This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-97-1668

State of Minnesota,
Respondent,

vs.

Francisco Javier Bautista,
Appellant.

Filed July 28, 1998
Affirmed
Randall, Judge

Faribault County District Court
File No. K59780

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Joel R. Welder, Faribault County Attorney, 1120 Giant Drive, P.O. Box 5, Blue Earth, MN 56013 (for respondent)

John M. Stuart, State Public Defender, Bruce L. McLellan, Special Assistant Public Defender, 10 Second Street Northeast, Suite 114, Minneapolis, MN 55413 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant, who was convicted of a first-degree controlled substance crime, asserts that the definition of "sell" is overbroad and an unconstitutional violation of the First Amendment. He asserts that this court should either find the definition unconstitutional or judicially narrow its construction. He further argues that the evidence is insufficient to support his conviction because the prosecution did not introduce the actual controlled substance. We affirm.

FACTS

Appellant Francisco Javier Bautista met Ramon DeLacerda while they were both in the Freeborn County jail. They discussed drug deals, and Bautista gave DeLacerda his telephone number, so that DeLacerda could call him about a drug deal when he got out of jail. After his release, DeLacerda volunteered to serve as an informant. Police recorded a series of telephone conversations between Bautista and DeLacerda. Bautista and DeLacerda agreed to a deal in which DeLacerda would purchase six ounces of cocaine. Bautista insisted on getting half of the money for the cocaine, $3,600, up front. They planned to meet at a motel where DeLacerda would pay Bautista the $3,600. They met at the motel, Bautista took the money, and Bautista informed DeLacerda that he had to get the cocaine from his supplier in Sioux City. Bautista never returned with the cocaine or the money. DeLacerda telephoned Bautista two days later, and Bautista told him that his suppliers took the money but did not give him the drugs. Bautista was arrested three days later.

Bautista was charged with conspiracy to commit a first-degree controlled substance crime. The state amended the complaint and charged him with a first-degree controlled substance crime, dropping the conspiracy charge. At trial, Bautista testified that he never intended to supply the cocaine, that he agreed to the deal just to get the money, and that he spent the money. He alleges he never even went to Sioux City to get the cocaine. The jury found Bautista guilty of a first-degree controlled substance crime pursuant to Minn. Stat.  152.021, subd. 1(1) (1996). Bautista was sentenced to seven years, two months and now appeals.

D E C I S I O N

I.

Bautista was convicted of a first-degree controlled substance crime for selling ten or more grams of cocaine. "Sell" is defined as:

(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or
(2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).

Minn. Stat. 152.01, subd. 15a (1996). Bautista asserts that "to offer or agree to perform an act" is an unconstitutionally overbroad definition of "sell" because it punishes protected speech. Bautista argues in the alternative that even if the definition of sell is not overbroad, this court should judicially narrow the application of Minn. Stat. 152.01, subd. 15a(2). Bautista insists that this court should add a "judicially created" element to the definition of "sell" and require the state to prove that a defendant intended to, and had the ability to, complete the drug transaction at issue.

As recognized by the Minnesota Supreme Court, the United States Supreme Court has warned that applying the First Amendment overbreadth doctrine is "'"strong medicine,"'" which should be used "'"only as a last resort."'" State v. Gray, 413 N.W.2d 107, 113 (Minn. 1987) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361 (1985)) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916 (1973)). Further, constitutional questions should not be decided unless doing so is necessary "to dispose of the case at bar." State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981). Because we decide this case by statutory construction, we need not address the merits of Bautista's constitutional argument.(1)

Statutory construction is a question of law, "fully reviewable" on appeal. Hibbing Educ. Ass'n. v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). If a statute's words are clear and unambiguous, the court may not attempt to construe or interpret it but should "give effect to the statute's plain meaning." Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986). The court must "determine the probable legislative intent" of an ambiguous statute and "give the statute a construction that is consistent with that intent." Id.

Legislative history may be considered in construing an ambiguous statute. Minn. Stat. 645.16(7) (1996). "[S]tatements made in committee discussion or floor debate are to be treated with caution," but we cannot "turn a blind eye to what may be helpful and to what is before us." Handle With Care, Inc. v. Department of Human Servs., 406 N.W.2d 518, 522 (Minn. 1987). Bautista points to legislative testimony, which he asserts shows that the legislature did not intend to punish "pure speech" absent evidence that a defendant had the specific intent to complete a drug transaction. He points to the following testimony before the Criminal Law Subcommittee of the Senate Judiciary Committee:

Senator Pogemiller: [O]n line 35, "offer or agree to do the same," is that current law?

James Kamin:(2) No that's a change, Senator.

Senator Pogemiller: [S]o does that mean in a phone call that's taped if there's an agreement over the phone, I agree to meet you Tuesday night, you give me the money, I give you the drugs, just the phone call itself has done the deal, that's the selling, they've done it?

James Kamin: Madam Chair, Senator Pogemiller, no. And the reason for that is that there would be a constitutional protection for pure speech. That is if all that happened was there was a conversation and there was no behavior that would indicate that person had an ability to make that sale or to follow through on that agreement, the constitution would prevent that person from being convicted. So what would happen in a situation like that is, if there was an offer and an agreement, the prosecution would also have to show that there was some behavior consistent with fulfilling that offer or that agreement before a conviction would be constitutional.

* * * *

Senator Pogemiller: [W]hy not add on line 35 after "or to offer or agree to do the same" some language that speaks to that ability to consummate the deal or something. Crack in the pocket, accepted money, why wouldn't you add a couple words there to make this clear what that really means? Because if you just read this, it sounds like - - I mean, you don't know about this constitutional construction issue.

James Kamin: Madam Chair, Senator Pogemiller, I think that would be the law, whether it was added or not. It wouldn't change the way things were prosecuted. It might well make it more explicit to someone that wasn't as familiar with--with that aspect of constitutional law. It would not change, Senator Pogemiller, the effect of that provision at all.

Hearing on S.F. No. 3 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary (Mar. 16, 1989).

Neither Minn. Stat. 152.021, subd. 1(1) (Supp. 1997) (making it a first-degree controlled substance crime to sell ten or more grams of cocaine or heroin) nor Minn. Stat.  152.01, subd. 15a(2) (defining "sell" to include offering or agreeing to sell) includes a specific intent element on its face. Under the literal meaning of the statute defining "sell," an individual who offers or agrees to sell a controlled substance has, at that point, committed a controlled substance crime, regardless of intent. We agree with Bautista that a strict, literal reading of this statute could result in unconstitutional and absurd results. An individual who offered in jest or as a prank to sell drugs to a friend could be convicted under a narrow reading. Thus, a commonsense reading of this statute requires that an intent element be read into the statute. The legislature does not intend an absurd, impossible, or unreasonable result and does not intend to violate the state or federal constitution. Minn. Stat. 645.17(1), (3) (1996). This statute, to make any sense, has to be read to include at least some minimum mens rea, some specific intent requirement. But intent, being subjective, can be inferred from a person's actions, and that can be enough to sustain a jury verdict.

Here, Bautista committed objective, definable acts over and above his claims that he "just talked" about it. He met DeLacerda at the agreed-on motel room, insisted on the up-front money, and took the money. He now argues that his testimony "proves" that he did not do any acts from which the jury could infer that he intended to complete the drug transaction. We note, rather, that the jury was entitled to make its own judgment on the credibility of Bautista's story that he only intended to steal money from DeLacerda and never really intended to provide the cocaine. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) ("[T]he jury is free to question a defendant's credibility, and has no obligation to believe a defendant's story."). We cannot say what our decision would be if Bautista had been charged after just one telephone call and had done no other physical actions that corroborated the seeming intent of the telephone call to go through with the sale. We do not need to reach that issue. It is not our case.

II.

Bautista also argues that the prosecution's evidence was insufficient because, pursuant to Minn. Stat. 152.021, subd. 1(1), the state was required to prove a sale of ten or more grams of cocaine and no cocaine was introduced into evidence. Bautista points to State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994), where the supreme court stated that the weight of the mixture is an essential element that must be proved beyond a reasonable doubt. Here, the district court instructed the jury to determine whether appellant "knew or believed that the substance sold was a mixture containing cocaine." Bautista insists that because no drugs were introduced here, his conviction must be vacated.

As the state points out, in Robinson the defendant's conviction for the sale of a controlled substance was based on his possession of ten or more grams of cocaine. Robinson, 517 N.W.2d at 337. There, it was necessary to show that the defendant actually had possession of ten or more grams of cocaine. Id. at 339. Bautista, on the other hand, was charged with offering or agreeing to sell cocaine. If the state had actually seized cocaine and put it into evidence, it would have been relevant and could have bolstered the state's case. Introduction of the actual drug would have lent more corroboration to Bautista's spoken intent to participate in a drug deal. But because Bautista could be convicted under the statute for simply offering or agreeing to sell cocaine, introduction of actual cocaine is not an essential element of the crime. According to the state's evidence, Bautista offered a specific amount of cocaine for sale, and the amount he offered exceeded ten grams. We have concluded the evidence is sufficient to support his conviction for intending to sell cocaine. As to the amount he offered to sell, his own admission is that it was more than ten grams. His legal argument has never been about amount, but rather he has argued consistently that he never really intended to go through with the deal and sell any, much less the six ounces (approximately 170 grams) at issue.

Since our above analysis found the evidence sufficient to support the jury verdict as to intent to sell, by definition the six ounces include more than the needed threshold amount of ten grams. On this charge, unlike in Robinson, actual cocaine is not an essential element.

Affirmed.

(1) The state argues that we should not address the constitutional issue because Bautista did not raise it at the district court level. Although we decline to address the statute's constitutionality because we resolve the case on other grounds, we note that the issue did not unfairly surprise the state and that the interests of justice would warrant addressing it. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (permitting appellate court to use its discretion in addressing issues not raised below when interests of justice require and there is no unfair surprise).

(2) At the time of his testimony, James Kamin was an Assistant Hennepin County Attorney.