dissenting.
I respectfully dissent. I would affirm the trial court which found the term “cocaine base” insufficient to define a criminal offense and thus unconstitutionally vague.
The state originally charged appellant with intent to distribute a controlled substance, namely cocaine. To do so the state proceeded, as it always does in controlled substance charges, with a complaint alleging pertinent portions of four specific statutes. Minn.Stat. § 152.01, is a definitional statute; Minn.Stat. § 152.02 is the statute which declares what substances are prohibited; Minn.Stat. § 152.09 describes what acts break the law; and Minn.Stat. § 152.15 defines the penalties for violating the law.
Charges involving cocaine (whether possession, possession with intent to distribute, selling, et cetera), involve a selected reference to each of the four above described statutes. The same is true of marijuana, LSD, heroin and all other commonly or uncommonly known controlled substances.
When the 1987 legislature created a new crime involving the controlled substance “cocaine base,” however, it failed to include a definition of cocaine base anywhere in Minn.Stat. §§ 152.01 or 152.02, where definitions and schedules relevant to Chapter 152 normally appear. The term “cocaine base” is mentioned only in the penal provision, Minn.Stat. § 152.15. Thus, the legislature simply provided a penalty concerning a substance it did not even define. In charging appellant with possession with intent to distribute cocaine base, therefore the state used the statutory references to cocaine as found in Minn.Stat. §§ 152.01 and 152.02 for the simple reason that none existed for cocaine base.1
*570I disagree with the majority’s conclusion that it is sufficient that the legislature mentioned cocaine base only in section 152.15. The penal portion of this package of four statutes which accompanies the charging of crimes involving a controlled substance does nothing, by itself, to tell anybody what cocaine base is. Even if cocaine base could be accurately guessed at by users and dealers, that would not be sufficient in Minnesota to save the statute from the definitional flaw recognized by the trial court. Minnesota does not have common law crime. If it is not spelled out as a statutory crime in this state, it is not against the law. Minn.Stat. § 609.015.
Since the legislature intended to make the possession and/or distribution of cocaine base a more severe crime than possession and/or distribution of cocaine, it was incumbent on the legislature to define cocaine base and insert the proper terminology ⅛ §§ 152.01 and 152.02 as needed.
If, as the majority concludes, it is sufficient merely to mention the word “cocaine base” in Minn.Stat. § 152.15, the penal provision, and nowhere else, why does not that logic apply to all controlled substances? Why did the legislature spell out with particularity drug definitions and schedules in Minn.Stat. §§ 152.01 and 152.02?
As the trial court inferred, it may have been mere oversight on the part of the 1987 legislature. Nevertheless, the legislature completely failed to define the term “cocaine base,” and this failure renders the statute infirm.
The majority concludes that appellant introduces “an artificial complexity” into the case when appellant argues that cocaine base should be read as an indivisible phrase rather than as two distinct words. I find no support for the majority’s argument other than speculation. I see the controlled substance in issue here better described by the indivisible phrase of cocaine base rather than splitting these two words into “cocaine” and then “base.” As noted, the possession and/or distribution of cocaine is already against the law, and a definition of cocaine is set out in § 152.02, subd. 3(l)(d). Section 152.02 does not contain a definition of cocaine base, nor does it contain a definition of the word “base” and relate that specifically back to the definition of cocaine. It is clear to me that the legislature thought that cocaine base is a different and a more harmful drug than just cocaine, and meant to make distribution of cocaine base a separate crime with a more severe penalty. The legislature simply failed to take the next necessary step and insert into the law a definition of cocaine base.
The trial court made note of the confusion and disagreement over what is supposed to be meant by the undefined phrase “cocaine base” as it stands now in section 152.15.2 This confusion is evident in the *571appellant’s case and the majority opinion. For instance, at oral argument appellant, in direct response to a question from the panel, said that the term “cocaine base” by definition has to include at least some cocaine. A short time later, appellant argued in response to a similar question that it would be chemically possible to have cocaine base without any cocaine in it. Because of the void in the definition statutes, there is no support for either proposition.
At one point, the majority states:
The legislature thus used the word “base” in accordance with its standard dictionary definition to describe the refined form of cocaine; chemically it consists of the cocaine molecule without a hydrogenchloride molecule bonded to it.
That is speculation. That definition of the word “base” is found nowhere in any stipulated facts, nowhere in Minn.Stat. §§ 152.-01, 152.02, or any of the advisory comments thereto. That definition of “base” is found only in the opinion of the majority. I have no idea how the majority read the legislature’s mind to assume that this complex definition, replete with chemists’ terms such as hydrogenchloride molecule, was all contained in the word “base.”
In another part of the opinion, the majority states:
We think a person of average intelligence will understand that “cocaine base,” the possession and sale of which evokes a greater criminal penality than the possession and sale of the same quantity of other forms of cocaine, means pure cocaine in its undiluted chemical form.”
(emphasis added.) Thus, the majority must now be stating that “pure cocaine in its undiluted chemical form” equals “a cocaine molecule without a hydrogenchloride molecule bonded to it.” Trial courts and appellate courts interpret statutes. Neither of us engage in chemical analysis. Nor should we assume what the legislature “might” do for a definition after consulting with experts. The legislature is free to add cocaine base to the schedule of controlled substances in § 152.02, and, if deemed appropriate, insert a definition of cocaine base into § 152.01. Appellate courts should not usurp the legislative function.3
I would affirm the trial court’s conclusion that for lack of an adequate definition of cocaine base, the statute in question is unconstitutionally vague, and the prosecution is limited to charging appellant with a felony of use and/or distribution of cocaine.
. The pertinent portion of the trial court's memorandum pointing out that the state in charging cocaine base attempted to get by with the definition of just cocaine, stated:
Now, in applying some specificity to the point the Court is making I’ll first refer to the definition of cocaine as contained in Minnesota Statute 152.02 Subdivision 3 Sub (d), "Coca leaves, and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, e-c-g-o-n-i-n-e, the salts and isomers of cocaine and ecgonine, and the salts of their isomers.” It is interesting to note that not only the original Complaint in this case but the amended Complaint which has now been filed by the County Attorney in substitu*570tion of the amended Complaint charges the same definition under 152.02 Subdivision 3(1 )(d) which I just read because, in fact, there’s no definition under Statute 152.02 of cocaine base. That seems to me to be confusing in and of itself since the penalty provisions as amended in the 1987 legislature leaves the prosecutor with the same definition but a new controlled substance if you will.
(The original complaint in this case refers to a criminal charge involving cocaine. The amended complaint in this case refers to a charge involving cocaine base.)
. Portions of the trial court's reasoning are as follows:
Now, at the root of my conclusion here is that the term as used in a technical sense by the legislature in the particular statute here, cocaine base, does not have that technical or other special meaning. * * * The problem with the law now as it stands distinguishing between cocaine being a level VI severity offense and cocaine base being a level VII severity offense charge is that it seems to this court that it clearly encourages arbitrary and discriminatory enforcement since there’s no differentiation between the two narcotics. * * * "Persons of common intelligence must not be left to guess at the meanings of a statute nor differ as to its application.” * * *
The bottom line is that cocaine by definition is a crystalline alkaloid and cocaine base which supposedly is some, the court is assuming, more pure form of cocaine by way of a crystalline alkaloid or salt. * * * The court is taking the constitutional mandate of the vagueness doctrine and applying it to this case and after my law clerk and I spent approximately eight hours getting a migraine headache, we could not distinguish cocaine from cocaine base and the legislature was deficient in not providing us with that definition which simply could have been done by defining co*571caine base as to how it differs from cocaine being a crystalline alkaloid.
* * * [T]he court for all of the reasons heretofore cited and because there’s no adequate definition or certainty as to what the difference is between cocaine and cocaine base, feels that the 1987 amendment does not pass constitutional muster and therefore under Rule 15.07 of the Minnesota Rules of Criminal Procedure the court is making a finding that there has been a thorough hearing and that the prosecution cannot introduce evidence sufficient to justify the submission of the offense charged to the jury and based on that finding, that Mr. Moore should be entitled to plead guilty to the sale of cocaine charge under 152.15, subd. 1(2). * * *
. As our supreme court in State v. Soto cautioned:
From the earliest days of statehood this court has followed a long tradition of strictly construing penal statutes. A criminal offense should not be created by an uncertain and doubtful statutory construction. In the presence of any doubt, penal statutes are to be construed so as not to multiply felonies. See United States v. Gideon, 1 Minn. 292, 296 (Gil.226) (1856). The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of "judicial construction.” State v. Mims, 26 Minn. 191, 2 N.W. 492 (1879). See also State v. Haas, 280 Minn. 197, 159 N.W.2d 118, 121 (1968); State v. End, 232 Minn. 266, 45 N.W.2d 378, 382 (1950).
State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985).