶31). Qasoon's challenge is purely hypothetical: he alleges that since our statute controls isomers[1] of specifically listed substances, and since isomers do not necessarily have the same or similar chemical properties to the listed compounds, it is theoretically possible for inert or benign substances to be controlled. Qasoon contends that the statute is unconstitutionally vague because a reasonable person might not intuitively expect such compounds to be controlled, nor would he have the means to verify compliance with the statute.

         ¶5. Setting aside the question of whether that would actually make the statute unconstitutionally vague, there is no reason to think anything like Qasoon's hypothetical actually happened here. It is true that the lab technician who analyzed the substance could only say that it was "AB-FUBINACA or a related isomer, " but nothing suggested that the substance was innocuous. It was referred to as "spice" and offered as a substitute for marijuana. The active ingredient had been laced on plant material, mimicking the appearance of marijuana. It was sold for a large amount of money ($200 for eight grams), and the exchange was made in a parking lot approximately two miles from the convenience store owned by Qasoon's father, where Qasoon worked and, according to his defense, sold legal marijuana substitutes. In the recording of the sale, Qasoon boasted of ...


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