FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 17, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 200
State of North Dakota, Plaintiff and Appellant
v.
Dylan Steve Nupdal, Defendant and Appellee
No. 20210015
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Barbara L. Whelan, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices VandeWalle, Crothers, and McEvers joined. Justice McEvers also filed
a separate opinion concurring specially.
Rebecca L. Flanders, State’s Attorney, Cavalier, N.D., for plaintiff and
appellant; submitted on brief.
Robert J. Woods, Forest River, N.D., for defendant and appellee; submitted on
brief.
State v. Nupdal
No. 20210015
Tufte, Justice.
[¶1] The State appeals from a district court order dismissing a felony charge
of unlawful possession of drug paraphernalia for lack of probable cause. The
State argues the court erred in concluding a scale only alleged to have been
used to weigh and package methamphetamine into smaller quantities did not
satisfy the statutory element requiring use or intent to use the scale to produce
or prepare methamphetamine. We affirm.
I
[¶2] The State charged Dylan Nupdal with unlawful possession of drug
paraphernalia (a class C felony), among other offenses. At the preliminary
hearing, Sergeant Cory Mortensen and Task Force Officer Douglas Hill
testified they were dispatched to investigate a possibly impaired driver stopped
on the side of a road in Pembina County. Upon investigation, the officers
discovered suspected marijuana as well as items used to smoke marijuana.
Mortensen testified that when he searched Nupdal, Nupdal stated he had
methamphetamine inside his sock. According to Mortensen, after he found
a baggie with a crystalline substance, Nupdal said “he was going to sell it
because he needed the money.” The officers then searched his vehicle and
found a scale with a white residue on it, which Mortensen suspected was
methamphetamine.
[¶3] The district court concluded that although the scale was drug
paraphernalia, the State failed to establish probable cause of Nupdal using, or
possessing with intent to use, the scale to manufacture, compound, convert,
produce, process, prepare, test, or analyze methamphetamine as required by
the felony drug paraphernalia statute. The court dismissed the charge for lack
of probable cause. The State appeals under N.D.C.C. § 29-28-07(1).
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II
[¶4] The State argues the district court misinterpreted the felony
paraphernalia statute and erred in dismissing the charge for lack of probable
cause. “Whether facts found by a district court reach the level of probable cause
is a question of law, fully reviewable on appeal.” State v. Mitchell, 2021 ND 93,
¶ 6,
960 N.W.2d 788. “[P]robable cause exists when the facts and circumstances
are sufficient to warrant a person of reasonable caution in believing an offense
has been or is being committed, and knowledge of facts sufficient to establish
guilt is not necessary to establish probable cause.”
Id. (quoting State v. Midell,
2011 ND 114, ¶ 11,
798 N.W.2d 645).
[¶5] Our standard of review for issues of statutory interpretation is wellestablished:
Statutory interpretation is a question of law. Statutes must be
construed as a whole and harmonized to give meaning to related
provisions, and are interpreted in context to give meaning and
effect to every word, phrase, and sentence. In construing statutes,
we consider the context of the statutes and the purposes for which
they were enacted. When a general statutory provision conflicts
with a specific provision in the same or another statute, the two
must be construed, if possible, so that effect may be given to both
provisions. When statutes relate to the same subject matter, this
Court makes every effort to harmonize and give meaningful effect
to each statute.
State v. Marcum, 2020 ND 50, ¶ 21,
939 N.W.2d 840. “Words used in any
statute are to be understood in their ordinary sense . . . .” N.D.C.C. § 1-02-02.
“When the wording of a statute is clear and free of all ambiguity, the letter of
it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C.
§ 1-02-05.
[¶6] The State charged Nupdal with unlawful possession of drug
paraphernalia in violation of N.D.C.C. § 19-03.4-03(1), which provides in
relevant part:
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A person may not use or possess with intent to use drug
paraphernalia to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, or conceal a controlled
substance in violation of chapter 19-03.1. A person violating this
subsection is guilty of a class C felony if the drug paraphernalia is
used, or possessed with intent to be used, to manufacture,
compound, convert, produce, process, prepare, test, or analyze a
controlled substance . . . .
(Emphasis added.) Drug paraphernalia includes “[s]cales and balances used,
intended for use, or designed for use in weighing or measuring controlled
substances.” N.D.C.C. § 19-03.4-01(5) (emphasis added).
[¶7] The State asserts the scale was used, or possessed with intent to be used,
to produce or prepare methamphetamine. The plain meaning of “produce” is to
create or bring into existence. See generally Webster’s Third New International
Dictionary 1810 (3d ed. 1961) (defining “produce”). “Prepare” is defined, in
relevant part, as “to make ready beforehand for some purpose” and “to put
together.” Id. at 1790. Although not alleged here, a scale could be used to
measure ingredients in the course of manufacturing, producing, or preparing
methamphetamine. See State v. Ward, 133 Wash. App. 1041 (2006). Here, the
State alleged only that Nupdal “possessed a silver digital scale . . . commonly
used to weigh a controlled substance in order to package into smaller
quantities to prepare for resale.” This allegation is consistent with N.D.C.C.
§ 19-03.4-01(5), which refers to scales used to weigh or measure previously
produced controlled substances.
[¶8] The State cites two cases in which it argues a defendant was charged
with felony possession of drug paraphernalia for possessing a scale: State v.
Stands,
2021 ND 46,
956 N.W.2d 366, and State v. Apland,
2015 ND 29,
858
N.W.2d 915. In Stands, we analyzed whether law enforcement had reasonable
suspicion to continue detaining the defendant after discovering a scale with
methamphetamine residue on his person.
2021 ND 46, ¶ 18. In Apland, the
defendant challenged the sufficiency of a search warrant affidavit, arguing it
was based on an illegal “trash pull.”
2015 ND 29, ¶ 8. Neither case discusses
whether use of a scale to weigh and package a controlled substance may be
3
sufficient to show its use to “produce” or “prepare” a controlled substance in
violation of the felony paraphernalia provision in N.D.C.C. § 19-03.4-03(1).
[¶9] In the charging document, the State alleged Nupdal possessed a scale
which is “an item commonly used to weigh a controlled substance in order to
package into smaller quantities to prepare for resale.” Mortensen testified that
Nupdal admitted he was going to sell the suspected methamphetamine and
that “[s]cales are commonly used to distribute narcotics.” Hill testified that the
purpose of the scale was “[t]o weigh the suspected methamphetamine for
resale.” Hill described the process, stating that “you essentially take it from
any quantity, place it on the scale, take a weight, which you would then
package into separate baggies for resale.”
[¶10] The district court concluded that the scale was drug paraphernalia, but
that the State failed to provide probable cause that the scale was used, or
possessed with intent to be used, to manufacture, compound, convert, produce,
process, prepare, test, or analyze methamphetamine. The court found the
officers’ testimony established the scale was used to weigh methamphetamine
for the purpose of packaging it for resale, consistent with the charging
document. Further, the court noted, “The plain language of the second sentence
of N.D.C.C. § 19-03.4-03[(1)] that classifies drug paraphernalia as a class C
felony specifically excludes packing and repacking as felony activity.”
[¶11] Under the plain language of the statute, a person is guilty of a class C
felony if the drug paraphernalia is used, or possessed with intent to be used,
in eight enumerated ways. These eight prohibited uses do not include using, or
possessing with an intent to use, drug paraphernalia to weigh a controlled
substance, which is what was alleged by the State, testified to by Hill, and
ultimately found by the district court.
[¶12] The definition section, N.D.C.C. § 19-03.4-01, supports this
interpretation, providing that drug paraphernalia includes kits, blenders,
bowls, containers, spoons, grinders, and mixing devices used in producing or
preparing controlled substances, N.D.C.C. §§ 19-03.4-01(2), (8), and scales and
balances used in weighing or measuring controlled substances, N.D.C.C. § 19-
4
03.4-01(5). This section implicitly recognizes scales are used to weigh or
measure controlled substances when categorized as drug paraphernalia. See
also Marcum, 2020 ND 50, ¶ 21 (noting we harmonize statutes to give meaning
to related provisions).
[¶13] Accordingly, the district court did not err in concluding the State failed
to establish probable cause of Nupdal unlawfully possessing drug
paraphernalia, and dismissing the felony charge.
III
[¶14] The district court order is affirmed.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
McEvers, Justice, concurring specially.
[¶16] Based on the findings of fact made by the district court, I agree with and
have signed with the majority. I write separately to note, that under different
facts, a scale may meet the definition of felony level drug paraphernalia.
[¶17] Lisa Fair McEvers
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