State v. Peck

773 N.W.2d 768, 2009 Minn. LEXIS 706, 2009 WL 3379115

• Court: Supreme Court of Minnesota
• Decided: October 22, 2009
• Docket: A08-579
• Status: Published

Opinions

OPINION

ANDERSON, G. BARRY, Justice.

A person commits a first-degree controlled-substance crime if that person possesses one or more “mixtures” that contain a controlled substance and that weigh 25 grams or more. Minn.Stat. § 152.021, subd. 2(1) (2008). In this appeal we consider whether the term “mixture” applies to bong water that tests positive for the presence of a controlled substance. Appellant State of Minnesota charged respondent Sara Ruth Peck with several drug-related offenses, including first-degree possession of a controlled substance. The first-degree possession charge alleged that Peck possessed 37.17 grams of bong water that tested positive for the presence of methamphetamine. Peck moved to dismiss the first-degree controlled-substance charge for lack of probable cause, arguing that as a matter of law the 37.17 grams of bong water did not constitute a “mixture” under MinmStat. § 152.01, subd. 9a (2008). The district court granted Peck’s motion. The State filed a pretrial appeal. The court of appeals affirmed. We granted the State’s petition for further review.

On August 30, 2007, the Rice County Sheriffs Department executed a search warrant for Peck’s residence located in Rice County, Minnesota. Peck and her two minor children were home at the time of the search. During the search, police seized several items, including a small plastic bag found in Peck’s purse containing a substance that tested positive for methamphetamine, another plastic bag containing “crystalline residue,” a digital scale, a spoon with residue, a glass pipe with apparent methamphetamine residue, and a glass water bong with liquid in it.

Photographs taken of the glass water bong indicate that the police found it with a small button placed over the opening. The police transferred the bong water to a glass jar and submitted the water to the St. Paul Police Department Crime Laboratory for testing. On September 4, 2007, the crime lab issued a report indicating that the jar contained a “pink liquid exhibiting a fruity odor,” and that the liquid weighed 37.17 grams and tested positive for the presence of methamphetamine.

On September 5, 2007, the Rice County Attorney filed a complaint against Peck charging her with first-degree possession of a controlled substance under Minn.Stat. § 152.021, subd. 2(1) (2008), fifth-degree possession of a controlled substance under Minn.Stat. § 152.025, subd. 2(1) (2008), and child endangerment under Minn.Stat. § 609.378, subd. 1(b)(2) (2008). On January 24, 2008, Peck filed a motion challenging the State’s probable cause on the first-degree controlled-substance charge. Peck argued that as a matter of law the 37.17 grams of bong water did not constitute a “mixture” under Minn.Stat. § 152.01, subd. 9a (defining “mixture” as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity”).

An omnibus hearing was held on February 29, 2008, and the State presented its evidence through the testimony of Minnesota State Patrol Trooper Douglas Rauen-horst. Rauenhorst was not involved in the search and seizure in Peck’s case, but testified based on his experience and training as a certified narcotics K-9 handler. Rau-enhorst explained that he and his K-9 partner had responded to more than 1,000 narcotic-related incidents. Rauenhorst testified that he reviewed the information, reports, and photographs pertaining to the ease. Through Rauenhorst, the State introduced the report of the St. Paul Police Department Crime Laboratory.

Rauenhorst also testified about the common usage of a bong. He explained that a bong is often used to smoke controlled substances. Rauenhorst testified that while a person can use a bong without water, it is normally used with water. Rauenhorst explained that the water “is used in sucking the smoke from the end of the ball of the [bong] through the water up to the consumer.” Rauenhorst agreed that “[w]hen a person is smoking with a bong pipe, they don’t ordinarily inhale the water ... [o]r ingest the water.”

Rauenhorst further testified that the pink coloring and fruity odor of the liquid discovered in Peck’s bong was significant. He explained that bong water is not normally colored or scented. When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use ... either drinking it or shooting it in the veins.” Rauenhorst further testified that he had actual knowledge of narcotics users consuming water with methamphetamine. On cross-examination, Rauenhorst was unsure whether bong users might flavor the water in order to flavor the smoke.

On March 27, 2008, the district court issued its order granting Peck’s motion to dismiss the first-degree controlled-substance charge for lack of probable cause. In its order, the court did not consider whether the statutory definition of “mixture” was ambiguous. In addition, the court did not find that the State’s evidence was inherently incredible.¹ Instead, based on the standard usage of a bong and the fact that Peck had not removed the water from the bong, the court concluded that Peck “intended [the bong water] to be a part of the bong, or drug paraphernalia.” Based on its determination that the bong water was better classified as “material of any kind” under the drug paraphernalia definition provided in Minn.Stat. § 152.01, subd. 18 (2008), the court dismissed the first-degree possession charge. The court also concluded that allowing the weight of the water to be used to enhance the possession crime to a first-degree possession charge was “unjust.”

The State filed a pretrial appeal to the Minnesota Court of Appeals, which affirmed the district court decision. State v. Peck, 756 N.W.2d 510, 517 (Minn.App.2008). After determining that the State had established a critical impact, the court of appeals considered the State’s argument that the term “mixture” was unambiguous.² The court of appeals concluded that the term “mixture” was ambiguous as applied to the facts of this case. Id. at 515. Based on its application of the canons of statutory construction, the court held that the term “mixture” as used in MinmStat. § 152.01, subd. 9a, should be interpreted as “something that has been prepared for a particular purpose — which in this context would be the use, sale, or manufacture of controlled substances.” Peck, 756 N.W.2d at 515. Because the district court found that the bong water seized at Peck’s residence was an accidental by-product of drug usage, the court of appeals held the bong water was not a “mixture” within the meaning of MinmStat. § 152.01, subd. 9a, and therefore, a first-degree possession of a controlled substance charge could not be sustained. Peck, 756 N.W.2d at 516. The State filed a petition for review, which we granted.

The issue is whether the water containing methamphetamine stored in Peck’s bong falls within the definition of “mixture” set forth in Minn.Stat. § 152.01, subd. 9a.³ The de novo standard controls our review of statutory interpretation issues. State v. Loge, 608 N.W.2d 152, 155 (Minn.2000). When interpreting a statute we must give the statute’s words and phrases their plain and ordinary meaning. State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). When analyzing the plain and ordinary meaning of words or phrases, we have considered dictionary definitions. State v. Hartmann, 700 N.W.2d 449, 453-54 (Minn.2005).

The threshold issue in any statutory interpretation analysis is whether the statute’s language is ambiguous. State v. Wiltgen, 737 N.W.2d 561, 570-71 (Minn.2007); Loge, 608 N.W.2d at 155. If the “words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” MinmStat. § 645.16 (2008); see also Loge, 608 N.W.2d at 155 (explaining that we may not disregard the letter of the law under the pretext of pursuing the spirit of the law); State v. Jesmer, 293 Minn. 442, 443, 196 N.W.2d 924, 924 (1972) (stating that when statutory language is unambiguous, further construction is neither necessary nor permitted). “We have consistently refused to assume a legislative intent in plain contradiction to words used by the legislature.” Jesmer, 293 Minn. at 443, 196 N.W.2d at 924. When the statutory language is not ambiguous, we do not apply the rule of lenity.⁴ Loge, 608 N.W.2d at 156. On the other hand, if the statutory language is ambiguous, we may consider the factors set forth in MinmStat. § 645.16(l)-(8) (2008).⁵ State v. Engle, 743 N.W.2d 592, 593 (Minn.2008). A statute is ambiguous if its language is subject to more than one reasonable interpretation. State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007). The State argues that the statutory definition of “mixture” is unambiguous. We agree.

Minnesota Statutes § 152.01, subdivision 9a, defines “mixture” as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” A “preparation” is a “substance, such as a medicine, prepared for a particular purpose.” The American Heritage Dictionary 1386 (4th ed.2000). A “compound” is a “combination of two or more elements or parts.” Id. at 379. A “mixture” is “[sjomething produced by mixing.” Id. at 1128. A “substance” is “[t]hat which has mass and occupies space; matter. A material of a particular kind or constitution.” Id. at 1726.

We conclude that when applied to the water containing methamphetamine stored in the bong, the phrase “preparation, compound, mixture, or substance” is clear and free from all ambiguity. Bong water is plainly a “substance” because it is material of a particular kind or constitution. The bong water is a “mixture” because it is a “substance containing a controlled substance” — methamphetamine.

The court of appeals reached the opposite conclusion because it determined that the phrase “preparation, compound, mixture, or substance” excludes a water-based combination such as bong water. Peck, 756 N.W.2d at 515-17. But this construction reads out the phrase “regardless of purity” from the definition of “mixture.” We have no opportunity to ignore part of the legislature’s definition. See State v. Larivee, 656 N.W.2d 226, 229 (Minn.2003) (noting the obligation to give effect to all provisions in statutes).

Unlike the dissent, we conclude that the water containing methamphetamine stored in the bong does not reasonably fit the definition of drug paraphernalia, which includes any material intentionally or knowingly used to inject, ingest, or inhale a controlled substance, MinmStat. § 152.01, subd. 18 (2008). Although a person may add “water” to a bong to facilitate the ingestion or inhalation of methamphetamine, a person does not add “water containing methamphetamine” to a bong to facilitate the ingestion or inhalation of methamphetamine. Unconsumed residual controlled substances are not materials used to inject, ingest, or inhale a controlled substance. In addition, holding that “water containing methamphetamine found in a bong” is part of the bong because “water” is added to the bong to facilitate ingestion or inhalation would lead to absurd results — a mixture of water and heroin found in a syringe would become a part of the syringe because a person must add water, or some comparable liquid, to a syringe to facilitate the injection of the heroin.⁶

We conclude that the definition of “mixture” in MinmStat. § 152.01, subd. 9a (2008), as applied to bong water that tests positive for the presence of a controlled substance, is clear and free from all ambiguity.⁷ Because the water containing methamphetamine stored in Peck’s bong falls within the statutory definition of “mixture,” we reverse the lower court decisions and remand for further proceedings consistent with this opinion.

Reversed and remanded.

1 . The district court was required, as are we, to view the evidence and all resulting inferences in favor of the State. See State v. Rud, 359 N.W.2d 573, 579 (Minn.1984) (explaining that a motion to dismiss for lack of probable cause to support the charged offense should be denied if the record establishes that "the prosecutor possesses substantial evidence that will be admissible at trial and that would justify denial of a motion” for a judgment of acquittal); State v. Slaughter, 691 N.W.2d 70, 74-75 (Minn.2005) (explaining that "the test for granting a motion for a directed verdict is whether the evidence is sufficient to present a fact question for the jury's determination, after viewing the evidence and all resulting inferences in favor of the state”); 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice — Criminal Law & Procedure § 21.5 (3d ed.2001) (explaining that, since the judge's function does not extend to an assessment of the credibility of conflicting testimony, a motion to dismiss for lack of probable cause to support the charged offense should be denied when a prosecutor supplements the record with substantial evidence admissible at trial and not inherently incredible, which would be adequate to withstand a motion for a judgment of acquittal). When viewed in a light most favorable to the State, the record demonstrates that the water containing methamphetamine stored in Peck's bong was colored and scented, that a button was placed over the bong opening presumably to keep out flies, and that narcotics users are known to drink or inject the unconsumed methamphetamine, which is captured by the water in the bong. The dissent states that, even under its interpretation of the statutory language, bong water may be a mixture, and not drug paraphernalia, if the evidence shows the liquid in the bong was more than a facilitator of consumption. Although we do not adopt the dissent’s interpretation of the statutory language, when the record is viewed in a light most favorable to the State, the evidence demonstrates that the liquid in the bong was more than a facilitator of consumption.

2 . There is no serious dispute that the State established a critical impact in this case. Consequently, our analysis focuses on whether the term "mixture” is unambiguous.

3 . The issue in this case is one of statutory interpretation, not whether we approve of the prosecutor's charging decision. The dissent clearly disagrees with the prosecutor's decision, and there is certainly room to debate the wisdom of that decision. But we may intrude onto the executive branch charging function only in very limited circumstances. State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996) ("Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority.”). While the dissent protests, based on commentary from a United States Senator from the Commonwealth of Virginia, that the State's charging decision here "is counterproductive to the purposes of our criminal justice system,” the dissent makes no effort to show that the decision here satisfies the standard we articulated in Krotzer.

4 . The rule of lenity requires us to resolve any ambiguity concerning the ambit of criminal statutes in favor of lenity towards the defendant. Loge, 608 N.W.2d at 156.

5 . Those factors are (1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous legislative history; and (8) legislative and administrative interpretations of the statute. Minn.Stat. § 645.16.

6 . One method of heroin use involves pulling the heroin into a syringe filled with water, shaking the syringe and then injecting it directly into the vein. See Thomas Kerr et ah, The Public Health and Social Impacts of Drug Market Enforcement: A Review of the Evidence, 16 Int’l J. Drug Pol’y 210, 211 (2005); City of Victoria, Fitting the Pieces Together: Towards an Integrated Harm Reduction Response to Illicit Intravenous Drug Use in Victoria, BC 20 (July 2005).

7 . Having concluded the statutory language is unambiguous, our well-established jurisprudence prohibits us from considering the factors set forth in Minn.Stat. § 645.16(l)-(8), which include other laws upon the same or similar subjects and the consequences of a particular interpretation. Peck has not raised issues of due process and constitutional vagueness. Consequently, we need not, and do not, decide those issues. We note, however, that in Chapman v. United States, 500 U.S. 453, 468, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), the United States Supreme Court held that a federal statute requiring the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD did not violate due process, nor was it unconstitutionally vague.