Becker County District Court File No. K3-03-1022.
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,*fn1 and Crippen, Judge.
For a defendant convicted of manufacturing an unlawful controlled substance, the charge of possessing that substance before completion of the manufacturing process arises out of the same behavioral incident.
The opinion of the court was delivered by: Crippen, Judge
Affirmed in part and reversed in part
Appellant James Edward Carr, Jr. contends, under Minn. Stat. § 609.035 (2002), that he is entitled to the reversal of his sentence for possessing a controlled substance, arguing that this conviction arose out of the same behavioral incident that led to his conviction of unlawful manufacture of the substance. We reverse the possession sentence. There being no merit in appellant's additional contention that his right to judicial review was handicapped by the district court's failure to record the instructions read to the jury, we affirm appellant's convictions for manufacture and possession.
In June 2003, during a lawful search of appellant's garage, Becker County deputy sheriffs found muriatic acid, a hotplate, and a coffee pot and spoon coated in a white powder. Behind the garage they found an empty toluene can. Because the items found in and near the garage can be used to make methamphetamine, the deputies contacted a narcotics investigator, who obtained a search warrant for appellant's residence.
Officers executing the search warrant found four empty bottles of pseudoephedrine pills, over 100 pills, a lithium battery, a half-used box of coffee filters, coffee filters with white residue on them, more toluene cans, two hoses, Coleman fuel, three glass jars, salt, and an empty propane tank that had stored anhydrous ammonia. In the yard they found a one-liter soda bottle containing two layers of liquid; the liquid tested positive for methamphetamine.
Appellant was charged with a first-degree controlled substance crime for possessing methamphetamine under Minn. Stat. § 152.021, subd. 2 (Supp. 2003) and a first-degree controlled substance crime for manufacturing methamphetamine under Minn. Stat. § 152.021, subd. 2a(a) (Supp. 2003). At appellant's jury trial, a narcotics investigator testified that methamphetamine is unusable in a liquid form. To finish the manufacturing process and turn the liquid methamphetamine into a usable powder, the liquid methamphetamine must be mixed with pseudoephedrine and water; separated; filtered using a baster, funnel, or cooler with a spout; mixed with hydrogen chloride gas; filtered again; and dried.
At the sentencing hearing following appellant's conviction of both charges, he argued that because the two crimes were part of the same course of conduct, he should be given one sentence for both convictions and that the possession conviction was actually a lesser-included offense of the manufacturing conviction. The district court imposed two concurrent sentences, one for each conviction. To determine the sentence for appellant's second conviction, the district court counted appellant's first conviction towards his criminal-history score. With a criminal-history score of one point for appellant's first sentence and three points for the second, the district court imposed a 98-month sentence for the manufacturing conviction and a 122-month sentence for the possession conviction.
1. For an appellant convicted of manufacturing an unlawful substance, does the charge of possessing that substance before completion of the manufacturing process arise out of the same behavioral ...