This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Doreen Marie Schultz,
Filed April 29, 2003
Otter Tail County District Court
File No. K5012016
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 500, 525 Park St., St. Paul, MN 55103; and
David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
The district court found Doreen Schultz guilty of attempted controlled-substance crime in the first degree. Schultz challenges the sufficiency of the evidence to show that she took a substantial step toward manufacturing methamphetamine. Because Schultz’s possession of a bottle containing an ephedrine solution, along with other materials used in methamphetamine manufacture constitutes sufficient evidence that she had taken a substantial step toward the manufacture of methamphetamine, we affirm.
F A C T S
An Otter Tail County Deputy Sheriff stopped Schultz’s vehicle for speeding. As the officer walked toward Schultz’s car, he observed an uncased shotgun in the rear storage area of the hatchback vehicle. In response to the officer’s request to examine the gun, Schultz consented. She also consented to the officer’s further request to search the car for any illegal items.
Inside the passenger-door (pocket compartment), the officer found a black plastic case containing a gram scale. The officer noticed white powder on both the scale and the case. He informed Schultz that he believed the scale was used in connection with drugs. He also found, in the right rear passenger compartment, a heavy white cellophane bag; when he asked Schultz what was inside, she said, “Stuff.”
Inside the bag, the officer discovered a plastic water bottle filled with cloudy liquid that had a residual layer of white pasty substance on the bottom. In addition to the bottle, the bag contained lithium batteries, a bottle of lye, tinfoil, coffee filters, wire cutters, a razor blade, electrical tape, and plastic tubing. The officer associated these items, and their presence in the same container, with methamphetamine production. The officer also found a hand-held blowtorch and a one-gallon container of what he initially thought to be ammonia, but that was later determined to be paint thinner.
Schultz was arrested and charged with first-degree controlled-substance crime and attempted first-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.021, subd. 2a (2000) and 609.17 (2000). After a contested omnibus hearing, the district court dismissed the first count for lack of probable cause. Schultz waived her right to a jury trial on the second count.
At the bench trial, a narcotics investigator with the Todd County Sheriff’s Department testified that he had viewed the items seized in the search of Schultz’s car and concluded Schultz was using the items to manufacture methamphetamine. As an expert witness he identified the items as components of the three-step manufacturing process known as the Birch, or “Nazi” method. The first step is the extraction of ephedrine or pseudoephedrine from the tablet form. The next step is adding the ephedrine to lithium and anhydrous ammonia, which causes the chemical reaction transforming ephedrine to demethamphetamine. This is then salted out with a hydrogen gas chloride generator or a hydratic acid drip to create methamphetamine.
The investigator testified that the water bottle appeared to contain the first stage in methamphetamine production, extraction of ephedrine or pseudoephedrine from a tablet form. When the investigator tested a sample of the liquid in the bottle, he received a positive reaction for ephedrine or pseudoephedrine. The powder on the scale also tested positive for a trace amount of substance containing methamphetamine. The investigator testified that “all the elements” necessary for methamphetamine production, except for anhydrous ammonia, were present in Schultz’s car. He indicated that without the anhydrous ammonia, Schultz could not have completed the process of manufacturing methamphetamine, but she could have attempted its manufacture.
The district court found that Schultz’s obtaining a precursor chemical, collecting items and equipment needed to manufacture methamphetamine, and initiating the first step of the manufacturing process, constituted a substantial step toward the manufacture of methamphetamine. Following her conviction and sentencing, Schultz appeals.
D E C I S I O N
In a challenge to the sufficiency of the evidence our review is limited to a painstaking analysis of the record, viewing the evidence in the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We sustain the conviction if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the crime charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). In our review, circumstantial evidence is weighed the same as other evidence, and a conviction based on circumstantial evidence will be upheld if the reasonable inferences from that evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis other than guilt. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).
A criminal attempt occurs when a person, “with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime * * *.” Minn. Stat. § 609.17 (2000). Under Minnesota law, “a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.” Minn. Stat. § 152.021, subd. 2a (2000).
Schultz argues that there was insufficient evidence to establish that she performed a substantial step toward committing the crime of methamphetamine manufacture. She maintains that the mere presence of certain materials used in the manufacture of methamphetamine in her car does not establish her intent to manufacture it, and that anhydrous ammonia, a necessary ingredient in the manufacturing process, was not present.
It is well established that circumstantial evidence is entitled to the same weight as other evidence. Webb, 440 N.W.2d at 430. The circumstantial evidence that Schultz intended to manufacture methamphetamine was strong. The presence of virtually all of the required precursor materials for manufacture of the substance, along with the dissolved ephedrine in the water bottle, permits the reasonable inference that Schultz intended to manufacture methamphetamine, to the exclusion of any other rational reason for carrying these materials, especially the dissolved ephedrine. The lack of anhydrous ammonia, while it would prevent the complete manufacture of methamphetamine, does not negate a reasonable inference of intent to attempt to manufacture the controlled substance.
A crime of attempt requires a substantial step, which goes beyond mere preparation, in furtherance of the intent to commit a crime. State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980). As the expert narcotics officer testified, the process of dissolving the ephedrine in the water bottle to extract it represents roughly one-third of the process of manufacturing methamphetamine by the Birch or “Nazi” method of manufacture. The presence of a trace amount of substance containing finished-product methamphetamine on the scale found in Schultz’s car corroborates the other evidence to establish a substantial step. Therefore we conclude that the evidence presented at trial was sufficient to sustain Schultz’s conviction for attempted controlled-substance crime in the first degree.