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State v. Brown

Supreme Court of North Dakota

October 10, 2018

State of North Dakota, Plaintiff and Appellant
v.
Taelor Shawn Brown, Defendant and Appellee State of North Dakota, Plaintiff and Appellant
v.
Mitchell James, Defendant and Appellee

          Appeal 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.

          Jeff L. Nehring (argued) and Hernando I. Perez (on brief), Williston, ND, for defendants and appellees.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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 831.

         [¶ 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."

         The 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 ...

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