No. 86-465
I N THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE O F MONTANA,
P l a i n t i f f and Respondent,
-vs-
RICKY D. SCHEFFELMAN, and TERRIE
TJYNN SCHEFFELMAN ,
D e f e n d a n t s and A p p e l l a n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e D i a n e G . B a r z , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellants:
R i c h a r d J. C a r s t e n s e n , B i l l i n g s , Montana
For R e s p o n d e n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana.
Dorothy McCarter, Asst. Atty. General, Helena
Harold Hanser, County A t t o r n e y , B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : Dec. 18, 1986
Decided: February 2 4 , 1987
Filed: FEB 2 4 1987
8
k*#U Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Scheffelmans appeal from their convictions of felony
possession of dangerous drugs and misdemeanor possession of
drug paraphernalia in the District Court for the Thirteenth
Judicial District, Yellowstone County. We affirm.
The issues are:
1. Was the State's notice of intent to seek increased
punishment properly allowed?
2. Were the defendants' motions for mistrial properly
denied?
3. Does the evidence support Terrie Scheffelman's
conviction of possession of drug paraphernalia?
4. Should the defendants' felony convictions have been
reduced to misdemeanor convictions?
5. Are instructions number 6 and 7 (on mental state)
constitutional?
Ricky and Terrie Scheffelman are husband and wife. In
January of 1986, the Scheffelmans hosted a New Year's party
which lasted several days. Marijuana was admittedly consumed
at the party.
On January 9, 1986, the Billings police executed a
search warrant on the Scheffelmans' house. In the house,
police officers found 3 bags of marijuana weighing 61.55
grams, 43.23 grams, and 7.69 grams. They also found pipes,
scales, roaches and nonprescription drugs. Ricky, who was
home at the time, was arrested as he fled from the back of
the house. Terrie was working at the time of the search.
She was later brought to her home and arrested. Ricky made a
statement to the police shortly after his arrest. In the
statement, he admitted possession of marijuana, but denied
that all the drugs in the house belonged to him.
The Scheffelmans pled not guilty and a trial was
scheduled for April 7, 1986. An omnibus hearing was held
March 28, 1986. No mention was made at the hearing of an
intent to seek increased punishment for Ricky Scheffelman. A
notice of intent to seek increased punishment was filed by
the State on April 1, 1986.
Defendants testified at trial that much of the marijuana
and drug paraphernalia in their house had been left by
friends after the New Year's party. Terrie stated that the
scales were used to weigh Christmas packages, although Rickie
admitted using them to weigh marijuana. They each testified
that they jointly purchased a quarter pound of marijuana
every month or two for their personal use.
Defendants were convicted by a jury after a two-day
trial. Ricky was sentenced to 5 years and is currently in
the Montana State Prison. Terrie received a two year de-
ferred sentence. They appeal.
I
Was the State's notice of intent to seek increased
punishment properly allowed?
The defendants challenge the timeliness of the State's
notice of intent to seek increased punishment for Ricky
Scheffelman under the persistent offender statute,
5 46-18-503, MCA. Defendants argue that notice should have
been given before or at the pretrial omnibus hearing, which
was held on March 28, 1986. Notice of intent to seek in-
creased punishment was given April 1, 1986.
Section 46-18-503(1), MCA, requires:
If the state seeks treatment of the accused as a
persistent felony offender under 46-18-502, notice
of that fact must be given in writing to the ac-
cused or his attorney before the entry of a plea of
guilty by the accused or before the case is called
for trial upon a plea of not guilty.
This Court has held that the State can give notice to a
defendant who has pled not guilty at any point prior to the
moment trial begins. State v. Johnson (1978), 179 Mont. 61,
70, 585 P.2d 1328, 1333. Since trial of this case began on
April 7, 1986, there has been no violation of the notice
requirement on its face.
The defense nevertheless asserts that because the omni-
bus order did not refer to notice of intention to seek in-
creased punishment, the State should be precluded from later
issuing such a notice. However, as the State points out, the
omnibus order form contained no place to record whether such
notice was or was not intended to be given. Also, nothing in
S 46-18-503(1), MCA, precludes the State from giving notice
after the omnibus hearing, as long as it is still before the
trial. We conclude that the lower court properly allowed the
State's notice of intent to seek increased punishment.
I1
Were the defendants' motions for mistrial properly
denied?
A mistrial is properly declared when, taking all the
circumstances into consideration, there is a manifest neces-
sity to do so. State v. Close (Mont. 1981), 623 P.2d 940,
945, 38 St.Rep. 177, 183, citing United States v. Perez
(1824), 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165. This
Court's review of a denial of a mistrial is limited to wheth-
er the district court abused its discretion. Close, 623 P.2d
at 946.
The defense contends that twice during trial its motions
for mistrial should have been granted. The first time was
during examination of a forensic scientist who conducted
analyses of items seized at the Scheffelman home. At the
close of direct examination, counsel for the State handed the
witness a list of all of the items on which the witness had
performed analysis reports. The list included several items
on which evidence was inadmissible, because the analyses had
shown the items (a syringe and its contents) were not con-
trolled substances. After having the witness identify the
document, counsel for the State made the following statement
to the court concerning the exhibit:
Your Honor, I am not going to offer this. I wond-er
if the Defendant asks a number of questions from
it, and I will let him, if he chooses to offer it,
he certainly may.
The defense says this was an impermissible reference to
inadmissible evidence.
There is no indication that the exhibit was ever shown
to the jury or that the test results on the inadmissible
evidence were otherwise revealed to the jury. We conclude
that there is nothing whatever to indicate that the jury was
informed of inadmissible evidence with the above statement.
be hold that the District Court did not abuse its discretion
7
in d-enyingthe defense's motion for a mistrial.
The second time the defense claims it should have been
granted a mistrial was during Terrie Scheffelman's testimony.
She testified under questioning by the State that she had
been in possession of a quarter pound of marijuana two or
three weeks before the date stated in the information. The
State's attorney then said:
I guess I am kind of at a loss. I think the wit-
ness has just made a full confession to the of-
fense. And all she said is that the time is not
applied correctly on the information. And I will
change the time on the information to reflect the
actual fact and accept a plea at this point based
on the confession.
The defense says this statement was highly prejudicial and
because of its effect on the jury, a mistrial was required.
While the statement of the State's attorney was unusual,
it did not expand upon the testimony of Terrie Scheffelman
that she had a quarter pound of marijuana two to three weeks
prior to the arrest, except to request to amend the informa-
tion to show a different date of possession. The motion to
amend was denied. We conclude that the District Court was
within the bounds of its discretion in concluding that the
jury's hearing of the State's motion to amend does not con-
stitute manifest necessity for a new trial.
I11
Does the evidence support Terrie Scheffelman's convic-
tion of possession of drug paraphernalia?
The drug paraphernalia listed in the information filed
against the Scheffelmans were a hash pipe, a glass water
pipe, and O'Haus scales. The defense contends that there was
no evidence proving knowing possession of these items on the
part of Terrie Scheffelman.
Possession of contraband may be either actual or con-
structive. Constructive possession occurs when a person
either has control or a right to control the item. State v.
Meader (1979), 184 Mont. 32, 42-43, 601 P.2d 386, 392. On
appeal, this Court will affirm the jury's verdict on posses-
sion if the circumstances reasonably justify the verdict.
Meader, 601 P.2d at 392.
In Meader, the defendant was convicted of possession of
dangerous drugs found in a residence in which he was staying,
but which he neither owned nor leased. Since there was
evidence showing that the defendant had dominion and control
over the house, the jury's finding that he had possession of
the drugs in the residence was affirmed. Meader, 601 P.2d at
392. In the present case, Terrie Scheffelman was
undisputedly a co-owner of the house in which the drug para-
phernalia were found. Ricky Scheffelman testified that the
pipes had been in the home for several days, since the New
Year's party. The pipes were found on a shelf in the bath-
room used by both defendants, and immediately below exclu-
sively feminine items. The jury viewed exhibit No. 18, a
photograph of the pipes on the shelf where they were found.
Terrie Scheffelman admitted that the O'Haus scales were hers.
We conclude that there was ample evidence for the jury to
find that Terrie Scheffelman had constructive possession of
drug paraphernalia.
IV
Should the defendants' felony convictions have been
reduced to misdemeanor convictions?
The quantity of drugs involved in this matter is not
sufficient to support felony charges against both defendants,
they argue. They say that to support such charges, it must
be proven that each one of them possessed in excess of sixty
grams of marijuana. They claim the total amount of marijuana
seized was less than 120 grams when weight of seeds and stems
is subtracted.
It has long been the law in Montana that a controlled
substance can be possessed jointly by two persons. See State
v. Trowbridge (1971), 157 Mont. 527, 487 P.2d 530. Where the
controlled substance is found in a place subject to the joint
dominion and control of two defendants, possession may be
imputed to both defendants. Meader, 601 P.2d at 392.
In the present case, the marijuana was located in a
pantry and in a stoneware glass on the television. Both
defendants testified that they knew where the marijuana was,
and that they used it personally. After subtracting for
estimated weight of seeds and stems, the total amount of
marijuana seized was somewhere between 100 and 120 grams,
well over the 60 gram felony weight. We conclude that there
is sufficient evidence to support the jury's finding of
felony possession on the part of both defendants.
v
Are instructions number 6 and 7 (on mental state)
constitutional?
The questioned jury instructions contain the statutory
definitions of "knowingly" and "purposefully". Defendants
contend these instructions do not meet the requirement of
proof of intent beyond a reasonable doubt. The defendants
have failed to support their argument to any significant
degree. We affirm the use of these statutory definitions in
jury instructions, as this Court has done before. See, e.g.,
State v. Coleman (1979), 185 Mont. 299, 399, 605 P.2d 1000,
1054-55, State v. Klein (1976), 169 Mont. 350, 356-57, 547
P.2d 75, 78.
Affirmed.
We Concur: 1