State v. Dennis

• Decision Date: 07 June 2007
• Docket Number: No. 20060265.,20060265.
• Citation: 2007 ND 87,733 N.W.2d 241
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Douglas James DENNIS, Defendant and Appellant.
• Court: North Dakota Supreme Court

733 N.W.2d 241

2007 ND 87

STATE of North Dakota, Plaintiff and Appellee v. Douglas James DENNIS, Defendant and Appellant.

No. 20060265.

Supreme Court of North Dakota.

June 7, 2007.

Julie A. Lawyer, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Douglas Dennis appeals from the criminal judgment entered after his conditional plea of guilty to possession of marijuana with intent to deliver within one thousand feet of a school. We hold the plain language of section 19-03.1-23.1(1)(a), N.D.C.C., provides an offense enhancement only for the manufacture and distribution of a controlled substance within one thousand feet of a school. We reverse the district court judgment and remand for resentencing under N.D.C.C. § 19-03.1-23(1)(b) as a class B felony.

I

[¶ 2] In February 2006, Dennis was arrested and charged with possession of marijuana with intent to deliver within one thousand feet of a school.

[¶ 3] Prior to Dennis's arrest, Detective Paul Olson applied for a search warrant to search Dennis's residence. At the hearing for probable cause to search the house, Detective Olson testified about having received a tip that Dennis was selling "large quantities" of marijuana from his residence near Grimsrud Elementary school. He further testified that after conducting surveillance, officers seized and analyzed trash from outside of Dennis's home. He testified that officers found mail addressed to Dennis, plastic bags containing a green residue that field-tested positive for marijuana, and "a handful of Marijuana stems" in the trash bag. Detective Olson testified he received a tip that "a shipment" had arrived at Dennis's home. He testified about "unusual traffic" at the residence — individuals would arrive at Dennis's home empty-handed and leave carrying brown paper bags. The district court granted Olson's application for a search warrant for Dennis's residence.

[¶ 4] During the search of Dennis's home, officers found 18 individually wrapped bags of marijuana, each containing about three grams, and a single bag containing nearly 30 grams of the drug — less than a hundred grams total. The officers also found cash, money orders, smoking devices, a box of sandwich bags, an envelope with "pay/owe information," and scales.

[¶ 5] Dennis moved to reduce the charge on the ground that the offense as charged does not exist under North Dakota law. The district court denied the motion. At the change of plea hearing, Dennis entered an oral conditional guilty plea to preserve his right to appeal. The district court accepted the State's sentencing recommendation, which was apparently part of a plea agreement, and sentenced Dennis to a ten-year prison term, with all but six months suspended for five years. Dennis was placed on house arrest for the six-month period and was electronically monitored. At the sentencing hearing, Dennis's trial counsel said that if this Court were to rule in his favor on appeal, his and Dennis's intent "was to just have the same outcome as far as the plea agreement, just make it a Class B rather than a Class A [felony]."

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 7] Dennis contends the offense of possession of marijuana with intent to deliver within one thousand feet of a school does not exist in North Dakota. Dennis does not dispute that he lives within one thousand feet of a school. He now asks us "to reverse his conviction . . . to the charge of Possession of Marijuana with Intent to Deliver and remand for further proceedings."

[¶ 8] According to the criminal information, the State charged that Dennis "willfully possessed a controlled substance, namely marijuana, with intent to deliver within 1000 feet of the real property comprising a public or private elementary or secondary school. . . . Class A Felony." The State charged Dennis under four statutes: 19-03.1-23 (prohibited acts); 19-03.1-23.1 (increased penalties for aggravating factors in drug offenses); 19-03.1-05(5)(t) (defining marijuana as a schedule I hallucinogenic controlled substance); and 12.1-32-01(2) ("Class A felony, for which a maximum penalty of twenty years' imprisonment, a fine of ten thousand dollars, or both, may be imposed.").

[¶ 9] Under N.D.C.C. § 19-03.1-23, possession with an intent to deliver marijuana is a class B felony:

1. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. . . . Any person who violates this subsection with respect to:

a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony. . . .

b. Any other controlled substance classified in schedule I, II, or III, is guilty of a class B felony, except that any person who delivers one hundred pounds . . . or more of marijuana is guilty of a class A felony. . . .

N.D.C.C. § 19-03.1-23(1)(a), (b) (emphasis added).

[¶ 10] Under N.D.C.C. § 19-03.1-23.1, a person who violates section 19-03.1-23 is subject to an offense enhancement if any of the following "aggravating factors" are found to be present:

1. A person who violates section 19-03.1-23 is subject to the penalties provided in subsection 2 if:

a. The offense involved the manufacture or distribution of a controlled substance in or on, or within one thousand feet [300.48 meters] of, the real property comprising a public or private elementary or secondary school, public career and technical education school, or a public or private college or university;

b. The defendant was at least sixteen years of age at the time of the offense and the offense involved the delivery of a controlled substance to a minor;

c. The offense involved [certain types and quantities of controlled substances]; or

d. The defendant had a firearm in the defendant's actual possession at the time of the offense.

2. The offense is:

a. A class AA felony if the violation of section 19-03.1-23 is designated as a class A felony.

b. A class A felony if the violation of section 19-03.1-23 is designated as a class B felony.

c. A class B felony if the violation of section 19-03.1-23 is designated as a class C felony.

d. A class C felony if the violation of section 19-03.1-23 is designated as a class A misdemeanor.

N.D.C.C. § 19-03.1-23.1(1) and (2) (emphasis added).

[¶ 11] In arguing the State charged him with an invalid offense, Dennis contends the aggravating factor for offenses near a school found in N.D.C.C. § 19-03.1-23.1(1)(a) is unambiguous and focuses his contention on the words "manufacture or distribution." He contends "distribution" requires an actual, constructive, or attempted transfer — not merely possession with an intent to deliver. In the alternative, Dennis contends any statutory ambiguity must be resolved in his favor in keeping with the rule of lenity. The State agrees the statute is unambiguous but contends the controlling language is "involved." The State relies on a dictionary definition of the present tense form of that verb to mean "to include as a necessary circumstance, condition, or consequence." The State argues that "[p]ossession with intent to deliver `involves' distribution of a controlled substance just as much as conspiracy or accomplice to a delivery involves distribution." The State contends that applying Dennis's reasoning produces an absurd result because "he could be charged with either Possession of Marijuana Within 1,000 Feet of a School, a class B felony, or Possession of Marijuana With Intent to Deliver, a class B felony. [This] interpretation produces the absurd result that the same penalty applies to his possession of the drug for his personal consumption and his possession of that drug with intent to deliver it to another."

[¶ 12] "Construction of a criminal statute is a question of law, fully reviewable by this Court." State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878 (citation omitted). "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." N.D.C.C. § 1-02-02. "When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05.

Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language. Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or as are defined by statute, must be construed according to such peculiar and appropriate meaning or definition.

N.D.C.C. § 1-02-03. "[I]t is presumed that . . . [t]he entire statute is intended to be effective." N.D.C.C. § 1-02-38(2); see also Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878 ("We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage."). In statutory construction, the particular usually controls the general:

Whenever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision must prevail and must be construed as an exception to the general provision, unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.

N.D.C.C. § 1-02-07; see...