State v. Stokoe

No. 86-259
IE THE SIJPREME COURT OF THE STATE OF MONTANA
1986

STATE OF MONTANA,
Plai-ntif and Respondent,
f

-VS-

SANDRA MILLS STEWART STOKOE,
Defendant and Appellant.

APPEAL FR.OM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Bauqh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Nye & Meyer; Jerrold L. Nye, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Clay Smith, Asst. Atty. General; Ed Dobson, Legal
Intern, Helena , Montana
Marc Racicot, County Prosecutor Services Bureau Chief,
Helena, Montana
Harold L . Hanser, County Attorney, Billings, Montana

Submitted on Briefs: Aug. 14, 1986
Decided: December 30, 1986

Filed : BEC 3 0 1986

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Sandra Stokoe appeals a Yellowstone County District
Court jury verdict convicting her n + the criminal sale of
dangerous drugs to Lee Jonas.
Two issues are raised on appeal:
(1) Whether there is substantial evidence to support
the conviction for sale of dangerous drugs?
(2) Whether a purchaser is an accomplice to a seller
of dangerou~ drugs thereby requiring independent-
corroboration of the purchaser's testimony to sustain the
seller's conviction?
We affirm.
On November 2, 1984, undercover agent Geary of the
Montana Criminal Investigation Bureau was contacted in
Billings, Montana, by Lee Jonas who offered to sell him an
ounce of cocaine. Two other agents and two Yellowstone
County Sheriff deputies in separate vehicles began
surveillance of Jonas' residence at 3:55 p.m. on November 5,
1984, or approximately sixteen minutes before agent Geary
arrived wearing an electronic transmitting device pursuant to
court order. During the operation, the surveillants heard
several references to "Sandy" [Stokoe] and "Sandy's place. "
Jonas' girlfriend met agent Geary at the house and said that
Jonas would be back in a few minutes. Jonas arrived at 4:23
p.m. and displayed a sample of the cocaine for Geary. Jona-s
said the sample had come "from Sandy's" and that he had to go
back to Sandyfs house to get the ounce of cocaine. At 4:32
p.m. the surveillants watched Jonas and his girlfriend exit
their residence and drive to Stokoefs residence. Agent Geary
followed in his car and parked in front of Stokoe's house,
remaining in the car. Jonas and his girlfriend testified
that Stokoe let both of them into her house. They observed
that Stokoe's five year old daughter was the only other
person present. Jonas added that Stokoe, his aunt, had
expected him. Jonas went to a back bedroom of the house,
weighed out the cocaine on a scale, and put it into a baggie.
Approximately four minutes after arriving, (4:59 p.m.) Jonas'
girlfriend came out of the house and entered agent Geary's
vehicle demanding that he pay her $2,400, drive to nearby
Trails End Park to avoid curious neighbors and wait for Jonas
to arrive with the cocaine. Geary paid the girlfriend $2,400
at this time. Before the girlfriend left the house, the
surveillant party could see Jonas, the girlfriend, and an
unknown female adult having a discussion. A surveillant
agent followed Geary and Jonas' girlfriend to the park where
they were met by Jonas seven minutes later. Geary entered
Jonas' vehicle upon Jonas' hand signal to do so. Jonas
handed over the ounce of cocaine and Geary paid him $50 more.
Jonas told Geary that he [Geary] was supposed to get $100
back from the girlfriend. Geary walked back to his car where
the girlfriend gave Geary $100. At this point the girlfriend
walked back to Jonasbehicle. Jonas and the girlfriend then
drove back to the Stokoe house under surveillance and were
let into the house by Stokoe. The surveillance was then
terminated. As for the payment arrangement, Jonas testified
as follows:

(1: How did you reach the fact situation
that you gave her [Stokoe] $2,250 and you
kept $loo?
A: I told Patrick Geary that I could get
it for him for $2,350, because Sandy had
already told me I could get it from her
for $2,250.
 Q: So you had agreed to pay her $2,250
for it [the cocaine]?
A: Yes.
Q: And you did that after you got the
money from Officer Geary.
A: That I agreed to pay her for it?
Q: No, no, you actually made the payment
after you got back there. [To Stokoe's
house. ]
A: Yes, I did.
As to the source of the cocaine, Jonas further testified.:
Q: Did you have more than one other
source?
A: No, I did not.
Q: What prompted you to choose to buy
cocaine or allegedly buy cocaine from
Sandy Stokoe versus from your other
source?
A: Availability.
Q: What do you mean availability?
A: She [Stokoe] had it and my other
source didn't.
Jonas pleaded guilty to the sale of cocaine to agent Geary
and a marijuana sale to Geary on September 28, 1984. In
exchange for a statement, the State recommended a three year
probationary sentence which was approved by the District
Court. The Montana State Crime Lab positively identified the
substance as cocaine.
The test for the sufficiency of the evidence to support
the judgment of conviction is whether there is substantial
evidence to support the conviction, viewed in a light most
favorable to the State. State v. Lamb (1982), 198 Mont. 323,
646 P.2d 516. "Substantial evidence" is defined as "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." State v. Kutnyak (Mont.

Section 45-9-101(1), MCA, states as follows:
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 in 50-32-101.
The compiler's comment to S 45-9-101, KCA, reveals the
broad reach of the statute. "Although this section is
entitled 'Criminal Sale of Dangerous Drugs', it includes all
types of transfers and activities preparatory to actual sale
... " In State v. Davis (Mont. 1980), 620 ~ . 2 d
1209, 1215,
37 St.Rep. 1958, 1964, we said:

[Tlhe Montana legislature did not intend
that a sale should be comp1.ete merely
upon the exchange of money. Delivery
appears - - - integral part of the
to be an
sale of drugs, particularly w h n we
consider that the statutes are aimed
primarily at stopping the transfer and
distribution of dangerous drugs.
(Emphasis added. )
We find that, when viewed in a light most favorable to
the State, there was substantial evidence to support the
conviction. Stokoe knowingly and intentionally transferred
possession of an ounce of cocaine to Jonas for $2,250 and
therefore her actions met the test set forth in Davis.
Stokoe's involvement in the crime of selling cocaine was
abundantly clear. She gave a sample of the cocaine to Jonas
for inspection purposes and possessed a scale to measure out
particular quantities of cocaine for subsequent. distribution.
As the Davis case indicates, S 45-9-101, MCA, was enacted to
stop the transfer and distribution of dangerous drugs such as
cocaine. We see no reason tc overturn the jury's decision.
 On the issue of whether a purchaser is an accomplice to
a seller of dangerous drugs thereby requiring independent
corroboration of the purchaser's testimony to sustain the
seller's conviction, we refer to 5 45-2-302, MCA:
A person is legally accountable for the
conduct of another when:
(1) having a mental state described by
the statute defining the offense, he
causes another to perform the conduct,
regardless of the legal capacity or
mental state of the other person;
(2) the statute defining the offense
makes him so accountable; or
(3) either before or during the
commission of an offense with the purpose
to promote or facilitate such commission,
he solicits, aids, abets, agrees, or
attempts to aid such other person in the
planning or commission of the
offense. ..
It is generally held that a purchaser of illegal drugs
is not an accomplice to the crime of selling drugs. State v.
Nasholm (0r.App. 1979), 467 P.2d 647; State v. Warnock (Wash.
App. 1972), 501 P.2d 625; Lujan v. State (Nev. 1969), 449
P.2d 244; State v. Anderson (N.D. 1969), 172 N.w.2d 597.
In this case, Jonas was not only a purchaser of drugs,
but also a seller. A review of similar cases from other
jurisdictions and other authority leads us to conclude that
Jonas' status does not constitute that of an accomplice.
In Wheeler v. State (Wyo. 1984), 691 P.2d 599, the
defendant was convicted of delivery of cocaine. The buyer of
the cocaine was arrested and charged with delivery and
possession of cocaine. The charges were dropped in exchange
for the buyer's testimony against the defendant. The
defendant argued that the buyer of the cocaine, by virtue of
being charged with violating the same statute as the
defendant, i.e. delivery of a controlled substance, was an
accomp1.ice of the original sale made to him. The Wyoming
Supreme Court disagreed:

The mere fact that a buyer of narcotics
turns around and sells them to someone
else, thereby bringing himself within the
delivery statutes, does not make him an
accomplice of the original sale made to
him. There is a definite distinction
between a seller and a buyer. Their
separate acts may result in a single
transaction, but the buyer is not aiding
the "selling act" of the seller and the
seller is not aiding the "buying act" of
the buyer. The buyer and seller act from
different poles. They are not in
association or confederacy. An
accomplice is one who participates in the
same criminal conduct as the defendant,
not one whose conduct is the antit.hesis
of the defendant, albeit the conduct of
both is involved in a single transaction.
b7heelerf 691 P.2d at 602. The Wheeler court cites Wharton's
Crimi-nal Evidence (13th ed. 1973), for its position that a
purchaser of narcotics is not an accomplice of the defendant
charged wit.h selling the narcotics. Wheeler, 691 P.2d at

In St-ate v. Fox (S.D. 1981), 313 M.W.2d 38, the
defendant was convicted of possession and distribution of
marijuana and distribution of cocaine. A paid informant
approached a third person who in turn contacted the defendant
for the drugs subsequently sold to the informant by the third
person. As in the case before us, the transaction between
the defendant and the third person did not occur in the
immediate presence of the informant. A unanimous South
Dakota Supreme Court held that the third person was a
purchaser - a seller of drugs but could not be considered
and
an accomplice. The Court concluded that "the crimes of [the
third person] and appellant involved separate and distinct
acts." Fox, 313 N.W.2d at 41. Hence, no corroboration of the
third person's testimony was required to sustain the
conviction.
As the Wheeler court noted, there is a definite
distinction between a seller and a buyer, and even though
their separate acts may result in a single transaction, the
buyer does not aid the "selling act" of the seller, and the
seller does not aid the "buying act" of the buyer. Jonas did
not aid Stokoe in the selling of cocaine; he was only
interested in obtaining possession of the cocaine through its
purchase. Hence Jonas and Stokoe did not share the same
criminal purpose as required under the accountability
statute. Since Jonas cannot be viewed as an accomplice, his
testimony need not be corroborated.
Affirmed.