NORMAN — In March, police raided Dennis and Christie England's shop on the fringes of historic downtown Norman and effectively shut the business down, accusing the pair of selling dangerous synthetic marijuana to the public.
The couple was arrested and charged with possession of a controlled dangerous substance within 2,000 feet of a park. Before they opened Ancient Aromatherapy in January, the Englands had operated Sugar, a bakery that specialized in high-end wedding cakes, for several years out of the same location.
Norman police had watched the couple's business for weeks before they raided it, even warning the Englands to stop selling the synthetic marijuana, which was being sold under such names as “Cloud 9,” “Mad Hatter” and “Kush.”
During an interview with The Oklahoman in April, Norman police Detective Jeff Puckett seemed confident the Englands would pay the price for selling a product that he said is known to cause serious problems to users when abused.
Puckett seemed confident even though XLR-11 — the chemical compound present in the hundreds of grams of synthetic marijuana seized at the Englands' shop in March — wasn't even on Oklahoma's ban substance list.
“The way our statutes are written, we have a couple of different ways to go after them,” Puckett said. “We have a synthetic drug statute and we have a statute for controlled (substances). So, every time we have a new substance, it will end up on our controlled list.”
Yet after a June 24 preliminary hearing before a judge in Cleveland County District Court, the case against the couple — who has since lost everything — was dismissed.
A March 1 report submitted by the Oklahoma State Bureau of Investigation, which tested roughly seven grams of products described as “Zero Gravity Potpourri Juicy Fruit” and “Zero Gravity Potpourri Watermelon,” seemed to hint at trouble for the prosecution.
“Instrumental analysis indicates the presence of an isomer of XLR-11,” Kevin Kramer, criminalistics administrator for OSBI, wrote in the report. “However, this could not be confirmed.”
The Englands' lawyer said this storyline isn't an uncommon one in Oklahoma.
“They're nearly impossible to prosecute,” the couple's attorney Jack Dempsey Pointer said about synthetic marijuana cases.
“It's a matter of them actually confirming it's a banned substance that is giving investigators a hard time.”
The case against the Englands is a prime example of this apparently growing problem.
No illegal compound
Kim Chi Nguyen and her son were arrested in October, charged with intent to distribute synthetic marijuana and other drug complaints.
The mother and son ran a convenience store in Lexington called Kim's Place. After a raid, police recovered an undisclosed amount of synthetic marijuana, roughly $3,000 in cash and a ledger.
The affidavit filed in the case against the Nguyens contained some chilling details, bits of information included to no doubt sway a judge during a preliminary hearing, when it is decided whether to send a case to trial.
“I asked (Kim Nguyen) if she sold any synthetic marijuana after I had spoken with her (the day before the Oct. 16 raid), where I advised her that it was illegal to sell and she said that she did,” a Lexington police officer wrote in an affidavit.
“I then advised her that that person was in a hospital in Oklahoma City on a ventilator to help him breathe.”
Yet when an analysis of the seized incense products was returned, it did not detect an illegal compound.
The case against the Nguyens was dismissed in February, court records show, “due to negative results on lab report.”
A year ago, a shop owner in Bethany was arrested after police raided his business and confiscated thousands of dollars in packaged synthetic pot.
Reports at the time indicated that police began watching the store run by Shaik Kalymuzzman after two teenagers overdosed on products bought at his shop.
Kalymuzzman, who was arrested but was never charged with any crime related to the raid at his shop, told investigators he made roughly $300,000 selling the synthetic drugs in eight months.
Waiting for the lab
In other parts of the state, some prosecutors are waiting until OSBI lab technicians catch up with the manufacturers of synthetic marijuana before attempting to move forward with their cases.
Brian Kuester, district attorney for Adair, Cherokee, Sequoyah and Wagoner counties, said authorities have raided at least five convenience stores in his area in the past year or so in an attempt to address the synthetic marijuana problem in eastern Oklahoma.
Kuester said all the raids have had a positive effect, claiming that synthetic marijuana “isn't as big a problem as it was a year ago.”
But Kuester said he's exercising caution as he moves forward on those suspected of trafficking in fake pot.
“We have yet to file charges related to the sale of these substances,” Kuester said. “However, as investigations are completed and issues of proof resolved, I believe that charges will be filed in the relatively near future.”
Kuester said state prosecutors rely on OSBI chemists and lab technicians to provide expert testimony in court. Without it, it can hard to convince a judge to move forward with any given case.
“For decades ... with things like meth, cocaine or other so-called street drugs, we send the substances off to the OSBI and they confirm it,” the prosecutor said. “But they haven't been able to do that on these synthetic ... poisons.
“We've got to wait for (OSBI) to catch up to the people who are making these substances. They are constantly changing the chemical makeup of the substances, so it is the newness that we are still dealing with.”
What's being done
While Kuester is playing a wise game of wait-and-see, Cleveland County District Attorney Greg Mashburn said his office is working with OSBI and the University of Oklahoma to figure out a way to avoid future dismissals.
“We're talking with an organic chemist from OU, trying to figure out a way that we can possibly use them in court to make sure these cases get past preliminary hearing,” Mashburn said.
“The OSBI, from what I've been told, is working on things from their end.”
Mistie Burris, who supervises OSBI's forensic chemistry lab in Edmond, said the state law enforcement agency is indeed “working on things from their end,” but acknowledged during an interview Friday that many challenges lie ahead.
Other than the two cases in Cleveland County, which resulted in dismissals because OSBI could not confirm the presence of XLR-11, Burris said evidence from other jurisdictions has met a similar fate.
“I know there have been other cases, but I can't recall them off the top of my head,” Burris said.
Burris said OSBI chemists were nearly positive that many of the substances they were testing did contain XLR-11 — including the samples from Cleveland County — but a recent change in lab policy required they obtain a sample of the substance from a “reputable manufacturer” before they can confirm it in court.
“Our policy requires that we obtain a standard ... and we didn't have that for a long time when we were testing these substances,” she said, adding that OSBI has since gotten its hands on such a sample.
“So, it was kind of a policy issue, to make sure the quality of our laboratory remained high. We definitely didn't want to call anything wrong.”
In addition to being able to positively identify chemical compounds like XLR-11, Burris said prosecutors are now asking OSBI chemists to provide information about the effects of synthetic marijuana on the human body.
“These drugs are so new, and the manufacturers are always changing the drugs themselves, that we just don't have information on what they do to the body,” she said. “It's something new they're expecting out of us and we need published stuff in medical journals, we need more information.
“People are studying this now, but again, the drugs keep changing because they (manufacturers) keep up with legislation to see what's going to be added to the banned list.”
Burris said this trend is evident in the samples of synthetic marijuana her lab has been receiving lately.
“For a while, they were all XLR-11,” she said. “Now, they're putting something else in.”
While it has only been widely available in the U.S. since 2010, synthetic marijuana already has been linked to numerous overdoses and deaths nationwide.
In November, a 15-year-old boy in Mustang was hospitalized after telling his mother he'd smoked synthetic marijuana. The boy was on and off dialysis for several days.
At the time, the Mustang High School student was one of two patients at the Oklahoma City hospital being treated for kidney failure after admitting to smoking synthetic pot.
According to the Centers for Disease Control and Prevention, the two Oklahoma patients had smoked a product by the name of “Flame 2.0.”
CDC documents show the two patients in the Oklahoma City area complained of vomiting, nausea and abdominal pain.
Last April, school officials in Tahlequah announced that two students were taken to a hospital after smoking synthetic marijuana.
About the time of the Mustang teen's hospitalization, Dr. David Myers, an OU Children's Physicians pediatric nephrologist, said not much is known about which chemicals in synthetic pot are causing people to experience adverse reactions such as kidney failure.
What is synthetic marijuana?
Sold under many names, it is dried herbs sprayed with lab-synthesized chemicals that are supposed to mimic the effects of THC, the active ingredient in cannabis.