State v. Wogamon

No. 14836
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980

STATE OF MONTANA,
Plaintiff and Respondent,

TIMOTHY WOGAMON ,
Defendant and Appellant.

Appeal from: District Court of the Fourteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:

D. Frank Kampfe, Red Lodge, Montana
Frank O'Loughlin argued, Red Lodge, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Assistant Attorney General,
Helena, Montana
Mark Racicot argued, Assistant Attorney General,
Helena, Montana
John L. Pratt, County Attorney, Roundup, Montana

Submitted: February 19, 1980

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Filed:

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

Timothy Wogamon appeals from a conviction on the charge
of criminal sale of dangerous drugs in violation of section
45-9-101, MCA. The conviction was entered in the District
Court, Fourteenth Judicial District, Musselshell County.
On October 27, 1977, at 7:00 p.m., Musselshell County
Sheriff Brian Neidhardt received a telephone call from Betty
Holiday, postmaster in Musselshell, Montana. Holiday wanted
Neidhardt to investigate the suspicious activity of a group
claiming to be a data research organization. The group had
recently moved into a boarded-up house across the street from
the Musselshell post office.
At about 9:00 a.m. the next morning, Friday, October 28,
Neidhardt and Deputy Sheriff Floyd Fisher went to Musselshell
to investigate the group's activity. Upon reaching Musselshell
they located the house and knocked on the door. A man, later
identified as Donald Wogamon, answered the door. Neidhardt
introduced himself. Mr. Wogamon acknowledged the introduction
and allowed the officers to enter the house.
Neidhardt explained the nature of the sheriff's visit
to Mr. Wogamon. Mr. Wogamon said the group worked for Union
Carbide and was researching the stability of a solvent.
Neidhardt could see laboratory equipment in the kitchen.
Neidhardt asked if he could look around. Mr. Wogamon
did not respond. Neidhardt briefly looked into the kitchen.
Not suspecting any illegal activity, Neidhardt returned to
the front door. On his way to the front door, he saw a
young man in the hallway. The young man, later identified
as the defendant, was acting nervously.
 Mr. Wogamon suggested the two sheriffs accompany him
across the street to the hotel to talk. On the way over,
Mr. Wogamon introduced himself as "Bill Gibbs". At the
hotel, he handed Neidhardt a business card with that name
and a California telephone number on it. As Neidhardt wrote
the information down, Mr. Wogamon said he had federal funds
for the solvent project and had located in Musselshell for a
"tax write-off." Neidhardt gave the card back. After a
brief talk, Neidhardt and Fisher walked back to their car
and drove back to Roundup.
When the sheriffs reached Roundup at 10:33 a.m., Holiday
was again talking on the telephone with the sheriff's office.
While Mr. Wogamon was talking with the sheriffs, the defendant
ran through the alley looking over his shoulder as he ran.
He ran to the hills. Later, the defendant sneaked back to
the house and peeked around the corner at the sheriff. NOW,
the two men were frantically loading boxes into a van and a
car.
Neidhardt called the Drug Enforcement Administration
(DEA) and talked to agent Don Friend. They discussed what
Neidhardt had observed in Musselshell and whether it could
be a drug laboratory. Neidhardt also told Friend about
meeting "Bill Gibbs." Friend described "Bill Gibbs" to
Neidhardt. The description did not match the man Neidhardt

knew as Bill Gibbs. Neidhardt was told to return to Musselshell
since the operation could be a drug laboratory.
Neidhardt, Fisher and Deputy Sheriffs Bill Perry and
George Raczek returned to Musselshell. Upon reaching Musselshell,
Neidhardt parked his car on the east side of the house. Mr.
Wogamon came around the corner of the house as Neidhardt exited
from his car. Neidhardt asked why the vehicles were being
loaded up so fast. Mr. Wogamon explained the laboratory was
being moved to the hotel. This seemed suspicious to Neidhardt.
Mr. Wogamon had earlier said he did not intend to move the
laboratory. Neidhardt next asked why the windows were boarded
up. He was told it was to keep offensive odors inside so
the neighbors would not be upset. Neidhardt thought this
was strange since no neighbors were in the area.
Mr. Wogamon then invited Neidhardt inside the house to
look around. Once inside, Neidhardt asked if he could write
down the names of the chemicals. Mr. Wogamon consented, and
Neidhardt walked through the house writing the names down.
When they were outside again, Neidhardt asked Mr. Wogamon
to come to Roundup so Neidhardt "could check things out." Mr.
Wogamon agreed and went to lock up the buildings. While Mr.
Wogamon was gone, Neidhardt saw the defendant and asked him
his name. He answered, "Timothy Gibbs." When Mr. Wogamon
returned, Neidhardt asked'Mr. Wogamon to ride with Neidhardt
and the defendant to ride with Perry. Mr. Wogamon agreed, but
the defendant did not answer.
Upon leaving Musselshell, neither Wogamon was handcuffed,
but Perry did give the defendant a "pat-down" search.
Neidhardt radioed a "10-15" to the Musselshell sheriff's
office. This code technically means "prisoner in custody,"
but the Musselshell sheriff's office also uses it to mean
another person present. Neidhardt also asked the sheriff's
office to call and have County Attorney John Pratt present
when the group arrived in Roundup.
Upon arriving in Roundup at 11:45 a.m., Mr. Wogamon and
the defendant were taken to the visitor's section of the jail.
Mr. Wogamon asked permission to call his attorney. while the
call was being made, Neidhardt went to the jail's backroom to
call the DEA. During this time no one told the Wogamons where
they should stay while they were in the sheriff's office.
Jerry Jones, an FBI agent, was in the backroom. Jones told
Neidhardt "Bill Gibbs" was really Donald Wogamon. Neidhardt
then called the DEA and gave agent Friend the list of chemicals.
County Attorney Pratt showed up while Neidhardt was in
the backroom. After his telephone call, Neidhardt told
Pratt what had transpired. They discussed charging the
Wogamons with unsworn falsification to authorities, a misdemeanor.
Section 45-7-203, MCA.
At about 11:55 a.m., agent Friend called back. He told
Neidhardt the list of chemicals contained all the necessary
ingredients for making methamphetamine except one, phenyl-2-
propanone. Neidhardt immediately sent Perry back to Mussel-
shell to secure the house. Neidhardt did not attempt to verify
Friend's information. After talking with Neidhardt, Pratt
concluded there was enough information for a search warrant.
At about 12:12 p.m., Mr. Wogamon and the defendant were
"booked" for unsworn falsification to authorities. A
short time later, a complaint charging Mr. Wogamon with that
crime was drawn up. It was discovered the defendant could
not be charged with this crime. It requires a written
instrument, and the defendant had merely lied to the sheriffs.
Section 45-7-203, MCA. After lunch, the complaint was
presented to Justice of the Peace Amanda Scott and signed in
her presence. An arrest warrant for Mr. Wogamon was issued,
and bond was set at $300.
About this same time, a search warrant for the Musselshell
property was issued by the District Court. The warrant covered

a three block area in Musselshell including 27 lots. It covered
all five buildings in the three block area, a van and a 1971
Chevrolet. The search warrant authorized a search for dangerous
drugs. Neither the name "Timothy Wogamon" or "Timothy Gibbs"
appeared on the search warrant or the application therefore.
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 Neidhardt took the complaint and the arrest warrant
to the sheriff's office. However, upon reaching the office,
he discovered the search warrant for the Musselshell property
was ready. Neidhardt gave the arrest warrant to some officers,
told them to serve it on Mr. Wogamon and told them to release
the defendant. Then, Neidhardt took Mr. Wogamon's keys to
unlock the Musselshell buildings, and left immediately with
Pratt for Musselshell.
While the defendant was being released from jail at about
3:30 p.m., Neidhardt called the sheriff's office and ordered
that the defendant be arrested again on a charge of criminal
sale of dangerous drugs. Raczek informed the defendant of
the new charge and booked him for that crime.
The search of the Musselshell property covered a three
day period. In addition, Mr. Wogamon's wallet was searched on
at least two different occasions. All together, some 200 items
were seized.
On Monday, October 31, 1977, the defendane was arraigned
at 1:30 p.m. The defendant was served with an arrest warrant
for the first time immediately before the arraignment.
Prior to trial, the defendant moved to suppress all
evidence seized from the Musselshell property and from Mr.
Wogamon's wallet. The District Court denied the motion on
the grounds that the defendant lacked standing to challenge
the search and the motions were substantively without merit.
The defendant's trial began on October 31, 1978. Upon
his conviction, the defendant was sentenced to serve 15 years
in the state penitentiary with 13 years suspended.
Seven issues have been raised for review. They may be
summarized as follows:
(1) Whether court's instruction no. 1, items 6 and 7,
are unconstitutional under Sandstrom v. Montana (1979), 442
U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.
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 (2) Whether it was error to deny the defendant's

motions to suppress the evidence based upon an illegal
arrest, an illegal detainer and lack of probable cause to
issue a search warrant.
(3) Whether it was error to deny motions to dismiss
the charge against the defendant for denial of a speedy
trial and for lack of probable cause to file an information.
(4) Whether it was error to allow the State to call an
alibi rebuttal witness without first giving notice to the

defendant prior to trial.
We have carefully examined all the issues raised by the
defendant. The only issue with substantive merit is the
challenge to court's instruction no. 1, item 7. We agree
with the defendant that court's instruction no. 1, item 7,
is reversible error.

Sandstrom v. Montana, supra, has resulted in a spate of
appeals to this Court claiming instructional error. We have
since determined the applicability of the Sandstrom decision
in the original conviction of Sandstrom himself, State v.

Sandstrom (1979), Mont . , 603 P.2d 244, 36 St.Rep.
2099; and in State v. Sunday (1980), Mont. -
P.2d , 37 St.Rep. 561; State v. Fitzpatrick (1980), -

Mont . , 606 P.2d 1343, 37 St.Rep. 194; State v. Hamilton

(19801, Mont . , 605 P.2d 1121, 37 St.Rep. 70; State
v. Bad Horse (1980), - Mont. , 605 P.2d 1113, 37
St.Rep. 45; State v. Hardy (1980), Mont . , 604
P.2d 792, 37 St.Rep. 1; State v. Williams (1979), - Mont .
,
- 604 P.2d 1224, 36 St-Rep. 2328; and State v. Coleman
(1979), - Mont. , 605 P.2d 1000, 36 St.Rep. 2237.
Until today, only in State v. Sandstrom, supra, have we
found a reason under the United States Supreme Court Sandstrom
decision to reverse the state court conviction and remand the
same for retrial. In the other cases, we have distinguished
Sandstrom v. Montana, supra, as not controlling. However,
we cannot do that here with respect to court's instruction
no. 1, item 7.
"Court's instruction no. 1, items 6 and 7 read
as follows:
"6. Purpose or knowledge is manifested by
the circumstances connected with the offense.
Purpose or knowledge need not be proved by
direct evidence, but may be inferred from acts,
conduct and circumstances appearing in evidence.
"7. The law presumes that a person intends the
ordinary consequences of his voluntary acts."
Court's instruction no. 1, item 6, is a permissive
inference. It allows, but does not require, the jury to
infer ultimate facts from basic facts adduced by the State.
No burden of proof is placed upon the defendant. Ulster
County Court v. Allen (1979), 442 U.S. 140, 99 S.Ct. 2213,
2224, 60 L.Ed.2d 777, 792; State v. Coleman, supra.
Since a permissive inference is involved, the defendant
must show the invalidity of the inference as applied to him.
He must show there is no rational way under the facts of
.
this cause for the jury to make the connection permitted by
the inference. Otherwise, there is no risk the presumptively
rational jury will use the inference to make an erroneous
factual determination. Ulster County Court v. Allen, supra.
The defendant has not carried his burden of proof upon
appeal.
We cannot say the same for court's instruction no. 1,
item 7, however. This instruction is reversible error under
Sandstrom v. Montana, supra.
The State contends Sandstrom is distinguishable from this
cause. Sandstrom involved a deliberate homicide which requires
proof of a purposeful or knowing voluntary act which causes
a particular result, the death of a human being. Under these

circumstances, the instruction directs the jury to find intent
if it finds a voluntary act and the ordinary consequence of
that act was the victim's death. According to the State,

the defendant here, however, was only charged with intending
to commit a voluntary act, purposely, knowingly and unlawfully
manufacturing a dangerous drug. In the State's view, the
jury need only have found the defendant intended to engage
in a voluntary act to impose criminal liability; the jury
need not have found any ordinary consequence. Thus, according
to the State, Sandstrom v. Montana, supra, is not implicated,
and the instruction was superfluous.

The State's contention is inviting but misleading. To
sustain the charge against the defendant, the State needed
to prove beyond a reasonable doubt that the defendant purposely

or knowingly manufactured a dangerous drug, as defined in
section 50-32-101, MCA. Section 45-9-101, MCA. The voluntary
act here is manufacturing. The ordinary consequence is a
dangerous drug. Under this framework, court's instruction
no. 1, item 7, directed the jury to presume intent, purposely
or knowingly, upon proof by the State of a voluntary act,
manufacturing, and that act's ordinary consequence, a dangerous
drug.
As a result, the instruction conflicts with Sandstrom
v. Montana, supra. Given the lack of qualifying instructions,
a reasonable jury may have interpreted the instruction in
either of two impermissible ways. First, the jury may have
interpreted the instruction as a conclusive presumption. If

so, the State would be relieved from proving a necessary
element of the crime charged, intent. This would violate In
Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368. Second, the jury may have interpreted the instruction
as shifting the burden of proving lack of intent to the
defendant upon proof by the State of the defendant's voluntary
act and its ordinary consequence. If so, this would violate
Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44
L.Ed.2d 508.
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 In order for federal constitutional error to be
harmless, we must declare a belief that the error was harm-
less beyond a reasonable doubt. Chapman v. California
(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We must
determine the impact of the erroneous instruction upon a
reasonable jury, and to constitute harmless error, we must
be able to agree as a Court that the offensive instruction
could not reasonably have contributed to the jury's verdict.
State v. Sandstrom, supra, 603 P.2d at 245, 36 St.Rep. at
2100.
We cannot do that here. The evidence of intent here is
not overwhelming. With regard to this issue, the State's

case against the defendant was based entirely upon circumstantial
evidence.
Therefore, the cause is reversed and remanded to the
District Court for retrial consistent with this opinion and
the guidelines established by Sandstrom.

We Concur:

Chief Justice