                                No.     90-403

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1991



STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
MARK STUART GORDER,
            Defendant and Appellant.



APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and for the County of Cascade,
                  The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                  Julie A.     Macek, Attorney    at Law, Great Falls,
                  Montana
            For Respondent:
                  Hon. Marc Racicot, Attorney General, Helena, Montana
                  Elizabeth L. Griffing, Assistant Attorney General,
                  Helena, Montana
                  Patrick L. Paul, Cascade County Attorney, Great
                  Falls, Montana
                  Steven Hudspeth, Deputy County Attorney, Great
                  Falls, Montana

                'LED
                                      Submitted on Briefs:   March 4, 1991
              MAY 2 3 1995
                                                 Decided:    May 23, 1991
Filed:       &d   Smid
         CLERK OF SUPREME CO
            STARE OF MONTAN



                                  '   clerk
Justice John Conway Harrison delivered the Opinion of the Court.


     Defendant/appellant, Mark Stuart Gorder, was convicted of
criminal possession of dangerous drugs, a felony pursuant to   §   45-

9-102, MCA, following a jury trial in the District Court of the
Eighth Judicial District, Cascade County. He appeals. We reverse.
     On November 28, 1988, two agents from the State's Criminal
Investigation Bureau traveled to Great Falls, Montana, to serve an
arrest warrant on appellant for charges pending against him in
another county in Montana.    In the initial appearance on these
charges appellant stated that his residence was a travel trailer
located on Lot No. 12, Cascade Trailer Park, Cascade, Montana.
     Law enforcement officers applied for and received a search
warrant for the travel trailer located in Cascade.     They went to
the trailer park and determined that appellant's trailer was in
storage and had not been occupied recently. The officers searched
the trailer and found a folded ten-dollar bill in the cupboard area
above a couch which folded out to a bed.   One officer picked up the
bill, put it in his hand, examined it, then replaced the bill in
the cupboard and photographed it.   The officer testified that he
noted a small amount of white powdery substance on the bill.

     When the bill was sent to the crime laboratory, the lab found
the powder   folded within the bill    weighed    .05 grams   or   50

milligrams which is one-twentieth of a gram.      The powder tested
positive for cocaine.    The bill at no time was processed for
fingerprints.
     One Bob Neer testified for appellant at trial, stating that

he stayed with appellant in his trailer during a week to ten-day
visit with appellant in Minnesota in February of 1988.         Neer
testified that during that visit he purchased half a gram of
cocaine which was contained in a folded ten-dollar bill.     While
visiting appellant, Neer would empty his pockets and put the
contents in the cupboard above the bed where the ten-dollar bill
containing cocaine was later found by law officers.    Neer further
testified that he had forgotten the bill and some clothes in
appellant's trailer.     During cross-examination the deputy county
attorney asked Neer, ''Did you ever tell the defendant you bought
some cocaine?'I   Neer answered : '!No.
     The issue is whether there was sufficient evidence to support
the jury's verdict that appellant possessed dangerous drugs.
     In State v. Smith (1983), 203 Mont. 346, 661 P.2d 463, this
Court held that felony criminal possession of a dangerous drug
requires proof that a defendant (1) possessed (2) dangerous drugs.
Section 45-2-101 (52), MCA, defines llpossessionll 'Ithe knowing
                                                as
control of anything for a sufficient time to be able to terminate
control.    Thus, the mental state of "kn~wingly'~ also contained
                                                 is
in the definition of possession of dangerous drugs.    Section 45-
9-102 (1), MCA.
     Therefore to establish the offense of criminal possession of
dangerous drugs, a felony, under 5 45-9-102, MCA, the State must
prove:   (1) knowing (2) control of a (3) dangerous drug for a
sufficient time to be able to terminate control.          See Compiler's
Comments,   !
            j   45-9-102, MCA.
     The standard of review to be applied is whether, after
reviewing the      evidence   in    the   light most   favorable to   the
prosecution, any rational trier of fact could have found the three
essential elements of the crime charged beyond a reasonable doubt.
Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560, 573; State v. McDonald (1987), 226 Mont. 208, 210,
734 P.2d 1216, 1217.
     Here the State failed to prove beyond a reasonable doubt that
appellant had "possession" of the cocaine.         There is no evidence
that appellant had any I1actual" possession of the cocaine.           The
State's evidence that the appellant had "constructive" possession
of the ten-dollar bill           containing traces of cocaine    is not
sufficient to find appellant guilty of a felony.
     Other than the fact that the trailer was owned by appellant,
no evidence was presented to the jury as to appellant's ownership
of the drug.      The State did not rebut the testimony of Mr. Neer
that he was the owner of the ten-dollar bill which contained the
traces of cocaine. Where the drug belonged to Mr. Neer, there was
a lack of showing that appellant had lldominion"over the drug.
The State failed to prove the element of possession.
     The second element the State must prove beyond a reasonable
doubt is that any possession of the drug by appellant must have
been llknowingly.ll Section 45-2-101(33), MCA, provides that a
person acts knowingly with respect to a circumstance described by
a statute "when he is aware    . . .   that the circumstance exists."
The State has failed to carry the burden of showing that appellant
knew the prohibited substance was either in his lldominionll
                                                           or
"knownn to be in his llpossession.l'See State ex rel. Glantz v.
District Court (1969), 154 Mont. 132, 461 P.2d 193.
     Other than the fact that the drug was found in appellant's
trailer, no evidence was produced to tie appellant to the drug.
Appellant testified that the last time he had lived in the trailer
was in the summer of 1988 at Essex, Montana.       People were in and
out of the trailer in Essex. At the end of August the trailer was
moved to Cascade.    Appellant testified that in September of 1988,
he cleaned out the trailer, prepared it for winter storage and took
all items of value from the trailer.           The evidence was that
appellant's stored travel trailer had         no water hook up, no
electricity, no edible food, and the windows were shuttered and the
door padlocked.      Appellant further testified that the trailer,
while parked in Cascade, was broken into twice and beer cans and
other evidence of a party were left in the trailer.            Another
witness testified that he was with appellant when the first break-
in was discovered.     Appellant's father testified that after the
second break-in he saw where the door of the trailer had been pried
open when he put on a hasp for a new lock.
     Without   any   further   proof   of   appellant's   ownership   or
                                                            C
                                                                 I




knowledge of the ten-dollar bill containing the drug, we hold that
the mere fact that the bill was found in appellant's stored travel
trailer would not allow any rational trier of fact to conclude that
appellant had knowing possession of the drug. Such a result would,
in this Court's opinion, be both unjust and unsupported by the
evidence.
     We reverse the conviction of appellant for criminal possession
of dangerous drugs and direct that charges against appellant in
this matter be dismissed with prejudice.




We concur:


       Chief Justice




            Justices
Justice Fred J. Weber dissents as follows:
        Possession of dangerous drugs may be either I1actuall1 or
llconstructivell.
                State v. Meader (1979), 184 Mont. 32, 42, 601 P.2d
386, 392.         Actual possession means that the drugs are in the
personal custody of the person charged with possession; whereas
constructive possession means that the drugs are not in actual
physical possession butthat the person charged with possession has
dominion and control over the drugs. Meader, 184 Mont. at 42, 601
P.2d at 392. constructive possession is shown when a person either
has control or a risht to control the drug.      Meader, 184 Mont. at
43, 601 P.2d at 392.
        The mental state of llknowinglyll be inferred from the acts
                                       may
of the accused and the facts and circumstances connected with the
offense.      §    45-2-103(3), MCA.   Although knowledge may not be
inferred from mere possession alone, knowledge mav be proved by
evidence of acts, declarations or conduct of the accused from which
an inference of knowledse may be drawn.      State v. Krum (1989), 238
Mont.    359, 362, 777 P.2d      889, 891.   The question of intent
therefore is a question for the iurv. Meader, 184 Mont. at 43, 601
P.2d at 392.
        The facts cited by the majority opinion to support its
conclusion are directly from defendant's own testimony. Defendant
himself contradicted many of those facts during his testimony.
When conflicting evidence exists, the credibility and weight given
to the conflicting evidence is within the iurvls province.      5 26-
1-302, MCA; Wheeler v. City of Bozeman (1988), 232 Mont. 433, 437,


     In the initial appearance on these charges defendant stated
that his residence was a travel trailer located on Lot No. 12,
Cascade Trailer Park, Cascade, Montana.     A search warrant was
obtained for the trailer and in the course of the search the
officers found in a cupboard a folded ten-dollar bill containing
approximately .05 grams of cocaine.
     Bob Neer, witness for the defense, testified that the folded
ten-dollar bill containing cocaine belonged to him rather than the
defendant and had been placed in the cupboard by him several months
earlier.     Defendant claims he did not know the bill was in the
cupboard and argues that he could not have control when he did not
know that the bill      existed.   The facts support a    contrary
inference.
     The trailer was registered to the defendant who admitted that
he had purchased the trailer and had lived in the trailer until
September of 1988.    Defendant listed the trailer as his address
when he was arrested.     The travel trailer was not hooked up to
water or power but the defendant admitted that he spent an
occasional night there. He kept his belongings and clothing in the
cupboards, including the cupboard where the cocaine was found. He
used a padlock to secure the trailer.   The officers who conducted
the search of the trailer obtained keys from the defendant to the
padlock    on the trailer.     The defendant testified   that,   in
September, he prepared the trailer for winter and cleaned it out,
including the cupboards.     He also testified that the trailer had
been broken into twice but that after the second break-in, he had
cleaned the trailer, checked the cupboards, and put a bigger lock
on the door.     He continued to check the trailer regularly and had
been in the trailer a couple of weeks prior to the search in
November 1988. All of these activities by defendant occurred after
Bob Neer allegedly left the ten dollar bill in the cupboard.    The
officer testified that the bill was easily seen when he opened the
cupboard door.
     Under facts strikingly similar to this case, we recently held
that the facts supported the inference that defendant had knowing
control and possession of the cocaine.    State v. Van Voast (1991),
805 P.2d 1380, 48 St.Rep. 160.     In the Van Voast case, the drugs
were also found in a stored, locked trailer over which the
defendant had dominion and control.      We held that the defendant
had constructive dominion and control over the drugs contained in
the trailer.
     As in the Van Voast case, the facts in this case support the
conclusion that any rational trier of fact could have found beyond
a reasonable doubt the essential elements of the crime and are
sufficient to support the conviction of knowing possession of
dangerous drugs.    By reversing this case, the majority has ignored
the Van Voast case and has assumed the fact finding role of the
jury .
Chief Justice J. A. Turnage and Justice R. C. McDonough:
    We concur in the foregoing dissent of Justice Weber.
Justice Terry N. Trieweiler concurring:
     I concur in the majority opinion.
     The thrust of the dissenting opinion is to point out that the
defendant's testimony was contradicted--as if that fact is somehow
relevant.
     The defendant did       not   have   the burden    of proving     his
innocence.    The State had the burden of proving his guilt.
     In this case, the State had the burden of proving that the
defendant knowinslv possessed a dangerous drug.        All the State did
prove was that residue of cocaine was found on a ten dollar bill
located in a locked-up, uninhabitable travel trailer which the
defendant had abandoned a couple of months before the drug was
found.     Those facts are simply not sufficient to put someone in
jail for commission of a serious felony.
     Section 45-2-101(52), MCA, provides that l"[p]ossession'           is
the knowinq control of anything for a sufficient time to terminate
control.I1 (Emphasis added.)
     Section    45-2-101(33),   MCA,   provides     that a   person   acts
knowingly with respect to a circumstance described in a statute
"when he is aware   . . . that the circumstance exists."
     The State has argued, and the dissenters have concluded, that
this defendant did not have actual possession of a dangerous drug,
but that he had constructive possession since he had dominion and
control over the travel trailer in which the drug was found.
However,     constructive   possession    without    knowledge   is   not
sufficient for conviction of the crime of which the defendant was
accused.    Furthermore, this     Court has   previously   held   that
knowledge may not be inferred from possession alone. State v. Krum
238 Mont. 359, 362, 777 P.2d 889, 891 (1989).
     In this case, there was absolutely no substantial evidence to
prove the defendant had knowledge that cocaine was located in his
travel trailer, other than the fact that he owned the travel
trailer.
     The mere fact that he had cleaned the trailer out at some time
before abandoning it does not make it any more likely that he knew
of the presence of drugs.   In fact, it is more reasonable to infer

that if he had been aware of the presence of the ten dollar bill

when he cleaned the trailer out and abandoned it, he would not have
left it in the trailer.
     Inconsistencies in the defendant's testimony did not change
the fact that the State failed to prove a crucial element of the
crime with which the defendant was charged.    For these reasons, I
concur in the majority opinion.
