                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2094

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                    Lukas Roy Miller,
                                       Appellant.

                                Filed December 29, 2014
                    Affirmed in part, reversed in part, and remanded
                                   Rodenberg, Judge

                               Roseau County District Court
                                File No. 68-CR-12-1096

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul,
Minnesota; and

Karen M. Foss, Roseau County Attorney, Roseau, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant Lukas Roy Miller challenges his conviction for second-degree sale of a

controlled substance, arguing that (1) the substance the jury found him to have sold was
not a prohibited “hallucinogen” at the time of the sale; (2) evidence of threats to a witness

by a third party was improperly admitted at appellant’s trial; and (3) the prosecutor

committed misconduct during the trial. We affirm in part, reverse in part, and remand to

the district court.

                                           FACTS

       On August 3, 2012, Roseau police conducted a controlled-buy operation at

appellant’s residence with a then-confidential informant (CI), later identified as A.L.

Again, on August 10, 2012, Roseau police conducted another controlled-buy operation at

appellant’s residence with a different CI.1 During each controlled-buy operation, each CI

obtained a substance later identified as 25I-NBOMe, a substance that witnesses would

later testify is an analog to an hallucinogen, 2C-I.

       A.L., the CI in the August 3 controlled-buy operation, was an acquaintance of

appellant’s.   He testified at trial that he, appellant and Jesse Berggren, appellant’s

roommate, were at appellant’s residence on August 2. A.L. testified that appellant and

Berggren told him that they had “synthetic acid,” that they gave him 10 tabs to “try out,”

and that he took one tab that night. He also testified that he told appellant and Berggren

that his own father “used to be a hippie and he used to do these types of things,” and that

he could sell synthetic acid to his father and others in Grygla. A.L. also testified that he

arranged with Berggren to purchase 100 tabs of the synthetic acid for $200. On August

3, A.L. went to the Roseau police station with the 10 tabs of 25I-NBOMe he allegedly

1
  Appellant was acquitted of charges from the controlled-buy operation on August 10,
2014. The facts related to that incident are not relevant to appellant’s arguments on
appeal.

                                              2
received from Berggren and appellant, and offered to assist the police as a CI in

purchasing more of the substance from appellant and Berggren.2 A.L. testified that

Berggren said he would not be at the residence on August 3, but that appellant would be

there and A.L. “was to communicate with [appellant].”

       In the afternoon of August 3, police conducted a controlled-buy operation in

which A.L. allegedly purchased 100 tabs of synthetic acid from appellant at appellant’s

home. An audio recording of the operation was admitted at trial, but much of the

conversation between appellant and A.L. was inaudible. A transcript was provided to the

jury as the recording was played during trial.        Appellant is transcribed as saying,

concerning the substance delivered to A.L., “like some people, some people sell it as

meth[,] but I just tell them what the f--k it is.” A.L. left appellant’s residence and turned

over to police the 100 tabs of a substance later tested and found to be 25I-NBOMe.

       Appellant was charged with second-degree sale of a controlled substance in

violation of Minn. Stat. § 152.022, subd. 1(3) (2012), on August 3; conspiracy to commit

a fourth-degree controlled substance crime (sale) in violation of Minn. Stat. § 152.024,

subd. 1(1) (2012), on August 10; and sale of a noncontrolled substance represented as a

controlled substance in violation of Minn. Stat. § 152.097, subd. 1(1) (2012), on

August 3.

       A.L. testified for the prosecution at trial, consistent with the foregoing. Appellant

testified that he did not sell A.L. anything when A.L. visited his home on August 3.


2
 It is unclear from the record whether appellant claims to have received a total of 10 or
11 tabs of the substance on August 2.

                                             3
Instead, he testified that A.L. “had some of that 25I stuff” on August 2 and that “he said

he [sells it as acid] in Grygla.” Appellant testified that, on August 3, A.L. walked into his

home while appellant and his girlfriend were doing laundry and called appellant’s name.

A.L. began talking about what appellant believed was A.L.’s plan to sell drugs to people

in Grygla. Appellant testified that, after some conversation, A.L. asked him if he had

“anything to put that in,” referring to a bag A.L. had in his hand containing “those same

paper squares that he had” the night before. Appellant testified that he then shook his

head to signal no and kept folding clothes while A.L. “started talking about the Grygla

people again.” Appellant testified that he told A.L. at that point, “I’d tell people what it

is,” meaning that he did not think it was right to represent the drug as one thing when it

was something else.

       During the three-day jury trial, the prosecutor asked Sergeant Jeff Klein of the

Roseau Police Department, about threatening text messages allegedly received by A.L.

from Jesse Berggren.      The following questioning occurred without objection from

appellant:

              Q: Okay. Were you ever contacted by Mr. [A.L.] after
              August 3rd, 2012 at all with any relation to this incident or
              Jesse Berggren? Was there any mention of that --
              A: Oh, yes. January 14th, 2013, [A.L.] came into my office,
              reported to me about some phone calls that he’d been
              receiving during the night . . . Jesse Berggren was trying to
              get ahold of him. [A.L.] -- Mr. A.L. indicated that he didn’t
              want to talk to him. Mr. Berggren had left a phone message.
              I can’t remember what that said. I don’t have a copy of that
              or anything. But Mr. Berggren did send texts to Mr. [A.L.] in
              regards to this case.
              Q: But you don’t know that but you would -- this was an
              allegation that was brought to you by Mr. [A.L.]?


                                             4
              A: Correct, yeah.
              Q: What was the nature of the complaint?
              A: Receiving threatening texts from Mr. Berggren.
              Q: And what was the nature of why he was being threatened?
              A: Threatened because he was a snitch because his boy is --
              because this case is going to put him -- his boy away for --
              Q: Don’t talk about that.
              A: Sorry.
              Q: That’s all right. But it was just a threatening message, is
              that correct?
              A: That’s how he took it, yep.
              Q: Did you then follow up and investigate that matter?
              A: Yes. I made numerous attempts over the next -- Mr.
              Berggren has been elusive. I followed up to talk to him into
              the month of January -- or February. And I haven't seen him
              since.

        During closing arguments, the prosecutor referred to the “threatening text

message” A.L. received to rebut the argument that A.L. never obtained the

synthetic acid from appellant. At trial, the prosecutor also made several references

to the “war on drugs” and its history and development over time. He described the

“just   say   no”   campaign    under    the       Reagan   administration,   increased

methamphetamine use in the 1990’s, and changes in the law in response to that

trend. He referenced “a new era” and a “new front” in the “war on drugs”

involving synthetic drugs like the substance involved in this case. During his

opening statement, the prosecutor stated:

              Because the overarching public policy of our country, I
              believe, and I think the majority of the public opinion, at least
              as it survives today, remains consistent, and that’s that illegal
              street drugs are dangerous. They’re harmful. And, overall, if
              we’re going to all live together in a society that’s regulated by
              laws and rules, then we need to have laws and rules and
              regulations that put these drugs into check. . . .



                                               5
                    I think a good example of this new front on this war on
             drugs, if anybody remembers in the 1990’s, there was the
             battle of this methamphetamine use, and there were these
             people who would go into the pharmacies around the country
             and they would get the allergy medications and they would be
             able to extract a chemical out of the allergy medications that
             were sold over the counter and make methamphetamine. . . .

                     The evidence in this case will show again that we’ve
             kind of entered a new era. We’re in a new war on drugs.
             And the fair characterization of what the evidence will be at
             this trial is about this new war on drugs.

Concerning the use of informants in drug-sale cases, the prosecutor also began his

summation, stating:

             I picked out a quote from a Brian Sallee, a police officer
             who’s the president of Narcotics Enforcement Training and
             Consulting, a firm that instructs officers around the country in
             drug bust procedures. The quote from that article was
             essentially Mr. Sallee, the police officer, said, “Foot soldiers
             -- informants are the foot soldiers in the government’s war on
             drugs. Without them, narcotics operations would practically
             cease to function.”

                   And I guess, you know, that’s what this case boils
             down to and that’s what the State’s position is here.

      The prosecutor referred to the “war on drugs” nine times in his opening statement

and three times in summation. He mentioned the new “front” five times in his opening

statement.

      Appellant’s trial counsel rebutted the prosecutor’s comments in his summation,

arguing:

             You know, the State’s used the term “war on drugs” a few
             times, talking about the war on drugs, foot soldiers and the
             war on drugs. Now, I could probably go on for way too long
             about differing opinions on the war on drugs, but I think we


                                            6
             can agree that it’s gone on for a long time, that it’s constantly
             changing. What the State’s proposing here is that this is a
             new front on the war on drugs. And maybe, when you’re
             talking about what you term designer drugs, maybe that is a
             new front. I don’t know. I’m neither smart enough or in tune
             enough to be making those types of decisions.

                    We’re not talking about general public policy here in
             this courtroom today. That’s a side show. We’re not talking
             about the effectiveness of the war on drugs. That’s a side
             show. What we’re talking about today again is, simply, did
             Mr. Miller sell drugs? Did he do it? When you look at the
             evidence, if this is being framed as a new front on the war on
             drugs, then this has been a distraction.

      The state dismissed the charge of sale of a noncontrolled substance before jury

deliberations. The jury found appellant guilty of the sale on August 3 and not guilty of

the sale on August 10. Appellant was sentenced to 90 months in prison. This appeal

followed.

                                    DECISION

      Appellant argues that (1) the plain and unambiguous language of the relevant

statues did not criminalize the sale of the substance he was found to have sold on August

3; (2) the prosecutor’s references to the “war on drugs” in his opening statement and in

his summation were prosecutorial misconduct; and (3) testimony about the threats A.L.

received were improperly admitted and prejudicial.

                                            I.

      Appellant argues that the 2012 amendments to Minnesota Statute chapter 152

unambiguously fail to define 25I-NBOMe as an “hallucinogen” for purposes of the




                                            7
charge under Minn. Stat. § 152.022, subd. 1 (3).3 Respondent, for its part, candidly and

commendably concedes that the 2012 statute contains errors amounting to what it

characterizes as a “technical oversight” and a legislative “goof-up.” But respondent

argues that the legislature’s intention can be discerned and that appellant’s conviction for

the August 3 sale should be affirmed in spite of what it labels as the statutory ambiguity.

       Appellant was charged with violating Minn. Stat. § 152.022, subd. 1(3), by selling

50 or more dosage units of an hallucinogen on August 3, 2012. As of August 1, 2012,

hallucinogen is effectively defined as “any hallucinogen listed in section 152.02,

subdivision 2, clause (3), or Minnesota Rules, part 6800.4210, item C, except marijuana

and Tetrahydrocannabinols.” Minn. Stat. § 152.01, subd. 5a (2012).

       “Statutory construction is a question of law and is reviewed de novo.” State v.

Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003). “The primary objective in the

interpretation of a statute is to ascertain and effectuate the intention of the legislature.”

Id. “If the statutory language is plain and unambiguous, the court does not engage in any

further construction and instead looks to the plain meaning of the statutory language.” Id.

“A statute is only ambiguous if its language is subject to more than one reasonable

interpretation.” Christianson v. Henke, 831 N.W.2d 532, 537 (Minn. 2013).

       Before August 1, 2012, possession or sale of analogs of hallucinogens were not

prohibited by Minnesota law. See Minn. Stat. § 152.02, subd. 2(3) (2010) (defining

hallucinogen as a “material, compound, mixture or preparation which contains any


3
 This issue was not raised before the district court, but the state makes no argument on
appeal that the issue has been waived.

                                             8
quantity of the following hallucinogenic substances, their salts, isomers and salts of

isomers, unless specifically excepted” that contains an hallucinogenic substance); see

also Minn. Stat. § 152.01, subd. 5a (2010) (defining hallucinogens as “any hallucinogen

listed in section 152.02, subdivision 2, clause (3), or Minnesota Rules, part 6800.410,

item C, except marijuana and Tetrahydrocannabinols”).

          In an apparent attempt to criminalize analogs of hallucinogens, the Minnesota

legislature passed, and the governor signed, a revision to Minn. Stat. § 152.02, effective

August 1, 2012. 2012 Minn. Laws ch. 240, § 1, at 764-87. “Hallucinogen” was defined

as “any hallucinogen listed in section 152.02, subdivision 2, clause (3), or Minnesota

Rules, part 6800.4210, item C, except marijuana and Tetrahydrocannabinols.” Minn.

Stat. § 152.01, subd. 5a.      The legislature added a new subdivision captioned as

“Hallucinogens.” 2012 Minn. Laws ch. 240, § 1, at 767-68. This subdivision included

analogs of 2C-I in the definition, but that new subdivision was numbered as section

152.02, subdivision 2(d), to which no reference is made by other parts of the statute.4 Id.

at 768.




4
  The 2012 law failed to make any change to Minn. Stat. § 152.01, subd. 5a. See 2012
Minn. Law ch. 240, § 1, at 764-87; see also Minn. Stat. § 152.01, subd. 5(a) (2012)
(repeating reference to “section 152.02, subdivision 2, clause (3), or Minnesota Rules,
part 6800.4210, item C” as the lists defining hallucinogens).

                                            9
       After the 2012 amendment, hallucinogens were described as a substance listed

either in the Minnesota Rules or in “section 152.02, subdivision 2, clause (3),” a

subdivision and clause not then existing. Minn. Stat. § 152.01, subd. 5a (2012).5

       The charging statute, section 152.022, subdivision 1(3), as written, and as of

August 3, 2012, is confusing and impossible to fully execute.           To determine what

substances are considered hallucinogens under subdivision 5a, there are two lists

referenced. But only one list, the Minnesota Rules list, existed as of August 3, 2012. The

Minnesota Rules list defines hallucinogens as “any material, compound, mixture, or

preparation which contains any quantity” of the substances included in the list. Minn. R.

6800.4210, subp. C (2011). But 25I-NBOMe, the substance involved in this case, is not

included on this list. Id. As discussed above, the other list, purportedly “in section

152.02, subdivision 2, clause (3)” did not then exist. Id.

       While only one of the referenced lists exists in the statute as written, the statute is

not ambiguous.      It has only one reasonable meaning: the substances defined as

hallucinogens are to be found where indicated by the statute. “When we conclude that a

statute is unambiguous, our role is to enforce the language of the statute and not explore

the spirit or purpose of the law.” Christianson, 831 N.W.2d at 537 (quotation omitted).

We must apply its plain meaning, refraining from further statutory construction. State by

Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996); see also Leifur v. Leifur, 820



5
  In 2013, the legislature changed the reference in this subdivision to “paragraph (d).”
2013 Minn. Laws ch. 113, art. 3, § 1. The law also added 25I-NBOMe to the list of
hallucinogens in Minn. Stat. § 152.02, subd. 2(d). 2013 Minn. Laws ch. 113, art. 3, § 2.

                                             10
N.W.2d 40, 43 (Minn. App. 2012) (noting that “meritorious policy arguments” were

rejected because we “may not disregard unambiguous statutory language”).

       When looking at section 152.02, subdivision 2, as it existed on August 3, 2012,

there is no clause (3), as referenced in Minn. Stat. § 152.01, subd. 5a. There is, however,

a paragraph (d) to subdivision 2, containing the list of substances defined as

hallucinogens, and which includes analogs. Id., subd. 2(d) (2012). It appears that the

legislature intended, by the 2012 amendments, to criminalize analogs of hallucinogens.

But it failed to do so. The legislature’s evident drafting error does not permit us to

abandon our well-established rules of statutory interpretation. Appellant argues, and we

agree, that he cannot be punished for conduct that was not effectively defined as criminal.

Under the plain language of the statute as it existed on August 3, 2012, appellant cannot

be convicted of second-degree sale of an hallucinogen because the 25I-NBOMe was not

then effectively defined by statute or rule as an hallucinogen. See Bouie v. City of

Columbia, 378 U.S. 347, 350, 84 S. Ct. 1697, 1701 (1964) (stating that the state cannot

punish conduct that was not criminal when committed).

       In this unusual circumstance, the rules of criminal procedure require us to

“(1) direct a new trial; (2) vacate the conviction and enter a judgment of acquittal; or

(3) reduce the conviction to a lesser included offense or to an offense of lesser degree, as

the case may require.      If the court reduces the conviction, it must remand for

resentencing.” Minn. R. Crim. P. 28.02, subd. 12. Appellant concedes that the jury’s

verdict convicting him of count one necessarily includes the jury’s conclusion that he

committed a fourth-degree controlled substance sale in violation of Minn. Stat.


                                            11
§ 152.024, subd. 1(1) (2012). Section 152.024, subdivision 1(1) defines sale of “schedule

I, II, or III” substances as a crime. Id. These schedules are defined in section 152.02 and

include hallucinogen “analogs,” and specifically including analogs to 2C-I. 25I-NBOMe

is an analog of 2C-I, according to expert testimony at trial. Minn. Stat. § 152.02, subd.

2(d).    Because the jury’s verdict necessarily encompasses a conclusion that appellant

was guilty of a fourth-degree controlled substance sale, we “reduce the conviction to . . .

an offense of lesser degree” and remand to the district court for resentencing. Minn. R.

Crim. P. 28.02, subd. 12.

                                                    II.

        Appellant also argues that evidence about threats allegedly made by Berggren to

A.L. was improperly admitted and that respondent committed prosecutorial misconduct

by repeatedly framing the case as the “new front” in the “war on drugs.” Appellant did

not object to these claimed errors at trial.

        We review the admission of unobjected-to testimony under the plain-error

standard, requiring the appellant to show (1) error; (2) that was plain; and (3) that

affected appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.

1998). If all three prongs are met, we determine “whether [we] should address the error

to ensure fairness and the integrity of the judicial proceedings.” Id.

        When a defendant fails to object to prosecutorial misconduct at trial, we review

under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn.

2006). This two-tiered test first requires appellant to establish that the prosecution

committed error that is plain in that the prosecutor’s conduct contravenes caselaw, a rule,


                                               12
or a standard of conduct. Id. If appellant makes this showing, the burden shifts to the

state to demonstrate that the misconduct did not affect appellant’s substantial rights. Id.

Even where misconduct occurs, we reverse only when an appellant was denied a fair trial.

State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).

       Even if the district court’s admission of testimony regarding the threats to A.L.

and the prosecutor’s references to the “war on drugs” were plain error, which we do not

decide, the testimony and references did not affect appellant’s substantial rights. In so

concluding, we consider “the strength of the evidence against the defendant, the

pervasiveness of the improper suggestions, and whether the defendant had an opportunity

to (or made efforts to) rebut the improper suggestions.” State v. Hohenwald, 815 N.W.2d

823, 835 (Minn. 2012) (quotation omitted). Here, A.L. testified that appellant sold him

25I-NBOMe, and appellant admitted he was the person on the audio recording of the

controlled buy. The jury found appellant guilty of one count and not guilty of the second

count arising from a separate incident. This is a strong indication that the jury analyzed

each count separately and made decisions based on the evidence presented. If the jury

had been improperly influenced by the testimony of the threatening text messages or the

prosecutor’s references to the “war on drugs,” it surely would have found appellant guilty

of both counts. And while the prosecutor repeatedly referred to the “war on drugs” in his

opening statement and his summation, appellant had an opportunity to rebut the

prosecutor’s comments, and did so effectively. Appellant’s counsel obviously adopted a

defense strategy on using the prosecutor’s references to the “war on drugs” to indicate the

weaknesses of the state’s case. And the jury did acquit appellant of one count.


                                            13
       We also observe that the district court intervened of its own initiative at one point

during the trial, instructing both of counsel, outside the jury’s presence, to stop referring

to other cases and incidents of death caused by 25I-NBOMe.             The district court’s

admonition appears to us to have greatly reduced or eliminated further improper

references.

       Finally, the district court properly instructed the jury, including instructions to

“put aside any sympathy, prejudice or bias for or against either party in this case.

Sympathy, prejudice and bias lead to unfairness, and you must be absolutely fair.” And

we must assume in the absence of some contrary indication in the record that the jury

followed the instructions given it. State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).

       Given the evidence in the record, the mixed verdict of the jury, the proper jury

instructions, and the district court’s appropriate admonition to counsel, together with

appellant’s effective rebuttal concerning the claims about the role of the “war on drugs,”

we conclude that appellant’s substantial rights were not affected by the admission of the

testimony regarding threatening text messages or by the prosecutor’s references to the

“war on drugs.” That evidence and argument, even if plainly erroneous, did not affect

appellant’s substantial rights.

       In sum, we conclude that appellant’s conviction for second-degree controlled

substance sale of an hallucinogen must be reduced to a conviction for fourth-degree

controlled substance sale, and we reverse and remand for resentencing.             We also

conclude that any plain error in admitting testimony regarding threats to A.L. or




                                             14
references by the prosecutor to the “war on drugs” did not affect appellant’s substantial

rights.

          Affirmed in part, reversed in part, and remanded.




                                           15
