State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1254

Court of Appeals Moore, III, J.
Dissenting, Gildea, C.J., Anderson, McKeig, JJ.

State of Minnesota,

Appellant/Cross-Respondent,

vs. Filed: March 22, 2023
Office of Appellate Courts
Jason James Loveless,

Respondent/Cross-Appellant.

________________________

Keith M. Ellison, Attorney General, Saint Paul, Minnesota;

Donald F. Ryan, Crow Wing County Attorney, Lindsey Lindstrom, Assistant County
Attorney, Brainerd, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, William C. Lundy, Supervised
Practitioner, Slayton, Minnesota, for appellant/cross-respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for
respondent/cross-appellant.

Jeffrey C. O’Brien, Apple Valley, Minnesota, for amicus curiae Minnesota Industrial
Hemp Association.

Jason C. Tarasek, Tarasek Law Office, PLLC, Minneapolis, Minnesota, Elliot Ginsburg,
Garner, Ginsburg & Johnsen, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota
Cannabis Association.
________________________
2
S Y L L A B U S
1. A defendant’s challenge to the sufficiency of the State’s evidence that is
grounded in a statutory-interpretation-based amelioration doctrine argument is not
forfeited on appeal even though the issue was not raised in the district court.
2. A statutory amendment mitigates punishment under the amelioration
doctrine when a change in the law either reduces the penalty for the criminal conduct or
redefines the criminal conduct in a manner benefitting the defendant, including the
decriminalization of the conduct. The 2019 amendment to exclude hemp from the
definition of marijuana in Minn. Stat. § 152.01, subd. 9 (2022) decriminalized the
possession of hemp, meaning a defendant convicted of marijuana offenses may obtain
relief under the amelioration doctrine.
3. Because Minn. Stat. § 152.01, subd. 9, explicitly excludes “hemp” from the
definition of “marijuana” and these substances are distinguished based on their delta-9
tetrahydrocannabinol concentration, the State must prove beyond a reasonable doubt that
the delta-9 tetrahydrocannabinol concentration of a substance exceeds 0.3 percent on a dry
weight basis to obtain a conviction for a fifth-degree controlled substance crime under
Minn. Stat. § 152.025, subds. 1(1) and 2(1) (2022).
4. The evidence is insufficient to support the defendant’s convictions for
fifth-degree controlled substance offenses under Minn. Stat. § 152.025, subd. 2(1) and
1(1), because the State offered inadequate evidence that the delta- 9 tetrahydrocannabinol

3
concentration of the plant material and liquid mixture in vaporizer cartridges found in the
defendant’s possession exceeded 0.3 percent on a dry weight basis.
Affirmed in part and reversed in part.
O P I N I O N
MOORE, III, Justice.
In early 2020, a Crow Wing County jury found respondent/cross-appellant Jason
James Loveless guilty of two marijuana-related fifth-degree controlled substance offenses.
One conviction is based on Loveless’s alleged possession of approximately 3 pounds of
plant material that the State claimed was marijuana. The second conviction is based on
Loveless’s alleged possession with intent to sell one or more vaporizer cartridges filled
with an amber-colored liquid mixture containing tetrahydrocannabinols.
Loveless argues that the State’s evidence is insufficient to support the jury’s verdicts
because of a 2019 amendment to the definition of marijuana in Minn. Stat. § 152.01,
subd. 9 (2022), which explicitly excluded “hemp.” Hemp is in turn elsewhere defined as
having a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry
weight basis. See Minn. Stat. § 152.22, subd. 5a (2022) (defining “hemp” based on the
definition of “industrial hemp” in Minn. Stat. § 18K.02, subd. 3 (2022)). The 2019
amendment went into effect 10 days after Loveless was charged by criminal complaint but
more than 7 months before his case went to trial. According to Loveless, the 2019
amendment governs his case through the application of the common law amelioration
doctrine. His interpretation of the amended statute requires the State to prove beyond a
reasonable doubt that both the plant material and the liquid mixture in the vaporizer
4
cartridges contained delta-9 tetrahydrocannabinol in a concentration greater than
0.3 percent on a dry weight basis.
The court of appeals agreed with Loveless that the 2019 definition of marijuana
applies to this case and reversed his conviction for possession of the plant material.
However, t he court appeals upheld his conviction for possessing with intent to sell the
vaporizer cartridges filled with the liquid mixture containing tetrahydrocannabinols. The
court reasoned that the possession of tetrahydrocannabinols in any amount is illegal under
Minnesota’s definition of Schedule I controlled substances.
We agree with the court of appeals that the 2019 amendment to the definition of
marijuana in Minn. Stat. § 152.01, subd. 9, applies to this case through the operation of the
common law amelioration doctrine. We also agree with the court of appeals that the State
did not present sufficient evidence to prove that the plant material possessed by Loveless
was marijuana as defined by the amended statute. We disagree, however, with the court of
appeals’ conclusion that the State presented sufficient evidence to prove that the liquid
mixture in the vaporizer cartridges was a prohibited schedule I controlled substance.
Therefore, we affirm in part and reverse in part and vacate both of Loveless’s convictions.
FACTS
In June 2019, state troopers executed a search warrant on a residence belonging to
T.W. When the state troopers entered the home, they found Jason Loveless in a bedroom.
Loveless told the troopers that he was staying at T.W.’s home temporarily. During the
search, the troopers discovered two guns, ammunition, vaporizer cartridges filled with an
5
amber-colored liquid, plastic bags containing a plant material, and approximately $4, 600
in cash in the bedroom where Loveless was staying.
Based on the investigation, the State charged Loveless in Crow Wing County
District Court with five crimes, two of which are relevant to this appeal: one count of
fifth-degree possession of 3 pounds of marijuana, a controlled substance classified in
Schedule I, II, III, or IV, under Minn. Stat. § 152.025, subd. 2(1) (2022)1 (for the plastic
bags filled with the plant material), and one count of fifth-degree possession of mixtures
containing marijuana or tetrahydrocannabinols (THC) with intent to sell under Minn. Stat.
§ 152.025, subd. 1(1) (2022)2 (for the vaporizing cartridges filled with liquid or wax).
A 3-day jury trial was held in February 2020. At the start of his trial, Loveless
discharged his public defender, and the district court permitted him to proceed pro se with
advisory counsel. Among the State’s witnesses was a forensic scientist from the
Minnesota Bureau of Criminal Apprehension (BCA) who tested the plant material and
liquid-filled vaporizer cartridges found in the bedroom of T.W.’s home. The BCA forensic
scientist testified that the plant material was marijuana based on her visual examination,

1 Under Minn. Stat. § 152.025, subd. 2(1), “[a] person is guilty of a controlled
substance crime in the fifth degree” if he “unlawfully possesses one or more mixtures
containing a controlled substance classified in Schedule I, II, III, or IV, except a small
amount of marijuana.” As applied to marijuana, a “ ‘[s]mall amount’ . . . means 42.5 grams
or less” of the non-resinous form of marijuana. Minn. Stat. § 152.01, subd. 16 (2022).

2 Under Minn. Stat. § 152.025, subd. 1(1), “[a] person is guilty of a controlled
substance crime in the fifth degree” if he “unlawfully sells one or more mixtures containing
marijuana or tetrahydrocannabinols, except a small amount of marijuana for no
remuneration.” Minnesota Statutes section 152.01, subdivisions 15a(1) and (3) (2022),
define the term “sell” to include possessing a controlled substance with the intent to sell it.
6
her examination under a microscope, a color test, and a gas chromatography-mass
spectrometry (GC-MS) analysis. The BCA forensic scientist testified that she performed
a color test and a GC-MS analysis of the liquid mixtures in two of the vaporizer cartridges,
and that the mixtures contained THC but “no marijuana was identified” because she “did
not observe any apparent plant material” in the cartridges. The BCA forensic scientist did
not testify about the delta-9 THC concentration of either the plant material or the liquid
mixture in the vaporizer cartridges.3
The jury found Loveless guilty of both counts of fifth-degree possession. Neither
of the jury instructions for the charges defined “marijuana,” “tetrahydrocannabinols,” or
referenced a concentration of delta-9 THC.
On appeal, Loveless challenged his convictions and argued that the evidence is
insufficient to support them. Loveless pointed to recent changes to Minnesota law
distinguishing between illegal marijuana and legal hemp based on the concentration of
delta-9 THC in the substance. 4 As a threshold matter, Loveless argued that the 2019
amendment to the definition of marijuana in Minn. Stat. § 152.01, subd. 9, should apply to

3 The parties acknowledge that since Loveless’s trial, the BCA has developed a
testing procedure to determine the delta-9 THC concentration in both plant materials and
liquid samples.

4 In 2019, the Legislature amended the definition of marijuana in Minn. Stat.
§ 152.01, subd. 9, by adding the following language: “Marijuana does not include hemp as
defined in section 152.22, subdivision 5a.” Act of May 30, 2019, ch. 9, art. 11, § 77,
2019 Minn. Laws 1st Spec. Sess. 1481, 1941. Section 152.22, subdivision 5a , was also
added in 2019 and defines “hemp” as “ha[ving] the meaning given to industrial hemp in
section 18K.02, subdivision 3.” Id. § 78. Minnesota Statutes section 18K.02, subdivision 3
was enacted in 2015. Act of June 13, 2015, ch. 4, art. 2, § 39, 2015 Minn. Laws 1st Spec.
Sess. 1944, 1968.
7
his offenses, which were charged 10 days before the amendment took effect. According
to Loveless, he should receive the benefit of the change in the law based on the application
of the common law amelioration doctrine. Loveless contends that the amended version of
the statute requires the State to prove that the substances he allegedly possessed are illegal
marijuana based on their THC concentration. Because the BCA forensic scientist did not
provide any testimony regarding the THC concentration of either the liquid mixture in the
vaporizer cartridges or the plant material in the plastic bags, Loveless asked the court of
appeals to reverse his convictions.
Notably, the State did not contest the application of the amelioration doctrine at the
court of appeals. In fact, the State apparently agreed with Loveless that the amended
definition of marijuana from the 2019 legislation applies here. The State merely argued to
the court of appeals that the evidence as a whole supports the jury’s verdicts on both counts.
The State did not directly engage with Loveless’s argument that, to sustain a conviction,
the 2019 legislation requires proof of a minimum concentration of delta-9 THC in both the
plant material and vaporizer cartridge liquid to show that the substances were marijuana,
not legal hemp. Instead, the State argued that the issue of THC concentration is part of an
affirmative defense provided in the industrial hemp statute, Minn. Stat. § 18K.08 (2022),
but that Loveless forfeited the defense by not asserting it before the jury.
In a precedential opinion, the court of appeals affirmed in part and reversed in part.
State v. Loveless, 966 N.W.2d 493, 509 (Minn. App. 2021). As a threshold matter, the
court of appeals agreed with Loveless that the common law amelioration doctrine allows
him to assert his claims under the 2019 changes to Minnesota law. Id. at 502. Specifically,
8
the court of appeals applied the test outlined in State v. Kirby, 899 N.W.2d 485, 490
(Minn. 2017), and concluded that the amelioration doctrine applies because no provisions
in the revised law show that the amelioration doctrine does not apply, the changes to the
law mitigate punishment by decriminalizing the possession and sale of certain substances,
and this case was pending when the changes to the law went into effect on July 1, 2019.
Loveless, 966 N.W.2d at 500–02.
The court of appeals dismissed the State’s forfeiture argument because “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.” Id. at 503 (citing State v. Pakhnyuk,
926 N.W.2d 914, 918 –20 (Minn. 2019)) . In addressing the substance of Loveless’s
sufficiency-of-the-evidence claims, the court of appeals looked at each fifth-degree
controlled substance conviction separately.
First, the court of appeals noted that “[b]ecause the definition of marijuana was
amended only recently, there is no precedential caselaw specifically on point” and that it
must “look to the supreme court’s opinions concerning the evidence necessary to prove the
identity of a controlled substance.” Id. at 504. The court of appeals concluded that “[i ]n
light of the 2019 amendments to the definition of marijuana, 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,” which the State may prove with either
scientific or non-scientific evidence. Id. at 506. The court of appeals determined that the
State failed to present sufficient evidence of either type to show the delta-9 THC
concentration of the plant material in the plastic bags. Id. at 507–08. Thus, the court of
9
appeals reversed Loveless’s conviction for fifth-degree marijuana possession for the bags
containing plant material. Id. at 508–09.
Second, the court of appeals observed that “[u]nlike 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.” Id. at 508. The
court of appeals noted that the provisions of the law concerning THC had been unchanged
since 2012 at the time of its opinion. Id. Based on the testimony from the BCA forensic
scientist that the liquid mixture in the vaporizer cartridges include d THC, the court of
appeals concluded that the evidence was sufficient to uphold Loveless’s conviction for
fifth-degree possession of mixtures containing THC with intent to sell. Id. at 508–09.
Both the State and Loveless filed petitions for further review, which we granted.
ANALYSIS
At its core, this case concerns Loveless’s challenge to the sufficiency of the State’s
evidence supporting his convictions for marijuana possession and sale. Reaching the
merits of that challenge, however, requires us to consider a series of preceding issues.
Loveless maintains that the State’s evidence is insufficient to support his convictions
because a 2019 amendment to the definition of marijuana controls his case through the
application of the common law amelioration doctrine. Part I of this opinion considers
whether Loveless’s amelioration doctrine argument is properly before our court when it
was not presented to the district court. In Part II, we address whether the amelioration
doctrine applies to a change in the law that decriminalizes certain conduct and whether the
10
2019 amendment’s addition of language excluding hemp from the definition of marijuana
decriminalized conduct—that is, the possession of hemp. In Part III, we consider the effect
the 2019 amendment had on the State’s evidentiary burden in marijuana-related
fifth-degree controlled substance cases. Finally, in Part IV we analyze Loveless’s
challenge to the sufficiency of the State’s evidence in light of our interpretation of the 2019
amendment.
I.
As a preliminary matter, Loveless argues that the 2019 amendment to the definition
of marijuana applies to his case even though his alleged criminal conduct took place before
the change to the law went into effect. According to Loveless, he should receive the benefit
of the change to the law under the common law amelioration doctrine. The State contends
that Loveless forfeited this argument because he failed to raise it in the district court.
Loveless counters that the State forfeited this forfeiture argument by not contesting—and
therefore, implicitly conceding—the application of the amelioration doctrine in the court
of appeals.
We must address the two intertwined arguments presented by the parties: first,
whether Loveless’s amelioration doctrine argument is properly before our court when it
was not presented to the district court and second, whether the State has forfeited its
objection to the question of whether the amelioration doctrine applies by not contesting
that issue at the court of appeals. Whether the forfeiture rule applies is a question of
appellate procedure that we review de novo. Pakhnyuk, 926 N.W.2d at 918.
11
Under the common law amelioration doctrine, an amendment that mitigates
punishment may be applied to acts committed before that amendment’s effective date.
Kirby, 899 N.W.2d at 489–90. However, this doctrine applies only to “cases that are not
yet final when the change in law takes effect.” Id. at 488; see also State v. Coolidge,
282 N.W.2d 511, 514 (Minn. 1979) ( “[A] statute mitigating punishment is applied to acts
committed before its effective date, as long as no final judgment has been reached.”).
Although we first used the term “amelioration doctrine” in Kirby, we recognized that “four
of our prior cases ha[d] followed and analyzed the doctrine.” Kirby, 899 N.W.2d at 489;
see also Coolidge, 282 N.W.2d at 514–15; State v. Hamilton, 289 N.W.2d 470, 474–75
(Minn. 1979); Ani v. State, 288 N.W.2d 719, 720 (Minn. 1980); Edstrom v. State,
326 N.W.2d 10, 10 (Minn. 1982). Since Kirby, we have applied the amelioration doctrine
in State v. Otto, 899 N.W.2d 501, 503–04 (Minn. 2017), and State v. Robinette ,
964 N.W.2d 143, 146–51 (Minn. 2021).
The State reads our amelioration doctrine case law as collectively creating a general
rule that we will not consider amelioration doctrine arguments that a defendant could have
raised in the district court but raises for the first time on appeal. To support this argument,
the State relies on the fact that we have never addressed an amelioration doctrine argument
in an analogous procedural context —where the amendment to the law implicating the
amelioration doctrine went into effect before trial. But the fact that we have not yet
addressed an issue in a particular context does not foreclose us from doing so, and our prior
amelioration doctrine cases do not draw a bright-line rule regarding when the argument
must be raised. Indeed, in Ani and Edstrom we addressed amelioration doctrine arguments
12
raised for the first time on appeal even after acknowledging that they were not raised in
postconviction petitions in district court. Ani, 288 N.W.2d at 720; Edstrom, 326 N.W.2d
at 10.
Moreover, the State’s position is inconsistent with the underlying principles of the
amelioration doctrine itself. We have stated that a harsher punishment should not stand if
“the legislature has manifested its belief that the prior punishment is too severe and a lighter
sentence is sufficient,” and “[n]othing would be accomplished by imposing a harsher
punishment . . . other than vengeance.” Coolidge, 282 N.W.2d at 514–15. If Loveless’s
statutory interpretation argument about the effect of the 2019 amendment is correct, it
would be a harsh result to subject him to punishment under a statutory provision that
became obsolete (due to an amendment) 10 days after his conduct occurred—and 7 months
before the jury trial—and then preclude him from challenging his conviction on appeal.
See Coolidge, 282 N.W.2d at 514 (“But it would be harsh for defendant to receive a 10-year
sentence in the spring of 1977, when the legislature was repealing the statute under which
defendant was convicted and changed the maximum punishment for his act from 10 years
to 1 year.”).
Finally, the same three reasons that led us in Pakhnyuk to hold that a
statutory-interpretation-based sufficiency challenge was not subject to our forfeiture
rule equally apply here. 926 N.W.2d at 918 –20. First, while we have recognized that
forfeiture may apply to issues that “concern how guilt was proven in a particular case,” a
sufficiency of the evidence challenge based on the amelioration doctrine is more similar to
13
one based on statutory interpretation, which “concerns whether guilt was proven at all.”
Id. at 918–19.
Second, Pakhnyuk held that a statutory-interpretation-based sufficiency challenge
was not forfeited because “[i]f the State’s forfeiture argument prevailed, a defendant who
failed to raise his statutory interpretation argument at trial would stand convicted of a
crime—even if the defendant were correct that the language of the statute required the State
to prove an element that was unproven in the defendant’s case.” Id. at 919; see also State
v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017) (holding that the court of appeals did not err
by interpreting a statute—even though the parties did not raise statutory interpretation
arguments—before considering the sufficiency of the State’s evidence because appellate
courts must decide cases in accordance with law). Similar due process concerns are present
here. If we agreed with the State’s forfeiture argument, “[t]he harsh consequences of the
forfeiture rule could threaten [Loveless’s] due-process protection” because, if the
amelioration doctrine applies and the State failed to meet its burden of proof under his
proffered statutory interpretation, his conviction will still stand despite the possibility that
the State did not prove every element of the offenses beyond a reasonable doubt. See
Pakhnyuk, 926 N.W.2d at 919.
Third, as in Pakhnyuk, “this rule is not unfair to the State.” Id. That is particularly
the case here, where the State failed to dispute—and instead implicitly conceded to —the
application of the amelioration doctrine when arguing to the court of appeals. Accordingly,
we hold that a defendant like Loveless does not forfeit a sufficiency-of-the-evidence
14
challenge that is grounded in a statutory- interpretation-based amelioration doctrine
argument if the defendant fails to raise the argument in the district court.
We also, however, will not treat the State’s challenge to the amelioration doctrine’s
applicability to this case as forfeited. Although we have declined to address sua sponte an
argument regarding the application of the amelioration doctrine which was not raised by a
party to the case, Robinette, 964 N.W.2d at 147 n. 6, we have the discretion to reach issues
that would otherwise be forfeited when the “interests of justice require consideration of
such issues” and our consideration “would not unfairly surprise a party to the appeal,” Roby
v. State, 547 N.W.2d 354, 357 (Minn. 1996); see also Minn. R. Crim. P. 28.02, subd. 11
(“On appeal from a judgment, the court may review . . . any other matter, as the interests
of justice may require.”); Minn. R. Civ. App. P. 103.04 (stating that appellate courts “may
review any other matter as the interest of justice may require”).
Here, we address the State’s forfeiture argument because consideration of the issue
is in the interests of justice and it will not unfairly surprise Loveless. Providing the State
an opportunity to contest the application of a potentially dispositive legal issue that was
never raised before the district court, and for which the defendant argued for the first time
on appeal, is necessary to preserve the fairness of the judicial pro ceedings. Moreover,
Loveless cannot credibly argue that he would be “unfairly surprised” by our consideration
of the issue since it is central to his case, was raised in the State’s cross-petition for further
review, and has been fully briefed by the parties.
15
II.
Having resolved the forfeiture concerns raised by the parties, we next turn to the
question of whether the amelioration doctrine should apply here. Because the doctrine
ultimately dictates which law applies—and frequently involves questions of statutory
interpretation, see, e.g., Kirby, 899 N.W.2d at 490–95— we review this issue de novo. See
State v. Wigham, 967 N.W.2d 657, 662 (Minn. 2021).
In Kirby, we articulated a three-part test for whether a defendant is entitled to relief
under the amelioration doctrine. 899 N.W.2d at 490. We stated that an amended criminal
statute applies to crimes committed before its effective date if: (1) there is no statement by
the Legislature that clearly establishes its intent to abrogate the amelioration doctrine;
(2) the amendment mitigates punishment; and (3) final judgment has not been entered
when the amendment takes effect. Id.
The State concedes that the first and third prongs of the Kirby test are satisfied here.
We agree. Nothing in the language of the 2019 amendment indicates that the Legislature
intended to abrogate the amelioration doctrine for crimes committed before the effective
date of the act. See Act of May 30, 2019, ch. 9, art. 11, §§ 77 –78, 2019 Minn. Laws
1st Spec. Sess. 1481, 1941 (hereinafter 2019 amendment); contra Edstrom, 326 N.W.2d at
10 (finding that, in the act at issue, the Legislature had “clearly indicated its intent” that the
amendment not apply to crimes committed before the effective date of the act). Moreover,
when the amendment took effect on July 1, 2019, Loveless’s criminal charges were still
pending in the district court, so there is no dispute that final judgment had not been
entered. See Coolidge, 282 N.W.2d at 515. We therefore focus our analysis on the
16
disputed second prong—that is, whether “the amendment mitigates punishment.” Kirby,
899 N.W.2d at 490.
Loveless argues that the 2019 statutory amendment decriminalized certain
conduct—namely, the possession of hemp. It follows, according to Loveless, that the
mitigation requirement of the Kirby test is satisfied because the 2019 amendment
decriminalized conduct that previously was deemed criminal. Loveless’s mitigation
argument presents an issue of first impression: whether the Legislature’s removal of certain
conduct from the definition of a crime is a mitigation of punishment under the Kirby test.
If it is, the next question is whether the 2019 amendment decriminalized the possession of
hemp.
A.
Our prior amelioration doctrine cases considered mitigation in the context of a
sentence reduction—when the Legislature reduced the penalty for a particular crime. See,
e.g., Coolidge, 282 N.W.2d at 514– 15 (applying the amelioration doctrine where the
Legislature reduced the maximum punishment for an offense from 10 years to 1 year). We
have not yet considered whether a statutory amendment decriminalizing certain conduct is
a mitigation of punishment. But none of our previous cases indicate that the doctrine, or
the concept of mitigation specifically, is meant to apply only to sentence reduction. This
is for good reason. Limiting the scope of mitigation to criminal penalty reduction would
lead to absurd results that are inconsistent with the underlying principles of the
amelioration doctrine: that when “the legislature has manifested its belief that the prior
punishment is too severe and a lighter sentence is sufficient[,] . . . [n]othing would be
17
accomplished by imposing a harsher punishment . . . other than vengeance.” Coolidge,
282 N.W.2d at 514–15.
Consider the following two hypotheticals . In the first hypothetical, a statutory
amendment changes the maximum penalty for an offense from 10 years to 1 year and 1 day
and goes into effect before a defendant’s conviction for that offense became final. In the
second hypothetical, a statutory amendment decriminalizes the same conduct that
previously carried a maximum sentence of 10 years and goes into effect after charging but
before a defendant’s conviction for this offense became final. Both defendants are
sentenced to the statutory maximum of 10 years imprisonment and then appeal their
sentences. The defendant in the first scenario would satisfy the mitigation prong and,
assuming the other two prongs of the Kirby test are met, could have her sentence reduced
to 1 year and 1 day. But if the scope of mitigation was limited to criminal penalty
reduction, the defendant in the second scenario could not have his 10-year sentence
reduced.
The disparate outcomes in the se hypotheticals demonstrate why limiting the scope
of mitigation to sentence reduction is illogical: it makes little sense to continue to impose
punishment on a defendant whose conduct the Legislature has since deemed permissible
but give ameliorative benefit to a defendant whose conduct the Legislature still condemns,
just less harshly.5 We have relied on “the common law and the weight of greater logic” in

5 The dissent asserts that the amelioration doctrine should not apply when the
Legislature decriminalizes conduct because we have only applied the doctrine in the
penalty context. The logical extension of this argument is that removing all penalty for

18
previous application of the amelioration doctrine, and we do so again today. 6 Coolidge,
282 N.W.2d at 515.
The dissent asserts that applying the common law amelioration doctrine to
legislative changes that decriminalize conduct “effectively revives the abatement
doctrine,” which the Legislature has abrogated through the enactment of Minn. Stat.
§ 645.35 (2022). We disagree. Abatement “is a common law presumption that the
Legislature’s repeal of a criminal statute requires the State to halt its prosecutions under
the repealed statute.” Kirby, 899 N.W.2d at 494. As we explained in Kirby, amelioration
and abatement are different common law doctrines that address the effect of a change in
the law on cases that are not final when the new law takes effect. Id. at 494–95. Compared

certain conduct cannot be a mitigation of punishment. As discussed above, we believe that
such a narrow view of mitigation is illogical.

6 Moreover, other courts have given defendants the ameliorative benefits of statutory
changes that decriminalize conduct or otherwise redefine conduct in a manner that
benefits defendants. See , e.g., People v. Figueroa, 24 Cal. Rptr. 2d 368, 369– 71 (Cal.
Ct. App. 1993) (holding that defendant was entitled to the benefit of an amendment to an
enhancement statute that added a new element to the enhancement); People v. Rossi,
555 P.2d 1313, 1315–16 (Cal. 1976) (explaining that the common law principles
supporting mitigation of sentencing apply with equal force when an amendment entirely
eliminates criminal sanction).
The dissent contends that our reference to Rossi is misplaced. The dissent asserts
that the California Supreme Court applied only the abatement doctrine to the statutory
change at issue in Rossi. While we do not share the dissent’s certainty on this point for the
reasons noted above, we see little point in debating the nuances of another state’s common
law. We note only that our holding today—that a statute can mitigate punishment under
our own common law amelioration doctrine by decriminalizing conduct —is hardly
revolutionary. Other courts recognized nearly 50 years ago that it would be “absurd” and
“belie[] reality” to give defendants the benefit of “amendments which mitigated
punishment” but not “amendments which repealed all criminal sanction.” Rossi, 555 P.2d
at 1316 n.8.
19
to amelioration, the doctrine of abatement applies more broadly and provides a more
extreme remedy to criminal defendants. The application of the amelioration doctrine is
limited to changes in law that are ameliorative—that is, changes that benefit a criminal
defendant— whereas abatement is implicated anytime the Legislature repeals a criminal
statute—whether that repeal is ameliorative or is coupled with a new law providing harsher
punishment for the same conduct. The result of applying the amelioration doctrine is that
criminal prosecutions may continue under the new, ameliorative law. In contrast, the
application of the abatement doctrine would require the State to halt all prosecutions under
the repealed statute.
We have previously recognized that the Legislature abrogated the abatement
doctrine through the enactment of a general savings clause, Minn. Stat. § 645.35. Kirby,
899 N.W.2d at 494. Thus, defendant s cannot escape prosecution simply because the
Legislature repeals the law under which they are being prosecuted. See, e.g., State v. Smith, 64 N.W. 1022, 1022 (Minn. 1895). 7 But this statute does not preclude defendants from
receiving the ameliorative benefits of a legislative amendment that takes effect before their
cases become final because Minn. Stat. § 645.35 does not abrogate the common law

7 In Smith, the defendant was prosecuted under a section of the penal code that made
his crime a misdemeanor. 64 N.W.2d at 1022. Before his trial, that section of the law was
repealed and a new law substituted that made the offense a felony. He argued not only that
he could not be prosecuted under the new law, but also “that he cannot be prosecuted or
punished under [the old law], because it has been repealed.” Id. Smith was thus a case
where the defendant asserted that a repeal required the prosecution to halt. We treated the
defendant’s assertion as an argument for abatement that was foreclosed by a general
savings statute that operated similarly to Minn. Stat § 645.35. See Kirby, 899 N.W.2d at
494–95 (discussing Smith, 64 N.W. at 1022–23).

20
amelioration doctrine.8 Kirby, 899 N.W.2d at 494, 495 n.7. This case is not about whether
prosecutions must automatically halt as a result of legislative changes that decriminalize
conduct. This case is about whether a legislative change that decriminalizes conduct is a
mitigation of punishment, thus allowing a defendant to receive the ameliorative benefits of
the change in the law.9 We therefore hold that a statutory amendment mitigates
punishment—and satisfies the second prong of the Kirby test for the amelioration
doctrine— when a change in the law either reduces the penalty for criminal conduct or

8 To the extent that the dissent is concerned that the result of applying the amelioration
doctrine in cases where a legislative change decriminalizes conduct simply leads to the
same result as application of the abatement doctrine (i.e., the dismissal of charges against
a defendant), we note that such a result is not guaranteed to a defendant when the new,
ameliorative law is applied to a non-final case. A law can decriminalize some conduct
while still imposing a penalty for other, similar conduct. Thus, a prosecution under the
new law could still result in a defendant’s conviction if the State presents sufficient
evidence that the defendant’s conduct is the type of conduct that is still penalized.

9 The dissent points to Bethune Assocs. v. County of Hennepin, for the proposition
that section 645.35 sweeps more broadly and applies to a legislative change that “did not
specifically repeal the existing law,” but “had the same effect .” 362 N.W.2d 323, 328
(Minn. 1985). But Bethune Associates did not involve any statutory interpretation by our
court as to the scope of 645.35’s meaning. Instead, it was a tax case where we were simply
quoting the tax court’s reasoning, rather than engaging in any independent analysis. See id.
at 325, 328. And the tax court’s reference to section 645.35 was in any event dicta to
support its primary tax-specific holding that, “[b]ased upon the facts peculiar to this 1984
amendment to Minn. Stat. § 278.05, Subd. 4, we conclude that the legislature did not intend
it to have any retroactive application.” Bethune Assocs., 362 N.W.2d at 324. Moreover,
the dissent’s reliance on Smith to argue that section 645.35 applies here is misplaced
because that case —unlike this case —concerned a legislative change that increased the
punishment for the defendant’s acts.

21
redefines criminal conduct in a manner benefitting the defendant, including through the
decriminalization of the conduct.10
B.
Having determined that the decriminalization of conduct is a mitigating change in
the law, the next question in this case is whether the 2019 amendment decriminalized
conduct—that is, the possession of hemp. To answer this question, we must interpret the
2019 amendment to the definition of marijuana. Cf. Kirby, 899 N.W.2d at 490–95 (relying
on statutory interpretation to determine whether a portion of the Minnesota Sentencing
Guidelines abrogated the amelioration doctrine). In interpreting statutes, we read the
statute as a whole, see State v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018), and favor
an interpretation that gives “each word or phrase in a statute a distinct, not an identical,
meaning,” State v. Thonesavanh, 904 N.W.2d 432, 437 (Minn. 2017).

10 The dissent argues that allowing a defendant to invoke the amelioration doctrine
when legislative action decriminalizes conduct “raises serious separation of powers
issues.” Specifically, the dissent claims that this application of the common law
amelioration doctrine “overrides the express will of the Legislature” and “treads on the
power of the executive branch to pursue criminal prosecutions.” But the dissent’s fear is
misplaced. Before a court can apply the common law amelioration doctrine, it must ensure
that there is no statement by the Legislature that clearly establishes its intent to abrogate
the amelioration doctrine. Kirby, 899 N.W.2d at 490. In other words, if the Legislature
does not want a legislative change that decriminalizes conduct to apply to non-final cases
and does want the executive branch to continue the prosecutions of such cases under the
former law, all the Legislature needs to do is clearly indicate this intent. See, e.g., Edstrom,
326 N.W.2d at 10 (concluding that the amelioration doctrine did not apply because the
Legislature “clearly indicated” that it did not want the ameliorative change in law to apply
to crimes committed before the effective date of the new law).
22
In 2015, the Legislature enacted the Industrial Hemp Development Act, which
legalized industrial hemp as a strictly regulated agricultural crop.11 Minn. Stat.§§ 18K.01–
.09 (2016); Act of June 13, 2015, ch. 4, art. 2, §§ 38–46, 2015 Minn. Laws 1st Spec. Sess.
1944, 1968–70. The Act authorized possession, transportation, processing, sale, and
purchase of industrial hemp “that is grown pursuant to [the Act].”12 Minn. Stat. § 18K.03
(2016). The Act defined “[i]ndustrial hemp,” in relevant part, as “the plant Cannabis sativa
L. and any part of the plant, . . . 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 (2016).
The Act also provided that “ ‘[m]arijuana’ has the meaning given in section 152.01,
subdivision 9.” Minn. Stat. § 18K.02, subd. 4 (2016). Section 152.01 set forth the
definitions of controlled substances, and at the time, subdivision 9 defined “[m]arijuana”
as follows:
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,

11 The Legislature passed the Industrial Hemp Development Act after enactment of
the federal Agricultural Act of 2014 (2014 Farm Bill), which allowed higher education
institutions and state departments of agriculture to pursue the cultivation of industrial hemp
under specific conditions. 7 U.S.C. § 5940(a) (2014).

12 To comply with federal direction from the 2014 Farm Bill, Minnesota has instituted
several strict rules governing the growth of industrial hemp in the state, including
licensing requirements, background checks, data reporting, and crop testing. See Minn.
Stat. §§ 18K.04–.06 (2022); Minn. R. 1565.0100–1565.1500 (2021).
23
except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed
of such plant which is incapable of germination.

Minn. Stat. § 152.01, subd. 9 (2016).
In 2019, the Legislature added references to “hemp” in statutes governing the
therapeutic use of THC and the possession of marijuana. It amended the THC Therapeutic
Research Act, Minn. Stat. §§ 152.21–.37, by adding section 152.22, subd. 5a, which
defined “[h]emp” as having “the meaning given to industrial hemp in section 18K.02,
subdivision 3.” 2019 amendment § 78. In the same session law, the Legislature also
amended the definition of marijuana in section 152.01, subdivision 9, adding that
“[m]arijuana does not include hemp as defined in section 152.22, subdivision 5a.”
2019 amendment § 77.13

13 We recognize that the Minnesota Board of Pharmacy and the Legislature each acted
to change the law in apparent response to the court of appeals’ decision in this case. In
March 2022, the Board of Pharmacy, acting pursuant to its statutory authority to reschedule
substances to conform with federal law, see Minn. Stat. § 152.02, subds. 8, 12(a) (2022),
issued an order amending the description of tetrahydrocannabinols in Schedule I, Minn.
Stat. § 152.02, subd. 2(h)(2), to add the following language: “Tetrahydrocannabinols does
not include any material, compound, mixture, or preparation that falls within the
definition of industrial hemp set forth in Minn. Stats § 18K.02.” 46 Minn. Reg. 1181–84
(Apr. 11, 2022). On May 22, 2022, the Legislature passed a bill adopting several
regulations regarding the sale of cannabinoid products derived from hemp and amending
the description of tetrahydrocannabinols in Schedule I. Act of June 2, 2022, ch. 98, art. 13,
§§ 5, 10, 2022 Minn. Laws 637, 909–10, 920 (codified as amended at Minn. Stat.
§§ 151.72, subd. 3, 152.02, subd. 2(h)(2) (2022)) (hereinafter 2022 amendment). The
description of tetrahydrocannabinols was amended to exclude “any material, compound,
mixture, or preparation that qualifies as industrial hemp as defined in section 18K.02,
subdivision 3 . . .” Id. § 10 (codified as amended at Minn. Stat. § 152.02, subd. 2(h)(2)
(2022)).
The Legislature explicitly stated that the amendment to the description of
tetrahydrocannabinols applies only to crimes committed on or after August 1, 2022. Id.
Because the Legislature indicated its intent to abrogate the amelioration doctrine with

24
In sum, the statutory definition of marijuana as a controlled substance made no
reference to hemp or industrial hemp before the 2019 amendment, but the definition of
industrial hemp in the Industrial Hemp Development Act expressly excluded marijuana
since its 2015 enactment. After the 2019 amendment, the definition of marijuana as a
controlled substance expressly excluded hemp, which was defined by reference to the
definition of industrial hemp.
A plain language comparison of the definition of marijuana in section 152.01,
subdivision 9, before and after the 2019 amendment supports Loveless’s decriminalization
argument. Before the amendment, the definition of marijuana in Chapter 152—which
creates criminal penalties for possessing controlled substances—made no exceptions for
(or even mentioned) “hemp” or “industrial hemp.” After the 2019 amendment, the
definition of marijuana explicitly excluded “hemp.” Therefore, the impact of the 2019
amendment is that a person can now be convicted of a marijuana-related controlled
substance crime unless the possessed substance is “hemp.” In other words, after the
2019 amendment went into effect, it was no longer a crime to possess hemp.
The Legislature’s use of word “hemp” rather than “industrial hemp” in the 2019
amendment to the definition of “marijuana” as a controlled substance also supports
Loveless’s argument that the 2019 amendment broadly decriminalized hemp. It is
significant that the 2019 amendment excludes “hemp” from the definition of marijuana,

respect to the 2022 amendment, Loveless is not entitled to any ameliorative benefit this
amendment may have provided. See Edstrom, 326 N.W.2d at 10. This appeal thus
concerns only the 2019 amendment to the definition of marijuana, and we do not rely on
the 2022 changes to the law in this opinion.
25
and not only “industrial hemp,” a term that already existed in section 18K.02. Comparing
the two terms, “hemp” lacks the descriptor “industrial,” which shows that the Legislature
intended the term , as used in the definition of “marijuana,” to have a different, less
constrained meaning. If the Legislature wanted to exclude “industrial hemp” from the
definition of marijuana—and attach all of the requirements in Chapter 18K—it could have
written the amendment as follows: “Marijuana excludes industrial hemp as defined in
section 18K.02, subdivision 3, that is grown pursuant to chapter 18K.” See Minn. Stat.
§ 18K.03, subd. 1 (2022) (“Industrial hemp is an agricultural crop in this state. A person
may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this
chapter or lawfully grown in another state.”).
But the fact that section 152.01, subdivision 9, instead uses the term “hemp” is
telling. “Hemp” is defined in section 152.22, subdivision 5a, by reference to the specific
definition of “industrial hemp” in section 18K.02, subdivision 3, rather than a broad
reference to all of the requirements in Chapter 18K. The use of “hemp,” therefore, indicates
that this term, as used in the 2019 amendment , was intended to have a different meaning
than the circumstances under which “industrial hemp” may be lawfully possessed,
transported, processed, sold, or bought pursuant to the requirements of Chapter 18K.
See Minn. Stat. § 18K.03, subd. 1. The specific definition of “industrial hemp” under
section 18K.02, subdivision 3, refers only to “the plant Cannabis sativa L. and any part of
the plant,” with a critical component being that it have a “a delta-9 tetrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis.” Under these different
meanings, “industrial hemp,” as that term is used in the Industrial Hemp Development Act,
26
is legal to possess in the narrow circumstances permitted in Chapter 18K. After the 2019
amendment, a person may legally possess “hemp”—the Cannabis sativa L. plant with a
delta-9 THC concentration on a dry weight basis of not more than 0.3 percent —without
similar constraints.
The different contexts in which the terms are used are also evidence that the
Legislature intended to decriminalize hemp in 2019. “Industrial hemp” is used in Chapter
18K, which governs growth and distribution of the substance as an agricultural crop. See
Minn. Stat. § 18K.03 (2022) (permitting a person to “possess, transport, process, sell, or
buy industrial hemp that is grown pursuant to this chapter” (emphasis added)). “Hemp,”
however, is used in Chapter 152, which governs controlled substance crimes. By using
the general term “hemp” to carve out an explicit exception from the definition of marijuana
in the general controlled substance crime statute, the Legislature conferred broader
permission to possess hemp than just under the circumstances in Chapter 18K.
In summary, the 2019 amendment revised section 152.01 so that the possession
of “hemp”—the plant Cannabis sativa L. and its derivatives “with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent”—is no longer criminal
under Chapter 152. By decriminalizing the possession of all hemp, the 2019 amendment
mitigated punishment and Loveless has satisfied the second prong of the Kirby test.
Because the 2019 amendment satisfies all three prongs of the Kirby test, we hold
that the common law amelioration doctrine applies to this case and through its application,
the 2019 amendment to the definition of marijuana in Minn. Stat. § 152.01, subd. 9,
controls Loveless’s fifth-degree controlled substance convictions.
27
III.
Our analysis does not end with the conclusion that the amelioration doctrine applies
to this case. Because both parties challenge the court of appeals’ conclusions on the
sufficiency of the evidence supporting Loveless’s convictions, we must now address how
the amended definition of marijuana impacts the State’s evidentiary burden at trial.
The court of appeals held, and Loveless maintains, that, to prove the plant material
possessed by Loveless was marijuana rather than hemp, the State’s evidence “must be
sufficient to prove beyond a reasonable doubt that the concentration of delta-9
tetrahydrocannabinol is greater than 0.3 percent on a dry-weight basis.” Loveless,
966 N.W.2d at 506. In its petition for further review, the State argues that the court of
appeals erred in reaching this conclusion because its interpretation renders the affirmative
defense to possession of marijuana in Minn. Stat. § 18K.08 entirely inoperable.
14 We first
address whether the court of appeals was correct that the burden is on the State, and then
address the impact on the affirmative defense under section 18K.08.
A.
The question of whether the 2019 amendment to the definition of marijuana requires
the State to affirmatively prove—through evidence showing the delta-9 THC concentration
of a possessed substance—that the substance is marijuana and not hemp, is a matter of

14 As relevant here, Minn. Stat. § 18K.08(1), provides that “[i]t is an affirmative
defense to a prosecution for the possession of marijuana under chapter 152 if . . . the
defendant possesses industrial hemp grown pursuant to this chapter.”
28
statutory interpretation. Statutory interpretation is a question of law we review de novo.
State v. Holl, 966 N.W.2d 803, 808 (Minn. 2021).
As previously discussed, marijuana as a controlled substance is defined by statute
as follows:
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 germination. Marijuana does not include
hemp as defined in section 152.22, subdivision 5a.

Minn. Stat. § 152.01, subd. 9 (emphasis added). The italicized language was added by the
2019 amendment. 2019 amendment § 77.
The term “hemp” is defined in section 152.22, subdivision 5a, to have “the meaning
given to industrial hemp in section 18K.02, subdivision 3.” The term “industrial hemp,” in
turn, is defined in section 18K.02, subdivision 3 of the Industrial Hemp Development Act,
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, 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.

(Emphasis added.)
The effect of this cascade of cross-references —which the 2019 amendment sets in
motion—is to insert a delta-9 THC concentration requirement into the definition of
29
marijuana. Marijuana, which encompasses mixtures derived from plants in the genus
Cannabis, now does not legally include the plant Cannabis sativa L., or any part of the
plant, or the plant’s derivatives or extracts, with a delta-9 THC concentration of not more
than 0.3 percent on a dry weight basis. In other words, plant material of the genus
Cannabis—as well as the plant’s derivatives or extracts, and mixtures containing the plant’s
derivatives or extracts —can be either “marijuana” or “hemp,” the first of which remains
an illegal controlled substance, while the second is not.
Based on the plain language of the 2019 amendment, the only material difference
between marijuana and hemp is the delta-9 THC concentration. Because the 2019
amendment effectively incorporates the delta-9 THC concentration requirement into the
definition of marijuana , it follows that the delta-9 THC concentration of a substance is a
required element to be proven by the State when prosecuting marijuana-related controlled
substance offenses. See State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994) (explaining
that if an alleged offense includes a numerical threshold, that threshold is “an essential
element of the offense charged” that “must be proven by the state and proven beyond a
reasonable doubt”). We therefore agree with the court of appeals and hold that due process
now requires the State to prove beyond a reasonable doubt that a substance is marijuana by
proving that the substance’s delta-9 THC concentration exceeds 0.3 percent on a dry weight
basis. See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects
the accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”).
30
B.
Having determined that the court of appeals correctly interpreted the 2019
amendment as requiring the State to prove beyond a reasonable doubt that a substance is
marijuana by proving its delta-9 THC concentration, we turn to the State’s argument that
this interpretation impliedly repeals the affirmative defense to marijuana possession in
Minn. Stat. § 18K.08(1). The affirmative defense applies to the possession of “industrial
hemp grown pursuant to this chapter.” Minn. Stat. § 18K.08(1) (emphasis added).
As discussed above, Chapter 18K imposes several requirements on industrial hemp,
including the requirements that a person obtain a license before growing or processing the
substance and document that the seeds planted “are of a type and variety” that contain
less than 0.3 percent delta-9 tetrahydrocannabinol. Minn. Stat. §§ 18K.04–.06; see also
Minn. R. 1565.0100–1565.1500 (2021). But THC levels can vary depending on when the
plant is harvested. 15 A licensed industrial hemp grower who harvested too late, for
example, could accidentally wind up with a marijuana crop. Assuming this hypothetical
grower had complied with all the requirements in Chapter 18K, it is possible that the
affirmative defense may be available.
An amendment can only be understood to repeal a former law by implication if it is
entirely irreconcilable with the prior law. Minn. Stat. § 645.39 (2022); see also Staab
v. Diocese of St. Cloud, 853 N.W.2d 713, 725 (Minn. 2014). That is not the case here

15 See Minn. Dep’t Agric., 2020 Hemp Annual Report 5 (Jan. 2021) (explaining that
“length of time under cultivation” is a crucial factor affecting THC production and that
“[c]orrectly timing testing and harvesting is essential”).
31
because the 2019 amendment and the affirmative defense are reconcilable. Someone like
Loveless— who did not argue in district court that the substances he possessed were “grown
pursuant to” the requirements of Chapter 18K —could not invoke the affirmative defense,
whereas the defense would be available to hemp producers and manufacturers who
complied with the statutory requirements.
Because the 2019 amendment and the affirmative defense are reconcilable, we hold
that the court of appeals’ decision did not impliedly repeal section 18K.08(1).
IV.
Finally, we turn to the merits of the parties’ respective sufficiency-of-the-evidence
challenges. Loveless was convicted of two counts of fifth- degree controlled substance
offenses. The court of appeals concluded that the evidence was insufficient to support the
conviction for possession of the plant material but sufficient to support a conviction for
possession with intent to sell mixtures containing tetrahydrocannabinols. Loveless,
966 N.W.2d at 508–09.
In analyzing an argument that the evidence is insufficient to support a conviction,
we undertake “a painstaking analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient to permit the
jurors to reach the verdict which they did .” State v. Ortega, 813 N.W.2d 86, 100
(Minn. 2012) (citation omitted) (internal quotation marks 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) (citation omitted) (internal quotation marks
omitted). We “carefully examine the record to determine whether the facts and the
32
legitimate inferences drawn from them would permit the [factfinder] to reasonably
conclude that the defendant was guilty beyond a reasonable doubt of the offense of which
he was convicted.” State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (alteration in
original) (citation omitted) (internal quotation marks omitted).
The standard of review stated above applies when a conviction is adequately
supported by direct evidence. State v. Horst, 880 N.W.2d 24, 39–40 (Minn. 2016). Direct
evidence is “[e]vidence 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) (alteration in original) (citations omitted) (internal quotation marks 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. (citations omitted) (internal
quotation marks omitted). If a conviction, or an element of the offense, is based solely on
circumstantial evidence, we review the sufficiency of the evidence under a heightened
standard of review. State v. Al-Naseer, 788 N.W.2d 469, 473–74 (Minn. 2010).
This standard of review for circumstantial evidence consists of two steps. State v.
Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we “identify the circumstances proved,”
and in doing so, 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. (alteration in original) (citations
omitted) (internal quotation marks omitted). At the second step of the analysis, we give no
33
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 from them, we
consider the evidence “as a whole and not as discrete and isolated facts.” State v. Cox ,
884 N.W.2d 400, 412 (Minn. 2016).
Finally, when a sufficiency-of-the-evidence claim turns on the meaning of a statute,
we review the question of statutory interpretation de novo. State v. Townsend, 941 N.W.2d
108, 110 (Minn. 2020). We address the sufficiency of the State’s evidence for each
conviction in turn.
A.
First, Loveless was convicted under Minn. Stat. § 152.025, subd. 2(1), for
unlawfully possessing one or more mixtures containing a controlled substance in
Schedule I, specifically the bags of plant material alleged to be marijuana. The State
challenges the court of appeals’ determination that the evidence presented was insufficient
to support a conviction, arguing that even if delta-9 THC concentration is a required
element of a marijuana possession charge, the circumstantial evidence here still supports
the jury’s finding of guilt. Loveless maintains that the only way to prove beyond a
reasonable doubt that the substance is marijuana is through a chemical analysis of the
delta-9 THC concentration. Because the State did not test the delta- 9 THC concentration
of the plant material, Loveless believes a rational alternate inference exists—that the
substance was hemp, which means the State failed to meet its burden of proof.
While “Minnesota law requires proof of the actual identity of the substance” in
substance identification cases, “[ w]e have not prescribed minimum evidentiary
34
requirements.” State v. Vail, 274 N.W.2d 127, 134 (Minn. 1979). Instead, we “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. State v. Wiley, 366 N.W.2d 265, 269, 271 (Minn. 1985) (affirming conviction);
State v. Dick, 253 N.W.2d 277, 278–79 (Minn. 1977) (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– 40 (reversing conviction because scientific evidence of
weight—an element of the charged offense —was insufficient because of inadequate
random sampling). Alternatively, the State may prove a substance’s identity with
nonscientific or circumstantial evidence when the substance is unavailable for testing due
to the defendant’s actions. State v. Olhausen, 681 N.W.2d 21, 27–29 (Minn. 2004). The
State may also satisfy its burden of proof with a combination of scientific evidence,
nonscientific evidence, and circumstantial 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”).
Here, the State introduced scientific evidence related to the bags of plant material.
The BCA forensic scientist testified that she performed a macroscopic visual examination
with her naked eye, a visual examination with a microscope, a color test, and GC- MS
analysis. Based on her examination, the forensic scientist concluded that the plant material
35
was marijuana. But she did not testify that any tests were conducted to determine the
concentration of delta-9 THC in the plant material.
Beyond the scientific evidence provided by the BCA forensic scientist, there is a
limited amount of circumstantial evidence relevant to the identity of the plant material.
The State proved the following circumstances: (1) t he plant material was found in a
bedroom inside a locked plastic tote box; (2) Loveless had been staying in the bedroom
where the locked plastic tote box was found; (3) the locked plastic tote box was found near
other items that are associated with controlled substances, including smoking pipes, rolling
papers, a torch lighter, and a marijuana grinder; (4) the locked plastic tote box was found
near multiple vaporizer cartridges that contain amber-colored liquid mixtures containing
tetrahydrocannabinols, and (5) the locked plastic tote box was found near significant
amounts of cash and guns and ammunition.
From the circumstances proved, a jury could infer that the plant material found
inside the box had a delta-9 THC concentration greater than 0.3 percent. A jury could also
rationally conclude, however, that the plant material had a hemp -level delta-9 THC
concentration of less than 0.3 percent.
While the circumstances proved—such as the smoking pipes, rolling papers, a torch
lighter, and a marijuana grinder—suggest that Loveless was familiar with marijuana, the
conclusion that the plant material was marijuana is not the sole reasonable inference from
this evidence. Our reasoning in Robinson guides us here. In that case, we concluded that
circumstantial evidence that a defendant was familiar with drugs was insufficient to
establish the identity of untested substances found in his possession. Robinson,
36
517 N.W.2d at 338. While the State had presented scientific evidence that some of the
substances found were cocaine, it had not tested all of the substances. Id. We observed
that “drug dealers are known to substitute placebos for the real thing,” and ultimately
concluded that while “the circumstantial evidence tends to prove defendant . . . was a drug
dealer,” it did not prove what was in the untested packets. Id. at 338–39. The same
reasoning applies here: although the circumstantial evidence suggests that Loveless was
familiar with marijuana, the evidence does not prove the THC concentration of the plant
material in the locked tote was greater than 0.3 percent on a dry weight basis.
Therefore, we agree with the court of appeals that the State’s circumstantial
evidence does not exclude the rational inference that the plant material Loveless possessed
had a delta-9 THC concentration of 0.3 percent or less. In other words, a jury could
reasonably conclude from the circumstantial evidence that the plant material was hemp,
which is excluded from the statutory definition of marijuana. We affirm the court of
appeals decision reversing Loveless’s fifth -degree controlled substance possession
conviction under Minn. Stat. § 152.025, subd. 2(1).
B.
Second, Loveless was convicted for unlawfully possessing with intent to sell one or
more mixtures containing tetrahydrocannabinols in violation of Minn. Stat. § 152.025,
subd. 1(1), namely the liquid-filled vaporizer cartridges. The State tested the cartridges for
THC, which came back positive, but the State did not test the liquid mixture’s delta-9 THC
concentration. The court of appeals nevertheless determined that the State was not required
to ascertain the THC concentration of the liquid in the cartridges —despite concluding
37
such testing was required for plant marijuana. Loveless, 966 N.W.2d at 508–09 . The
court of appeals reasoned that “[u]nlike 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.” Id. The court also noted that (at the time of
its opinion) the “provisions concerning tetrahydrocannabinols ha[d] been unchanged since
2012.”16 Id.
Loveless argues the court of appeals erred in treating tetrahydrocannabinols as a
prohibited substance discrete from marijuana. By doing so, Loveless maintains that the
court of appeals established an irreconcilable conflict in the statutory definitions of
marijuana and hemp, undermining the legislative intent of the 2019 amendment and
bringing into question the legality of most cannabis products, regardless of their THC
concentration.
1.
To determine whether the court of appeals erred in reaching this conclusion—and
by extension, affirming Loveless’s conviction—we must first interpret the impact, if any,

16 After the court of appeals released its opinion, the Legislature amended Schedule I’s
description of tetrahydrocannabinols. See 2022 amendment § 10 (codified as amended at
Minn. Stat. § 152.02, subd. 2(h)(2) (2022)). This amendment explicitly provided that
“tetrahydrocannabinols do not include any material, compound, mixture, or preparation
that qualifies as industrial hemp as defined in section 18K.02, subdivision 3.” Id. For the
reasons previously addressed, this appeal concerns only the 2019 amendment t o the
definition of marijuana. See supra n.13.
38
that the 2019 amendment to the definition of marijuana had on the provision of Schedule I
that addresses tetrahydrocannabinols. The first step in statutory interpretation is to
determine if the statute’s language is facially ambiguous. Henderson, 907 N.W.2d at 625.
If the statute’s language is free and clear of all ambiguity, “we apply the plain meaning of
the statutory language without engaging in any further construction.” State v. Barrientos,
837 N.W.2d 294, 298 (Minn. 2013). “In interpreting a particular statutory provision, we
read the provision ‘in context with other provisions of the same statute.’ ” State v. Carson,
902 N.W.2d 441, 445 (Minn. 2017) (quoting ILHC of Eagan, LLC v. County of Dakota,
693 N.W.2d 412, 419 (Minn. 2005)).
Section 152.025, subd. 1(1), the statute under which Loveless was charged, provides
that “[a] person is guilty of a controlled substance crime in the fifth degree” if “the person
unlawfully sells one or more mixtures containing marijuana or tetrahydrocannabinols,
except a small amount of marijuana for no remuneration.” Section 152.025 does not define
tetrahydrocannabinols, but they are listed in Schedule I. See Minn. Stat. § 152.02, subd. 2.
At the time of Loveless’s trial, Schedule I described them as follows:
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 pharmacological 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 tetrahydrocannabinol, and 3,4
cis or trans tetrahydrocannabinol.

39
Minn. Stat. § 152.02, subd. 2(h)(2) (20 18).17 This definition includes “any natural or
synthetic material, compound, mixture, or preparation that contains any quantity of the
following substances [including tetrahydrocannabinols], 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.” Id., subd. 2(h).
The applicable plain language of “tetrahydrocannabinols” as listed in Schedule I
includes both (1) tetrahydrocannabinols naturally contained in a cannabis plant, and
(2) their synthetic equivalents. Id., subd. 2(h)(2). Thus, the phrase “marijuana or
tetrahydrocannabinols” in section 152.025, subd. 1(1) for fifth-degree sale crimes can be
read as encompassing, on one hand, marijuana and all its derivatives, excluding hemp, and
on the other, tetrahydrocannabinols that are not naturally contained in the cannabis plant.
In other words, section 152.025, subd. 1(1) criminalizes the unlawful sale of both natural
derivatives and mixtures of marijuana, excluding hemp, as well as synthetic products
containing tetrahydrocannabinols that are in neither marijuana nor hemp.
We therefore agree with Loveless that the court of appeals created a conflict
between “tetrahydrocannabinols” as discussed in Schedule I and the definition of hemp
when it did not look at the statutory scheme as a whole. Based on the 2019 amendment,

17 As noted, w hile this case was pending, the Legislature amended Schedule I’s
description of tetrahydrocannabinols. See 2022 amendment § 10 (codified as amended at
Minn. Stat. § 152.02, subd. 2(h)(2) (2022)). Our analysis here relates solely to the statute
as it was written before the 2022 amendment. We offer no opinion on the meaning of the
statute as amended in 2022. See supra n.13.
40
hemp is legal and defined based on its delta- 9 THC concentration. In other words, hemp
is now defined by the very substance the court of appeals determined is broadly illegal
under Schedule I. It is difficult to see how the Legislature could have intended that hemp,
which contains some THC, be legal if THC itself is completely illegal. Thus, the court of
appeals’ interpretation is unreasonable.
2.
Having determined that the plain language of section 152.025, subd. 1(1), in
conjunction with the description of “tetrahydrocannabinols” in Schedule I and the amended
definition of marijuana, does not broadly criminalize the sale of all tetrahydrocannabinols,
the remaining question is whether the State presented sufficient evidence to support
Loveless’s conviction for possessing the liquid-filled vaporizer cartridges with intent to
sell. The State tested the liquid mixture only for the presence of THC. Though the liquid
mixture tested positive for THC, the State presented no evidence as to the type of THC
in the mixture (e.g., delta-8 versus delta-9 tetrahydrocannabinols or synthetic equivalents
of tetrahydrocannabinols), nor the specific concentratio n of delta- 9 THC in the liquid
mixture to determine whether it exceeded 0.3 percent. Absent this direct evidence, the
State can only rely on circumstantial evidence. The State proved the following
circumstances: (1) 89 vaporizer cartridges containing an amber-colored liquid were found
in a box with a mailing label addressed to Loveless; (2) many of the cartridges were in
original packaging; (3) Loveless had been staying in the room where they were found;
(4) other items associated with controlled substance use were found in the same room,
including smoking pipes, rolling papers, a torch lighter, and a marijuana grinder; and
41
(5) the box of vaporizer cartridges was located near a locked plastic tote that was revealed
to contain 3 pounds of marijuana-like plant material with an unknown THC
concentration.18
Similar to the analysis for the plant material above, a jury could draw a reasonable
inference that the liquid mixture inside the vaporizer cartridges had a delta-9 THC
concentration greater than 0.3 percent. A jury could also, however, rationally conclude
that the liquid mixture in the vaporizer cartridges had a hemp-le vel THC concentration of
less than 0.3 percent.
We therefore conclude that, when the State’s evidence is considered under the
correct interpretation of the relevant controlled substance statutes, the evidence is
insufficient to support this conviction. We reverse the court of appeals and vacate
Loveless’s conviction under Minn. Stat. § 152.025, subd. 1(1), for possession of the
liquid-filled vaporizer cartridges with intent to sell.

18 At oral argument, the State asserted that the packaging of the vaporizer cartridges
listed a THC concentration well above 0.3 percent. However, there was no testimony
offered at trial on this point, and the record does not otherwise include any evidence of a
THC concentration listed on the packaging. We are bound by the trial court record and
may not consider matters outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580,
582–83 (Minn. 1988). Accordingly, we do not consider the State’s contention that the
packaging contained a reference to the cartridges’ THC concentration and offer no opinion
on whether this type of evidence would be sufficient to prove a substance’s THC
concentration.
42
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals in part and
reverse in part.
Affirmed in part and reversed in part.
D-1
D I S S E N T
GILDEA, Chief Justice (dissenting).
The common law doctrine of amelioration is limited to legislative changes that
reduce punishment. By applying the amelioration doctrine to a legislative change that
decriminalizes conduct, the majority not only misapplies the doctrine, but it also infringes
on the powers of the legislative and executive branches. Because the amelioration doctrine
does not apply to the facts of this case, I respectfully dissent.
1
At the heart of this case is a 2019 legislative change to Minn. Stat. § 152.01,
subd. 9 (2018), which reads:
“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 germination.
Marijuana does not include hemp as defined in section 152.22,
subdivision 5a.

Act of May 30, 2019, ch. 9, art.11, § 77, 2019 Minn. Laws 1st Spec. Sess. 1481, 1941. The
newly added language, which is underlined above, does not mention punishment. Instead,
it decriminalizes the possession of hemp by excluding it from the definition of marijuana,
a controlled substance.

1 Because I find that the amelioration doctrine does not apply to the facts of this case,
I take no position on the majority’s threshold determination that the amelioration doctrine
argument was not forfeited on appeal.
D-2
Before the 2019 legislative change, the State charged appellant Jason Loveless with
possession of approximately 3 pounds of marijuana plant material and possession with
intent to sell tetrahydrocannabinol vaporizer cartridges. A jury found him guilty as
charged, and the district court imposed a sentence within the guidelines range. On appeal,
Loveless does not claim that his sentence should be reduced. Instead, he claims his
convictions must be vacated, arguing that he is entitled to the benefit of the newly added
language under the common law doctrine of amelioration. Loveless’s argument is
meritless.
The amelioration doctrine applies to a legislative change that “mitigates the
punishment for ‘acts committed before its effective date, as long as no final judgment has
been reached.’ ” State v. Robinette, 964 N.W.2d 143, 144 (Minn. 2021) (emphasis added)
(quoting State v. Cooli dge, 282 N.W.2d 511, 514 (Minn. 1979)); see also State v. Kirby,
899 N.W.2d 485, 490 (Minn. 2017) (“[T]he amelioration doctrine establishes a
presumption . . . that an amendment mitigating punishment applies to non-final cases.”
(emphasis added)). And we have never applied the amelioration doctrine outside the
penalty context. The 2019 amendment to Minn. Stat. § 152.01, subd. 9, does not change
the penalty for the crime of possession or sale of a controlled substance. Accordingly, the
amelioration doctrine does not apply. That should be the end of the case.
Even though we have only applied the amelioration doctrine when a statute changes
the sentence for a crime, the majority contends the doctrine nevertheless applies here. The
majority is mistaken.
D-3
What the majority is really doing is applying the common law doctrine of
abatement. Under the abatement doctrine, “prosecutions under statutes impliedly or
expressly repealed while the case is still pending on direct review must abate in the absence
of a demonstration of contrary congressional intent or a general saving statute.” Pipefitters
Loc. Union No. 562 v. United States, 407 U.S. 385, 432 (1972) (emphasis added). We have
recognized that the abatement doctrine establishes a “presumption that the Le gislature’s
repeal of a criminal statute requires the State to halt its prosecutions under the repealed
statute” and no judgment of conviction can be rendered. Kirby, 899 N.W.2d at 494
(emphasis added). The fact that a legislative change does not specifically repeal an existing
law is immaterial to application of the abatement doctrine when the legislative change has
the same effect as a repeal. See Bethune Assocs. v. County of Hennepin, 362 N.W.2d 323,
328 (Minn. 1985) (adopting tax court’s interpretation of Minn. Stat. § 645.35).
Because the 2019 amendment has the same effect as a repeal of the earlier version
of the statute that criminalized possession of hemp, one might wonder why the majority is
not grounding its result in abatement. The majority is not grounding its result in abatement
because the Legislature has enacted a general saving statute that abrogates the common
law doctrine of abatement.
In enacting Minnesota’s general saving statute, Minn. Stat. § 645.35 (2022), the
Legislature expressed its intent to abrogate the abatement doctrine. Kirby, 899 N.W.2d at
494–95 (citing State v. Smith, 64 N.W. 1022, 1022 (Minn. 1895)); see also 1 Wayne R.
Lafave, Substantive Criminal Law § 2.5(b) (3rd ed. 2018) (explaining that “[t]he common
law rule that repeal of a criminal statute bars further prosecution against earlier offenders,
D-4
being based on the legislature’s presumed intent, may of course be changed by an
expression of legislative intent that earlier violations may still be prosecuted”).
Section 645.35 reads:
The repeal of any law shall not affect any right accrued, any duty imposed,
any penalty incurred, or any proceeding commenced, under or by virtue of
the law repealed. Any civil suit, action, or proceeding pending to enforce
any right under the authority of the law repealed shall and may be proceeded
with and concluded under the laws in existence when the suit, action, or
proceeding was instituted, notwithstanding the repeal of such laws; or the
same may be proceeded with and concluded under the provisions of the new
law, if any, enacted.2

Minn. Stat. § 645.35 (emphasis added). The purpose of general saving statutes, like
section 645.35, is to prevent a decriminalization of criminal conduct from triggering
unintentional and unwarranted legislative pardons. Comment, Today’s Law and
Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation,
121 U. Pa. L. Rev. 120, 142 (1972). General saving statutes shift “the legislative
presumption from one of abatement unless otherwise specified to one of non-abatement in
the absence of contrary legislative direction.” Id. at 127. Section 645.35 expresses the
intent that a legislative change decriminalizing conduct, such as the 2019 amendment at
issue here, should not affect criminal proceedings that were initiated before the legislative
change, such as the State’s prosecution of Loveless. See Bethune Associates, 362 N.W.2d
at 328 (noting that section 645.35 applies to a legislative change that “did not specifically

2 The second sentence of section 645.35 is inapplicable here for two reasons. First,
this is not “a civil suit, action, or proceeding.” Second, the criminal prosecution cannot
“proceed[] with and conclude[] under the provisions of the new law” because the
Legislature did not enact any new law criminalizing the possession of hemp.
D-5
repeal the existing law” but has “the same effect” as a repeal); Smith, 64 N.W. at 1023
(explaining that “[w]hen a repeal is enacted, either directly or by way of amendment,
accompanied by no special saving clause, the general and permanent saving clause
contained in an existing and prior statute attaches to the repeal or amendment, unless a
contrary legislative intent plainly appears from the repealing statute or amendment”).3
In short, Loveless is not entitled to have his criminal prosecution dismissed based
on the 2019 legislative change decriminalizing possession of hemp because the Legislature
expressly abrogated the abatement doctrine when it enacted Minnesota’s general saving
clause, Minn. Stat. § 645.35.
With abatement unavailable, the majority grounds its result by expanding the scope
of the amelioration doctrine to include laws that decriminalize conduct.4 According to the

3 The Legislature’s enactment of section 645.35, however, does not express an intent
to abrogate the amelioration doctrine. Kirby, 899 N.W.2d at 494 (explaining that
section 645.35 “abrogates the abatement doctrine, not the amelioration doctrine”) (internal
quotation marks omitted). Instead, as we explained in Kirby, the Legislature has chosen to
abrogate the amelioration doctrine on a statute-by-statute basis, using the language at issue
in Edstrom, 326 N.W.2d 10 (considering language that read, “Except for section 8 of this
act, crimes committed prior to the effective date of this act are not affected by its
provisions”). Kirby, 899 N.W.2d at 489–90.
4 The majority cites two California cases for the proposition that “courts have given
defendants the ameliorative benefits of statutory changes that decriminalize conduct or
otherwise redefine conduct in a manner that benefits defendants.” Supra at 18 n.6 (citing
People v. Rossi, 555 P.2d 1313, 1315–16 (Cal. 1976), and People v. Figueroa, 24 Cal.
Rptr. 2d 368, 369–71 (Cal. Ct. App. 1993)). The majority’s reliance on Rossi is misplaced
because the California Supreme Court applied the abatement doctrine, not the amelioration
doctrine, to the statutory change that decriminalized the conduct. See 555 P.2d at 1315–
16 (explaining that the general savings clause, Gov. Code § 9608 did not apply when a
conviction is abated by an amendment that entirely eliminates any sanction for the
defendant’s act).
D-6
majority, such an expansion is reasonable becaus e punishment is necessarily mitigated
when an act is decriminalized. 5 In my view, the court’s reasoning is flawed because it
effectively collapses the distinct common law doctrines of amelioration and abatement into
a single doctrine that applies with equal force to laws that mitigate punishment or
decriminalize conduct.6
Not only is the majority’s reasoning inconsistent with the historical application of
the common law doctrines, it also effectively revives the abatement doctrine; a doctrine the

5 In the context of Minn. R. Crim. P. 27.03, subd. 9, which concerns the correction of
an unauthorized sentence, we have rejected similar reasoning. In Hannon v. State, the
defendant argued that his punishment was unlawful because he did not commit the
underlying crime. 957 N.W.2d 425, 433 n.9 (Minn. 2021). We rejected the argument
because it was not really a challenge to the defendant’s punishment. Id.

6 The majority argues that following our precedent applying amelioration only to
legislative changes that reduce criminal penalties “would lead to absurd results that are
inconsistent with the underlying principles of the amelioration doctrine.” The majority
attempts to demonstrate the claimed absurdity through two hypotheticals. I disagree with
the majority. When the doctrines of amelioration and abatement are applied to the
hypotheticals the majority sets out, the outcomes are fair and logical. In the first
hypothetical, a statutory amendment changes the maximum penalty for an offense from
10 years to 1 year and 1 day prior to a conviction for that offense becoming final. In the
second hypothetical, a statutory amendment decriminalizes the conduct which previously
carried a maximum sentence of 10 years after charging but prior to a conviction for this
offense becoming final. Both defendants are convicted and sentenced to the statutory
maximum of 10 years imprisonment. On appeal, the defendant convicted of an offense in
the first scenario is entitled to have his sentence reduced to 1 year and 1 day under the
amelioration doctrine, and the defendant in the second scenario is entitled to have the
criminal prosecution dismissed under the abatement doctrine (assuming that it had not been
legislatively abrogated). Essentially, the majority contends that it is absurd for the
Legislature to have abrogated the abatement doctrine. But it has always been up to the
Legislature—not the judiciary—to determine what behavior is criminal. See, e.g., State v.
Witt, 245 N.W.2d 612, 615 (Minn. 1976) (“State legislatures possess broad discretion to
define criminal offenses and prescribe penalties therefor.”).
D-7
Legislature expressly abrogated through its enactment of Minn. Stat. § 645.35. See Kirby,
899 N.W.2d at 494–95 (explaining that section 645.35 abrogates the abatement doctrine).
By substituting the judiciary’s judgment that a legislative change decriminalizing conduct
should apply to all non-final, criminal proceedings, the majority overrides the express will
of the Legislature articulated in section 645.35. 7 Such action raises serious separation of
powers issues. Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983) (explaining that
it is “a basic principle of constitutional law” that the court cannot substitute its judgment
for that of the legislature); see also Fed. Distillers, Inc. v. State, 229 N.W.2d 144, 154
(Minn. 1975). Moreover, in substituting its judgment for the will of the Legislature, the
majority treads on the power of the executive branch to pursue criminal prosecutions in
accordance with section 645.35.
The majority’s application of the amelioration doctrine to a legislative change that
decriminalizes conduct misapplies the doctrine. The majority’s expansion of the doctrine

7 The majority contends that it is not overruling the express will of the Legislature
articulated in the general savings statute, Minn. Stat. § 645.35, because the Legislature still
has the power to include a specific saving clause whenever it amends a statute. Supra at
21 n.10. But the purpose of a general savings clause is that it applies in the absence of a
specific savings clause. The rule of law the majority writes in this case undoubtedly
confounds that purpose by shifting the presumption of non-abatement in the absence of
contrary legislative direction to one of abatement unless otherwise specified.
D-8
to this case also infringes on the powers of the legislative and executive branches.
Accordingly, I respectfully dissent.

ANDERSON, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.
MCKEIG, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.