State of Minnesota, Respondent, vs. Travis James McCollum, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Travis James McCollum,

Appellant.

Filed June 12, 2001

Clay County District Court

File No. K9-99-2033

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Lisa Nelson Borgen, Clay County Attorney, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.

LINDBERG, Judge

            Appellant challenges his conviction for second-degree controlled substance crime, arguing that the district court erred in refusing to instruct the jury on the lesser-included offense of third-degree controlled substance crime.  Because we see no abuse of discretion, we affirm.

            Appellant Travis McCollum sold a confidential informant a sheet of LSD for $400.  A sheet contains 100 "hits" or dosage units: the price was negotiated at $4 per hit.  A tape of the transaction reveals that appellant described the effects of taking one hit as opposed to taking two hits.  A police department analysis of the sheet showed that it actually contained 94 hits.

            Appellant was charged with second degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 1(3) (1998) (sale of 50 or more dosage units is second-degree controlled substance crime).  Appellant asked that the jury be instructed on a lesser included offense, third-degree controlled substance crime, in violation of Minn. Stat. § 152.023, subd. 1(2)(1998) (sale of ten or more dosage units is third-degree controlled substance crime).  He argued that, because the informant allegedly wanted the effect of two hits taken together, he had purchased, and appellant had sold, only 47 dosage units.  The district court refused to give the lesser-included-offense instruction, and appellant now claims this refusal was an abuse of discretion.

            The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.

Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).  Here, the evidence did not warrant the instruction appellant requested. 

            There is no evidence for appellant's contention that a dosage unit of LSD is more than one hit.  During the trial, another witness testified, and appellant agreed, that a sheet was 100 hits and that hits could be taken either singly or together.[1]

Moreover, it defies logic to define the statutory "dosage unit" as "the amount a buyer wants to take at one time,"  because that definition makes the degree of the crime contingent on the seller's act but on the buyer's intent and/or the strength of the substance.  This court has specifically rejected the latter view.  "Appellant also suggests, however, that ‘dosage unit' must be defined as a specific strength of LSD per dose.  We disagree."  State v. Palmer, 507 N.W.2d 865, 868 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994).  Palmer also uses the phrase "'hit' or dosage unit."  Id.  See also State v. Rosse, 478 N.W.2d 482, 483 (Minn. 1991) (using the phrase, "200 units (‘hits') of LSD").

Given the lack of support for appellant's theory that a "dosage unit" might be two or more "hits," the district court did not abuse its discretion in failing to instruct the jury on third-degree controlled substance crime as a lesser-included offense.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Analogously, over-the-counter medications are sold in tablets or capsules, which are dosage units and often carry the information that the usual adult dose is two tablets or capsules. "Dosage unit," contrary to appellant's argument, is not synonymous with "dose."