State v. Starr

NO. 82-124

I N THE SUPREME COURT OF THE STATE O F MONTANA

1.983

STATE OF MONTANA,

P l a i n t i f f and Respondent,

-vs-

AARON STARR, a / k / a FRANK WETCH,

Defendant and A 2 p e l l a n t .

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 County o f Y e l l o w s t o n e ,
The H o n o r a b l e C h a r l e s L u e d k e , J u d g e p r e s i d i n g .

Counsel o f Record:

For Appellant:

O v e r f e l t Law F i r m ; Gary O v e r f e l t , B i l l i n g s , Montana

For Respondent:

Ilon. M i l c 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 , Y o n t a n a
H a r o l d F . I i a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , Montana

- --

Submitted: March 2 4 , 1 9 8 3

Decided: May 3 1 , 1 9 8 3

Filed:
MAY 3 1 1983

'--.
-- -
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Aaron Starr was convicted upon jury trial in the
District Court, Thirteenth Judicial District, Yellowstone
County, Montana, on one count of felony sale of dangerous
drugs, and one count of felony attempt (theft). He was
sentenced to 15 years at the Montana State Prison, with the
last 7 1/2 years suspended.
We reverse his conviction for felony sale of dangerous
drugs and dismiss that count against him; we affirm his
conviction for felony attempt (theft). We remand the cause

to the District Court for resentencing on his conviction of
felony attempt (theft) .
I.
THE CONVICTION FOR SALE OF DANGEROUS DRUGS
Starr, sometimes known as Frank Wetch, accompanied by a

man named Russell, met with Howard Pederson (an undercover
agent employed by the Yellowstone County Criminal
Investigation Division) on September 13, 1981. Starr offered
to sell Pederson one pound of "cocaine for $30,000."
Pederson declined saying he was only interested in purchasing
11 pounds of cocaine. However, Pederson performed two "field
tests" on the substance offered. The first test was
negative, the second test was positive. A positive test does
not necessarily indicate that the substance is cocaine, since
the results can be positive for several substances, including
1-idocaine, a prescription drug, not defined as a dangerous
drug under section 50-32-101, MCA. Pederson told Starr that
he was not interested in purchasing the substance on that
date, but stated he would buy 5 kilos on a subsequent date.
Starr and his wife testified that the substance offered for
sa.le on September 13, 1981, was in fact lidocaine and not
cocaine.
The grounds on which we reverse Starr's conviction for
felony criminal sale of dangerous drugs (the offer to sell of
September 13, 1981) are that the evidence is not sufficient
beyond a reasonable doubt to sustain his conviction under the
statute defining the offense, and that error occurred in the
instructions.
Section 45-9-1-01,MCA, provides in part:
"(1) A person commits the offense of criminal sale
of dangerous drugs if he ...
offers to sell ...
any dangerous drug as defined in 50-32-101."
To sustain the conviction of Starr on an offense under
this sta.tute, the State was required to prove that (1) Starr
(2) offered to sell (3) a defined dangerous drug. The
statute, in its form at the time of this alleged offense,
does not include the offer of sale of a look-alike drug such
as lidocaine.
The State must prove beyond a reasonable doubt every
element of the crime charged. State v. Hamilton (1980),
Mon t . , 605 P.2d 1121, 37 St.Rep. 70.
Under the testimony of the chemist for the state crime
laboratory, a witness produced by the State, it is clear that
the field tests used by Pederson on September 13, 1981, to
test the substance that was being offered for sale, would
yield a positive blue color, whether the substance was
cocaine or lidocaine:
"Q. Now lidocaine obviously gives a positive blue
color in a field test kit, doesn't it? A. Yes.
I1Q. Are you familiar with the quality or
brightness of blue the 1idoca.ine would show as
compared with cocaine? A. Yes.
 "Q. And will you give us that? A. The experience
I have is that cocaine will give a brighter blue,
but a fairly strong concentration of lidocaine will
give about the same precipitate as a weaker
concentration of cocaine, so there is no real way
by looking at the test that you can tell for sure
what's there or what concentration." Tr. at
148-149.
Other than the field tests, there was no proof offered by the
State as to the nature of the substance that Starr was
offering for sale on September 13, 1981. Such lack of proof
as to the exact nature of the substance offered by Starr
differentiates this case from State v. Dunn (1970), 155 Mont.
319, 332, 472 P.2d 288. In Dunn, although the State was not
able to produce the substance sold by the defendant Dunn
because his two recipients had swallowed the substance, their
testimony as to the effect of the drugs on them and their
hallucinations for a considerable period of time thereafter
sufficed to prove that the substance which the defendant had
sold or offered to sell was actually LSD.
In this case, the State produced circumstantial evidence
through the field tests administered by Pederson that the
substance offered may have been cocaine; its subsequent
evidence indicates also that the substance may have been
lidocaine. The rule in Montana is that to justify a
conviction on circumstantial evidence, the facts and
circumstances must not only be entirely consistent with the
theory of guilt, but must be inconsistent with any other
rational theory. State v. Stoddard (1966), 147 Mont. 402,
412 P.2d 827.

We therefore hold tha.t the evidence is not sufficient
beyond a reasonable doubt to sustain Starrls conviction on
the offer to sell da-ngerousdrugs.
 Starr also relies in this appeal on error in the
instructions regarding the charge of the criminal sa1.e of
dangerous drugs.
In pertinent part, the District Court instructed the
jury:
"Instruction no. 10:
"A person commits the offense of criminal sale of
dangerous drugs if he sells, barters, exchanges,
gives away, or offers to sell, barter, exchange, or
give away, or manufactures, prepares, cultivates,
compounds or processes any dangerous drug as
defined by law.

"To convict the defendant of the crime of Criminal
Sale of Dangerous Drugs, the State must prove
beyond a reasonable doubt that the defendant sold a
dangerous drug as defined by law, - - - the
or that
defendant - -what he believed - -be a dangerous
sold - to -
drug.. ..
(Emphasis added.)

"Instruction no. 12:
"If you find that the defendant offered for sale or
--
sold*what he believed - -be a dangerous drug, you
to -
must find him guilty regardless of whether or not
-
the substance was in fact a dangerous drug.
(Emphasis added.)

"Instruction no. 17:
"A dangerous drug, as defined by the Montana. Code
Annotated, does not include Lidocaine."
In instruction no. 9, the court instructed the jury with
respect to each of the four counts with which Starr was
originally charged, that "the State must prove beyond a
reasonable doubt that each element of each offense was
committed or perpetrated purposely or knowingly by the
defenda.nt as a voluntary act."
In the same instruction, instruction no. 9, the court
defined the terms "purposely" and "knowingly," in the
language of the respective statutes defining the same.
Section 45-2-101 (58), MCA [purposely]; section 45-2-101 (33),
MCA [knowingly].
The defendant offered his proposed instructions no. 20
and 22 as follows:
"Defendant's proposed instruction no. 20:
"A person commits the offense of criminal sale of
dangerous drugs if he:
I .
' 1 Knowingly or purposely sells, barters,
exchanges, gives away or offers to sell, barter,
exchange or give away or manufactures, prepares,
cultivates, compounds, or processes any dangerous
drugs; and
"2. Knows - - substance - -a dangerous drug.
that the is

"Defendant's proposed instruction no. 22:
"To sustain the charge of criminal sale of
dangerous drugs, the State must prove the following
propositions:
"1. That the Defendant purposely or knowingly
sold, bartered, exchanged or gave away a dangerous
drug; or
"2. The Defendant offered to sell, barter,
exchange or give away a dangerous drug; or
l3
'. The Defendant manufactured, prepared,
cultivated, compounded or processed any dangerous
drug; and
"4. The Defendant - - -
knew that the substance - -
was in
fact a dangerous drug." (Emphasis added.)
--
It will be seen by the instructions given and refused as
above set out that the court instructed the jury that Starr
could be convicted of the crime of offering to sell dangerous
drugs if he believed the substance he was offering was a
dangerous drug; while, under the instructions offered by
Starr, he could not be convicted of the crime of offering to
sell dangerous drugs unless he knew that the substance
offered was in fact a dangerous drug.
 Starr contends that the count charging him with offering
to sell dangerous drugs required the State to prove as an
element of the offense his specific intent to transfer then
or in the future a dangerous drug. The State, on the other
hand, contends that Starr's assertion that the substance
offered for sale must in fact be a dangerous drug is a narrow
reading of the statute defining "offer for sale" as a crime,
a reading not compelled by the language or purpose of the
statute, nor by any general policy of Montana's criminal law.
Of course it is the duty of the District Court to
instruct the jury on every issue or theory having support in
the evidence. State v. Th0ma.s (1966), 147 Mont. 325, 413
P.2d 315. In determining whether to give an instruction, the
inquiry of the District Court must only be whether any
evidence exists in the record to warrant an instruction on
the theory or issue submitted. See State v. Buckley (1976),
171 Mont. 238, 242, 557 P.2d 283; State v. Taylor (1973), 163
Mont. 106, 515 P.2d 695. Conversely, when no evidence exists
to support a submitted instruction, such form of instructions
should not be given. An example is State v. Buckley, supra,
where the District Court had withdrawn an instruction on
mitigated deliberate homicide, this Court approved the
withdrawal on the ground tha.t there was no evidence in the
cause upon which the court could have submitted the
lesser-included offense of mitigated deliberate homicide.
Here, there was no evidence that Starr believed that he
was in fact offering cocaine for sale. To that extent, there
was instructional error in this cause, since the instruction
had no foundation in the evidence.
We do not agree with Starr, however, on his contention
that it was the duty of the State to prove Starr's specific
intent to transfer a dangerous substance then or at a
subsequent time. Since Montana revamped its criminal
statutes in 1973 by adopting in essence the Model Penal Code,
specific intent is not an elemental concept, unless the
statute defining the defense requires as an element thereof a
specific purpose. (Examples of "duel intent" statutes:
section 45-5-303, MCA (aggravated kidnapping); section
45-6-204, MCA (burglary); section 45-6-301, MCA (theft) .)
State v. Klein (1976), 169 Mont. 350, 547 P.2d 75.
Section 45-9-101, MCA, defining criminal sale of
dangerous drugs, has no internal requirement of mental state
as an element of the crime. It is therefore subject to
section 45-2-103, MCA, providing generally for mental states.
That statute requires that with respect to each element
described by the statute defining a.n offense, the defendant
must have one of the mental states described as "purposely,"
"knowingly," or "negligently." Sections 45-2-101 (33), (37),
(58), MCA.
"Negligence," or "negligently" is not a mental state
applicable here to the crime of sale of dangerous drugs, but
the mental states of purpose (or purposely,) or knowledge (or
knowingly,) do have application. A person acts purposely
with respect to a result or to conduct described by a statute
defining an offense if - - - conscious obiect
it is his to engage
in
- - conduct - - cause that result.
that or to Section
45-2-101 (58), supra. Thus a person acting purposely to sell-
or to offer to sell what he believed to be a dangerous drug
would have the requisite purpose to engage in the conduct or
to cause the result that is defined by the statute on
criminal sale of dangerous drugs. A person selling lidocaine
or offering to sell lidocaine, believing it to be cocaine,
would have the requisite purpose to constitute the mental
state required to commit the crime of sale of dangerous
drugs. In effect, we held so in State v. Hendricks (1970),
.
171 Mont. 7, 555 P.2d 743.
Occasionally, this Court has referred to "specific
intent" in discussing mental states since the adoption of the
1973 Criminal Code. Parties and attorneys should not be
misled. It is well. to keep in mind the provisions of the
Montana Criminal Code as explained by Essman, - Primer -
A on
Mental State - - Montana
in the Criminal - -of 1973, 37
Code -

"The Montana code uses only three classifications
in evaluating the defendant's mental state:
purposely, knowingly, and negligently. These
mental state classifications are defined in
relation to four objectively measurable conditions
or occurrences: conduct, circumstances, facts, and
result. However, all four criteria do not apply to
each mental state. 'Purposely,' which means with a
conscious objective, relates to conduct or result.
'Knowingly,' defined as 'awareness,' relates to
conduct, circumstances, facts or result.
'Negligently,' relates only to circumstances and
result. Thus, two functions are performed in
analyzing the statute which describes an offense.
First, determining which mental state must be
proved, and second, determining to which of the
four conditions or occurrences the mental states
relate. "
In this case, with respect to the "offer to sell" charge
against the defendant, the mental state "purposely" or
"knowingly" was required to be proved by the State.
"Purposely" relates to conduct or result. Under that test,
9
if defendants conscious objective was to offer to sell a
dangerous drug, or to result in a sale of a dangerous drug,
the mental state element of the crime would have been
satisfied. If Starr had in fact believed that the substance
he was selling or offered to sell was cocaine, the mental
state test of purpose would have been met.
 Starr also contended in his appeal tha.t the statute
under which he was charged with offering to sell dangerous
drugs is unconstitutionally vague. Starr's constitutiona.1
argument was predicated upon the refusal of the District
Court to apply the holding in State v. Anderson (1972), 159
Mont. 344, 498 P.2d 295, to this case. In Anderson, where
the defendant had been charged with "wilfully, unlawfully and
feloniously selling a stimulant drug" this Court reversed his
conviction upon the ground that a required element for the
State to prove in connection with the crime was that the
defends-nt, an osteopath, had knowledge that the "diet pills"
which he had sold did in fact contain an ingredient of a
dangerous drug. Starr contends that under Anderson, he was
entitled to his offered instructions no. 20 and 22 which are
set out previously. Starr argues that since knowledge under
Anderson is necessary to prove an actual sale of dangerous
drugs, the statute is unconstitutionally vague if under a
charge of offering to sell drugs, a defendant's belief that
the substances he is offering are dangerous drugs is
sufficient for conviction.
We have disposed of much of Starr's contenti-ons with
respect to constitutionality in our previous discussion on
the instructions. He relies on a California case, People v.
Daniels (1975), 122 Cal.Rptr. 872, 537 P.2d 1232, where the
California court in passing held that an offer for sale of
dangerous drugs required a showing of a specific intent on
the part of the defendant. As we have stated above, Montana,
since the adoption of its Criminal Code in 1973, does not
concern itself with "specific intent" unless the statute
defining the offense requires the finding of a special
purpose in addition to the mental states of knowingly or
purposely committing the acts constituting the crime.
Starr is not affected in this case under our holding
here because since there was no evidence of his belief that
he was selling a dangerous drug, we have found it improper
for the jury to be instructed as to his belief. We do
determine, however, to settle the matter, that section
45-9-101, MCA, is not unconstitutionally vague when read in
conjunction with the statutes supplying the necessary mental
states of purposely and knowingly.
11.
THE CONVICTION FOR FELONY ATTEMPT (THEFT)
Starr was convicted of attempt to commit felony theft.
The theory of the State was that Starr attempt.ed to obtain
$95,000 by deception on September 18, 1981, by inducing
Pederson to give him money in exchange for a substance which
the defendant had represented to Pederson as cocaine, but
which was in fact a different substance.
Following the events which we have earlier described on
September 13, 1981, Starr met with Pederson and one Miller on
September 16, 1981. At that time, Starr did not have 1 1
.
pounds of the substance, but Pederson had the money. Starr
was allowed to see the money. He qave Pederson a sample of
the material, and it was determined that the exchange would
take place on September 18, 1981.
On September 17, Starr flew to Lewistown, Pennsylvania,
headquarters for Pharmadex Industries, where he obtained the
lidocaine (called by Starr "Keystone Incense").
Starr returned to Billings on September 18, and on that
date he and a friend again met Miller and Pederson for the
exchange. Starr represented the substances as cocaine.
Miller did a field test on each bag and told Pederson that it
was positive for cocaine. An exchange took place. Pederson
paid $95,000 (of which Miller took $10,000) and Pederson took
the substance which was sold as cocaine.
Starr was arrested shortly thereafter and taken to the
Yellowstone County courthouse for initial appeara.nce. At
that time he told the justice of the peace that he was not
selling cocaine, but a compound of lidocaine and caffeine.
Subsequent analysis of the material seized on September 18,
1-981,confirmed that it was not cocaine but rather a compound
of lidocaine and fructose, a non-controlled fruit sugar.
Starr contends that in this case he was selling the
lidocaine for approximately $7,700 per pound. He contends
that the street value of cocaine at the time was $100 per
gram and the street value of the substance which he sold was
between $18 to $19 per gram. Thus, Starr contends that he
had exacted only a fair price for the lidocaine. He offered
several instructions to the District Court, which were
refused.
Section 45-6-301, MCA, defines felony theft by
deception:
"(2) A person commits the offense of theft when he
purposely or knowingly obtains by
control over property of the owner, and:
...
deception

"(a) ha.s the purpose of depriving the owner of the
property ...

" (5) . . . A person convicted of the offense
involving property exceeding $150 in value [is
guilty of a felony]."
"Deception" is defined in section 45-2-101(17) (a), MCA,
as knowingly creating, or confirming in another an impression
which is false and which the offender does not believe is
true. As the State contends, there is no dispute in this
case over the fact that the defendant committed theft by
deception. The only real question is whether the State must
prove when the defendant obtained a quantity of money in
exchange for property represented to be fit for a particular
purpose, and then delivered other property not fit for that
purpose, that the value of the property delivered is more
than $150 less than the value of the property promised.
The defendant relies on State v. Lagerquist (1968), 152
Mont. 21, 445 P . 2 d 910. In Lagerquist, the buyer contracted
with the seller to deliver a quantity of hay for a certain
price. The buyer determined later that the seller had failed
to deliver the agreed quantity of hay. The court found
evidence that the buyer had paid about $50 more than he
should have, making it a. felony under the statute then in
effect. In Lagerquist, the deception involved the amount of
the substance, not its identity. He was defrauded only to
the extent that he received less than he bargained for.
Here, the State is correct in its contention that Pederson
bargained for cocaine, and received lidocaine. The defendant
defrauded Pederson in the transaction by his deception for an
amount in excess of $150. We find no merit therefore in
Starr's contention that felony theft was not proved in this
case, nor in the refusal by the District Court of
instructions requested by Starr to sustain his contentions,
nor in the refusal of the District Court to instruct the jury
as to misdemeanor theft.
111.
Accordingly, we reverse the conviction of Starr for
criminal sale of dangerous drugs and dismiss that count on
which he was convicted. We affirm his conviction for felony
attempt (theft). We remand this cause to the District Court
for resentencing as to the conviction which is here affirmed.

We Concur:

9&J4Justice
Chief
& d 4

\

Justices
Mr. Justice Daniel J. Shea, specially concurring:

I join in the decision but simply state that this case
like so many coming before this Court, hardly demonstrates
that the trial courts, the prosecuting attorney, and defense
lawyers, are aware of all the provisions in the criminal code
bearing on the issues of purposely and knowingly and the
issue of causation. See my dissent in State v. Pierce
(19821, - Mont . , 651 P.2d 62, 39 St.Rpe. 1205, where
many of these provisions are discussed.