N.D. Supreme Court hears appeal after district court dismissed attempted-delivery charge

The North Dakota Supreme Court heard oral argument Tuesday in an appeal following a district court decision that dismissed with prejudice an attempted-delivery charge against Taylor Brown.

At issue was whether the limited evidence presented at the preliminary hearing — including testimony that officers found about 52.2 grams of a substance that tested positive for cocaine, two straws with residue, and the defendant’s statement that she had been staying in the room for roughly 30 days — was sufficient to establish probable cause that Brown took a substantial step toward delivery rather than merely possessing the drug.

The court’s questions focused on differences between the statutory and evidentiary elements of attempted delivery and possession with intent to deliver, and on what minimal facts at a preliminary hearing can support a binding determination of probable cause. Chief Justice John Jensen asked whether possession of a large quantity of a controlled substance alone might support an attempt finding or whether additional acts or paraphernalia are required. Appellant’s counsel, Mister Jordan, pointed to the quantity and the two straws and said the weight "was 52.2 grams of cocaine" and that the drug-task-force officer had described typical personal-use amounts as about four grams and at most six grams per day.

Appellee counsel Carrie Jensen argued that attempted delivery requires proof of a substantial step beyond possession and that the transcript did not show the task-force officer had been asked, or had testified, that the items found indicated delivery rather than personal use. "Simple possession is not a substantial step," Jensen told the court, and later summarized the district court's finding that there was "no evidence of any attempt to sell the product." She also emphasized that the district court had dismissed count 1 (attempted delivery) with prejudice while the defendant did not contest count 2 (possession) at the preliminary hearing.

Counsel debated precedent the parties cited: Jordan relied on cases where quantity and certain paraphernalia supported delivery inferences; Jensen relied on decisions holding that possession alone, without other corroborating evidence or a substantial step, cannot support an attempted-manufacture or attempted-delivery finding. The advocates differed over whether items such as straws — which both sides acknowledged can be paraphernalia — and the large weight found in the room were enough, by themselves, to support probable cause for attempted delivery.

The justices also asked whether the inartful drafting of the information (charging "attempted delivery" rather than "possession with intent to deliver") should bar reprosecution or be treated as an amendable pleading error under Rule 7 of the North Dakota Rules of Criminal Procedure. Jensen noted the district court’s dismissal with prejudice of count 1 and prompted questions about whether the state could amend or refile another information or amend count 2 in the district court.

After argument, the court took the matter under advisement; no decision was announced from the bench.

Background details drawn from the preliminary hearing transcript and argument record indicate the substance tested positive for cocaine, the quantity was stated in argument as about 52.2 grams, officers described two straws with residue, the task-force officer estimated personal-use amounts at roughly 4 grams (with an upper, elastic estimate cited as about 6 grams per day), the defendant told officers she had been staying in the room for approximately 30 days, and the officer valued the seized cocaine at about $5,000–$6,000. The district court had found insufficient evidence of a substantial step toward delivery and dismissed the attempted-delivery count with prejudice; the possession count was not contested at the preliminary hearing.