from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
Schmitz Olson, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee.
Patrick O'Day Jr., Fargo, ND, for defendant and
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.
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 ...