State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1748

State of Minnesota,
Respondent,

vs.

Benjamin Robert Hovorka,
Appellant.

Filed July 31, 2017
Affirmed
Rodenberg, Judge

Anoka County District Court
File No. 02-CR-16-700

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka C ounty Attorney, Nicholas M. Jannakos, Special Assistant
County Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Benjamin Robert Hovorka challenges the sufficiency of his guilty plea to
fourth-degree sale of a controlled substance, ar guing that he did not “sell” fentanyl to his

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girlfriend, as proscribed by Minn. Stat. § 152.024, subd. 1(1) (2014), because he and his
girlfriend jointly acquired and possessed the drug. We affirm.
FACTS
On January 28, 2016, law enforcement responded to a 911 call regarding a woman
who was not breathing. Deputies arrived to find appellant’s girlfriend, A.W., receiving
cardiopulmonary resuscitation. She had overdosed after drinking the medication inside of
a fentanyl patch. Appellant admitted to obtaining fentanyl patches from a friend and
bringing them home. He and A.W. did Internet research to determine how to get high from
the patches. Fentanyl patches were recovered from the scene, and one unopened patch was
recovered from appellant’s car.
Appellant was charged with one count of fourth-degree sale of a controlled
substance, and one count of fi fth-degree possession of a cont rolled substance. In March
2016, he pleaded guilty to the charge of fourth-degree sale in exchange for the state
dismissing the fifth-degree-possession charge.
In establishing a factual basis for his plea, appellant testified at the plea hearing that
he was at his girlfriend’s house on January 28, 2016. One day earlier, he had “acquired
fentanyl patches” from a coworker. He ac quired the patches “because [he] was going
through neck pain.” He tried the patches and “ended up cutting one of the fentanyl patches
open and eating the liquid out of it.” He st ated that A.W. “ended up acquiring more of
them as well” for appellant. Neither appellant nor A.W. had a prescription for the patches.
Appellant was asked, “When you brought th em home, did you give one of them to
[A.W.]?” He responded, “Yes.” She “drank the patch,” and began “losing consciousness.”

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Appellant told law enforcement that he had other fentanyl patches in his car. He was asked,
“And was that for you to use, or were you going to give that away?” He responded, “That
was for me to use.” The district court acce pted the plea and sentenced appellant to 36
months in prison.
This appeal followed.
D E C I S I O N
Appellant challenges the sufficiency of his guilty plea. A district court must permit
a defendant to withdraw a guilty plea “if wit hdrawal is necessary to correct a ‘manifest
injustice.’” State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010) (quoting Minn. R. Crim. P.
15.05, subd. 1). A manifest injustice exists if a guilty plea is invalid. Id. at 94. To be
valid, “a guilty plea must be accura te, voluntary, and intelligent.” Id. We review the
validity of a guilty plea de novo. Id.
Appellant argues that his plea was inaccurate because the record does not establish
that a “sale” occurred. The purpose of the accuracy requirement is to prevent a defendant
from pleading guilty to a more serious offense than he could be convicted of at trial. State
v. Trott , 338 N.W.2d 248, 251 (Minn. 1983). A guilty plea is inaccurate if it is not
supported by a sufficient factual basis. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).
A sufficient factual basis exists if there are “facts on the record to support a conclusion that
[the] defendant’s conduct falls within the charge to which he desires to plead guilty.” State
v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quo tation omitted). An adequate factual
basis must establish all of the elements of the crime. Barnslater v. State, 805 N.W.2d 910,
914 (Minn. App. 2011).

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In order to be guilty of fourth-degree sale , appellant must have sold “one or more
mixtures containing a controlled substance classified in Schedule I, II, or III, except
marijuana or Tetrahydrocannabinols.” Minn. Stat. § 152.024, subd. 1(1). Appellant does
not dispute that fentanyl is a Schedule II controlled substance. See Minn. Stat. § 152.02,
subd. 3(c)(10) (Supp. 2015). The issue is whether his actions constituted a sale. The term
“sells,” as used in section 152.024, is defined in relevant part as “to sell, give away, barter,
deliver, exchange, distribute or dispose of to another, or to manufa cture.” Minn. Stat.
§ 152.01, subd. 15a(1) (2014).
Appellant relies on two cases, State v. Carithers, 490 N.W.2d 620 (Minn. 1992) and
Barrow v. State, 862 N.W.2d 686 (Minn. 2015), to argue that his actions did not constitute
a sale. In Carithers, which involved two consolidated cases, the following certified
question was posed: “When a married couple jointly acquires a Schedule I controlled
substance, and one of the part ners uses that substance and subsequently dies from a drug
overdose, did the legislature intend that the surviving partner be subject to prosecution [for
third-degree controlled-substance murder]?” 490 N.W.2d at 620. The facts at issue in
Carithers were as follows:
(a) A friend gave defendant Gladwin and his wife a ride
to the place of purchase. Gl adwin bought two “papers” of
heroin, while his wife and the friend waited in the car. They
took the heroin to the Gladwin home. Gladwin prepared the
syringes, keeping one for himself and giving one to his wife.
Gladwin “shot up” himself, and his wife “shot up” at the same
time. She passed out and died of a drug overdose.

(b) Defendant Carithers went by herself to buy the
heroin, but it appears undisputed that she was buying not just
for herself but for her husband al so. She brought the heroin

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home and used her half. After showing her husband where she
hid the heroin, she left the house. During her absence, her
husband prepared a syringe and injected himself. He too died
of an overdose.

Id. at 621. The supreme court held that cr iminal liability for th ird-degree controlled-
substance murder could not be imposed where there was “joint acquisition and possession
of drugs under circumstances where neither defendant’s conduct [could] be fairly
characterized as involving a sale or transfer or delivery to the person who died.” Id. at 622,
624.
Appellant’s acts are disti nguishable from those in Carithers. Here, the record
establishes that the fentanyl given by appellant to A.W. was not jointly acquired. Appellant
stated that he had “acquired fentanyl patc hes” from a coworker because he “was going
through neck pain.” The following exchange took place during appellant’s plea:
Q. How did you get thos e fentanyl patches?
A. From a co-worker of mine. He was watching me go
through pain and he goes, here , try these out, and they might
work for you. So I acquired them and I tried them out, and then
I ended up cutting one of the fentanyl patches open and eating
the liquid out of it.

He testified that the patch in his car, which was turned over to law enforcement, was for
his own use. And although appellant did state that A.W. obtained some other patches, he
testified in support of his plea that A.W. consumed fentanyl from a patch he had acquired
and given to her. The record admits of no conclusion other than that A.W. received directly
from appellant the fentanyl patch which she consumed. We conclude that appellant’s
testimony sufficiently establishes that he gave a fentanyl patch to A.W., an act that qualifies

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as a sale under the plain la nguage of the statute. See Minn. Stat. § 152.01, subd. 15a(1)
(defining “sell” as including to “give away”).
The supreme court emphasized in Carithers that it was “not dealing with a case of
‘sharing’ of one’s individually acquired drugs with another person.” 490 N.W.2d at 624.
“Rather,” the court stated, “we are dealing with joint acquisition and possession of drugs
under circumstances where neither defendant’s conduct can be fairly characterized as
involving a sale or transfer or delivery to the person who died.” Id. There was no transfer
in Carithers because both partners jointly posse ssed the drugs from the moment of
acquisition. Id. at 622. This case involves a transf er. Appellant individually acquired
some patches for himself, and he subsequently transferred a patch to A.W., who consumed
the drug contained in that patch, resulting in her overdose.
Appellant argues that the patches were jointly acquired and that Carithers holds that
joint acquisition “merely requires a common effort to obtain the drugs.” But he fails to
explain how his acquisition of patches involved a common effort. He asserts that the facts
in Carithers show that the “defendants obtained the drugs independently.” But the certified
question posed in Carithers involved joint acquisition by a married couple. The supreme
court, in narrowing its holding, specifically stated that “in the instant case we must assume,
given the phrasing of the certified question and the apparently undisputed facts, that each
of the defendants acquired the heroin jointly with his or her spouse.” Id. at 623. Here,
appellant testified that he obtained the very patch from which A.W. consumed the fentanyl;
he transferred it to A.W., thereby serving “as a link in the chain of distribution.” See id.
(quotation omitted).

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Appellant also relies on Barrow, a case in which the supreme court allowed a
defendant to withdraw his guilty plea to sa le of a controlled substance, because his
admission that he gave cocaine to his wife so she could hide it did not constitute a “sale.”
862 N.W.2d at 687. The Barrow case is readily distingu ishable from this case. Barrow
involved only a temporary relinquishment; the defendant gave cocaine to his wife, not for
her to use, but so that she could hide it. Id. at 690. Because the defendant in Barrow only
gave his wife temporary control of the drug , the “give away” portion of section 152.01,
subdivision 15a(1) was not satisfied. Id. Here, appellant’s act of giving away the patch to
A.W. was not a temporary relinquishment; she was given a patch, not to hide, but to
consume. Consume it she did, resulting in her overdose.
Appellant admitted to conduc t amounting to a sale, as that term is statutorily
defined. He gave a fentanyl patch to A.W. The fentanyl that he gave A.W. was not jointly
acquired, nor was his delivery of the fenta nyl to A.W. a temporary relinquishment.
Appellant’s guilty plea is accurate and sufficient.
Affirmed.