State v. Erban, Cr. N
| Decision Date | 20 September 1988 |
| Docket Number | Cr. N |
| Citation | 429 N.W.2d 408 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Todd Steven ERBAN, Defendant and Appellant. o. 870281. |
| Court | North Dakota Supreme Court |
Mark Rainer Boening (argued), Asst. States Atty., Fargo, for plaintiff and appellee.
C. Charles Chinquist (argued), Fargo, for defendant and appellant.
Todd Erban appealed from a jury conviction of the crime of attempted manufacture of a controlled substance. We affirm.
In February 1987, Dennis Carlson, who was assisting authorities in drug investigations, contacted Erban about manufacturing "kitchen crank." "Kitchen crank" is street vernacular for methamphetamine. Eventually, Erban agreed to meet with Carlson and a buyer at a restaurant in south Fargo. There, Paul Bazzano, a Drug Enforcement Unit agent acting undercover, paid Erban $100 to produce a sample of kitchen crank. Carlson and Erban then drove to several stores in the Fargo-Moorhead area, obtaining the materials sought by Erban to produce the kitchen crank.
Erban went to a friend's apartment and attempted to produce kitchen crank using Benzedrex inhalers and muriatic acid. Erban was arrested upon leaving the apartment. He was charged with manufacture of a controlled substance. After obtaining consent, officers searched the apartment and confiscated a glass baking dish containing a powdery substance believed to be a controlled substance.
Laboratory analysis established that the substance was propylhexedrine, which is not a controlled substance. State Chemist Aaron Rash testified that if Erban had used the same technique with a Vicks inhaler he would have produced the controlled substance 1-desoxyephedrine, an isomer of methamphetamine. In effect, Erban did not produce a controlled substance because he erroneously used Benzedrex inhalers instead of Vicks inhalers. Erban admitted at trial, however, that if he had known he needed to use Vicks inhalers to produce kitchen crank he would have done so.
Upon learning that the substance actually produced was not controlled, the State amended its charge to attempted manufacture of a controlled substance. A jury trial brought a verdict of guilty and a judgment of conviction. Erban appealed, raising these issues:
1) Is 1-desoxyephedrine a controlled substance?
2) Can Erban be convicted of attempt when it was impossible for him to manufacture a controlled substance from the materials he used?
3) Did the trial court abuse its discretion in denying Erban a continuance?
4) Did the trial court adequately instruct the jury on entrapment?
Erban argued that 1-desoxyephedrine was not controlled by state and federal law and therefore it was not unlawful for him to attempt to manufacture it.
The State asserted that Erban failed to raise this issue in the trial court which precludes appellate consideration of it. Generally matters not raised in the trial court will not be considered on appeal. See, e.g., State v. Manke, 361 N.W.2d 247, 249 (N.D.1985). Rule 52(b), N.D.R.Crim.P., however, provides that "[o]bvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The explanatory note to Rule 52(b) makes it clear that the power to notice obvious error should be exercised cautiously and only in exceptional circumstances where the defendant has suffered serious injustice. If the claimed error is not constitutional, we must determine whether the error had a significant impact upon the verdict. State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988).
If the substance intended to be manufactured was not controlled, it would have had a clear impact on the verdict and conviction would be a serious injustice. If Erban's assertion is correct, then his actions were not criminal. One cannot be convicted of attempt to manufacture a controlled substance if the intended substance is not controlled. See Rule 12(b)(2), N.D.R.Crim.P. (failure to charge an offense "shall be noticed by the court at any time during the pendency of the proceeding"). We therefore conclude that this issue can be reviewed.
To analyze Erban's argument an outline of state and federal drug laws is useful. Section 19-03.1-23(1), N.D.C.C., makes it unlawful to manufacture a "controlled substance," which is defined in Section 19-03.1-01(4), N.D.C.C., as a "drug, substance, or immediate precursor" listed in schedules set out in the Code. "[A]ny material, compound, mixture, or preparation which contains any quantity of" methamphetamine, its salts, isomers, and salts of isomers are listed as Schedule II controlled substances. Section 19-03.1-07(5), N.D.C.C. Thus, according to expert witnesses in this case, 1-desoxyephedrine is an isomer of methamphetamine and is controlled.
Section 19-03.1-02(4), N.D.C.C., however, says:
Thus, under certain circumstances, a drug which is deleted from the federal drug schedules will automatically be deleted from the state schedules.
The federal drug statutes similarly set out schedules of controlled substances and grant the Attorney General authority to add, delete, or reschedule drugs based upon statutory criteria. See Drug Abuse Prevention and Control Act, 21 U.S.C. Secs. 801 et seq. "[A]ny material, compound, mixture, or preparation which contains any quantity of" methamphetamine, its salts, isomers, and salts of isomers are currently listed as Schedule II controlled substances under federal law. 21 C.F.R. Sec. 1308.12(d) (1988).
Erban argued that the substance 1-desoxyephedrine was excluded from the federal schedules, and thus from the state schedules, pursuant to the regulation codified at 21 C.F.R. Sec. 1308.22 (1988), which excluded from all schedules certain nonnarcotic substances which may be lawfully sold over the counter. Excluded by this listing was the Vicks inhaler containing 1-desoxyephedrine.
Erban argued that it was the substance 1-desoxyephedrine itself which was excluded from the schedules by this regulation, not just the Vicks inhaler which contains a small amount of it. The statutory and regulatory arrangement, however, demonstrates that 21 C.F.R. Sec. 1308.22 excluded only the over-the-counter preparation listed, not it's component which is also listed. The clearest indication is separate listings of different over-the-counter preparations, each containing the same controlled substance. For example, the current listing has 34 separate over-the-counter preparations which contain phenobarbital. Following Erban's suggested interpretation of the regulation, phenobarbital would be wholly excluded from all schedules. If that were so, it would make no sense to list it 34 separate times. The only plausible reading of the regulation is that it excluded the listed over-the-counter preparation which contains a small dosage of the substance listed in the schedules, but does not exclude the component substance itself. This makes it logical to list individually each over-the-counter preparation in 21 C.F.R. Sec. 1308.22. If the Attorney General intended to exclude all forms of phenobarbital or 1-desoxyephedrine from the schedules of controlled substances, he could simply list that substance once, without mentioning each different over-the-counter preparation containing it.
Therefore, we conclude that 1-desoxyephedrine was not deleted from the federal schedules of controlled substances, and it therefore remained controlled under Section 19-03.1-07(5), N.D.C.C.
Erban asserted that he cannot be convicted of attempt to manufacture a controlled substance because it was "factually and legally impossible" for him to manufacture a controlled substance with the materials he used.
Section 12.1-06-01(1), N.D.C.C., provides:
The trial court instructed the jury that in order to find Erban guilty it had to find that he intentionally engaged in conduct that constituted a substantial step toward the commission of a crime and that Erban intended to manufacture methamphetamine. By returning a verdict of guilty, the jury found that both elements had been established. There was substantial evidence to support that verdict.
Erban asserted, however, that the ultimate impossibility of completing the crime was a defense. But, Section 12.1-06-01(1), N.D.C.C., specifically says that impossibility is not a defense "if the crime could have been committed had the attendant circumstances been as the actor believed them to be." Erban...
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