Cottonwood County District Court File No. KX0113
Considered and decided by Randall, Presiding Judge; Hudson, Judge; and
Where the weight of a controlled substance is an element of a crime, scientific testing is required to establish the weight of the mixture containing the controlled substance.
The opinion of the court was delivered by: Hudson, Judge
Dissenting, Forsberg, Judge*fn1
Appellant Alan George Olhausen, Jr. challenges his conviction of first-degree controlled substance crime arguing that the state failed to sufficiently identify the controlled substance or establish its weight. Because we conclude the evidence was legally insufficient to support appellant's conviction, we reverse the conviction of first-degree controlled substance crime and remand to the trial court for sentencing on the remaining convictions.
On December 12, 2000, Troy Appel, an investigator with the Worthington Police Department, received information from a confidential informant that appellant Alan George Olhausen, Jr., was interested in selling two pounds of methamphetamine. Appel gave this information to Robert Nance, a special agent with the Minnesota Bureau of Criminal Apprehension. Acting in an undercover capacity, Agent Nance telephoned appellant and arranged to purchase a pound of methamphetamine at a cost of $10,000. Appellant informed Nance that the methamphetamine was in the trunk of a car belonging to his friend May Chantharath, and that the car was parked at the Toro plant in Windom. Appellant and Nance agreed to meet at the Cenex/AmPride gas station in Worthington, at 7:00 p.m. that evening. Prior to meeting appellant, Nance was equipped with an electronic listening device and provided with $10,000, a so-called "flash roll." After arriving at the gas station in Worthington, Agent Nance suggested that he follow appellant in his (Nance's) car to the parking lot of the Toro plant in Windom.
Upon arriving at the Toro plant parking lot, Nance got in appellant's vehicle, and appellant attempted to contact Chantharath using Nance's cell phone. Agent Nance overheard appellant state, "Hey, man, I am outside your work. Swing out when you can." Appellant then produced a clear plastic baggie which contained, by Nance's estimate, approximately three-and-one-half grams of a yellow, chunky substance; Nance believed it to be an "eight-ball" of methamphetamine. Nance understood that appellant was showing him a sample of the methamphetamine agent Nance was about to purchase. Agent Nance never actually took possession of the plastic baggie. Appellant again attempted to contact Chantharath using Nance's cell phone. Still unable to contact Chantharath, appellant left Nance's cell phone number in a voice message.
Agent Nance told appellant that he would not give him the $10,000 until he saw the methamphetamine. At that point, Nance returned to his vehicle and followed appellant to another area of the parking lot. Nance parked his car immediately next to appellant's car. Nance then received a call from a special agent monitoring the situation advising him that Chantharath had left the Toro plant and was sitting in his car. Chantharath called Nance's cell phone and requested to speak with appellant. Agent Nance reached through his car window and handed the cell phone to appellant. During the conversation, Nance overheard appellant state, "Hello, hey I'm here. I got the money for one, and the other guy will be here later." Nance later heard appellant state, "Ten for one," followed by "You are in your car?" and "He wants to look at it." Nance testified that he understood the "ten for one" comment to mean $10,000 for one pound of methamphetamine.
Next, Agent Nance saw appellant drive over to Chantharath's car, but he never saw appellant actually enter Chantharath's vehicle because appellant's car was blocking his (Nance's) view. Several minutes later appellant returned to his vehicle. Because appellant expressed uneasiness about completing the transaction in the Toro parking lot, Nance suggested that they go to the nearby Hy-Vee parking lot; appellant agreed. Once there, Nance entered appellant's vehicle and questioned him about the packaging of the alleged methamphetamine. Appellant indicated, "That's how it is coming." Appellant then ripped open a corner of the package and stated, "See, it is covered in cinnamon and mustard."
Agent Nance testified that the package was heat-sealed and about 10 inches by 16 inches. Inside the package was a hard cylinder or "sausage-shaped" object that was about eight inches in length by three to four inches in diameter and was a dark color. Nance testified that he handled the package and that it had a slimy or greasy covering. Nance noted that he smelled cinnamon but not mustard. Agent Nance testified that the purpose of the cinnamon or mustard coating was to mask the scent [of the methamphetamine] from drug-sniffing dogs. Nance also testified that methamphetamine has a very definite odor and the first thing he does while working undercover is "to take a smell." Nance observed further that the appearance of methamphetamine could be from off-white to dark brown to yellow to pink to red. Agent Nance testified at trial that he had done three to four hundred undercover drug buys and had seen methamphetamine many ...