Opinion
No. C7-00-1828.
Filed June 12, 2001.
Appeal from the District Court, Clay County, File No. K9-99-2033.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, and Lisa Nelson Borgen, Clay County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction for second-degree controlled substance crime, arguing that the district court erred in refusing to instruct the jury on the lesser-included offense of third-degree controlled substance crime. Because we see no abuse of discretion, we affirm.
FACTS
Appellant Travis McCollum sold a confidential informant a sheet of LSD for $400. A sheet contains 100 "hits" or dosage units: the price was negotiated at $4 per hit. A tape of the transaction reveals that appellant described the effects of taking one hit as opposed to taking two hits. A police department analysis of the sheet showed that it actually contained 94 hits.
Appellant was charged with second degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 1(3) (1998) (sale of 50 or more dosage units is second-degree controlled substance crime). Appellant asked that the jury be instructed on a lesser included offense, third-degree controlled substance crime, in violation of Minn. Stat. § 152.023, subd. 1(2) (1998) (sale of ten or more dosage units is third-degree controlled substance crime). He argued that, because the informant allegedly wanted the effect of two hits taken together, he had purchased, and appellant had sold, only 47 dosage units. The district court refused to give the lesser-included-offense instruction, and appellant now claims this refusal was an abuse of discretion.
DECISION
The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.
Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted). Here, the evidence did not warrant the instruction appellant requested.
There is no evidence for appellant's contention that a dosage unit of LSD is more than one hit. During the trial, another witness testified, and appellant agreed, that a sheet was 100 hits and that hits could be taken either singly or together.
Analogously, over-the-counter medications are sold in tablets or capsules, which are dosage units and often carry the information that the usual adult dose is two tablets or capsules. "Dosage unit," contrary to appellant's argument, is not synonymous with "dose."
Moreover, it defies logic to define the statutory "dosage unit" as "the amount a buyer wants to take at one time," because that definition makes the degree of the crime contingent on the seller's act but on the buyer's intent and/or the strength of the substance. This court has specifically rejected the latter view. "Appellant also suggests, however, that `dosage unit' must be defined as a specific strength of LSD per dose. We disagree." State v. Palmer, 507 N.W.2d 865, 868 (Minn.App. 1993), review denied (Minn. Jan. 14, 1994). Palmer also uses the phrase "`hit' or dosage unit." Id. See also State v. Rosse, 478 N.W.2d 482, 483 (Minn. 1991) (using the phrase, "200 units (`hits') of LSD").
Given the lack of support for appellant's theory that a "dosage unit" might be two or more "hits," the district court did not abuse its discretion in failing to instruct the jury on third-degree controlled substance crime as a lesser-included offense.