Minnesota case law summary by Attorney Richard Clem: criminal law, sale defined.

Abshir Abtidon Barrow v. State of Minnesota. MN criminal law, sale

In 2010, Abshir Abtidon Barrow drove to Rochester with his wife in order to buy some cocaine. As he was driving home, he noticed some police officers getting ready to stop the car as it passed through Rice County. He quickly handed someof the cocaine to his wife, who hid it in her bra. Despite this precaution, the officers discovered the cocaine. He was charged with three offenses, including the third-degree sale of a controlled substance, in violation of Minnesota Statute 152.023.

The state took the position that even though no money changed hands, giving the cocaine to the wife in these circumstances constituted a "sale" for purposes of the statute. Barrow eventually pleaded guilty and was sentenced to 15 months.

He later asked to take back his plea, since it was not supported by a proper factual basis. He argued that there was no "sale" because he maintained constructive possession even after giving the drugs to his wife. The request was denied, and he appealed to the Minnesota Court of Appeals.

The appellate court affirmed, and held that these facts constituted a "sale" for purposes of the statute. The court noted that "sell" is defined as including "“sell, give away, barter, deliver, exchange, distribute or dispose of to another." By giving the cocaine to his wife, he had engaged in a "sale" for purposes of this statute.

No. A13-1520 (Minn. Ct. App. April 21, 2014).

On April 15, 2015, the Minnesota Supreme Court reversed the decision in this case.

Please see the original opinion for the court's exact language.

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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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