September 2021

Controlled substances

Presence of greater than 0.3 percent concentration of delta-9 tetrahydrocannabinol is an essential element of unlawful possession of marijuana

After obtaining a search warrant for a home where Appellant was staying, police located the key for a locked, plastic tote on Appellant’s key ring, opened the tote and found three pounds of leafy plant material. In the same bedroom, police also found 89 vaporizer cartridges filled with an amber-colored liquid, two guns, ammunition, and drug paraphernalia. A jury found Appellant guilty of possession of marijuana, and possession of a mixture containing marijuana or tetrahydrocannabinols. He argues on appeal that the State did not prove the substances he possessed are controlled substances.

First, the Court of Appeals finds the 2019 amendments to the statutory definition of “marijuana” apply to Appellant’s case, under the amelioration doctrine, holding that a statutory amendment “mitigates punishment” if it decriminalizes conduct that previously was deemed criminal.

Second, the court finds the evidence was insufficient to prove that the leafy plant material was a controlled substance but was sufficient to prove the liquid in the vaporizer cartridges was a controlled substance. Marijuana is a Schedule I controlled substance under Minn. Stat. § 152.02, subd. 2(h). “Marijuana” is defined to mean all parts of a Cannabis plant, except “industrial hemp,” Minn. Stat. § 152.01, subd. 9, which is defined as any part of the “Cannabis sativa L.” plant “with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Minn. Stat. § 18K.02, subd. 3. Thus, the plant material found in the plastic tote in this case could be marijuana or hemp. Given the changes to the definition of marijuana, the court holds that “the presence of delta-9 tetrahydrocannabinol in a concentration greater than 0.3 percent is an essential element of the offense of unlawful possession of marijuana.” This element can be proved with scientific evidence, non-scientific circumstantial evidence, or both.

Here, the State presented testimony from a BCA scientist regarding various tests she performed on the leafy plant material, but none revealed the concentration of delta-9 tetrahydrocannabinol. There was also limited circumstantial evidence as to the identity of the plant material, only that it was found in a locked tote near drug paraphernalia and vaporizer cartridges, but not its origin or intended purpose. This evidence did not negate the rational hypothesis that the plant material had a concentration of less than the required 0.3 percent of delta-9 tetrahydrocannabinol.

However, the evidence was sufficient to prove the vaporizer cartridges contained a controlled substance. Appellant was charged with possessing one or more mixtures containing tetrahydrocannabinols, which is a Schedule I controlled substance. Unlike the definition for marijuana, however, there is no exception for hemp or a substance or mixture containing less than a 0.3 percent concentration of delta-9 tetrahydrocannabinol. The State presented testimony from a BCA scientist that tetrahydrocannabinols was identified in two vaporizer cartridges. This evidence was sufficient.

Appellant’s conviction for possession of marijuana is reversed, but his conviction for possession of tetrahydrocannabinols. State v. Loveless, A20-1254, 2021 WL 4143321 (Minn. Ct. App. Sept. 13, 2021).



A jury found Appellant guilty of first-degree criminal sexual conduct, noting in response to special verdict questions that they found he used force, coercion, and both force and coercion in the commission of the offense. The State told the jury in its closing argument that the offense required that Appellant used force or coercion and stated that the jurors did not “need to agree that there was either force or coercion.” Appellant did not object but argued on appeal that the State’s comments violated his right to a unanimous verdict, as the jury was required to unanimously agree whether the intentional act of sexual penetration was committed by force, committed by coercion, or committed by both force and coercion. The Court of Appeals found the term “force or coercion” in Minn. Stat. 609.342, subd. 1(e)(i), sets forth alternative means for completing the sexual penetration element, so a unanimous verdict on that issue was not required.

A modified plain error analysis applies to unobjected-to claims of prosecutorial error or misconduct: the defendant must establish the existence of an error that was plain, then the State must show the plain error did not affect the defendant’s substantial rights. Here, the Supreme Court finds that the State established that Appellant’s substantial rights were not affected. Appellant was not prejudiced because all jurors did, in fact, unanimously find that Appellant used both force and coercion. The State also presented evidence at trial that strongly undermined Appellant’s defense, and the allegedly erroneous statement made during the closing argument was brief and not repeated. The Court of Appeals is affirmed. State v. Epps, A19-1626, 964 N.W.2d 419 (Minn. Sept. 15, 2021).



Appellant, a police officer, was convicted of third-degree depraved mind murder and second-degree manslaughter following the shooting of a woman outside the squad car in which Appellant was the passenger. Appellant and his partner were responding to a call from the victim, who called 911 after hearing screaming in the alley behind her home. While driving their squad through the alley, the victim “bang[ed]” into the driver side of the squad, and Appellant fired one shot at her. Appellant appealed his conviction, arguing the evidence was insufficient to support his conviction for depraved-mind murder, because his conduct was specifically directed at the person killed. The Court of Appeals affirmed his conviction.

The Supreme Court first addresses what the third-degree depraved mind murder statute means when it requires that the defendant act with a “depraved mind, without regard for human life.” Case law makes clear that depraved mind murder is a crime of general malice. The court reaffirms this precedent, declaring “that the mental state required for depraved-mind murder cannot exist when the defendant’s actions are directed with particularity at the person who is killed.”

The circumstances proved in this case support a reasonable inference that Appellant fired his gun with particularity at the person who startled him outside the squad car. The State failed to identify any circumstance proved that would support a reasonable inference that Appellant’s conduct was indiscriminate. Therefore, the court reverses Appellant’s conviction for depraved-mind murder and remands for resentencing on Appellant’s second-degree manslaughter conviction. State v. Noor, A19-1089, 964 N.W.2d 424 (Minn. Sept. 15, 2021).