NO. 92-170
IN THE SUPREME COURT OF THE STATE OF MONTANA
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David W. Harm Attorney at Law, Libby, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana
Scott B. Spencer, County Attorney, Libby, Montana
Submitted on Briefs: July 9, 1992
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
A jury in the District Court for the Nineteenth ~udicial
District, Lincoln County, convicted David Lee Lyons of three counts
of criminal sale of dangerous drugs. We reverse on all three
counts, with directions that Count One be dismissed.
The dispositive issues are:
1. Did the court err in refusing to dismiss Count One for
lack of sufficient evidence?
2. Did the court err in permitting law officer opinion
testimony regarding the credibility of the informant?
To aid the court and counsel on remand, we also briefly
address the following issues:
3. Was other crimes evidence admitted in violation of Just?
4. Did the court err in refusing to give defendant's entrap-
ment instruction concerning Count Three, the sale of four pills?
Between September 1990 and May 1991, an undercover drug
operation was conducted in Lincoln County, Montana, in which Hal
Turner acted as an undercover agent for the Lincoln County
Sheriff's Department. During his employment, Turner became
acquainted with defendant Lyons.
On December 12, 1990, Turner went to Lyons's apartment to talk
to a third person about arranging a drug deal. A fourth individual
present at Lyons's apartment, Denyce Larson, provided some mari-
juana for everyone to smoke and said she knew where to buy more for
$25 per quarter ounce. Lyons and Turner both told Larson that they
wanted to buy some and each arranged to pay for a quarter ounce to
be delivered to Lyons's apartment later that evening.
Turner later returned to Lyons's apartment to pick up his
marijuana. The marijuana for both buyers had been delivered in one
bag. After some joking around, Lyons's girlfriend divided the
marijuana into two bags, which Lyons readjusted to his satisfac-
tion. Then Turner was allowed to choose which bag to take as his.
This transaction is the basis of Count One charged against Lyons.
Counts Two and Three relate to sales of prescription sleeping
pills by Lyons to Turner on December 18 and 19, 1990. Count Two
alleged that Lyons gave Turner one pill and Count Three alleged
that he sold Turner four more pills. Turner testified that these
transactions occurred at Lyons's residence.
Lyons testified on his own behalf. He essentially admitted
that the transaction charged as Count One occurred. However, he
denied selling or giving Turner any prescription sleeping pills and
maintained that Turner must have stolen the pills from him.
At the close of the defense's case, the State asked to be
allowed to offer character evidence in rebuttal to rehabilitate
witness Turner because, it argued, Turner's credibility had been
directly attacked by the defense. The court granted the motion.
Officer Klint, a Lincoln County detective, testified about the
importance of credibility in an undercover agent. He further
testified that planting evidence is illegal, that he had checked
into Turnerfs background before Turner began to work as an
undercover agent, and that, in his opinion, Turner was ''very
truthfulv as far as undercover work.
Lyons was convicted of three counts of selling dangerous drugs
under 5 45-9-101, MCA, A fourth count charged against him was
dismissed during trial.
Did the court err in refusing to dismiss Count One for lack of
sufficient evidence?
Lyons was convicted under Count One of criminal sale of
dangerous drugs in violation of 5 5 45-9-101 and 45-2-301, MCA.
Section 45-9-101, MCA, defines the offense of sale of dangerous
drugs as, inter alia, selling, bartering, exchanging, or giving
away dangerous drugs as defined in 5 50-32-101, MCA, or offering to
do so. Section 45-2-301, MCA, provides:
~ccountability for conduct of another. A person is
responsible for conduct which is an element of an offense
if the conduct is either that of the person himself or
that of another and he is legally accountable for such
conduct as provided in 45-2-302, or both.
The companion statute, § 45-2-302, MCA, provides in relevant part:
When accountability exists. A person is legally account-
able for the conduct of another when:
...
(3) either before or during the commission of an offense
with the purpose to promote or facilitate such commis-
sion, he solicits, aids, abets, agrees, or attempts to
aid such other person in the planning or commission of
the offense. ...
Lyons argues that as a co-buyer he cannot be guilty of the
crime of sale of dangerous drugs through the accountability
statute. He quotes the general rule that a purchaser of illegal
drugs is not an accomplice to the crime of selling drugs. State v.
Stokoe (1986), 224 Mont. 461, 464, 730 P.2d 415, 417. He moved for
dismissal of Count One after he and the State had presented their
respective cases-in-chief, but the motion was denied.
A motion to dismiss a criminal charge because of insufficient
evidence should be granted only when there is no evidence upon
which a trier of fact could render a verdict. State v. Miller
(l988), 231 Mont. 497, 509, 757 P.2d 1275, 1282. This Court's
standard of review of the propriety of the trial court's ruling on
such a motion is whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412,
414. The requisite elements for holding a person legally account-
able for the conduct of another under Montana's accountability
statutes are that 1) either before or during 2) the commission of
an offense 3) with the purpose to promote or facilitate such
commission 4) the person solicits, aids, abets, agrees, or attempts
to aid such other person in the planning or commission of the
offense. Downinq, 783 P.2d at 414.
Turner testified as follows about ordering the marijuana:
Q. Okay. And then what transpired next?
A. Denyce said that she, there was some available that was
$25.00 a quarter.
Q. Okay.
A. Okay. And David said that he wanted one. And I said
well, I wanted one, too, just kind of barged in, too. And
nothing was, barged in, the pot was smoked, okay, then --
Q. Okay.
A. Finally, David asked for something about the money part,
okay. She needed the money. I said why sure, gets my money
out and gave her $25.00.
He testified as follows concerning the delivery of the marijuana:
Q. Now, what were the arrangements for getting the pot?
You gave the money to Denyce and then you left. You mean
-- what was supposed to be, mailed to you or what?
A. Okay, there was a mix-up there, right. She said she
had to go to work and she was telling Dave about how the
deal was going. I didn't understand that totally how it
was going to go down. So then when she left, I asked
Jamie, I said, well, what is the deal? She said she got
to go to work and, you know, I was worried about did I
get ripped off for $25.00. And I am going to get some-
thing? And she said well later then around 6:00 or
something. So anyway, I was supposed to be there later.
Q. So whatever that conversation was, you were to go
back to the Lyons' residence and pick up the marijuana?
A. Right.
Q. And did you go back to the Lyons' residence and pick
up the marijuana?
A. Yes, I did.
Q. And who was present?
A. David Lyons, Jamie Popp again, me and Angela Smith.
Q. Did Denyce or Mike show up at any time when you were
there the second time?
A. No, sir.
Q. Okay. Was there any marijuana that you saw the
second time?
A. Oh, yes, sir.
Q. How did it come about that you saw marijuana?
A. Well, David told Jamie to get it out, okay.
Q. Okay. And then what did Jamie do?
A. Got it out of her purse.
Q. Okay. And how was it packaged?
A. Okay, it was rolled in one bag. David -- well, I
suppose I should back up.
Q. Let's just go through it?
A. Okay.
Q. You said all in one bag. Was it supposed to be in
one bag?
A. Hmmm, well, I didn't think so. I thought that I was
supposed to get a package, okay.
Q. Who else was supposed to get a package?
A. David was supposed to get a package.
Q- And was anything said about why it was in one
package?
A. Yes. First told the story there is none for you.
Q. Is that what somebody said?
A. David Lyons said.
Q. Okay. And how did you react to that?
A. I started whining, okay.
Q. Define whining.
A. Crying around, you know. He said there was only some
for him.
Q. Okay.
A. And I asked him, I said, can't I split it with you?
And you know, I wanted to get something out of the deal.
Q. Is that unusual to do that if you don't get your
marijuana to whine?
A. No, sir, it is not.
Q. Okay. So you complained about it. Did he offer to
give you your money back?
A. No, sir, I don't believe that he did. It was all a
joke .
Q. It was a joke they wouldn't give you any?
A. Yes.
Q. How did you know that it was a joke?
A. Well, he told me finally, the bag, we had to split it
in half. Anyway, my part was already in there.
Q. All right. And so the bag comes out of the purse and
then it is split?
A. No, sir, it is not split yet.
Q. Do you get your part?
A. Yes, sir.
Q. How does that come about?
A. Well, David told somebody to grab something to split
it. I think Angela went to the kitchen to get something,
a plate or piece of cardboard. And then Jamie split it,
okay. And 1 said, I get to pick. Usually that is how it
is. Whoever has the drug splits it and the other person
gets to p i c k , okay.
Q. Okay.
A. So I picked but Dave didn't like the way that I
picked because I picked the big bag. So then he got in
it and, you know, mixed it around more so it looks
better. And then I got to pick my bag.
Q. What did you do with the marijuana after that?
A. Wrapped it up and put it in my pocket.
In the other cases cited by the State in which defendants were
convicted of sale of dangerous drugs under the accountability
statutes, there was evidence that the defendants in some manner
promoted or facilitated the drug sales. State v . Gommenginger
(lggo), 242 Mont. 265, 790 P.2d 455 (with respect to Count TV,
defendant's wife told the buyer that she could deliver some cocaine
to him only after she conferred with defendant; defendant drove his
wife to deliver the cocaine to the buyer) ; State v. Downing (19891,
240 Mont. 215, 783 P.2d 412 (defendant admitted that he helped set
up the deaf; he arranged a meeting and was paid; he began the
search for drugs for the buyer with the seller, but did not intend
to limit his search to the seller).
In the present case, there was no evidence that Lyons had a
purpose to promote or facilitate the sale of marijuana to Turner.
This drug deal was not pre-arranged; it was not the reason Turner
went to Lyons's apartment. Turner testified that he "barged in" on
the sale by Larson to Lyons to place his own order. The delivery
of the marijuana to Lyons's apartment and Lyons's participation in
dividing the marijuana into separate bags for himself and Turner
show nothing more than that Lyons acted to obtain some marijuana
for himself. Even when viewed in the light most favorable to the
State, the best that can be said is that Lyons and Turner were
parallel buyers from Larson.
We conclude that, in this case, no rational trier of fact
could have found all of the elements of sale by accountability
beyond a reasonable doubt and that this case falls under the
general rule set forth in Stokoe that the purchaser of drugs is not
an accomplice to the crime of selling drugs. We therefore hold
that the District Court erred in denying the motion to dismiss
Count One. Because of this holding, we will not address the issue
Lyons raised concerning the surveillance tape introduced into
evidence on Count One.
II
Did the court err in permitting law officer opinion testimony
regarding the credibility of the informant?
The State concedes this issue. In State v. Webb (Mont. 1992),
828 P.2d 1351, 1356, 49 St.Rep. 236, 239, this Court ruled that
character evidence regarding a witness is not admissible into
evidence solely on the basis that the witness has testified
concerning a material fact and the testimony conflicts with that of
the defendant. In the present case, the District Court allowed
rebuttal character testimony about Turner for precisely that reason
--that Turner's testimony as to material facts concerning Counts
Two and Three conflicted with Lyons's testimony as to the same
facts. We therefore reverse Lyons's convictions on Counts Two and
Three.
I11
Was other crimes evidence admitted in violation of Just?
The evidence under this issue which relates to Counts Two and
Three was testimony by Mike Brannon that he had obtained some pills
from Lyons. No immediate objection was made to this testimony, but
a brief was filed and an objection was made the next day.
Because no objection was made at the time and because
Brannon's testimony was unresponsive to the question he was asked,
we hold that no violation of Just has been shown. If he testifies
on retrial, Brannon should be advised not to mention obtaining
pills from Lyons unless he is specifically asked about it.
IV
Did the court err in refusing to give defendant's entrapment
instruction concerning Count Three, the sale of four pills?
The District Court refused Lyons's offered entrapment
instruction on the basis that an entrapment defense would be
inconsistent with Lyons's defense that the sale of the four pills
did not occur. The State did not brief this issue on appeal.
Lyons cites Mathews v. United States (1988), 485 U.S. 58, 108
S.Ct. 883, 99 L.Ed.2d 54, in which the United States Supreme Court
held that, even if a criminal defendant denies one or more elements
of the crime with which he is charged, he is entitled to an
entrapment instruction whenever there is sufficient evidence from
which a reasonable jury could find entrapment. While we do not
wish to prejudge the evidence which may be presented on retrial of
Counts Two and Three, we call the attention of the District Court
to the Mathews opinion.
Reversed as to Counts One, Two, and Three. Remanded with
instructions that Count One be dismissed.
fd.-=3- Chief Justice
We concur: