This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0976
State of Minnesota, Respondent,
vs.
Jolene Carmel Goblish, Appellant.
Filed May 9, 2016 Affirmed Smith, Tracy, Judge
Lyon County District Court File No. 42-CR-14-834
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,
Tracy, Judge.
UNPUBLISHED OPINION
SMITH, TRACY, Judge
In this appeal from her conviction of first-degree driving while impaired when any
amount of a controlled substance is in the body, appellant Jolene Goblish argues that the
district court erroneously omitted an element of the charged offense from the jury instructions. Because the district court properly instructed the jury on the elements of the
offense, we affirm.
FACTS
On May 19, 2014, Goblish drove to the department of corrections (DOC) office in
Marshall to meet with her supervising agent and to take a urine test. There, Goblish
provided a urine sample, and a preliminary test showed the presence of amphetamine and
methamphetamine. The DOC agent who administered the test called the police. A
Marshall police officer arrived at the DOC office, arrested Goblish, and transported her to
the law enforcement center. At the law enforcement center, Goblish was read the implied
consent advisory and consented to another urine test. The laboratory tests performed on
Goblish’s urine by the Minnesota Bureau of Criminal Apprehension (BCA) revealed the
presence of amphetamine and methamphetamine.
Goblish was charged with first-degree driving while impaired when any amount of
a controlled substance under schedule II was in the body in violation of Minn. Stat.
§§ 169A.20, subd. 1(7), .24 (2012).1 At trial before a jury, Goblish testified that she
drove on May 19, 2014, but that she did not use illegal drugs on that day or in the recent
past. The jury found Goblish guilty of first-degree driving while impaired, and Goblish
was sentenced to 65 months in prison.
Goblish appeals.
1 A second count for driving while impaired when under the influence of a controlled substance was dismissed before trial.
2 DECISION
Goblish argues that the district court plainly erred when it instructed the jury on
the elements of driving while impaired when any amount of a controlled substance is in
the body, and that the error affected her substantial rights. Specifically, she contends that
“the jury instructions omitted an element of the offense [because] they failed to
adequately explain that the jury was required to find that the substance in [her] body was
a schedule-II controlled substance that had a stimulant effect on the central nervous
system.” (Emphasis added). Goblish did not request that the phrase “having a stimulant
effect on the central nervous system” be included in the instructions, nor did she object to
the instructions given.
Because Goblish “did not raise the objection in the district court that she now
raises on appeal, her jury-instruction-omission claim is subject to the plain-error
analysis.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016). “The plain error standard
requires that the defendant show: (1) error; (2) that was plain; and (3) that affected
substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “If those
three prongs are met, we may correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotations omitted). “An
error is ‘plain’ if it is clear or obvious. Typically, a ‘plain’ error contravenes case law, a
rule, or a standard of conduct.” Peltier, 874 N.W.2d at 799 (citation omitted). “[A]
district court commits plain error if it fails to properly instruct the jury on all elements of
the offense charged.” Id. at 797.
3 Goblish was convicted under Minn. Stat. § 169A.20, subd. 1(7), which states that
“[i]t is a crime for any person to drive, operate, or be in physical control of any motor
vehicle” when “the person’s body contains any amount of a controlled substance listed in
Schedule I or II.” The statute that defines schedule-II controlled substances states:
(a) Schedule II consists of the substances listed in this subdivision. .... (d) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system: (1) amphetamine, its salts, optical isomers, and salts of its optical isomers; (2) methamphetamine, its salts, isomers, and salts of its isomers . . . .
Minn. Stat. § 152.02, subd. 3 (2012) (emphasis added).
The district court instructed the jury as follows:
The elements of driving, operating, or being in physical control with the presence of a controlled substance in body are first, the defendant drove, operated, or was in physical control of a motor vehicle. . . . Second, at the time the defendant was driving, operating, or in physical control of a motor vehicle, the defendant’s body contained any amount of . . . methamphetamine or amphetamine.
Goblish’s plain-error argument centers on the omission of the phrase “having a
stimulant effect on the central nervous system” from these instructions. See id., subd.
3(d). This omission matters because, she argues for the first time on appeal, a form of
methamphetamine—L-methamphetamine—is lawfully sold over the counter in some
4 products and, she suggests, does not have a stimulant effect on the central nervous
system.2
We previously interpreted the statutory phrase “‘any quantity of the following
substances having a stimulant effect on the central nervous system’” in State v. Ali, 613
N.W.2d 796, 798-99 (Minn. App. 2000) (quoting Minn. Stat. § 152.02, subd. 2(6)
(1998)), review denied (Minn. Sept. 13, 2000).3 In Ali, we rejected the argument that, in
order to support a charge for possession of a schedule-I controlled substance, the state
must prove that the quantity of the substance possessed was sufficient to produce a
stimulant effect. Ali, 613 N.W.2d at 800. Goblish argues that if the phrase “having a
stimulant effect on the central nervous system” does not modify “quantity,” it must
modify “substances,” and that the state therefore must prove as an element of the offense
that a controlled substance listed in schedule II has a stimulant effect on the central
nervous system. See Minn. Stat. § 152.02, subd. (3)(d).
We disagree. While Ali addressed the phrase “having a stimulant effect” in the
context of the quantity of the drug, our reasoning there applies equally here. See Ali, 613
N.W.2d at 798-800; see also Minn. Stat. § 152.02, subd. 3(d). In Ali, we observed that
Free access — add to your briefcase to read the full text and ask questions with AI
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0976
State of Minnesota, Respondent,
vs.
Jolene Carmel Goblish, Appellant.
Filed May 9, 2016 Affirmed Smith, Tracy, Judge
Lyon County District Court File No. 42-CR-14-834
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,
Tracy, Judge.
UNPUBLISHED OPINION
SMITH, TRACY, Judge
In this appeal from her conviction of first-degree driving while impaired when any
amount of a controlled substance is in the body, appellant Jolene Goblish argues that the
district court erroneously omitted an element of the charged offense from the jury instructions. Because the district court properly instructed the jury on the elements of the
offense, we affirm.
FACTS
On May 19, 2014, Goblish drove to the department of corrections (DOC) office in
Marshall to meet with her supervising agent and to take a urine test. There, Goblish
provided a urine sample, and a preliminary test showed the presence of amphetamine and
methamphetamine. The DOC agent who administered the test called the police. A
Marshall police officer arrived at the DOC office, arrested Goblish, and transported her to
the law enforcement center. At the law enforcement center, Goblish was read the implied
consent advisory and consented to another urine test. The laboratory tests performed on
Goblish’s urine by the Minnesota Bureau of Criminal Apprehension (BCA) revealed the
presence of amphetamine and methamphetamine.
Goblish was charged with first-degree driving while impaired when any amount of
a controlled substance under schedule II was in the body in violation of Minn. Stat.
§§ 169A.20, subd. 1(7), .24 (2012).1 At trial before a jury, Goblish testified that she
drove on May 19, 2014, but that she did not use illegal drugs on that day or in the recent
past. The jury found Goblish guilty of first-degree driving while impaired, and Goblish
was sentenced to 65 months in prison.
Goblish appeals.
1 A second count for driving while impaired when under the influence of a controlled substance was dismissed before trial.
2 DECISION
Goblish argues that the district court plainly erred when it instructed the jury on
the elements of driving while impaired when any amount of a controlled substance is in
the body, and that the error affected her substantial rights. Specifically, she contends that
“the jury instructions omitted an element of the offense [because] they failed to
adequately explain that the jury was required to find that the substance in [her] body was
a schedule-II controlled substance that had a stimulant effect on the central nervous
system.” (Emphasis added). Goblish did not request that the phrase “having a stimulant
effect on the central nervous system” be included in the instructions, nor did she object to
the instructions given.
Because Goblish “did not raise the objection in the district court that she now
raises on appeal, her jury-instruction-omission claim is subject to the plain-error
analysis.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016). “The plain error standard
requires that the defendant show: (1) error; (2) that was plain; and (3) that affected
substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “If those
three prongs are met, we may correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotations omitted). “An
error is ‘plain’ if it is clear or obvious. Typically, a ‘plain’ error contravenes case law, a
rule, or a standard of conduct.” Peltier, 874 N.W.2d at 799 (citation omitted). “[A]
district court commits plain error if it fails to properly instruct the jury on all elements of
the offense charged.” Id. at 797.
3 Goblish was convicted under Minn. Stat. § 169A.20, subd. 1(7), which states that
“[i]t is a crime for any person to drive, operate, or be in physical control of any motor
vehicle” when “the person’s body contains any amount of a controlled substance listed in
Schedule I or II.” The statute that defines schedule-II controlled substances states:
(a) Schedule II consists of the substances listed in this subdivision. .... (d) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system: (1) amphetamine, its salts, optical isomers, and salts of its optical isomers; (2) methamphetamine, its salts, isomers, and salts of its isomers . . . .
Minn. Stat. § 152.02, subd. 3 (2012) (emphasis added).
The district court instructed the jury as follows:
The elements of driving, operating, or being in physical control with the presence of a controlled substance in body are first, the defendant drove, operated, or was in physical control of a motor vehicle. . . . Second, at the time the defendant was driving, operating, or in physical control of a motor vehicle, the defendant’s body contained any amount of . . . methamphetamine or amphetamine.
Goblish’s plain-error argument centers on the omission of the phrase “having a
stimulant effect on the central nervous system” from these instructions. See id., subd.
3(d). This omission matters because, she argues for the first time on appeal, a form of
methamphetamine—L-methamphetamine—is lawfully sold over the counter in some
4 products and, she suggests, does not have a stimulant effect on the central nervous
system.2
We previously interpreted the statutory phrase “‘any quantity of the following
substances having a stimulant effect on the central nervous system’” in State v. Ali, 613
N.W.2d 796, 798-99 (Minn. App. 2000) (quoting Minn. Stat. § 152.02, subd. 2(6)
(1998)), review denied (Minn. Sept. 13, 2000).3 In Ali, we rejected the argument that, in
order to support a charge for possession of a schedule-I controlled substance, the state
must prove that the quantity of the substance possessed was sufficient to produce a
stimulant effect. Ali, 613 N.W.2d at 800. Goblish argues that if the phrase “having a
stimulant effect on the central nervous system” does not modify “quantity,” it must
modify “substances,” and that the state therefore must prove as an element of the offense
that a controlled substance listed in schedule II has a stimulant effect on the central
nervous system. See Minn. Stat. § 152.02, subd. (3)(d).
We disagree. While Ali addressed the phrase “having a stimulant effect” in the
context of the quantity of the drug, our reasoning there applies equally here. See Ali, 613
N.W.2d at 798-800; see also Minn. Stat. § 152.02, subd. 3(d). In Ali, we observed that
2 There is nothing in the record regarding different types of methamphetamines or their “stimulant effect on the central nervous system.” The only arguably related evidence presented at trial was given by the BCA agent, who testified that amphetamine and methamphetamine are both stimulants. 3 Although the court’s reasoning in Ali was in respect to a schedule-I controlled substance, it is applicable to a schedule-II controlled substance because the applicable statutes defining a schedule-I controlled substance and a schedule-II controlled substance are virtually identical, and there is no basis for not applying the same interpretation of the phrase “having a stimulant effect on the central nervous system” to both statutes. See Minn. Stat. § 152.02, subds. 3 (2012), 2(6) (1998).
5 the schedules of controlled substances in Minnesota statutes—like those in other states—
classify a number of different substances using phrases such as “having a stimulant
effect,” “having a depressant effect,” “having a potential for abuse associated with a
depressant effect,” and “having a potential for abuse associated with a stimulant effect.”
Id. (citing Minn. Stat. § 152.02, subds. 2(5), 3(3), 3(4) (1998), 4(2), 4(3) (Supp. 1999)).
We adopted the reasoning of other states’ courts that these phrases “were intended as
legislative guidance for the classification and categorization of new controlled substances
and were not an element required to be proven by the state.” Id. at 799. Thus, we held
that “having a stimulant effect” is not an element of the offense. Id. at 800.
The district court instructed the jury that it must find that the defendant’s body
contained any amount of methamphetamine or amphetamine, both of which the
legislature has included as schedule-II controlled substances. See Minn. Stat. § 152.02,
subd. 3(d)(1)-(2). As we held in Ali, the statutory phrase “having a stimulant effect on
the central nervous system” does not add an element that the state must prove. See Ali,
613 N.W.2d at 799; see also Minn. Stat. § 152.02, subd. 3(d). The district court therefore
did not err by omitting it as an element of the offense in jury instructions. Because we
conclude that no error was committed, we need not consider the second and third prongs
of the plain-error test.
Affirmed.