Randall, Judge Clay County District Court File No. K2-00-1359
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and
A defendant may properly be convicted of offering to sell a controlled substance where the evidence supports the inference that a bona fide offer was made, even if the sale was not ultimately completed.
The opinion of the court was delivered by: Randall, Judge
Affirmed in part, vacated in part
Appellant Laura Lee Lorsung challenges her conviction for second-degree controlled-substance crime, arguing that she cannot properly be convicted of selling methamphetamines because she did not have the intent to complete the sale. We affirm in part, vacate in part, and add a cautionary instruction.
On May 5, 2000, a confidential informant (CI) working with police placed a phone call to appellant Laura Lee Lorsung in an attempt to locate methamphetamine. The CI left a message, which was returned by appellant. Appellant agreed over the phone to sell the CI two "eight balls" (1/4 ounce) of methamphetamine for $500. The parties agreed to meet behind a Wal-Mart store in Dilworth, Minnesota at 12:30 a.m.
At about 12:45 a.m., appellant and the CI met and discussed again the price and quantity of the methamphetamine. The CI wore a hidden electronic transmitter and carried $500 in serialized bills given to her by police for the purchase. The CI gave appellant the money, and appellant told the CI to wait while she went into an apartment to get the drugs. Appellant also asked the CI if she could drive appellant home after the exchange. The CI was to drive around to the other side of the building and meet appellant when she came out.
By 1:25 a.m., appellant had not returned. The CI and one of the officers attempted to find her in the building, but could not. Further attempts to locate appellant that night were also unsuccessful. Appellant was not arrested until July 17. Appellant was charged with controlled-substance crime in the second degree, sale (Minn. Stat. § 152.022, subd. 1(1) (2000)); and theft (Minn. Stat. § 609.52, subd. 2(4); 3(4) (2000)).
Appellant waived her right to a jury trial and agreed to have the district court determine her guilt based on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Appellant maintained throughout the proceedings that she had never intended to carry out the sale and that her sole purpose had been to steal the money the CI offered. On May 29, 2001, appellant was found guilty of second-degree controlled-substance crime, sale, and theft. The district court sentenced her to 58 months imprisonment, with credit for time served. This appeal follows.
Could appellant properly be convicted of offering to sell a controlled substance if the state cannot prove beyond a reasonable doubt ...