Quantity Element as Essential in Attempted Delivery Charges under N.D.C.C. § 19-03.1-23: State v. Brown

Introduction

State of North Dakota v. Taelor Brown (2025 ND 86) presents a critical clarification on the elements required to establish probable cause for an attempted delivery of a controlled substance. Brown was charged with four counts after officers discovered 52.2 grams of suspected cocaine in a room he was cleaning. Count I alleged attempted delivery of 50 grams or more of cocaine, while Counts II–IV concerned possession of 50 grams or more and possession of drug paraphernalia. Following a preliminary hearing in Divide County, the district court dismissed Count I with prejudice for lack of probable cause. The State appealed, and the North Dakota Supreme Court, in a unanimous decision authored by Justice Crothers, affirmed the dismissal.

Summary of the Judgment

The Supreme Court held that the State failed to present sufficient evidence of a substantial step toward transferring 50 grams or more of cocaine from Brown to another person. Although quantity may give rise to an inference of intent to deliver, mere possession (even of distribution-scale amounts) and residue in straws did not establish probable cause for an attempted transfer of that specific quantity. Because the weight element is essential to a Class A felony under N.D.C.C. § 19-03.1-23(1)(a), the court confirmed the district court’s dismissal of Count I.

Analysis

1. Precedents Cited

State v. Blundt, 2008 ND 135, 751 N.W.2d 692 – standard for reviewing probable-cause dismissals at a preliminary hearing (fully reviewable question of law, defer to district court’s factual findings unless manifestly against the weight of evidence).
State v. Turbeville, 2017 ND 139, 895 N.W.2d 758 – definition of probable cause and its lower threshold compared to proof beyond a reasonable doubt.
Eaton v. State, 2011 ND 35, 793 N.W.2d 790 and In re L.A.G., 1999 ND 219, 602 N.W.2d 516 – recognition that large quantities of a controlled substance may support an inference of intent to deliver.
State v. Helton, 2007 ND 61, 730 N.W.2d 610 – broad definition of “delivery” including constructive or attempted transfer, regardless of monetary exchange.
Out-of-state authorities emphasizing that weight is an essential element when it elevates the grade of a drug offense: Reese v. State (Fla.), Halsema v. State (Ind.), Hamdi v. State (Ind.), People v. Harper (Ill.), State v. Harrison (Ohio).

2. Legal Reasoning

The court’s analysis pivoted on two statutory provisions:

N.D.C.C. § 19-03.1-01(9) – defines “delivery” to include the “attempted transfer” of a controlled substance.
N.D.C.C. § 12.1-06-01 – defines “criminal attempt,” requiring a “substantial step” toward the commission of the crime.

While the State proved Brown possessed over 50 grams and that that quantity typically suggests distribution, nothing in the preliminary hearing established that Brown took a substantial step toward actually transferring 50 grams or more to someone else. The mere presence of residue in straws and another person on the premises did not carry the weight element into the “attempt.” Because the weight threshold is an element that elevates the offense to a Class A felony under N.D.C.C. § 19-03.1-23(1)(a), it had to be alleged and supported by probable cause.

3. Impact

This decision highlights the following practical effects:

Charging precision: Prosecutors must allege and support each essential element, including quantity thresholds when they enhance the offense grade.
Preliminary hearings: Courts must scrutinize whether evidence supports not only possession or intent but also any claimed substantial step toward attempted transfer of a specified quantity.
Future litigation: Defense counsel may challenge attempted-delivery charges that rely solely on quantity in possession without evidence of actual or attempted transfer steps.

Complex Concepts Simplified

Probable Cause: A reasonable belief, based on facts, that a crime was committed and the accused probably committed it. It does not require proof beyond a reasonable doubt.
Criminal Attempt (“Substantial Step”): Any act strongly corroborative of the intent to commit a crime. It must go beyond planning or preparation.
Delivery vs. Possession with Intent:
- Delivery is the (or attempted) transfer of a substance to another person.
- Possession with intent to deliver infers intent from circumstances (quantity, packaging, paraphernalia), but does not itself constitute a transfer or attempted transfer.
Quantity as an Essential Element: When a statute classifies penalties based on the weight of a controlled substance, that weight becomes an element the State must prove or establish probable cause for.

Conclusion

State v. Brown clarifies that, under North Dakota law, an attempted delivery charge cannot rest solely on possession of a distribution-scale quantity of a controlled substance. Where the offense grade hinges on a specific weight threshold, the prosecution must demonstrate a substantial step toward transferring that very quantity. The decision underscores the necessity of precise charging instruments and sufficient evidence at preliminary hearings, preserving both prosecutorial integrity and due process rights of defendants.