State v. Davis

June 19 2012
DA 11-0446
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 129STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES LEE DAVIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DC 10-69
Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Wyatt Glade, Custer County Attorney, Miles City, Montana
Submitted on Briefs: May 23, 2012
Decided: June 19, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Appellant James Lee Davis (Davis) appeals from his conviction in the Sixteenth
Judicial District, Custer County, of one count of criminal distribution of dangerous drugs
by accountability pursuant to §§ 45-9-101, 45-2-301 and 45-2-302(3), MCA. Davis
claims that the State presented insufficient evidence to prove beyond a reasonable doubt
that he provided assistance in the drug deal that preceded his charge. We restate the issue
as follows:
¶2 Issue: Did the District Court err when it denied Davis’ motion to dismiss the
charge of criminal distribution of dangerous drugs by accountability on the basis of
insufficient evidence?
BACKGROUND
¶3 Davis was charged following a sale of methamphetamine that took place on April
19, 2010, at the Miles City home of Tina Gergen and her roommate Mickell Syring.
Davis did not live with the pair, but he spent a large portion of his time at the home
because he was in a relationship with Syring. As part of an investigation being conducted
by law enforcement, an informant began to record drug transactions between himself and
Gergen. The informant, who worked with Gergen and had purchased methamphetamine
from her several times prior to becoming an informant, was recruited for the role after a
drug-related arrest.
¶4 On April 16, 2010, the informant called Gergen’s cell phone to see if she had
methamphetamine available for sale. Gergen told him that she wasn’t sure if she had the
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key for a lockbox that contained the drugs, which was kept in Syring’s bedroom.
Although Syring was not at home, Davis was present and was asked by Gergen to look
for the key. She told the informant that he should call back in 30 minutes. Davis
answered the phone when the informant called back, stating, “[Tina] told me to tell you,
we don’t have a key.” The informant then asked Davis to tell Gergen that he would
“catch up with her next week sometime.”
¶5 On April 19, 2010, the informant and Gergen made arrangements by phone for the
purchase of methamphetamine. The deal was completed later that day when the
informant purchased the drugs from Gergen at the front door of her home. The informant
testified that he did not see Davis during this purchase.
¶6 In the following months, agents purchased methamphetamine from Gergen and
Syring multiple times. Davis was not present at any of these transactions, although
Syring and Gergen drove his truck to one of the sales. A search warrant was executed the
following September at Gergen and Syring’s home and law enforcement seized the
lockbox, drug paraphernalia, a scale, and a substance used to cut methamphetamine.
Charges were filed against Gergen, Syring and Davis. Davis was specifically charged
with criminal distribution of dangerous drugs by accountability for the purchase that took
place on April 19th. Because his truck was driven to one of the sales, he was also
charged with felony possession of property subject to criminal forfeiture pursuant to §
45-9-206, MCA.
¶7 Davis moved to dismiss his charges, arguing that there was insufficient evidence
to charge him with either offense. His motion was denied. At the close of the State’s
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case during a three-day jury trial, the District Court denied a second motion for a directed
verdict based upon insufficient evidence. Davis’ counsel unsuccessfully argued that the
State had merely showed his presence on April 16, but had presented no credible
evidence regarding his knowledge of or assistance with the later transaction. The jury
subsequently convicted him of criminal distribution of dangerous drugs by
accountability, but found him not guilty of possession of property subject to criminal
forfeiture. He appeals from the court’s denial of his motion to dismiss.
STANDARDS OF REVIEW
¶8 The denial of a motion to dismiss in a criminal case presents a question of law
which we review de novo. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d
1278. “We review a question on the sufficiency of the evidence to sustain a conviction to
determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Booth, 2012 MT 40, ¶ 7, 364 Mont. 190, 272 P.3d
89.
ANALYSIS
¶9 Davis argues that he only participated in conversations on April 16, that failed to
materialize into a drug deal, and that the State provided no evidence that he assisted
Gergen with the April 19 transaction. Accordingly, he argues that the evidence was
insufficient to support the jury’s finding of guilt. The State argues that Davis’ assistance
prior to the deal actually happening was sufficient for conviction under Montana law.
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¶10 Issue: Did the District Court err when it denied Davis’ motion to dismiss the
charge of criminal distribution of dangerous drugs by accountability on the basis of
insufficient evidence?
¶11 ‘“The Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.’” State v. Newman, 2005 MT 348, ¶ 19, 330 Mont. 160, 127 P.3d
374 (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068 (1970)). When proof
beyond a reasonable doubt has not been established, § 46-16-403, MCA, permits the
dismissal of a criminal action at the close of the prosecution’s evidence. “A motion to
dismiss for insufficient evidence is appropriate only if, viewing the evidence in the light
most favorable to the prosecution, there is not sufficient evidence upon which a rational
trier of fact could find the essential elements of the crime beyond a reasonable doubt.”
State v. Rosling, 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102. Davis contends here, as
he did at the District Court, that the evidence is insufficient for a rational trier of fact to
find the essential elements of criminal distribution of dangerous drugs by accountability
pursuant to §§ 45-9-101, 45-2-301 and 45-2-302(3), MCA. We agree.
¶12 A person is accountable for an offense when “either before or during the
commission of an offense with the purpose to promote or facilitate the commission, the
person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or
commission of the offense.” Section 45-2-302(3), MCA. A person commits the offense
of criminal distribution of dangerous drugs when that person “sells, barters, exchanges,
gives away, or offers to sell, barter, exchange, or give away any dangerous drug.”
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Section 45-9-101(1), MCA. Accordingly, the State was required to establish that Davis
promoted or facilitated Gergen’s sale of methamphetamine to the informant on April 19,
2010. State v. Flatley, 2000 MT 295, ¶ 12, 302 Mont. 314, 14 P.3d 1195 (citing State v.
Lyons, 254 Mont. 360, 366, 838 P.2d 397, 401 (1992)).
¶13 The State focuses on the “either before or during the commission of an offense”
language within § 45-2-302(3), MCA, for the argument that Davis’ presence during the
search for the key on April 16, and his subsequent conversation with the informant
constituted efforts to aid Gergen’s sale of drugs three days later. However, Davis’
alleged efforts in this case are similar to those of the defendant in Flatley, in that both
defendants’ efforts were not “predicated upon a separate, underlying offense.” Flatley, ¶
15 (citing State v. Downing, 240 Mont. 215, 217, 783 P.2d 412, 414 (1989)). In Flatley,
the defendant’s efforts to arrange a drug transaction were negated because the dealer had
gone fishing. Flatley, ¶¶ 6, 15. Accordingly, when one of the defendant’s friends later
offered to get drugs from a different source with no prompting from Flatley himself, this
Court held that there was insufficient evidence to convict him of accountability for that
sale because his prior actions were not coordinate with the underlying offense. See
Flatley, ¶ 16. Here, the State was unable to establish that Davis’ actions on April 16 were
untaken to facilitate or promote the transaction that took place between Gergen and the
informant on April 19.
¶14 The State also cites to State v. Maetche, 2008 MT 184, 343 Mont. 464, 185 P.3d
980, for the proposition that circumstantial evidence can be used to overcome the
presumption that mere presence at the time a crime is committed does not necessarily
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make a person accountable for that crime. In this case, Davis was not present at Gergen’s
house on April 19 during the sale of the drugs, and there is no indication that he played
any part facilitating the transaction.
¶15 Davis’ presence during a failed transaction days earlier is insufficient to prove
accountability. Gergen’s statement that Davis was searching for the key, and Davis’ later
agreement to relay the message that the informant would “catch up with her next week
sometime” conveyed nothing more than the plain meaning of both messages. Neither
was indicative of any role in the April 19 sale. Therefore, a rational trier of fact, viewing
the evidence in the light most favorable to the prosecution, could not have found that
Davis purposely promoted or facilitated the sale of drugs by Gergen to the informant.
CONCLUSION
¶16 Based on the foregoing, we reverse the judgment of the District Court and dismiss
Davis’ criminal distribution of dangerous drugs by accountability charge with prejudice.
/S/ MIKE McGRATH
We concur:
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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