C3-01-1996

State of Minnesota,

Respondent,

vs.

Gregory Lee Backlund,

Appellant.

Filed April 9, 2002

Affirmed

Parker, Judge*

Sherburne County District Court

File No. K3001456

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Kenneth M. Bottema, 210 North Second Street, Suite 50, Minneapolis, MN 55401 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Parker, Judge, and Huspeni, Judge.^*

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Gregory Lee Backlund appeals the district court’s sentence upon conviction of manufacturing methamphetamines and possessing with intent to sell methamphetamines. Appellant contends that manufacturing and selling merge and therefore he cannot be convicted of both crimes, nor sentenced separately for each. Appellant argues that “because the definition of sale includes both manufacture and possession, the latter are a crime necessarily proved if the crime of sale is proved.” We affirm.

FACTS

The amended complaint charged Backlund with three counts of first-degree controlled substance crime and one count of second-degree controlled substance crime. All of the charges were based on evidence seized at Backlund’s residence on July 31, 2000, when police executed a search warrant. In an attic above the garage, police found various items useful in the manufacture of methamphetamine. In a cabinet in the garage itself, they found methamphetamine packaged in plastic baggies, as well as a digital scale. When police searched Backlund’s person, they also found plastic baggies containing methamphetamine.

Backlund entered a guilty plea to all charges, with the understanding that he would receive the presumptive sentence, as calculated using a criminal history score no greater than six. There was no discussion or agreement concerning multiple convictions or multiple sentencing. The court imposed concurrent sentences of 146 months for manufacturing methamphetamine and 153 months for possession of methamphetamine.

D E C I S I O N

Backlund argues that it was improper for the district court to convict him of both manufacturing methamphetamine, under Minn. Stat. § 152.021, subd. 2a, and possession of 25 grams or more of methamphetamine, under Minn. Stat. § 152.021, subd. 2(1).

A defendant may not be convicted of both a greater offense and another offense necessarily proved by proof of that offense. Minn. Stat. § 609.04, subd. 1(4) (2000). A defendant also may not be convicted of multiple violations of the same statute based on the same act. State v. Spears, 560 N.W.2d 723, 726 (Minn. App. 1997), review denied (Minn. May 28, 1997). In determining whether an offense is necessarily proven by proof of another, or a lesser-included offense, the court looks at the elements of the offense rather than at the facts of the particular case. State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986).

Appellant Gregory Backlund was convicted and sentenced under Minn. Stat. § 152.021, subd. (1) (2000), which states that a person is guilty of controlled substance crime in the first degree if:

on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine.

The statute defines “sell” to include possession with intent to sell. Minn. Stat. § 152.01, subd. 15a (2000). Backlund was also convicted under Minn. Stat. § 152.021, subd. 2a (2000), which states that

[n]otwithstanding subdivision 1, sections 152.022, subdivision 1, 152.023, subdivision 1, and 152.024, subdivision 1, a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.

Backlund argues that because the term “sell” also includes “manufacture,” the second offense was necessarily proved by proof of the first. See Minn. Stat. § 152.01, subd. 15a (defining “sell” to include “to manufacture”). But Backlund was not charged with manufacturing methamphetamine as a form of selling, under Minn. Stat. § 152.01, subd. 15a. Instead, Backlund was charged with simple manufacture under Minn. Stat. § 152.021, subd. 2a. A person can sell methamphetamines without having manufactured them. Although the legislature has broadly defined “sell” to include manufacturing, the technical argument that this definition makes manufacturing a lesser-included offense is not available to Backlund. The complaint charged Backlund under Minn. Stat. § 152.021, subd. 2a, a separate provision for the manufacture of methamphetamine. Backlund was not charged with manufacturing as a subcategory of selling.

The statutory provision prohibiting manufacture of methamphetamine and the prohibition against possession of methamphetamine are subdivisions of the same statute. But the protection against multiple convictions for violations of the same statute applies only if the convictions are based on a single act. Spears, 560 N.W.2d at 726. The manufacture of methamphetamines occurred in the lab in Backlund’s attic. The packaged methamphetamine was found on Backlund’s person and in a cabinet in his garage. These offenses were not based on the same act. Accordingly, we affirm the convictions on both counts.

Affirmed.

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