                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0359

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Ryan Matthew Drown,
                                     Appellant.

                               Filed March 23, 2015
                              Reversed and remanded
                                   Minge, Judge

                           Blue Earth County District Court
                               File No. 07-CR-12-2858


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ross Arneson, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and

Minge, Judge.




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                        UNPUBLISHED OPINION

MINGE, Judge

       Appellant Ryan Drown challenges his conviction of second- and third-degree

possession of methamphetamine, arguing that the evidence presented at trial was

insufficient to convict him and that conviction on two counts violates Minnesota law.

The state has not made an appearance in this appellate proceeding. Because the amount

of fluid in appellant’s water pipe was less than four fluid ounces and by law is excluded

from the size of the methamphetamine mixture, appellant’s possession did not meet the

threshold requirements for violating the laws under which he was convicted, we reverse

both convictions, and we remand to vacate the convictions.

                                        FACTS

       On May 25, 2012, the Minnesota River Valley Drug Task Force searched a

bedroom they believed belonged to appellant and seized several items including two

water bongs. A field test of the water indicated the presence of methamphetamine in both

bongs. Appellant was charged by an amended complaint with second- and third-degree

possession of a controlled substance in violation of Minn. Stat. § 152.022, subd. 2(a)(1)

(2012), and Minn. Stat. § 152.023, subd. 2(a)(1) (2012).

       The seized materials were sent to the Bureau of Criminal Apprehension (BCA) for

further testing.   The BCA test results revealed that one bong did not contain any

controlled substance, but that the contents of the other bong weighed 11.1 grams with 11

mL (0.372 oz.) of water and had trace amounts of methamphetamine. At trial, a BCA

forensic scientist testified to the trace of methamphetamine in the second bong and the


                                            2
weight and quantity of water. The confirming BCA test report was entered into evidence

at trial.

        The state argued that the 11 mL of bong water constituted 11.1 grams of

methamphetamine mixture and urged the jury to find appellant guilty of both offenses.

The jury was instructed on both charges consistent with the state’s arguments regarding

the quantities necessary for a conviction. Appellant did not object to the instructions.

After deliberating, the jury returned guilty verdicts for both second- and third-degree

possession.   The district court entered judgment of convictions on both counts and

imposed a guideline sentence of 78 months for second-degree possession of

methamphetamine. This appeal followed. The state has not made an appearance.

                                     DECISION

        The first issue is whether the record supports a finding that appellant possessed a

mixture of methamphetamine sufficient to support either of his two convictions.

Appellant argues that with second- and third-degree offenses involving smaller quantities

of methamphetamine, water is not to be considered part of the controlled substance

mixture unless there are at least four fluid ounces. An issue of whether the clear evidence

meets the statutory definition of an offense presents a question of statutory interpretation

that we review de novo. See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). “When

interpreting a statute, we give words and phrases their plain and ordinary meaning.” Id.

at 803 (quotation omitted). “If a statute is unambiguous, then we must apply the statute’s

plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010).




                                             3
      Offenses of second- and third-degree possession of a controlled substance are

established by Minn. Stat. § 152.022, subd. 2(a)(1)–(6) (2012), and Minn. Stat.

§ 152.023, subd. 2(a)(1)–(6) (2012). A defendant is guilty of second-degree possession

of a controlled substance if that person “unlawfully possesses one or more mixtures of a

total weight of six grams or more containing . . . methamphetamine.” Minn. Stat.

§ 152.022, subd. 2(a)(1). A defendant is guilty of third-degree possession of a controlled

substance if “on one or more occasions within a 90-day period . . . [a] person unlawfully

possesses one or more mixtures of a total weight of three grams or more containing . . .

methamphetamine.” Minn. Stat. § 152.023, subd. 2(a)(1). A “mixture” is defined as “a

preparation, compound, mixture, or substance containing a controlled substance,

regardless of purity.” Minn. Stat. § 152.01, subd. 9a (2012).

      In 2009, the supreme court determined that bong water is included in calculating

the amount of a methamphetamine mixture. State v. Peck, 773 N.W.2d 768, 773 (Minn.

2009). In 2011, the legislature amended the definition of mixture in the controlled

substance statutes to exclude the weight of the fluid in a water pipe1 in computing the

weight of a mixture unless “the mixture contains four or more fluid ounces of fluid.” Act

of May 24, 2011, ch. 53, §§ 6-8, 2011 Minn. Laws 202, 206-07 (codified at Minn. Stat.

§§ 152.021, subd. 2(b), 152.022, subd. 2(b), 152.023, subd. 2(b)). The legislature also


1
 In previous cases, our courts have used the term “bong water” to describe the liquid in a
water pipe. See Peck, 773 N.W.2d at 773. The statutes use the term “water pipe.”
Because the dictionary definition of a bong includes the term “water pipe,” The American
Heritage College Dictionary 215 (3d ed. 1999) (defining a bong as a water pipe filled
with liquid used often in smoking narcotics), we use the two terms interchangeably.



                                            4
added a cross-reference to these new subdivisions in the definition of “mixture” as set out

in section 152.01, subdivision 9a. Act of May 24, 2011, ch. 53, § 1, 2011 Minn. Laws

202, 203 (codified at Minn. Stat. § 152.01, subd. 9a). These new subdivisions became

effective May 25, 2011. By limiting the inclusion of water as part of the controlled-

substance mixture to cases involving more than four fluid ounces, this legislation

partially overruled Peck.

       Here, it is clear that the evidence presented by the state to support the charges

rested solely on the weight (11.1 grams) and the volume (11 mL) (0.372 oz.) of fluid in

appellant’s water pipe that tested positive for methamphetamine. Under the statute in

effect at the time of the offense, 0.372 oz. of water does not meet the threshold

four-ounce requirement for inclusion in determining the weight of a mixture, and the

bong-water rule from Peck does not apply. Because the evidence presented by the state

was insufficient to convict appellant of either second- or third-degree possession of a

controlled substance, we reverse both convictions and remand to vacate the convictions.

       Appellant also argues that the district court erred by entering convictions for both

second- and third-degree possession of a controlled substance. See Minn. Stat. § 609.04,

subd. 1 (2012) (“Upon prosecution for a crime, the actor may be convicted of either the

crime charged or an included offense, but not both.”). Although our ruling on the liquid-

measurement issue is dispositive, we note that the third-degree-possession offense is

included in the second-degree offense and that the district court erred when it entered

convictions as to both second- and third-degree possession of a controlled substance.

       Reversed and remanded.


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