No. 89-164
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TIMOTHY ERNEST KRUM,
- .r
Defendant and Appellant.
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APPEAL FROM: District Court of the Thirteenth ~udicialDistrict,
In and for the County of Yellowstone,
The Honorable Russell ~illner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, ~illings,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Charles Bradley, Deputy
County Attorney, ~illings, Montana
Submitted on ~riefs: July 13, 1989
Decided: August 10, 1989
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
Krum appeals his January 4, 1989, conviction following a two-
day trial by jury in the Thirteenth Judicial District for criminal
possession of a dangerous drug in violation of section 45-9-102 (1),
MCA. Krum was sentenced on February 7, 1989, to five years in the
Montana State Prison. This sentence was scheduled to run consecu-
tively to the prison term currently being served by Krum on another
offense.
Krum asserts on appeal that there was insufficient evidence
in the record to sustain his conviction. We disagree and herein
affirm Krum's conviction for criminal possession of a dangerous
drug.
Krum was charged by information on July 19, 1988, for
violation of section 45-9-102 (I), MCA. Jury trial was held January
3 and 4, 1989. Prior to trial, a stipulation was entered into
between the State and the defendant. The stipulation was read by
the court to the jury at the opening of the State's case.
The following facts were contained in the stipulation: Krum's
arrest on July 12, 1988, was lawful. At the time of his arrest,
two pill bottles were taken from his backpack. The two bottles
contained 173 yellow caplets (State's Exhibit 1 ) One bottle
originally contained Dilaudid and the prescription for that was
issued in the name of Bill Davis, Krumlsstepfather. The prescrip-
tion label was affixed to that bottle. The pills were analyzed by
the state crime lab, and it was determined that the caplets in
Exhibit #1 contained Talwin NX, a Schedule IV controlled substance
which contains pentazocine, a Schedule IV analgesic (pain killer).
See section 50-32-229, MCA. The chain of possession of both
bottles and their contents had not been disturbed and there is no
evidence of tampering.
At trial, Krum testified that he found two bottles of pills
in a park located six blocks from his stepfather's house. He
testified that he read the label which was affixed to one bottle
and believed the contents to be Dilaudid. He put the bottles in
his backpack and had them there for two or three days prior to his
arrest. He was in possession of them at the time of his arrest.
Krum further testified that the bottle to which was affixed
the prescription label made out to his stepfather was not one of
the two bottles he found in the park and put in his backpack. Krum
asserted that someone had switched the bottles and assumed the
switch was made by law enforcement personnel. When questioned
about his theory regarding the Krum said law enforcement
personnel could have gone to his stepfather's house, rang the front
doorbell, and asked for a bottle of Davis' prescription pain
killers. Krum denied on cross-examination that he took the pills
from his stepfather's house while Krum was living there.
The State's evidence consisted of the stipulation, the bottles
and the pills. On appeal, Krum asserts that there is insufficient
State's evidence to sustain a conviction because he did not I1knowl1
the contents of the bottles to be a controlled substance; rather,
he believed he was in possession of Dilaudid. We do not agree.
Felony criminal possession of a dangerous drug requires proof
that a defendant: (1) possessed (2) dangerous drugs. State v.
Smith (1983), 203 Mont. 346, 661 P.2d 463. lnPossession" defined
is
as:
[tlhe knowing control of anything for a suffi-
cient time to be able to terminate control.
Section 45-2-101(52), MCA. Thus, the mental state of 'lknowinglyll
is also contained in the definition of possession of dangerous
drugs. Section 45-9-102(1), MCA. "Knowingly1' is defined as
follows:
"Knowinglyn--a person acts knowingly with
respect to conduct or a circumstance described
by a statute defining an offense when he is
aware of his conduct or that the circumstance
exists . . . when knowledge of the existence
of a particular fact is an element of an
offense, such knowledge is established if a
person is aware of a high probability of its
existence ...
Section 45-2-101 (33), MCA.
Additionally, a mental state may be inferred from the acts of
the accused and the facts and circumstances connected with the
offense. Section 45-2-103, MCA. The court instructed the jury in
Instruction Nos. 4 and 7 that the State had to prove that Krum
ffpurposelyff
possessed Talwin. The result was that the State had
to prove that Krum both purposely and knowingly was in control of
a dangerous drug. As noted in the elements set forth above, the
State is only obligated to prove ffknowingff
control of the dangerous
drug. However in this case, the State carried its burden of proof
on the instruction of ffpurposelyff well. No prejudice to Krum
as
can be found in the erroneous placement of this additional burden
on the State.
The standard of review applied to this case is whether, after
reviewing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the three
essential elements of the crime charged (violation of section 4 5 -
9-102(1), MCA) beyond a reasonable doubt. If so, then there is
sufficient evidence to support the verdict. Jackson v. Virginia
(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v.
McDonald (Mont. 1987), 734 P.2d 1216, 44 St.Rep. 593. We conclude
that a rational trier could find all elements satisfied and thus,
for the reasons set forth below, there was sufficient evidence to
support the verdict.
a. Knowledge.
Krum hinges his defense on what he asserts is his lack of
knowledge. That argument is without merit. Although knowledge
cannot be inferred from mere possession alone, knowledge may be
proved by evidence of acts, declarations or conduct of the accused
from which an inference of knowledge may be drawn. State v.
Anderson (1972), 159 Mont. 344, 351, 498 P.2d 295, 299. With that
in mind, we examine Krum's conduct and declarations.
Krum was carrying the two bottles of pills when he was
arrested. He stated he believed them to be a prescription of
Dilaudid which he found in the park. Although he testified that
he examined the pills and believed them to be Dilaudid, the record
reflects that each yellow pill was marked with the letter "T" on
one side. Further, Krum testified that part of the prescription
label was torn from the bottle, but the part that remained showed
that the prescription was issued in the name of "Billy D." Yet,
Krum stated these pills he "foundv could not have belonged to his
stepfather, Bill Davis.
When questioned as to whether he had taken the pills with his
stepfather's name on them while he had been living in his step-
father 's home, Krum responded that l'someonetl must have switched
the pill bottles on him.
Krumls testimony regarding where he had obtained the two
bottles of controlled substances and how his stepfather's prescrip-
tion bottle got in his backpack was incredible. This raised an
inference allowing the jury to disbelieve Krum. Viewing this in
the light most favorable to the State, there is sufficient evidence
to prove "knowledgev beyond a reasonable doubt. The remaining
elements are not as easily contested.
b. Control.
Krum was exercising exclusive control of the two pill bottles
and their contents when he placed them into his backpack. He kept
them in his backpack for two or three days. That time is certainly
of a sufficient length wherein Krum could have terminated control.
However, Krum did not terminate his control over the contents of
the two bottles, and they were still in his backpack when he was
arrested.
It is hard to dispute control when Krum was carrying the pills
around for two or three days. At one point on cross-examination,
Krum was asked why he did not throw the drugs away if he had found
them. Krum answered, "1 more or less forgot they were in there
... That testimony is still insufficient to dispute that Krum
had control of the pills for a sufficient time to terminate
control.
The State proved this element beyond a reasonable doubt.
c. Dangerous Drug.
The results of the state crime lab analysis of the contents
of the pill bottles revealed them to be Talwin, NX, a prescription
drug containing pentazocine. The defendant stipulated to the
result and to the accuracy of the results.
A dangerous drug, as defined by section 50-32-101, MCA, means
any substance or immediate precursor delineated in Schedules I - V
in the statutes. In section 50-32-229, MCA, the Schedule I V
controlled substances are listed. At section 50-32-229(5)(a),
pentazocine is specifically listed by name as a dangerous drug.
Little more can be said regarding this element, especially since
the defendant stipulated to the results of the crime lab analysis.
Based on the foregoing analysis, we conclude there was
sufficient evidence to support the jury's verdict. Krum's convic-
tion for violation of section 45-9-102(1), MCA, and the sentence
imposed thereon are hereby affirmed.
Chief Justice
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We concur:
' Justices