LANSING, Judge (dissenting). Dennis Bluhm was charged with conspiracy to sell cocaine in violation of Minn. Stat. § 152.02, subd. 3(l)(d); § 152.09, subd. 1(1); § 152.15, subd. 1(2); § 152.096, subd. 1. A violation of Minn. Stat. § 152.15, subd. 1(2) carries a maximum sentence of 15 years and/or a $40,000 fine. The specific offense description on Bluhm’s complaint states: Dennis H. Bluhm did, on or about September 4-5, 1988, in Albert Lea, Minnesota, conspire with Lawrence R. Peterson in the sale of a one ounce quantity of powder containing cocaine, for the price of $1,300. Minn. Stat. § 152.15, subd. l(l)(ii) provides that offenders who sell or distribute a total of ten grams or more of a controlled substance are subject to a penalty of not more than 20 years and/or $60,000. Because there are 28 grams in an ounce, Bluhm’s described offense carried a greater penalty than the complaint’s referenced statute. I do not agree with the majority’s conclusion that the trial court abused its discretion by permitting the prosecution to amend the complaint. The assistant attorney general, who had not been the charging attorney, moved to amend after observing that the statutory reference did not conform to the description of the offense. Although changing the degree of an offense may well result in “a violation of substantive rights by charging a different offense,” I do not believe that occurred here. See Gerdes v. State, 319 N.W.2d 710, 712 (Minn.1982). In any event, the motion to amend was made before the impaneling of the jury. Rule 17.05 restrictions do not apply if a motion to amend is made before trial commences. State v. Smith, 313 N.W.2d 429, 430 (Minn.1981). If the primary purpose of Rule 17.05 is to preserve the defense’s due *261process right to timely notice, the court’s deferring its ruling until after the jury was impaneled does not change it from a pretrial to a preverdict motion. See State v. Alexander, 290 N.W.2d 745, 748 (Minn.1980). Whether the trial court committed reversible error by failing to instruct the jury that it must find that Bluhm sold ten grams or more of cocaine is more complex. A jury interrogatory on this question is proper. See CRIM. JIG 20.19. The failure to properly instruct was twice mentioned in Bluhm’s brief, but it was not raised as an issue in either brief and consequently the competing arguments are not well developed. It is unclear whether the trial court’s offer to allow the defense to dispute the amount at sentencing was intended to ameliorate any effects of the denial of a continuance or whether the court believed that it was solely a sentencing issue. If the omission of the jury instruction is subject to a harmless error analysis, it is significant to note that the evidence of amount is undisputed and there was no request for a jury instruction on the amount. The defense presented at trial did not relate to amount and centered on whether Bluhm was the individual who made the sale and whether the sale was cocaine or marijuana. The verdicts contained a specific statutory reference to Minn. Stat. § 152.15, subd. l(l)(ii). Under these circumstances I believe the trial court should be affirmed and the conviction should stand. See State v. Glidden, 455 N.W.2d 744 (Minn.1990) (court of appeals erred in raising issue on its own and erred in concluding that trial court’s failure to give an unrequested instruction was plain error). Finally, the majority’s modification remedy short circuits the procedure. If there is error, the appropriate resolution is to vacate the convictions and remand for a new trial.

+ 1 more citation in this opinion.

State v. Reese · 1989 2 citations

+ 2 more citations in this opinion.

State v. Moore · 1988 8 citations

+ 8 more citations in this opinion.

Waara v. Mesabi Regional Medical Center · 1987 1 citation

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State v. Jenkins · 1987 4 citations

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State v. Herbst · 1986 1 citation

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State v. Hart · 1986 1 citation

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State v. Aarsvold · 1985 2 citations

DECISION The order dismissing the charge of felony murder predicated on the sale of cocaine is appealable by the State. Sale of cocaine is not an appropriate felony upon which to predicate felony murder under Minn. Stat. § 609.19(2). Affirmed. PARKER and WOZNIAK, JJ., dissenting. PARKER, Judge (dissenting). In adopting an absolute rule that sale of a controlled substance cannot be an appropriate felony upon which to predicate a charge of felony murder, the majority opinion ignores the facts offered to be proved in this case, and misreads the language and intent of our felony murder statute. Accordingly, I respectfully dissent. While no transcript of the proceedings below has been prepared, at oral argument before this court the state declared that it had made an offer of proof to the trial court that this particular sale of cocaine was made with knowledge that the deceased intended to take the drug by injection. Respondent did not disagree with this statement. In a memorandum to the trial court on the issue of the propriety of dismissing the charge based on sale, the state declared "the record is in fact very clear that the defendant * * * was well aware that the victim intended to take the cocaine by injection since he was present during that process * * *." The facts agreed upon by both parties support this statement. The State, further, briefed the point on appeal to this court. Indeed, the trial court previously ruled "the [grand jury] testimony indicates * * * that defendant may have injected the deceased with a cocaine-water solution that proximately caused his death." If there is sufficient evidence to bring the charge of felony murder predicated on distribution of cocaine by injection within reasonable probability, then it would seem clear that there exists strong evidence that defendant sold the cocaine knowing it would be injected. Despite these facts, the majority insists that this case presents nothing more than "the sole act of selling cocaine" as a predicate felony for felony murder. As the majority notes, the legislature amended Minn. Stat. § 609.19(2) in 1981. "The * * * amendment revised the felony murder section to apply to all offenses committed after May 20, 1981, except criminal sexual conduct." In re Welfare of M.D.S., 345 N.W.2d 723, 729 (Minn.1984) (emphasis in original). The majority believes *524 the statute was "amended in reaction to several incidents of violent robberies of convenience stores, in which innocent customers and store employees were * * * killed." The old statute, of course, applied when the underlying felony was aggravated assault. Kochevar v. State, 281 N.W.2d 680 (Minn.1979) (felonious discharge of gun appropriate felony to predicate felony murder); State v. Rogers, 347 N.W.2d 551 (Minn.Ct.App.1984) (pointing a gun at another held to be felonious assault); State v. Brown, 348 N.W.2d 743 (Minn.1984) (shooting death of a clerk during an attempted convenience store robbery in 1980. Convicted of third-degree felony murder under prior statute.) It is logical to conclude that the amendment was passed simply to foreclose the argument that burglary is not a proper predicate felony or to end the distinction in felony murder cases between "property offenses" and offenses against the person. See State v. Nunn, 297 N.W.2d 752 (Minn. 1980). The majority quotes State v. Back, 341 N.W.2d 273 (Minn.1983), as stating that a "typical felony-murder * * * probably is an unintentional killing that occurs in the course of robbery or some other crime against the person." This is an inaccurate quotation.[1] The amendment should be viewed as extending the applicability of the statute beyond those felonies which were committed "upon or affecting the person whose death was caused," since that restricting language was deleted. The majority holds that even though the present felony murder statute unambiguously applies to all felony offenses, there still exists a requirement that, in order to be an appropriate predicate offense, a felony must "involve some special danger to human life." Nunn, 297 N.W.2d at 753. It is not at all certain that this requirement exists under the present statute.[2] The majority determines that no sale of cocaine could ever involve special danger to human life asserting, without any evidence whatsoever, that "use of cocaine, even when injected, does not generally cause death." As authority for its position, the majority cites a case which is inapposite,[3] a case the holding of which is directly contrary to Minnesota law[4] and Sheriff, Clark County v. Morris, 99 Nev. 109, 659 P.2d 852 (1983), a case where the actual holding is that felonious sale of chloral hydrate with presence of seller during the consumption by buyer of a lethal dose is a proper predicate for felony murder. The majorities' assertions and its proffered authority are less than persuasive. Minnesota law already considers some sales of cocaine to be felonies involving "special danger to human life." In State v. Vernon, 283 N.W.2d 516 (Minn.1979), the Minnesota Supreme Court upheld the classification of cocaine as a Schedule II controlled substance. In reaching its conclusion, the supreme court examined evidence relevant to the physiological effect of cocaine and found that cocaine "can be fatal when taken with narcotics, or injected into the blood, or ingested orally in large quantities." Vernon at 518 (emphasis added). *525 Further, "[t]he statutory testing of cocaine in Schedule II carries, by implication, legislative findings that it has a high potential for abuse * * *" id at 518. It is suggested that the statutory listing of cocaine in Schedule II also carries, by implication, legislative findings that the sale of cocaine presents a great "risk to public health" inasmuch as the Board of Pharmacy is required to consider that factor in classifying controlled substances under Minn. Stat. § 152.02, subd. 8 (1984). In addition, the penalties imposed for selling cocaine are severe, including imprisonment for not more than 15 years and/or a fine of not more than $40,000 for a first violation, and for a subsequent violation, imprisonment for not less than 1 year nor more than 30 years and/or a fine of not more than $50,000. Minn. Stat. § 152.15, subd. 1 (1984). The Supreme Court of Virginia recently held that unlawful distribution of cocaine with knowledge that the drug was to be injected constituted an appropriate predicate felony upon which to base a charge of felony murder. Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984). See also Sheriff of Clark County v. Morris, 99 Nev. 109, 659 P.2d 852 (1983) (felonious sale of drugs and presence during consumption of lethal dose appropriate predicate felony). If the majority wishes to hold that sale of cocaine cannot ever be an appropriate predicate felony, it should address State v. Randolph, 676 S.W.2d 943 (Tenn.1984) (sale of heroin with no participation or presence during injection constituted malice for first degree murder charge) and People v. Taylor, 11 Cal. App.3d 57, 89 Cal.Rptr. 697 (1970) (furnishing heroin with no participation or presence during injection appropriate predicate felony). In State v. Nunn, 297 N.W.2d 752, the supreme court stated that the phrase "upon or affecting the person whose death was caused" in the old statute had the purpose of "isolat[ing] for special treatment those felonies that involve some special danger to human life." Id. at 753. The court then noted: There are two basic approaches that could be taken in determining what felonies [involve some special danger to human life]. One would be to determine from the elements of each felony in the abstract whether it inherently involved some special danger to human life. The other approach would be to consider not just the elements of the felony in the abstract but the facts of the particular case and the circumstances under which the felony was committed to determine whether the felony-murder rule should be applied. W. LaFave & A. Scott, Handbook on Criminal Law, 547 (1972). The latter approach is preferable and is the one that we have implicitly followed in our cases. Id. at 754. The majority has fallen into the trap of "determin[ing] from the elements of each felony in the abstract whether it inherently involved some special danger to human life," instead of examining the facts of the particular case and the circumstances under which the felony was committed. The facts of this particular case and the circumstances under which this sale was committed compel the conclusion that this sale, where there was knowledge that the cocaine was to be taken by injection, involved special danger to human life. This sale of cocaine, therefore, should be held to be a proper predicate felony to prosecute a charge under Minn. Stat. § 609.19(2). Finally, the majority misreads the felony murder statute and holds that if a felony "terminates" before the death of the victim the offense cannot be a predicate felony. No Minnesota decision is cited for this proposition.[5] Our felony murder statute requires the actor only to cause the death *526 while committing the crime, not that the death has to occur while the actor is committing the offense.[6]See M.D.S., 345 N.W.2d 723 (victim died in hospital after actor feloniously aided in discharge of gun at victim's residence). Even the old felony murder statute demanded only that "the felony and the killing [be] parts of one continuous transaction." Kochevar v. State, 281 N.W.2d at 686. Nothing in the 1981 amendment changed this rule. Here, the predicate felony offered to be proved was sale of cocaine with the defendant allegedly knowing that the drug was to be taken in a potentially fatal manner, i.e. by injection. The injection took place in respondent's presence, presumably within a few minutes of the sale. The sale and the injection, therefore, are part of one continuous transaction, and if it can be shown that Schweiger died as a result of the cocaine injection, there would exist a strong causal connection between the felonious act and the death. Our statute requires no more. See also Heacock 228 Va. at 401, 323 S.E.2d at 92. The majority opinion precludes any "completed" felonious sale of any controlled substance under any circumstances from being a proper predicate felony upon which to base a charge of felony murder under § 609.19(2). The issue is more appropriately addressed on a case-by-case basis, examining the facts and circumstances underlying each particular sale. WOZNIAK, Judge (dissenting). I join in the dissent of Judge Parker. NOTES [1] Minn. Stat. § 632.11, subd. 1 (1978), provided in part: "In criminal cases the state may appeal in the following instances:

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Soutor v. State · 1984 1 citation

+ 1 more citation in this opinion.