from the District Court of Divide County, Northwest Judicial
District, the Honorable Benjamen J. Johnson, Judge.
Seymour R. Jordan, Divide County State's Attorney,
Crosby, ND, for plaintiff and appellant.
L. Nehring (argued) and Hernando I. Perez (on brief),
Williston, ND, for defendants and appellees.
1] The State appeals a district court order dismissing with
prejudice felony charges of possession of a controlled
substance with intent to deliver against Mitchell James and
Taelor Brown. Because the production of hash oil is
"manufacturing" as defined in N.D.C.C.
19-03.1-01(17), and because the district court made a mistake
of law regarding the possession with intent to deliver
charge, the State met the burden of proving probable cause.
We reverse and remand.
2] In December 2017 Mitchell James and Taelor Brown were
charged with possession with intent to manufacture or deliver
a controlled substance. The district court held a preliminary
hearing on March 2, 2018, where a law enforcement officer
testified that a search of the defendants' home led to
the discovery of marijuana paraphernalia, raw marijuana
packed in a plastic tube, a butane canister, approximately
two to three grams of hash oil and digital scales. The
district court dismissed the charges for lack of probable
cause, finding James' and Brown's actions did not
constitute "manufacturing" of a controlled
substance and no evidence was presented showing previous
"deals," communications, pay sheets or products for
sale to a third party. The district court also did not find
probable cause for intent to deliver because the small amount
of hash oil recovered could be for personal use, no
supporting evidence existed of previous "deals,"
communications or pay sheets, and the presence of a digital
scale without evidence of packaging or preparation for resale
did not support a charge of intent to deliver.
3] The State timely appealed and argues the district court
erred in dismissing the charges by failing to categorize
James' and Brown's actions as
"manufacturing," and not finding the minimal burden
of proof for manufacturing and delivery of hash oil was
satisfied. An order dismissing a criminal complaint,
information, or indictment is the equivalent of an order
quashing an information and is appealable. State v.
Baumgartner, 2001 ND 202, 6, 637 N.W.2d 14. A district
court decision to dismiss a criminal charge is reviewed for
abuse of discretion. State v. Ferrie, 2008 ND 170,
6, 755 N.W.2d 890. A district court abuses its discretion if
it acts in an arbitrary, unreasonable, or unconscionable
manner or if it misinterprets or misapplies the law.
O'Hara v. Schneider, 2017 ND 53, 10, 890 N.W.2d
4] At the hearing the district court addressed the definition
of "manufacturing" as follows:
"COURT:... And my understanding of the definition is
that it does require that there is some evidence that there
is the intent to manufacture, or actual manufacturing to be
distributed or packaged, or whatever, for a third party.
It's not my interpretation of that rule and I don't
think there's a case that says otherwise; that if you
make your own hashish from marijuana you're manufacturing
for other people."
State argues even if the hash oil was not for sale to third
parties, the transformation of raw marijuana to hash oil is
"manufacturing" as currently defined in N.D.C.C.
19-03.1-01(17), because James and Brown did not
"prepare" or "compound" the marijuana
into hash oil for personal use. The State argues James and
Brown manufactured hash oil by "converting" the
plant into an oil-like substance.
5] Under N.D.C.C. 19-03.1-01(17):
"'Manufacture' means the production,
preparation, propagation, compounding, conversion, or
processing of a controlled substance, either directly or
indirectly by extraction from substances of natural origin,
or independently by means of chemical synthesis, or by a
combination of extraction and chemical synthesis and includes
any packaging or repackaging of the substance or labeling or
relabeling of its container. The term does not include the
preparation or compounding of a controlled substance by an