State v. Gorder

JUSTICE TRIEWEILER,

concurring:

I concur in the majority opinion.

The thrust of the dissenting opinion is to point out that the defendant’s testimony was contradicted — as if that fact is somehow relevant.

The defendant did not have the burden of proving his innocence. The State had the burden of proving his guilt.

In this case, the State had the burden of proving that the defendant knowingly possessed a dangerous drug. All the State did prove was that residue of cocaine was found on a ten dollar bill located in a locked-up, uninhabitable travel trailer which the defendant had abandoned a couple of months before the drug was found. Those facts are simply not sufficient to put someone in jail for commission of a serious felony.

Section 45-2-101(52), MCA, provides that “ ‘[possession’ is the knowing control of anything for a sufficient time to terminate control.” (Emphasis added.)

Section 45-2-101(33), MCA, provides that a person acts knowingly with respect to a circumstance described in a statute “when he is aware ... that the circumstance exists.”

The State has argued, and the dissenters have concluded, that this defendant did not have actual possession of a dangerous drug, but that he had constructive possession since he had dominion and control over the travel trailer in which the drug was found. However, constructive possession without knowledge is not sufficient for conviction of the crime of which the defendant was accused. *342Furthermore, this Court has previously held that knowledge may not be inferred from possession alone. State v. Krum, 238 Mont. 359, 362, 777 P.2d 889, 891 (1989).

In this case, there was absolutely no substantial evidence to prove the defendant had knowledge that cocaine was located in his travel trailer, other than the fact that he owned the travel trailer.

The mere fact that he had cleaned the trailer out at some time before abandoning it does not make it any more likely that he knew of the presence of drugs. In fact, it is more reasonable to infer that if he had been aware of the presence of the ten dollar bill when he cleaned the trailer out and abandoned it, he would not have left it in the trailer.

Inconsistencies in the defendant’s testimony did not change the fact that the State failed to prove a crucial element of the crime with which the defendant was charged. For these reasons, I concur in the majority opinion.