Olmsted County District Court File No. K1-01-4417
Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and
Minn. Stat. § 152.023, subd. 2(4) (2002) does not violate Equal Protection by punishing those who possess drugs in a school zone more harshly than those who possess drugs outside a school zone. To obtain a conviction under Minn. Stat. § 152.023, subd. 2(4), the state must prove that the defendant unlawfully possessed a controlled substance in a school zone, but need not prove that the defendant knew he was or intended to be in a school zone at the time.
The opinion of the court was delivered by: Randall, Judge,
Affirmed in part, reversed in part, and remanded
On appeal from his conviction and sentence for third-degree controlled-substance offense, appellant challenges the district court's refusal to appoint a substitute public defender or to inquire into whether special circumstances warranted appointment of substitute counsel. Appellant also challenges the constitutionality of the statute punishing possession of a controlled substance in a school zone more harshly than similar possession outside a school zone. Appellant also challenges the district court's failure to instruct the jury on intent or to allow appellant to argue lack of intent as a defense. Finally, appellant challenges the district court's refusal to apply a downward departure to his sentence, and then argues that his criminal history score was improperly calculated. We affirm the conviction. However, appellant's criminal history score was improperly calculated. We remand to the district court so that appellant may be sentenced according to a criminal history score of two, rather than three.
Late in the evening of December 17, 2001, Rochester police officer John Fishbaugher saw a man he recognized as appellant Steven Benniefield walking on the street. Fishbaugher called dispatch and found that appellant had outstanding warrants. Fishbaugher stopped appellant and arrested him. At the time Fishbaugher first noticed appellant, appellant was 61 feet from the edge of Riverside Elementary School's property line. During an initial search of appellant's person, Fishbaugher found a homemade crackpipe in appellant's pocket.
Appellant was taken to the Olmstead County Detention Center and strip-searched. The searching officer thought he noticed something in appellant's mouth, and ordered him to spit it out. Appellant insisted he did not have anything in his mouth, but made an exaggerated swallowing motion. Pursuant to normal procedure, appellant was taken to a local emergency room to ensure that he had not swallowed anything harmful.
At the emergency room, appellant was x-rayed and found not to have swallowed anything. On examination of the patrol car in which he was transported, however, a baggie containing a chunky, off-white substance was found on the floor near where appellant had been seated. The baggie itself was moist, as if it had been inside appellant's mouth. The off-white substance was determined to be 1.1 grams of crack cocaine.
Appellant was charged with third-degree controlled-substance offense:
possession of cocaine in a school zone. A public defender was appointed to represent appellant. At the omnibus hearing, the public defender indicated to the court that appellant wished to discharge him because of a disagreement over the representation. The court explained to appellant that if he discharged the public defender appointed to represent him, his options would be to hire a private attorney or to represent himself, because the court would not appoint a new public defender. Appellant expressed his desire to be represented by counsel, but insisted that he did not want to be represented by his current public defender. At a number of hearings before trial, appellant reiterated that he did not feel competent to represent himself, and did not want the first appointed public defender to represent him. The court explained to appellant that the discharged public defender was one of the most experienced in the area, and that appellant had shown "no good reason" for discharging him.
A jury trial was held May 15 and 16, 2002. Appellant represented himself. The district court had appellant's former public defender present as advisory counsel. The state presented the testimony of all the officers involved in appellant's arrest and search. Appellant did not present any witnesses, ...