State of Minnesota, Respondent, vs. Jason James Loveless, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1254
State of Minnesota,
Respondent,
vs.
Jason James Loveless,
Appellant.
Filed September 13, 2021
Affirmed in part and reversed in part
Johnson, Judge
Crow Wing County District Court
File No. 18-CR-19-2417
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Donald F. Ryan, Crow Wing County Attorney, Lindsey Lindstrom, Assistant County
Attorney, Brainerd, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)
Considered and decided by Gaitas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
SYLLABUS
1. Under the amelioration doctrine, the amendments to Minnesota Statutes
section 152.01, subdivision 9, and section 152.22, subdivision 5a, in 2019 Minn. Laws 1st
Special Session chapter 9, article 11, sections 77 and 78, which changed the definition of
"marijuana," apply to a prosecution for unlawful possession of marijuana that is alleged to
have occurred before the effective date of the amendments, so long as the case has not yet
reached final judgment.
2. To prove beyond a reasonable doubt that a defendant is guilty of unlawful
possession of marijuana in the form of leafy plant material in violation of Minnesota
Statutes section 152.025, subdivision 2(1) (as amended in 2019), the state must introduce
evidence that is sufficient to prove that the substance contains delta-9 tetrahydrocannabinol
in a concentration greater than 0.3 percent on a dry-weight basis.
3. To prove beyond a reasonable doubt that a defendant is guilty of unlawful
possession of a liquid mixture containing tetrahydrocannabinols in violation of Minnesota
Statutes section 152.025, subdivision 2(1), the state must introduce evidence that is
sufficient to prove that the mixture contains tetrahydrocannabinols. The state need not
prove that the mixture contains delta-9 tetrahydrocannabinol in a concentration greater than
0.3 percent on a dry-weight basis.
OPINION
JOHNSON, Judge
A Crow Wing County jury found Jason James Loveless guilty of two counts offifth­
degree controlled-substance crime. One conviction is based on Loveless' s possession of a
leafy plant material, which the state contends is marijuana. The other conviction is based
on Loveless's possession of vaporizer cartridges containing an amber-colored liquid
mixture, which the state contends contains tetrahydrocannabinols. Loveless argues that the
state's evidence is insufficient to support the jury's verdicts on the ground that, in light of
recent amendments to the Minnesota Statutes, the state is required to prove that both the
2
leafy plant material and the liquid mixture contain delta-9 tetrahydrocannabinol in a
concentration greater than 0.3 percent on a dry-weight basis.
As an initial matter, we conclude that, pursuant to the amelioration doctrine, the
recent statutory amendments apply to Loveless's case, even though his alleged criminal
conduct occurred before the effective date of the amendments. In light of the statutory
amendments, we conclude as a matter oflaw that the 0.3-percent threshold in the amended
statute applies to cannabis in the form of leafy plant material. We further conclude that the
state's evidence is insufficient to prove that the leafy plant material possessed by Loveless
contains delta-9 tetrahydrocannabinol in a concentration greater than 0.3 percent. But we
conclude as a matter oflaw that the 0.3-percent threshold does not apply to a liquid mixture
containing tetrahydrocannabinols, and we further conclude that the state's evidence is
sufficient to prove that Loveless possessed a liquid mixture that contains
tetrahydrocannabinols. Therefore, we affinn in part and reverse in part.
FACTS
On June 20, 2019, state troopers executed an arrest warrant at a home in the city of
Brainerd. The troopers arrested the person identified in the warrant, who was inside the
home. Loveless also was present inside the home. Loveless initially was removed from
the home, but he was escorted back into the home, at his request, to retrieve wanner
clothing. Loveless directed the troopers to a bedroom. In the bedroom, a trooper saw, in
plain view, certain items associated with controlled substances, including smoking pipes,
rolling papers, a torch lighter, and a marijuana grinder. The trooper also saw a plastic tote
box that was closed and locked.
3
Based on the troopers' observations, the Crow Wing County sheriffs office applied
for and obtained a warrant to search the home. In executing the search warrant, deputies
found the key for the locked tote box on a key ring that also had a key to Loveless' s vehicle,
which was parked outside the home. Inside the tote box was approximately three pounds
of a leafy plant material, which field-tested positive for marijuana. Elsewhere in the
bedroom, deputies found more than 89 vaporizer cartridges containing an amber-colored
liquid. The deputies also found two handguns and multiple rounds of ammunition.
The state charged Loveless with three counts of unlawful possession of a :fireann or
ammunition, in violation of Minn. Stat. § 624.713, subd. 1(2) (2018), and two counts of
fifth-degree controlled-substance crime, in violation ofMinn. Stat.§§ 152.025, subds. 1(1),
2(1) (2018). In count 4, which concerns the vaporizer cartridges, the state alleged that
Loveless possessed and intended to sell a mixture containing marijuana or
tetrahydrocannabinols. In count 5, the state alleged that Loveless possessed marijuana in
the fonn of leafy plant material.
The case was tried to a jury on three days in February 2020. Loveless represented
himself. The state called seven witnesses: two state troopers who executed the arrest
warrant at the home, three Crow Wing County deputies who executed the search warrant
and conducted an investigation, a special agent from the state bureau of criminal
apprehension (BCA), and a forensic scientist from the BCA who conducted laboratory tests
of the alleged controlled substances that were found in the bedroom of the home.
The BCA forensic scientist testified that she performed a "macroscopic"
examination of the leafy plant material, which, she explained, means that she "looked at it
4
on my desk to see what it looked like." She also perfonned a "microscopic" examination,
which means that she used "a microscope and look[ ed] at very fine detail." She also
perfonned a color test and a "GC-MS analysis." 1 She testified that, based on her laboratory
tests, the leafy plant material is marijuana.
The forensic scientist also testified that she performed a color test and a GC-MS
analysis of the liquid mixtures in two of the vaporizer cartridges. She testified that the
liquid mixtures contain "tetrahydrocannabinols" but that ''no marijuana was identified"
because she "did not observe any apparent plant material." The forensic scientist did not
testify about the concentration of delta-9 tetrahydrocannabinol in either the leafy plant
material or the liquid mixtures.
During the defense case, Loveless testified that the resident of the home where the
contraband was found, who was an acquaintance of his, had asked him to stay at the home
to take care of a dog while the acquaintance was out of town. Loveless testified that he
had arrived at the home shortly before the troopers arrived to execute the arrest warrant
and that he "had no knowledge of those items being there." Loveless did not call any other
witnesses.
The district court instructed the jury with respect to count 5, which concerns the
leafy plant material, that the state was required to prove, among other things, that "the
1The BCA forensic scientist also referred to this analysis as "gas chromatography,"
which explains the meaning of the letters "GC," but she did not explain the meaning of the
letters "MS." In State v. Vail, 274 N.W.2d 127 (Minn. 1979), the supreme court described
"gas chromatography-mass spectroscopy" as a laboratory analysis that may be used to
identify marijuana. Id. at 130. We assume that the BCA forensic scientist's use of the
letters "MS" is a reference to mass spectroscopy.
5
defendant possessed marijuana." The instruction did not define the term "marijuana." The
district court instructed the jury with respect to count 4, which concerns the liquid mixtures
in the vaporizer cartridges, that the state was required to prove, among other things, that
"the defendant possessed with intent to sell one or more mixtures containing
tetrahydrocannabinols." The instruction did not define the term "tetrahydrocannabinols."
Neither instruction made any reference to a minimum level of concentration of delta-9
tetrahydrocannabinol.
The jury found Loveless not guilty of counts 1, 2, and 3, which concerned the
firearms and ammunition. The jury found Loveless guilty of counts 4 and 5, which concern
the alleged controlled substances. The district court imposed concurrent sentences of 21
months of imprisomnent on counts 4 and 5.
Loveless appeals. His sole argument on appeal is that the state did not prove beyond
a reasonable doubt that the substances he possessed-the leafy plant material and the
vaporizer cartridges containing amber-colored liquid mixtures-are controlled substances.
ISSUES
I. Do the 2019 amendments to the statutory definition of "marijuana," which
became effective after the date of Loveless' s alleged possession of controlled substances,
apply to this case pursuant to the amelioration doctrine?
II. Is the state's evidence sufficient to prove beyond a reasonable doubt that
Loveless possessed a controlled substance, in violation of Minnesota Statutes section
152.025, subdivision 1 (as amended in 2019), by possessing (a) leafy plant material of the
6
genus Cannabis with an unknown concentration of delta-9 tetrahydrocannabinol or
(b) vaporizer cartridges containing liquid mixtures that include tetrahydrocannabinols?
ANALYSIS
Loveless argues that the evidence is insufficient to support the jury's verdicts on
counts 4 and 5. In arguing for reversal of his convictions, he relies on recent amendments
to statutes that, he contends, require the state to prove the concentration of the alleged
controlled substances that he possessed. Accordingly, we begin our analysis by
determining whether the recent statutory amendments apply to this case. We then consider
the sufficiency of the evidence in light of the applicable law.
I.
Loveless argues that, under the amelioration doctrine, recent statutory amendments
to the definition of "marijuana" apply to this case even though the amendments became
effective after the date of his offenses. The state did not present an argument concerning
the application of the amelioration doctrine in its responsive brief.
"The amelioration doctrine applies an amendment mitigating punishment to acts
committed prior to that amendment's effective date, if there has not been a final judgment
reached in the case." State v. Robinette, N .. W.2d __ , __ , 2021 WL 3745545, at
*3 (Minn. Aug. 25, 2021); see also State v. Kirby, 899 N.W.2d 485, 489 (Minn. 2017);
State v. Otto, 899 N.W.2d 501, 503 (Minn. 2017). The amelioration doctrine is grounded
in the principle that if the legislature has amended a statute to mitigate criminal punishment,
"the legislature has manifested its belief that the prior punishment is too severe and a lighter
sentence is sufficient." State v. Coolidge, 282 N.W.2d 511, 514 (Minn. 1979). As a
7
consequence, "Nothing would be accomplished by imposing a harsher punishment, in light
of the legislative pronouncement, other than vengeance." Id. at 514-15. Consequently, a
defendant whose criminal case has not yet reached final judgment may receive the benefit
of the new, more lenient law, so long as there is no "contrary statement of intent by the
legislature." Edstrom v. State, 326 N.W.2d 10, 10 (Minn. 1982).
The supreme court has summarized the amelioration doctrine by stating that the
doctrine applies if three conditions are satisfied: "(l) there is no statement by the
Legislature that clearly establishes the Legislature's intent to abrogate the amelioration
doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been
entered as of the date the amendment takes effect." Kirby, 899 N.W.2d at 490. We will
proceed to consider each of the three requirements.
First, we ask whether there is a "statement by the Legislature that clearly establishes
the Legislature's intent to abrogate the amelioration doctrine." Id. Such a statement must
be "an express declaration or clear indication of the Legislature's intent to abrogate the
amelioration doctrine within an enacted statute." Robinette, N.W.2d at __ , 2021
WL 3745545, at *5. In Kirby, the supreme court held that there was no such statement in
an effective-date provision stating, "This section is effective the day following final
enactment." 899 N.W.2d at 490 (quoting 2016 Minn. Laws ch. 160, § 18, at 591). The
Kirby court reasoned that a clearer statement is required, such as a statement that "crimes
committed prior to the effective date of this act are not affected by its provisions." Id.
(quoting 1975 Minn. Laws ch. 374, § 12, at 1251, interpreted in Edstrom, 326 N.W.2d at
10).
8
In this case, there is no express effective-date provision for the particular sections
of the law on which Loveless relies. 2019 Minn. Laws 1st Spec. Sess. ch. 9, art. 11,
§§ 77-78, at 428. Furthennore, there is no express effective-date provision for the article
in which the relevant sections are included. 2019 Minn. Laws 1st Spec. Sess. ch. 9, art. 11,
at 450. Likewise, there is no express effective-date provision applicable to the entire 478-
page act. 2019 Minn. Laws 1st Spec. Sess. ch. 9, at 478. In the absence of any express
effective-date provision, the act, which includes some appropriations, became effective on
July 1, 2019. See Minn. Stat.§ 645.02 (2018); 2019 Minn. Laws 1st Spec. Sess. ch. 9, art.
13, § 1, at 451-52; art. 14, §§ 1-11, at 452-78. More importantly, for purposes of the
amelioration doctrine, there is no statement in the relevant provisions of the act that would
indicate any legislative intent that the amelioration doctrine should not apply. See Kirby,
899 N.W.2d at 490-95; see also 2019 Minn. Laws 1st Spec. Sess. ch. 9, art. 11, §§ 77-78,
at 428. Thus, Loveless has satisfied the first requirement of the amelioration doctrine.
Second, we ask whether "the amendment mitigates punishment." Id. at 490. The
supreme court repeatedly has held that a law mitigates punishment if it calls for a shorter
tenn of imprisonment. Kirby, 899 N.W.2d at 495-96; Otto, 899 N.W.2d at 503-04;
Edstrom, 326 N.W.2d at 10; Ani v. State, 288 N.W.2d 719, 720 (Minn. 1980); Hamilton v.
State, 289 N.W.2d 470, 474-75 (Minn. 1979); Coolidge, 282 N.W.2d at 514-15. It appears
that the supreme court has not considered a case in which a statutory amendment would
cause an appellant's conduct to no longer be a crime at all and, thus, not deserving of any
criminal punishment. But the supreme court has endorsed the concept that such a result is
within the concept of mitigation. In Coolidge, the supreme court stated, "Under common
9
law, the well-settled principle is that where criminal law in effect is repealed, absent a
savings clause, all prosecutions are barred where not reduced to a final judgment." 282
N.W.2d at 514 (citingBellv. Maryland, 378 U.S. 226,230, 84 S. Ct. 1814, 1817 (1964)).
In Bell, the United States Supreme Court acknowledged "the universal common-law rule
that when the legislature repeals a criminal statute or otherwise removes the state's
condemnation from conduct that was fonnerly deemed criminal, this action requires the
dismissal of a pending criminal proceeding charging such conduct." 378 U.S. at 230, 84
S. Ct. at 1817. We interpret Coolidge to indicate that Minnesota follows the well-settled
common-law rule that a statutory amendment "mitigates punishment" if it decriminalizes
conduct that previously was deemed criminal. The well-settled common-law rule is logical
because it allows persons who have been convicted of a crime for conduct that no longer
is criminal to be treated the same as-not worse than-persons whose prior conduct still
is criminal but deserving of lesser punishment. Thus, Loveless has satisfied the second
requirement of the amelioration doctrine.
Third, we ask whether "final judgment has not been entered as of the date the
amendment takes effect." Kirby, 899 N.W.2d at 490. A district court enters judgment in
a criminal case "when the district court enters a judgment of conviction and imposes or
stays a sentence." Minn. R. Crim. P. 28.02, subd. 2(1). However, "a defendant's case is
not final for purposes of the third requirement of the amelioration doctrine if the defendant
has timely filed a notice of appeal and the direct appeal is still pending." Luna-Pliego v.
State, 904 N.W.2d 916,919 (Minn. App. 2017). "This is so because '[a]n appeal suspends
a judgment and deprives it of its finality, and that lack of finality continues until the appeal
10
is dismissed or until the appellate court has pronounced its decision."' Id. ( quoting State v.
Lewis, 656 N.W.2d 535, 537 (Minn. 2003) (alteration in original). This appeal is
Loveless's direct appeal from his convictions. Accordingly, his convictions have not yet
reached final judgment. Thus, Loveless has satisfied the third requirement of the
amelioration doctrine.
Because Loveless has satisfied all three requirements of the amelioration doctrine,
we will apply the 2019 statutory amendments when considering Loveless's arguments for
reversal of his convictions.
II.
Loveless argues that the state's evidence is insufficient to support his convictions
on counts 4 and 5. Specifically, he argues that the state did not prove beyond a reasonable
doubt that the substances he possessed have a concentration of delta-9
tetrahydrocannabinol that is greater than 0.3 percent on a dry-weight basis.
In analyzing an argument that the evidence is insufficient to support a conviction,
this court ordinarily undertakes "a painstaking analysis of the record to detennine whether
the evidence, when viewed in the light most favorable to the conviction, was sufficient."
State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that
"the jury believed the state's witnesses and disbelieved any evidence to the contrary." State
v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We "carefully
examine the record to determine whether the facts and the legitimate inferences drawn from
them would permit the factfinder to reasonably conclude that the defendant was guilty
11
beyond a reasonable doubt of the offense of which he was convicted." State v. Waiters,
929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted).
The above-stated standard of review applies so long as a conviction is adequately
supported by direct evidence. State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Direct
evidence is "evidence that is based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption." State v. Harris, 895 N.W.2d 592, 599
(Minn. 2017) ( quotation omitted). Circumstantial evidence, on the other hand, is "evidence
from which the factfinder can infer whether the facts in dispute existed or did not exist."
Id. ( quotation omitted). A conviction depends on circumstantial evidence if proof of the
offense, or a single element of the offense, is based solely on circumstantial evidence. See
State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).
If a conviction necessarily depends on circumstantial evidence, we apply a
heightened standard of review. Id. The review applicable to circumstantial evidence
consists of a two-step analysis. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First,
we "identify the circumstances proved." Id. "In identifying the circumstances proved, we
assume that the jury resolved any factual disputes in a manner that is consistent with the
jury's verdict." Id. Second, "we examine independently the reasonableness of the
inferences that might be drawn from the circumstances proved" and "determine whether
the circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt." Id. (quotations omitted). At the second step of the
analysis, we give no deference to the jury's verdict. Loving v. State, 891 N.W.2d 638, 643
(Minn. 2017). In assessing the circumstances proved and the inferences that may be drawn
12
from them, we consider the evidence as a whole rather than examining each piece of
evidence in isolation. State v. Taylor, 650 N.W.2d 190,206 (Minn. 2002).
Before considering the substance of Loveless's argument, we note the state's
position that Loveless has forfeited his argument by not giving notice of the issue before
trial and by not introducing any evidence on the issue. Contrary to the state's contention,
a defendant does not forfeit a challenge to the sufficiency of the evidence based on the
interpretation of a statute by not raising the issue in the district court. State v. Pakhnyuk,
926 N.W.2d 914, 918-20 (Minn. 2019). Thus, Loveless is entitled to appellate review of
his argument that the state's evidence is insufficient to support his convictions.
A. Count 5: Leafy Plant Material
We first consider Loveless's challenge to the sufficiency of the evidence supporting
his conviction on count 5, in which the state alleged that the leafy plant material he
possessed is marijuana.
1. Definition of Marijuana
The state charged Loveless with violating the following statute: "A person is guilty
of controlled substance crime in the fifth degree ... if ... the person unlawfully possesses
one or more mixtures containing a controlled substance classified in Schedule I, II, III, or
IV, except a small amount of marijuana." Minn. Stat. § 152.025, subd. 2(1) (2018). A
"small amount" of marijuana is defined by statute to mean "42.5 grams or less." Minn.
Stat.§ 152.01, subd. 16 (2018). There is no dispute in this case that the leafy plant material
found inside the plastic tote box weighs more than 42.5 grams.
13
Schedule I is a list of controlled substances that is codified in the Minnesota Statutes.
See Minn. Stat.§ 152.02, subd. 2 (2018). Schedule I includes "marijuana" as well as "any
natural or synthetic material, compound, mixture, or preparation that contains any quantity
of [marijuana], [its] analogs, isomers, esters, ethers, salts, and salts of isomers, esters, and
ethers, whenever the existence of the isomers, esters, ethers, or salts is possible," unless
such a substance has been "specifically excepted or ... listed in another schedule." Minn.
Stat. § 152.02, subd. 2(h), 2(h)(l). "Marijuana" is defined by statute as follows:
"Marijuana" means all parts of the plant of any species
of the genus Cannabis, including all agronomical varieties,
whether growing or not; the seeds thereof; the resin extracted
from any part of such plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of such
plant, its seeds or resin, but shall not include the mature stalks
of such plant, fiber from such stalks, oil or cake made from the
seeds of such plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of such mature stalks,
except the resin extracted therefrom, fiber, oil, or cake, or the
sterilized seed of such plant which is incapable of gennination.
Marijuana does not include hemp as defined in section 152.22,
subdivision 5a.
Minn. Stat.§ 152.01, subd. 9 (2020) (emphasis added).
Loveless relies on the last sentence of the definition of marijuana, which we have
italicized, which expressly excludes hemp. The tenn "hemp" is defined in section 152.22,
subdivision Sa, to have "the meaning given to industrial hemp in section 18K.02,
subdivision 3." Minn. Stat.§ 152.22, subd. 5a (2020). The term "industrial hemp," in tum,
is defined in section 18K.02, subdivision 3, as follows:
"Industrial hemp" means the plant Cannabis sativa L.
and any part of the plant, whether growing or not, including the
plant's seeds, and all the plant's derivatives, extracts,
14
cannabinoids, isomers, acids, salts, and salts of isomers,
whether growing or not, with a delta-9 tetrahydrocannabinol
concentration of not more than 0. 3 percent on a dry weight
basis. Industrial hemp is not marijuana as defined in section
152.01, subdivision 9.
Minn. Stat.§ 18K.02, subd. 3 (2020) (emphasis added).2
In light of these definitions, leafy plant material of the genus Cannabis could be
either "marijuana" or "hemp." If leafy plant material is cannabis with a concentration of
delta-9 tetrahydrocannabinol that is 0.3 percent or less on a dry-weight basis, it is hemp,
which is not within the definition of marijuana in section 152.01, subdivision 9. It is not
unlawful for a person to possess hemp in Minnesota. But ifleafy plant material is cannabis
with a concentration of delta-9 tetrahydrocannabinol that is greater than 0.3 percent on a
dry-weight basis, it is marijuana, as that term is defined in section 152.01, subdivision 9.
It is unlawful in Minnesota for a person to possess more than 42.5 grams of marijuana.
2Minnesota' s definition of "marijuana" is consistent with federal law, which defines
"marihuana" similarly, 21 U.S.C. § 802(16)(A) (2018), and expressly states that "[t]he term
'marihuana' does not include . . . hemp, as defined in section 16390 of title 7," id.
§ 802(16)(B)(i) (emphasis added). The federal definition of "hemp," which is referenced
in the federal definition of marihuana, provides, "The term 'hemp' means the plant
Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives,
extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not,
with a delta-9 tetrahydrocannabinol concentration of not more than 0. 3 percent on a dry
weight basis." 7 U.S.C. § 16390(1) (2018) (emphasis added). The federal definition of
hemp was enacted into law in December 2018. See Agriculture Improvement Act of 2018,
Pub. L. No. 115-334, § 10113, 132 Stat. 4908 (2018). The hemp exception to the federal
definition of marihuana was enacted into law at the same time. Id., § 12619(a), 132 Stat.
5018.
15
2. Means of Proving Marijuana
Loveless argues that, to satisfy its burden of proof, the state must prove an unlawful
concentration of delta-9 tetrahydrocannabinol. Loveless's argument implies that the state
must introduce affinnative evidence that the concentration of delta-9 tetrahydrocannabinol
in the leafy plant material is greater than 0.3 percent on a dry-weight basis. In its responsive
brief, the state does not address the issue in depth. The state argues only that it satisfied its
burden of proof because the BCA forensic scientist testified that the leafy plant material is
marijuana. Because the definition of marijuana was amended only recently, there is no
precedential caselaw specifically on point.
To detennine what evidence is necessary to support Loveless's conviction of
possession of marijuana, we look to the supreme court's opinions concerning the evidence
necessary to prove the identity of a controlled substance. The supreme court has relied on
scientific evidence in rejecting challenges to the sufficiency of the evidence of the identity
of a controlled substance. See State v. Wiley, 366 N.W.2d 265, 267-69 (Minn. 1985)
(affirming marijuana-possession conviction based on testimony of chemist who had
identified marijuana by performing . . m1croscop1c examination and thin-layer
chromatography test); State v. Dick, 253 N.W.2d 277, 278-79 (Minn. 1977) (affinning
marijuana-possession conviction based on testimony of scientist who had identified
marijuana by performing microscopic examination and "modified Duquenois or
Duquenois-Levine test"). But in State v. Vail, 274 N.W.2d 127 (Minn. 1979), the supreme
court reversed a conviction, in part because the trial court had found that the testimony of
a BCA chemist, who had conducted various laboratory tests, did not establish that the
16
substance possessed by the defendant was marijuana. Id. at 13 0. The supreme court also
rejected as insufficient the state's "non-scientific evidence," which concerned the quantity
of the substance, the price for which the defendant had proposed to sell it, and the
defendant's prior statement about the nature of the substance. Id. at 133-34. The supreme
court emphasized that there are no "minimum evidentiary requirements in identification
cases" and that the sufficiency of the evidence must be detennined "on a case-by-case
basis." Id. at 134.
In State v. Robinson, 517 N.W.2d 336 (Minn. 1994), the supreme court concluded
that the evidence was insufficient to prove that the defendant possessed a sufficient quantity
of a controlled substance. The defendant was charged with a first-degree controlled­
substance crime based on his possession of 13 small packets of a white powder that
appeared to be crack cocaine. Id. at 337-38. To prove that offense in the first degree, the
state was required to prove that the defendant possessed ten or more grams of cocaine. Id.
at 3 3 7. The state introduced the testimony of a scientist who had tested the contents of six
or seven of the 13 packets, which were randomly selected and combined together into a
single sample, which weighed less than nine grams. Id. at 338. The scientist detennined
that the mixed sample was cocaine with a purity of 87 .6 percent. Id. The supreme court
reversed the conviction on the ground that the scientific evidence was insufficient because
the state could not rely on "extrapolation from random samples." Id. at 339. The supreme
court reasoned, "The weight of the mixture is an essential element of the offense charged,"
which "must be proven by the state and proven beyond a reasonable doubt." Id. The
17
Robinson opinion applies in cases concerning marijuana. State v. Galvan, 532 N.W.2d
210,210 (Minn. 1995) (per curiam).
More recently, in State v. Olhausen, 681 N.W.2d 21 (Minn. 2004), the supreme
court upheld a conviction, despite the absence of scientific testing, based on abundant non­
scientific evidence. The defendant was charged with three controlled-substance crimes
after he agreed to sell one pound of methamphetamine to an undercover BCA agent, but
the defendant fled before the sale was completed and discarded the alleged controlled
substance during his flight. Id. at 24. Because the prosecutor did not have access to the
substance, no scientific testing was performed. Id. at 28. The state's case relied on
circumstantial evidence consisting of the undercover agent's testimony about his
negotiations with the defendant, the agent's observations of the package that the defendant
offered to sell, the statement of the defendant's supplier that the substance was
methamphetamine, and the defendant's flight. Id. at 28. The supreme court affirmed the
conviction on the ground that the state's circumstantial evidence was "compelling." Id. at
28. The supreme court noted its prior opinions in Vail and Robinson but distinguished
them on the ground that, in those cases, "the state had possession of the entire amount of
controlled substances at issue but failed to use adequate procedures to scientifically test"
the substances, while in Olhausen, the defendant had "discarded the alleged controlled
substance, thereby preventing the state from performing scientific tests." Id.
To summarize, there are no "prescribed minimum evidentiary requirements m
identification cases," i.e., cases in which an appellant argues that a substance alleged to be
marijuana is not actually marijuana. Vail, 274 N.W.2d at 134. Rather, in such cases, an
18
appellate court must "examine the sufficiency of the evidence on a case-by-case basis." Id.
The state may satisfy its burden of proof with "scientific evidence" based on laboratory
tests of the alleged controlled substance. Wiley, 366 N.W.2d at 269 (affinning conviction);
Dick, 253 N.W.2d at 278-79 (same). If an alleged offense depends on proof of a numerical
threshold, that threshold is "an essential element of the offense charged," which "must be
proven by the state and proven beyond a reasonable doubt." Robinson, 517 N.W.2d at 339
(reversing conviction); see also Galvan, 532 N.W.2d at 210 (applying Robinson to
marijuana case).3
The supreme court has recognized that all types of cannabis contain
tetrahydrocannabinols. Vail, 274 N.W.2d at 131. In light of the 2019 amendments to the
definition of marijuana, the presence of delta-9 tetrahydrocannabinol in a concentration
greater than O .3 percent is an essential element of the offense of unlawful possession of
marijuana·. The state may prove the required concentration of delta-9 tetrahydrocannabinol
with scientific evidence. See Robinson, 517 N.W.2d at 339 (analyzing scientific evidence
of weight but concluding that evidence was insufficient because of inadequate random
sampling). Alternatively, the state may prove the required concentration of delta-9
3In Robinson, the supreme court stated that there may be exceptional cases in which
"the risk of benign substitutes [is] so unlikely that random testing may legitimately pennit
an inference beyond a reasonable doubt that the requisite weight of the whole mixture is
established." 517 N.W.2d at 340. But the supreme court also noted that the sale of
simulated controlled substances was "common enough that it has achieved a criminal status
of its own." Id. at 339 (citing Minn. Stat. § 152.097 (1992)). This case presents an
analogous situation in that the legislature has recognized the lawful status of hemp. See
Minn. Stat. §§ 18K.02, subd. 3; 152.01, subd. 9; 152.22, subd. Sa. That hemp is common
enough to be recognized as lawful suggests that the 0.3-percent concentration threshold for
marijuana is not within the exception described in Robinson.
19
tetrahydrocannabinol with "non scientific" or circumstantial evidence. See Olhausen, 681
N.W.2d at 27-29. It appears that the state also may, in appropriate circumstances, satisfy
its burden of proof with a combination of scientific evidence and non-scientific evidence.
See Vail, 274 N.W.2d at 134 (considering both types of evidence but concluding that
'"additional factors' simply do not advance the state in satisfying its burden of proof, given
the trial court's skepticism of the scientific evidence"). Thus, to prove that the leafy plant
material possessed by Loveless is marijuana (as opposed to hemp), the state's evidence­
whether scientific in nature or non-scientific and circumstantial in nature or a combination
of the two types-must be sufficient to prove beyond a reasonable doubt that the
concentration ofdelta-9 tetrahydrocannabinol is greater than 0.3 percent on a dry-weight
basis.4
3. State's Evidence
In this case, the state introduced scientific evidence concerning the leafy plant
material. The BCA forensic scientist testified that she performed a macroscopic visual
examination with her naked eye, a microscopic visual examination with a microscope, a
color test, and "GC-MS analysis," which we assume means a test using gas
chromatography and mass spectrometry. Based on those tests, the forensic scientist
4W e are aware of only one foreign court that has considered this issue. That court
has held that, to prove that a defendant possessed marijuana, the state must prove that the
cannabis possessed by the defendant has a THC concentration that exceeds 0.3
percent. State v. Crowder, 385 P.3d 275, 278-81 (Wash. Ct. App. 2016) (reversing
conviction), rev. denied, 393 P.3d 361 (Wash. 2017) (table). The requisite concentration
may be proved by a combination of scientific and non-scientific evidence. State v.
Crocker, 483 P.3d 115, 117-19 (Wash. Ct. App. 2021) (affirming conviction).
20
testified that the leafy plant material is marijuana. But she did not testify that she had
conducted any tests to determine the concentration of delta-9 tetrahydrocannabinol in the
leafy plant material. Without having determined that concentration, the forensic scientist
did not have an adequate basis from which to conclude that the leafy plant material is
marijuana rather than hemp.5
The state does not argue that this court should consider any non-scientific or
circumstantial evidence that might prove that the leafy plant material possessed by
Loveless is marijuana. Nonetheless, we are obligated to review the evidentiary record to
detennine whether it contains sufficient evidence to support the conviction. To detennine
whether a jury's guilty verdict is supported by circumstantial evidence, we begin by
"identify[ing] the circumstances proved," we continue by "examin[ing] independently the
reasonableness of the inferences that might be drawn from the circumstances proved," and
we conclude by "determin[ing] whether the circumstances proved are consistent with guilt
and inconsistent with any rational hypothesis except that of guilt." Moore, 846 N.W.2d at
88 (quotations omitted).
In this case, there is a limited amount of circumstantial evidence relevant to the
identity of the leafy plant material. The state proved the following relevant circumstances:
Leafy plant material was found in a bedroom inside a locked plastic tote box. The locked
5In his principal brief, Loveless informed the court that, after the trial in this case,
the BCA announced that it had implemented a testing procedure by which it can detennine
the concentration of delta-9 tetrahydrocannabinol in both leafy plant material and liquid
mixtures. See Minn. Dep't of Pub. Safety, BCA Implements THC Quantitation,
https :// dps.mn.gov / divisions/bca/bca-divisions/forensic-science/Documents/BCAFSS _[-]
THCQuant_12042020.pdf (last visited Sept. 2, 2021).
21
plastic tote box was found near other items that are associated with controlled substances,
such as smoking pipes, rolling papers, a torch lighter, and a marijuana grinder. The locked
plastic tote box was found near multiple vaping cartridges that contain amber-colored
liquid mixtures containing tetrahydrocannabinols in an unknown concentration. But there
was no circumstantial evidence concerning the origins or intended purposes of the leafy
plant material in the plastic tote box. Loveless testified that he was unaware of any
controlled substances in the home, and the state did not introduce any other evidence of the
circumstances surrounding the leafy plant material that was found in the plastic tote box.
From the circumstances proved, a jury could draw an inference that is "consistent
with guilt," specifically, an inference that the leafy plant material found inside the plastic
tote box is cannabis with a concentration of delta-9 tetrahydrocannabinol that is greater
than 0.3 percent. See Moore, 846 N.W.2d at 88. But for the evidence to be sufficient, the
circumstances proved also must be "inconsistent with any rational hypothesis except that
of guilt." See id. (quotation omitted). The state's circumstantial evidence in this case is
weaker than the circumstantial evidence in both Vail and Robinson, which the supreme
court deemed insufficient. See Robinson, 517 N.W.2d at 339; Vail, 274 N.W.2d at 134.
The state's circumstantial evidence also is weaker than the circumstantial evidence in
Olhausen, which was deemed sufficient because the defendant had discarded the alleged
controlled substance, thereby preventing the state from perfonning scientific testing. See
Olhausen, 681 N.W.2d at 28. In this case, the state's circumstantial evidence does not
negate the rational hypothesis that the leafy plant material found in the plastic tote box is
cannabis with a concentration of delta-9 tetrahydrocannabinol that is 0.3 percent or less, in
22
which case it would be "hemp," which is expressly excluded from the statutory definition
of "marijuana." See Minn. Stat. §§ 18K.02, subd. 3; 152.01, subd. 9; 152.22, subd. Sa.
Thus, the state's evidence is insufficient to support Loveless's conviction of the
offense charged in count 5.
B. Count 4: Liquid Mixture
We next consider Loveless's challenge to the sufficiency of the evidence supporting
his conviction on count 4, in which the state alleged that the vaporizer cartridges contain
liquid mixtures that include tetrahydrocannabinols.
The state charged Loveless with violating the following statute: "A person is guilty
of controlled substance crime in the fifth degree ... if ... the person unlawfully possesses
one or more mixtures containing a controlled substance classified in Schedule I, II, III, or
IV .... " Minn. Stat. § 152.025, subd. 2(1). Schedule I is a list of controlled substances
that includes "tetrahydrocannabinols." Minn. Stat. § 152.02, subd. 2(h)(2). Schedule I
also includes "any natural or synthetic material, compound, mixture, or preparation that
contains any quantity of the following substances, their analogs, isomers, esters, ethers,
salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters,
ethers, or salts is possible," unless such a substance has been "specifically excepted or ...
listed in another schedule":
tetrahydrocannabinols naturally contained in a plant of the
genus Cannabis, synthetic equivalents of the substances
contained in the cannabis plant or in the resinous extractives of
the plant, or synthetic substances with similar chemical
structure and phannacological activity to those substances
contained in the plant or resinous extract, including, but not
limited to, 1 cis or trans tetrahydrocannabinol, 6 cis or trans
23
tetrahy drocannabino 1,
tetrahydrocannabinol.
and 3, 4 ClS or trans
Id., subd. 2(h)(2). These provisions concemmg tetrahydrocannabinols have been
unchanged since 2012. See Minn. Stat. § 152.02, subd. 2(h)(2) (2012); 2012 Minn. Laws
ch. 240, § 1, at 8. Unlike the definition of marijuana, the inclusion of
tetrahydrocannabinols in Minnesota's Schedule I does not make any exception for hemp
or for a substance or mixture that has a concentration of delta-9 tetrahydrocannabinol that
is 0.3 percent or less on a dry-weight basis. 6
6In this way, Minnesota's Schedule I is different from the federal Schedule I, which
includes "Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp (as defined
under section 16390 of title 7)." 21 U.S.C. § 812(c), Schedule I(c)(17) (2018) (emphasis
added). The italicized clause was added to the federal Schedule I in 2018. See Agriculture
Improvement Act of 2018, Pub. L. No. 115-334, § 12619(b), 132 Stat. 5018 (2018). But
no corresponding amendment was made to Minnesota's Schedule I after the change to the
federal Schedule I. See Minn. Stat. § 152.02, subd. 2(h)(2) (2020).
We are aware that, during the first special session of 2019, the legislature enacted
other laws that appear to recognize or assume the lawfulness of vaporizer cartridges
containing low concentrations of delta-9 tetrahydrocannabinol. For example, the
legislature enacted a statute providing that "a product containing nonintoxicating
cannabinoids may be sold for human or animal consumption," if certain requirements are
met. 2019 1st Spec. Session, ch. 9, art 11, § 76, at 427 (codified at Minn. Stat. § 151.72,
subd. 3 (2020)). One of the requirements is that the manufacturer conduct testing to ensure
that the product "does not contain a delta-9 tetrahydrocannabinol concentration that
exceeds the concentration pennitted for industrial hemp as defined in section 18K.02,
subdivision 3." Id. (codified at Minn. Stat. § 151.72, subd. 4(a)(3) (2020)). Another
requirement is that the product "bear a label that contains," among other things, "an
accurate statement of the amount or percentage of cannabinoids found in" the product. Id.
(codified at Minn. Stat. § 151.72, subd. 5(a)(3) (2020)). Nonetheless, the legislature did
not amend the relevant provisions of chapter 152 to make it lawful to possess a liquid
mixture with a low concentration of delta-9 tetrahydrocannabinol. If a statute's language
is plain and its meaning is unambiguous, a court must interpret the statute according to its
plain meaning, without resorting to canons of construction or legislative history. See, e.g.,
State v. Serbus, 957 N.W.2d 84, 87 (Minn. 2021); State v. Struzyk, 869 N.W.2d 280, 288
n.5 (Minn. 2015). Here, the relevant provision of Schedule I is unambiguous. It states
24
In this case, the state introduced scientific evidence that the liquid mixtures in two
vaporizer cartridges include tetrahydrocannabinols. The BCA forensic scientist testified
that she perfonned a color test and a GC-MS analysis of the liquid mixtures and "identified
tetrahydrocannabinols." Loveless did not cross-examine the forensic scientist on that
point. The forensic scientist's testimony is sufficient to prove that Loveless possessed
tetrahy drocannabino ls.
Thus, the state's evidence is sufficient to support Loveless's conviction of the
offense charged in count 4.
DECISION
The state's evidence is insufficient to prove beyond a reasonable doubt that the leafy
plant material possessed by Loveless is marijuana. The state's evidence is sufficient to
prove beyond a reasonable doubt that the liquid mixtures in the vaporizer cartridges
possessed by Loveless contain tetrahydrocannabinols.
Affirmed in part and reversed in part.
simply, "tetrahydrocannabinols," without regard for the concentration of delta-9
tetrahydrocannabinol. Minn. Stat. § 152.02, subd. 2(h), 2(h)(2).
25