                         This opinion will be unpublished and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
                                    A15-0976

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                Jolene Carmel Goblish,
                                      Appellant.

                                  Filed May 9, 2016
                                      Affirmed
                                 Smith, Tracy, Judge

                              Lyon County District Court
                                File No. 42-CR-14-834

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,

Tracy, Judge.

                        UNPUBLISHED OPINION

SMITH, TRACY, Judge

      In this appeal from her conviction of first-degree driving while impaired when any

amount of a controlled substance is in the body, appellant Jolene Goblish argues that the

district court erroneously omitted an element of the charged offense from the jury
instructions. Because the district court properly instructed the jury on the elements of the

offense, we affirm.

                                         FACTS

       On May 19, 2014, Goblish drove to the department of corrections (DOC) office in

Marshall to meet with her supervising agent and to take a urine test. There, Goblish

provided a urine sample, and a preliminary test showed the presence of amphetamine and

methamphetamine. The DOC agent who administered the test called the police. A

Marshall police officer arrived at the DOC office, arrested Goblish, and transported her to

the law enforcement center. At the law enforcement center, Goblish was read the implied

consent advisory and consented to another urine test. The laboratory tests performed on

Goblish’s urine by the Minnesota Bureau of Criminal Apprehension (BCA) revealed the

presence of amphetamine and methamphetamine.

       Goblish was charged with first-degree driving while impaired when any amount of

a controlled substance under schedule II was in the body in violation of Minn. Stat.

§§ 169A.20, subd. 1(7), .24 (2012).1 At trial before a jury, Goblish testified that she

drove on May 19, 2014, but that she did not use illegal drugs on that day or in the recent

past. The jury found Goblish guilty of first-degree driving while impaired, and Goblish

was sentenced to 65 months in prison.

       Goblish appeals.




1
  A second count for driving while impaired when under the influence of a controlled
substance was dismissed before trial.

                                             2
                                      DECISION

       Goblish argues that the district court plainly erred when it instructed the jury on

the elements of driving while impaired when any amount of a controlled substance is in

the body, and that the error affected her substantial rights. Specifically, she contends that

“the jury instructions omitted an element of the offense [because] they failed to

adequately explain that the jury was required to find that the substance in [her] body was

a schedule-II controlled substance that had a stimulant effect on the central nervous

system.” (Emphasis added). Goblish did not request that the phrase “having a stimulant

effect on the central nervous system” be included in the instructions, nor did she object to

the instructions given.

       Because Goblish “did not raise the objection in the district court that she now

raises on appeal, her jury-instruction-omission claim is subject to the plain-error

analysis.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016). “The plain error standard

requires that the defendant show: (1) error; (2) that was plain; and (3) that affected

substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “If those

three prongs are met, we may correct the error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotations omitted). “An

error is ‘plain’ if it is clear or obvious. Typically, a ‘plain’ error contravenes case law, a

rule, or a standard of conduct.” Peltier, 874 N.W.2d at 799 (citation omitted). “[A]

district court commits plain error if it fails to properly instruct the jury on all elements of

the offense charged.” Id. at 797.




                                              3
       Goblish was convicted under Minn. Stat. § 169A.20, subd. 1(7), which states that

“[i]t is a crime for any person to drive, operate, or be in physical control of any motor

vehicle” when “the person’s body contains any amount of a controlled substance listed in

Schedule I or II.” The statute that defines schedule-II controlled substances states:

                      (a) Schedule II consists of the substances listed in this
              subdivision.
                      ....
                      (d) Unless specifically excepted or unless listed in
              another schedule, any material, compound, mixture, or
              preparation which contains any quantity of the following
              substances having a stimulant effect on the central nervous
              system:
                              (1) amphetamine, its salts, optical isomers, and
              salts of its optical isomers;
                              (2) methamphetamine, its salts, isomers, and
              salts of its isomers . . . .

Minn. Stat. § 152.02, subd. 3 (2012) (emphasis added).

       The district court instructed the jury as follows:

              The elements of driving, operating, or being in physical
              control with the presence of a controlled substance in body
              are first, the defendant drove, operated, or was in physical
              control of a motor vehicle. . . . Second, at the time the
              defendant was driving, operating, or in physical control of a
              motor vehicle, the defendant’s body contained any amount of
              . . . methamphetamine or amphetamine.

       Goblish’s plain-error argument centers on the omission of the phrase “having a

stimulant effect on the central nervous system” from these instructions. See id., subd.

3(d). This omission matters because, she argues for the first time on appeal, a form of

methamphetamine—L-methamphetamine—is lawfully sold over the counter in some




                                              4
products and, she suggests, does not have a stimulant effect on the central nervous

system.2

       We previously interpreted the statutory phrase “‘any quantity of the following

substances having a stimulant effect on the central nervous system’” in State v. Ali, 613

N.W.2d 796, 798-99 (Minn. App. 2000) (quoting Minn. Stat. § 152.02, subd. 2(6)

(1998)), review denied (Minn. Sept. 13, 2000).3 In Ali, we rejected the argument that, in

order to support a charge for possession of a schedule-I controlled substance, the state

must prove that the quantity of the substance possessed was sufficient to produce a

stimulant effect. Ali, 613 N.W.2d at 800. Goblish argues that if the phrase “having a

stimulant effect on the central nervous system” does not modify “quantity,” it must

modify “substances,” and that the state therefore must prove as an element of the offense

that a controlled substance listed in schedule II has a stimulant effect on the central

nervous system. See Minn. Stat. § 152.02, subd. (3)(d).

       We disagree. While Ali addressed the phrase “having a stimulant effect” in the

context of the quantity of the drug, our reasoning there applies equally here. See Ali, 613

N.W.2d at 798-800; see also Minn. Stat. § 152.02, subd. 3(d). In Ali, we observed that

2
  There is nothing in the record regarding different types of methamphetamines or their
“stimulant effect on the central nervous system.” The only arguably related evidence
presented at trial was given by the BCA agent, who testified that amphetamine and
methamphetamine are both stimulants.
3
   Although the court’s reasoning in Ali was in respect to a schedule-I controlled
substance, it is applicable to a schedule-II controlled substance because the applicable
statutes defining a schedule-I controlled substance and a schedule-II controlled substance
are virtually identical, and there is no basis for not applying the same interpretation of the
phrase “having a stimulant effect on the central nervous system” to both statutes. See
Minn. Stat. § 152.02, subds. 3 (2012), 2(6) (1998).

                                              5
the schedules of controlled substances in Minnesota statutes—like those in other states—

classify a number of different substances using phrases such as “having a stimulant

effect,” “having a depressant effect,” “having a potential for abuse associated with a

depressant effect,” and “having a potential for abuse associated with a stimulant effect.”

Id. (citing Minn. Stat. § 152.02, subds. 2(5), 3(3), 3(4) (1998), 4(2), 4(3) (Supp. 1999)).

We adopted the reasoning of other states’ courts that these phrases “were intended as

legislative guidance for the classification and categorization of new controlled substances

and were not an element required to be proven by the state.” Id. at 799. Thus, we held

that “having a stimulant effect” is not an element of the offense. Id. at 800.

       The district court instructed the jury that it must find that the defendant’s body

contained any amount of methamphetamine or amphetamine, both of which the

legislature has included as schedule-II controlled substances. See Minn. Stat. § 152.02,

subd. 3(d)(1)-(2). As we held in Ali, the statutory phrase “having a stimulant effect on

the central nervous system” does not add an element that the state must prove. See Ali,

613 N.W.2d at 799; see also Minn. Stat. § 152.02, subd. 3(d). The district court therefore

did not err by omitting it as an element of the offense in jury instructions. Because we

conclude that no error was committed, we need not consider the second and third prongs

of the plain-error test.

       Affirmed.




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