“Sale” of Narcotics Includes Giving Physical Possession of Those Drugs To Another For Purpose of Concealment

Barrow v. State, Minn.Ct.App., 4/21/2014.  Mr. Barrow and his wife drove down to Rochester to get some cocaine.  On the way back, Mr. Barrow noticed that there was a cop car behind him so he gave his wife some of the cocaine, instructing her to hide it.  She stuffed it her bra but the cops found it anyway.  The state charged Mr. Barrow with third degree sale of a controlled substance – the hand off to his wife -  (and with two other drug crimes which were eventually dismissed).  At the plea hearing, Mr. Barrow told the court that his wife had “nothing to do with it,” “it” being the acquisition of the cocaine in Rochester.  He also told the court that by dumping some of the cocaine onto his wife he had “sold” cocaine within the meaning of the statute.

A few years go by and Mr. Barrow is having second thoughts about his plea so he filed a post conviction petition to withdraw it.  He said that he didn’t “sell” anything, much less cocaine, by handing some of it off to his wife because the two of them jointly acquired it.  Each thus had constructive possession of the cocaine and neither could “sell” it to the other.  The court of appeals thought that there was actually a Minnesota Supreme Court case that says something like this.  State v. Carithers, 490 N.W.2d 620 (Minn. 1992).  It’s a bit of a stretch to say that’s true.  Carithers is a felony murder case that addressed this question:

When a married couple jointly acquires a Schedule I controlled substance, and one of the partners uses that substance and subsequently dies from a drug overdose, did the legislature intend that the surviving partner be subject to prosecution under Minn.Stat. § 609.195(b)?

Amazingly, two couples got hold of some heroin.  Each couple used half the acquired heroin and – get this – in each case one of the spouses died!  The surviving spouse got charged with felony murder.  The state said that this was felony murder because the surviving spouse had unlawfully sold or given away the heroin to the deceased spouse.  Along the way toward answering this question, “No,” the court assumed that the two surviving spouse/defendants could not have been convicted of “selling” the heroin.  From that assumption the court concluded that neither surviving spouse/defendant could be convicted of felony murder.

Be that as it may, Mr. Barrow’s problems were:  he swore to the judge at his plea hearing that his spouse had “nothing to do with it.”  He has thus not established that the two of them acquired the drugs jointly.  The court also said that when his spouse stuffed the drugs down her bra Mr. Barrow lost constructive possession of those drugs.  This seems a bit too modest a conclusion; would this have been the conclusion had she merely hid the drugs in her shoe?  The court affirms the summary denial of his post conviction petition.