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State v. Cook

Supreme Court of North Dakota

April 12, 2018

State of North Dakota, Plaintiff and Appellee
v.
Joshua Troy Cook, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

          Kara Schmitz Olson, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          L. Patrick O'Day Jr., Fargo, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶ 1] Joshua Cook appeals from a criminal judgment after a jury found him guilty of possession of methamphetamine with intent to deliver, possession of heroin, possession of methadone, possession of drug paraphernalia, and possession of marijuana. We conclude the district court did not abuse its discretion by admitting evidence after proper foundation was laid, the court did not abuse its discretion by not granting a departure from the mandatory minimum sentence, and the court did not err in considering Cook's prior convictions when sentencing. Therefore, we affirm the criminal judgment.

         I

         [¶ 2] On August 22, 2016, officers arrived at a hotel in Fargo to investigate possible drug trafficking. Cook exited the room and officers detained him. During a pat down of Cook, officers found and removed a small blue bag in Cook's front pants pocket. Inside the room, another individual was detained. An officer placed the small blue bag on top of a counter inside the hotel room. Officers conducted a cursory search of the room and did not observe any drugs in plain view. Officers then waited for the canine unit to arrive and everyone exited the room leaving the blue bag on the counter.

         [¶ 3] Another officer arrived with his canine and began a sniff of the hotel room. The canine alerted to an odor on the counter, grabbed the blue bag, thrashed it around, dropped it, and sniffed it. The canine gave his final response, indicating the odor of a controlled substance was present. After the canine and the officer finished the search, additional baggies were in plain view that were not present before they entered the room. One of the baggies was located a few inches from where the blue bag was originally placed, the other was on the floor at the base of the counter. The officer then informed the officers who were waiting outside the hotel room the locations where the canine alerted to the odor of a controlled substance.

         [¶ 4] After the canine left, the officers who were waiting outside the hotel room began their search of the room. The contents of the blue bag were emptied, inventoried, and photographed, along with the two baggies that were found on the floor and counter. In the room the officers found: (1) two zip sealed baggies with little green dollar signs containing methamphetamine weighing approximately one sixteenth of an ounce; (2) three baggies containing methamphetamine with a combined weight of an eighth of an ounce; (3) two baggies containing heroin; (4) a scale with methamphetamine residue; and (5) a glass container with marijuana in it. The officers also found a key ring in Cook's pocket which contained a white methadone pill.

         [¶ 5] Officers also searched the vehicle Cook had been driving and found a backpack located on the front seat containing indicia of Cook. Officers found hundreds of zip seal baggies of varying sizes and a small red/pink zip seal baggie containing methamphetamine inside the backpack. One of the baggies in the backpack had the same green dollar signs as a baggie located in the hotel room. Officers located 60 baggies matching the blue and black baggies containing heroin found inside the small blue bag. A white grocery bag located in the vehicle's backseat contained sandwich bags and a large number of zip seal baggies in multiple sizes, designs, and colors. Again, there were zip seal baggies matching the blue and black zip seal baggies containing heroin and baggies with the same green dollar signs on them.

         [¶ 6] The State charged Cook with possession of methamphetamine with intent to deliver, possession of heroin, possession of methadone, possession of morphine, possession of drug paraphernalia, and possession of marijuana. The State later dismissed the possession of morphine charge.

         [¶ 7] During trial, the State attempted to have various items of evidence admitted. Cook objected, arguing a lack of foundation and improper chain of custody. The district court, after discussions with the parties "conditionally" received the evidence, indicating the evidence could be admitted fully once additional chain of custody and foundation testimony was elicited. The State called additional witnesses and moved the court to admit the evidence without conditions, which the court granted.

         [¶ 8] On April 19, 2017, a jury found Cook guilty of possession of methamphetamine with intent to deliver, possession of heroin, possession of methadone, possession of drug paraphernalia, and possession of marijuana. After the jury verdict, the legislature passed H.B. 1041, § 12, which amended and reenacted N.D.C.C. § 19-03.1-23(5), limiting which prior convictions may be used to trigger mandatory minimum sentences for subsequent offenses.

         [¶ 9] In June 2017, the district court held a sentencing hearing. The State argued for a twenty-year mandatory minimum sentence to be imposed. Without specifically identifying the bill number, Cook argued the legislative amendments should be applied that would reduce the mandatory minimum sentence for second or subsequent offenses. Cook argued if the court sentenced under the "old law, " it should deviate from the mandatory minimum sentence. Cook argued one of the prior convictions alleged in the information could not be used to enhance his sentence, based on the passage of H.B. 1041. He also argued the court should not consider a prior class A felony conviction for delivery of methamphetamine from 2011, because the State had not included information on that conviction during discovery.

         [¶ 10] The district court admitted evidence of the 2011 conviction. The court reviewed the pre-sentence investigation report and after hearing the arguments of the parties, the court determined H.B. 1041 did not apply to the case because it did not include language indicating it should be applied retroactively. The court sentenced Cook to the mandatory minimum sentence of twenty years on the possession of methamphetamine with intent to deliver.

         [¶ 11] Cook appeals from the criminal judgment entered after a jury found him guilty of five charges. Cook argues the district court abused its discretion by admitting evidence that lacked foundation and by not granting a departure from the mandatory minimum sentence. Cook further argues the court erred in concluding H.B. 1041 was not applicable to his case and the court erred in considering his prior convictions when the amended information ...


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