State v. Gorder

JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant/appellant, Mark Stuart Gorder, was convicted of criminal possession of dangerous drugs, a felony pursuant to § 45-9-102, MCA, following a jury trial in the District Court of the Eighth Judicial District, Cascade County. He appeals. We reverse.

On November 28, 1988, two agents from the State’s Criminal Investigation Bureau traveled to Great Falls, Montana, to serve an arrest warrant on appellant for charges pending against him in another county in Montana. In the initial appearance on these charges appellant stated that his residence was a travel trailer located on Lot No. 12, Cascade Trailer Park, Cascade, Montana.

Law enforcement officers applied for and received a search warrant for the travel trailer located in Cascade. They went to the trailer park and determined that appellant’s trailer was in storage and had not been occupied recently. The officers searched the trailer and found a folded ten-dollar bill in the cupboard area above a couch which folded out to a bed. One officer picked up the bill, put it in his hand, examined it, then replaced the bill in the cupboard and photographed it. The officer testified that he noted a small amount of white powdery substance on the bill.

When the bill was sent to the crime laboratory, the lab found the powder folded within the bill weighed .05 grams or 50 milligrams which is one-twentieth of a gram. The powder tested positive for cocaine. The bill at no time was processed for fingerprints.

One Bob Neer testified for appellant at trial, stating that he stayed with appellant in his trailer during a week to ten-day visit with appellant in Minnesota in February of 1988. Neer testified that during that visit he purchased half a gram of cocaine which was contained in a folded ten-dollar bill. While visiting appellant, Neer would empty his pockets and put the contents in the cupboard above the bed where the ten-dollar bill containing cocaine was later found by law officers. Neer further testified that he had forgotten the bill and some clothes in appellant’s trailer. During cross-examination the deputy county attorney asked Neer, “Did you ever tell the defendant you bought some cocaine?” Neer answered: “No.”

The issue is whether there was sufficient evidence to support the jury’s verdict that appellant possessed dangerous drugs.

In State v. Smith (1983), 203 Mont. 346, 661 P.2d 463, this Court *338held that felony criminal possession of a dangerous drug requires proof that a defendant (1) possessed (2) dangerous drugs. Section 45-2-101(52), MCA, defines “possession” as “the knowing control of anything for a sufficient time to be able to terminate control.” Thus, the mental state of “knowingly” is also contained in the definition of possession of dangerous drugs. Section 45-9-102(1), MCA.

Therefore to establish the offense of criminal possession of dangerous drugs, a felony, under § 45-9-102, MCA, the State must prove: (1) knowing (2) control of a (3) dangerous drug for a sufficient time to be able to terminate control. See Compiler’s Comments, § 45-9-102, MCA.

The standard of review to be applied is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the three essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 573; State v. McDonald (1987), 226 Mont. 208, 210, 734 P.2d 1216, 1217.

Here the State failed to prove beyond a reasonable doubt that appellant had “possession” of the cocaine. There is no evidence that appellant had any “actual” possession of the cocaine. The State’s evidence that the appellant had “constructive” possession of the ten-dollar bill containing traces of cocaine is not sufficient to find appellant guilty of a felony.

Other than the fact that the trailer was owned by appellant, no evidence was presented to the jury as to appellant’s ownership of the drug. The State did not rebut the testimony of Mr. Neer that he was the owner of the ten-dollar bill which contained the traces of cocaine. Where the drug belonged to Mr. Neer, there was a lack of showing that appellant had “dominion” over the drug. The State failed to prove the element of possession.

The second element the State must prove beyond a reasonable doubt is that any possession of the drug by appellant must have been “knowingly.” Section 45-2-101(33), MCA, provides that a person acts knowingly with respect to a circumstance described by a statute “when he is aware ... that the circumstance exists.” The State has failed to carry the burden of showing that appellant knew the prohibited substance was either in his “dominion” or “known” to be in his “possession.” See State ex rel. Glantz v. District Court (1969), 154 Mont. 132, 461 P.2d 193.

Other than the fact that the drug was found in appellant’s trailer, no evidence was produced to tie appellant to the drug. Appellant *339testified that the last time he had lived in the trailer was in the summer of 1988 at Essex, Montana. People were in and out of the trailer in Essex. At the end of August the trailer was moved to Cascade. Appellant testified that in September of 1988, he cleaned out the trailer, prepared it for winter storage and took all items of value from the trailer. The evidence was that appellant’s stored travel trailer had no water hook up, no electricity, no edible food, and the windows were shuttered and the door padlocked. Appellant further testified that the trailer, while parked in Cascade, was broken into twice and beer cans and other evidence of a party were left in the trailer. Another witness testified that he was with appellant when the first break-in was discovered. Appellant’s father testified that after the second break-in he saw where the door of the trailer had been pried open when he put on a hasp for a new lock.

Without any further proof of appellant’s ownership or knowledge of the ten-dollar bill containing the drug, we hold that the mere fact that the bill was found in appellant’s stored travel trailer would not allow any rational trier of fact to conclude that appellant had knowing possession of the drug. Such a result would, in this Court’s opinion, be both unjust and unsupported by the evidence.

We reverse the conviction of appellant for criminal possession of dangerous drugs and direct that charges against appellant in this matter be dismissed with prejudice.

JUSTICES GRAY, HUNT and TRIEWEILER concur.