§ 152.15

Minnesota Statutes

Source: 2025 Minnesota Statutes. For the official text, see revisor.mn.gov.

Citing Cases (25)

Minnesota Supreme Court

State v. Ortega · 2009 2 citations

+ 2 more citations in this opinion.

State v. Westergaard · 1983 1 citation

+ 1 more citation in this opinion.

State v. Feinstein · 1983 1 citation

+ 1 more citation in this opinion.

State v. Walters · 1982 1 citation

+ 1 more citation in this opinion.

State v. Childers · 1981 2 citations

+ 2 more citations in this opinion.

State v. Kemp · 1981 1 citation

+ 1 more citation in this opinion.

Minnesota Court of Appeals

State of Minnesota v. Raenard Romalle Douglas · 2024 6 citations

+ 6 more citations in this opinion.

State of Minnesota v. Kurt Matthew Baker · 2016 1 citation

+ 1 more citation in this opinion.

State v. Bluhm · 2003 3 citations

Minnesota law supports our conclusion that in this case the district court had discretion not only to stay imposition of appellant’s sentence, as it did, but to fashion conditions of probation to include or to eliminate a period of actual incarceration. In State v. Childers, 309 N.W.2d 37, 38 (Minn.1981), the Minnesota Supreme Court examined whether Minn. Stat. § 152.15, subd. 1(2) (1980), a predecessor version of the controlled-substance statute, required a mandatory minimum prison sentence. The version of the statute addressed in Childers

State v. Pinkerton · 2001 1 citation

+ 1 more citation in this opinion.

State v. Darnall · 1993 1 citation

+ 1 more citation in this opinion.

State v. Rachuy · 1993 1 citation

+ 1 more citation in this opinion.

State v. Bluhm · 1990 24 citations

OPINION RANDALL, Judge. Following a trial by jury, appellant Dennis H. Bluhm was convicted of conspiracy to sell and the sale of 10 grams or more of cocaine in violation of, among others, Minn. Stat. § 152.15, subd. l(l)(ii) and sentenced to an executed term of 32 months. On appeal from the denial of his motion for a new trial, appellant asserts the trial court erred by allowing the state to amend the complaint together with its failure to instruct the jury on the essential elements of the new offense. Appellant also asserts the state’s motion to amend the complaint was in retaliation for not pleading guilty. We vacate appellant’s conviction under Minn. Stat. § 152.15, subd. l(l)(ii) and remand for sentencing pursuant to Minn. Stat. § 152.15, subd. 1(2). FACTS On September 13, 1988, appellant Dennis H. Bluhm was charged by complaint in Freeborn County with conspiracy to sell and the sale of cocaine in violation of, among others, Minn. Stat. § 152.15, subd. 1(2). Violation of section 152.15, subd. 1(2) occurs when any person possesses with intent to sell or sells cocaine in any amount not otherwise indicated by subd. 1(1). The statutory penalty provides for a maximum of 15 years imprisonment and/or a $40,000 fine for a first offense. Minn. Stat. § 152.15, subd. 1(2). On April 12, 1989, jury selection began for appellant’s trial. On that morning, before jury selection began, defense counsel asked the prosecutor whether there was any offer of a plea, bargain the state could make. The prosecutor indicated that if appellant pled guilty to one of the two charges, the other would be dismissed. The prosecutor also indicated that either sentencing would be left up to the trial court or the state could recommend a six-month cap on jail time. Appellant refused the offer and defense counsel was informed that any offers would be revoked upon commencement of trial. After several motions in limine not here relevant, voir dire examination began. Midway through voir dire, the trial court took its noon recess. During the recess the prosecutor, who was not the charging prosecutor, moved to amend the complaint to include violations of section 152.15, subd. l(l)(ii) instead of section 152.15, subd. 1(1)(2). The proposed amendment charged appellant with conspiracy to sell and the sale of 10 grams or more of cocaine. See Minn. Stat. § 152.15, subd. l(l)(ii). The statutory penalty for this offense provides for a maximum of 20 years imprisonment and/or a $60,000 fine for a first offense. Also, appellant’s potential penalty was increased from a presumptive probationary sentence to a presumptive prison sentence by the proposed amendment. The trial court took the motion under advisement and voir dire continued. After the jury was impaneled, the trial court granted the state’s motion to amend *258the complaint and denied appellant’s request for a continuance. Appellant’s trial counsel argued vigorously that the amended complaint charged a new and more serious offense with an additional essential element, namely weight, and that his trial preparation would have been different had this subdivision contained in the proposed amendment been the original charge. The trial court held the issue should properly be deferred until sentencing and offered appellant the opportunity to present testimony concerning the weight of the cocaine at his sentencing hearing. The trial court stated: The motion was granted on the basis that it is a sentencing issue and it is not — does not deal with the elements of the crime. The issue will be dealt with at sentencing only and not during the course of the trial. That after trial if counsel for defendant wishes they may have access to the evidence and may do whatever testing they wish and may argue whatever they wish with respect to the weight and identity of the substance at the time of sentencing, but we’ll deal with it only at, the time of sentencing, (emphasis added). At the close of all the evidence the trial court did not instruct the jury that the statute appellant was charged under mandated the sale of 10 grams or more of cocaine and the jury was not asked to determine a specific amount. The jury found appellant guilty of conspiracy to sell and the sale of cocaine (10 grams or more) pursuant to the amended complaint. Following appellant’s conviction, defense counsel moved for judgment of acquittal or in the alternative a new trial, or in the alternative a downward dispositional departure, alleging numerous errors including improper amendment of the complaint and prose-cutorial vindictiveness. The trial court denied the motion and imposed an executed sentence of 32 months but stayed the sentence pending this appeal. Bluhm appeals from the judgment of conviction. We reverse the conviction under Minn. Stat. § 152.15, subd. l(l)(ii) and remand for a judgment of conviction to be entered and for sentencing pursuant to section 152.15, subd. 1(2). ISSUE Did the trial court err by granting the state’s motion to amend the complaint? ANALYSIS Appellant argues that the trial court erred by allowing the state to amend the complaint because the amendment charged a different and more substantial offense, and because the jury was not instructed on the essential elements of the new offense. Appellant claims that the late amendment and the failure to properly instruct the jury deprived appellant of due process and a fair trial. We agree. Minn.R.Crim.P. 17.05 provides that: The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. (emphasis added). “[I]n order to prejudice the substantial rights of the defendant, it must be shown that the amendment either added or charged a different offense.” Gerdes v. State, 319 N.W.2d 710, 712 (Minn.1982). An amendment charges a different offense if it changes an element of the crime to be proven. State v. Kramer, 441 N.W.2d 502, 506 (Minn.App.1989), pet. for rev. denied (Aug. 9, 1989). Before the complaint was amended, appellant was charged with conspiracy to sell and the sale of less than 10 grams of cocaine. After the complaint was amended, appellant was charged with conspiracy to sell and the sale of 10 grams or more of cocaine. The state had to prove as an essential element that 10 grams or more of cocaine was involved in order to convict appellant pursuant to the amended complaint. The complaint as amended changed an element of the crime to be proven so as to charge an “additional or different offense” in violation of Minn.R.Crim.P. 17.05. The state argues that the amended complaint did not “really charge a new or different offense” but only went to penalty, *259and that even if a new offense was charged, since the initial charging complaint 1 mentioned an ounce (approximately 28 grams) of cocaine, appellant should have been prepared to go ahead with the trial anyway. Appellant points out correctly that although the two offenses, the one initially charged and the one later charged by the amended complaint, both involved cocaine, a substantial and crucial element of proof was added by the amended complaint which required proof beyond a reasonable doubt of a minimum amount of cocaine, to-wit, 10 grams or more. Appellant argues that his trial counsel originally prepared for trial knowing that the crime charged did not involve any specific amount, and thus only questions of identity, possession, and intent would be involved. Counsel on appeal points out correctly that appellant’s trial counsel argued to the trial court at the time of the proposed amendment that his trial preparation would have been different had he known beforehand of the proposed amendment, and that the proposed amendment should either be disallowed or a continuance granted to allow for investigation and preparation for trial on a different offense. The record shows trial counsel argued he would have sought to have the cocaine tested and weighed independently and would not have stipulated to the chain of custody of the cocaine had section 152.-15, subd. l(l)(ii) been the original charge. We need not discuss the claimed prejudice by appellant to his ability to properly prepare for trial as the trial court committed clear error in allowing the amended complaint and finding that the amount involved was not an essential element and could only be taken up by appellant and his counsel after trial at sentencing. Minnesota CRIM. JIG 20.19(2) is clear and unequivocal on its face: If you find that defendant is guilty of delivering_you have (an) additional issue(s) to determine and (it) (they) will be put to you in the form of (a) question(s) which will appear on the ver-ict form. The question(s) (is) (are): ****** (2) Did- sell or distribute a total of ten grams or more of_, regardless of purity, on one or more occasions within a ninety day period? ****** You should answer (this) (these) question^) “yes” or “no”. If you have a reasonable doubt as to the answer, you should answer the question “no”. It was specifically drafted to be incorporated in the jury instructions for a charge involving Minn. Stat. § 152.15, subd. l(l)(ii).2 It is puzzling why the state did not call to the trial court’s attention the necessity of instructing the jury on specific weights, when the weight is an essential element. The concept that weight in controlled substance crimes is an essential element which has to go to the jury is routine. Juries have been so instructed for years. See, e.g., 10 Minnesota Practice, CRIM. JIG, 20.10, 20.11 (1985). The trial court’s statement that the amount of cocaine “is a sentencing issue and does not deal with the elements of the crime” was erroneous. The court’s offer to appellant and his attorney to give them access after trial for purposes of testing does not cure the problem. Essential elements of the crime must be decided by the factfinder, here a jury, not the judge, and by proof beyond a reasonable doubt. Issues arising at a sentencing hearing are not decided by the jury, but by the judge; the proof required is not proof beyond a reasonable doubt; and the rules of procedure and the rules of evidence at sentencing hearings are not adhered to as strictly as at trial. It is this *260simple. Appellant did not waive his right to a trial by jury and thus was entitled as a matter of constitutional due process to have all essential elements of the crime proven to the jury’s satisfaction by proof beyond a reasonable doubt. Weight, being an integral part of section 152.15, subd. l(l)(ii), is an essential element of the crime charged. It was reversible error not to so instruct the jury. The state must prove each and every element of the offense charged beyond a reasonable doubt. State v. Paige, 256 N.W.2d 298, 303 (Minn.1977). The court’s instructions must define the crime charged by separating it into its various elements. See State v. Crace, 289 N.W.2d 54, 59 (Minn.1979). The trial court was obliged to specifically instruct the jury that it had to find appellant sold a total of 10 grams or more of cocaine in order to convict him as charged. Since we decide the case on this issue, we do not discuss appellant’s claim that respondent’s late amendment upgrading the complaint to a more serious charge was an improper retaliatory measure taken against appellant for not pleading guilty. See United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). Appellant, in the alternative, asks for the relief of a reversal of conviction, a new trial, or a modification of his sentence to that called for by conviction under section 152.15, subd. 1(2). We find modification appropriate. The jury instructions adequately covered the elements of conspiracy and/or sale (of any amount) of cocaine in violation of Minn. Stat. § 152.15, subd. 1(2). Pursuant to Minn.R.Crim.P. 28.05, subd. 2, we vacate appellant’s conviction under section 152.15, subd. l(l)(ii), enter a judgment of conviction under section 152.15, subd. 1(2), and remand to the trial court for sentencing. DECISION The trial court erred by granting the state’s motion to amend the complaint to charge appellant with a more serious offense and in failing to instruct the jury on the essential elements of the new offense. Reversed and remanded for sentencing. LANSING, J., dissents and files an opinion.

+ 21 more citations in this opinion.

State v. Hines · 1990 1 citation

+ 1 more citation in this opinion.

State v. Reese · 1989 2 citations

+ 2 more citations in this opinion.

State v. Stutelberg · 1989 2 citations

Appellant was convicted in Arizona in violation of A.R.S. § 36-1002.05 which punishes the actions of a person who “[kjnowingly possesses any marijuana,” with a sentence of not less than one year nor more than ten years. In 1981 there were two Minnesota statutes which could correspond to the Arizona statute. Minn. Stat. § 152.15, subd. 2(2) (1980) classifies possession of marijuana (other than a small amount) as a felony. Minn. Stat. § 152.15, subd. 2(5) (1980) classifies possession of a small amount of marijuana (1.5 ounces or less) as a petty misdemeanor. Citing State v. Briton, 265 Minn. 326, 121 N.W.2d 577 (1963), overruled on other grounds State v. Clark, 270 Minn. 538, 551-52, 134 N.W.2d 857, 867 (1965), appellant argues that extrinsic evidence of the foreign conviction is prohibited if “by definition, that crime could have constituted an offense which is not a felony in this state.” Briton, 265 Minn. at 329, 121 N.W.2d at 579. Briton

State v. Moore · 1988 18 citations

+ 18 more citations in this opinion.

Lennon v. Pieper · 1987 4 citations

+ 4 more citations in this opinion.

State v. Jenkins · 1987 1 citation

+ 1 more citation in this opinion.

State v. Nace · 1987 2 citations

+ 2 more citations in this opinion.

State v. Hart · 1986 4 citations

+ 4 more citations in this opinion.

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: