                                      No. DA 06-0614

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 156N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOHN RUNNINGFISHER,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. ADC 2005-337,
                     Honorable Thomas M. McKittrick, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Public Defender, Roberta R. Zenker,
                     Assistant Public Defender, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,
                     Assistant Attorney General, Helena, Montana

                     Brant S. Light, Cascade County Attorney, Great Falls, Montana


                                                          Submitted on Briefs: May 31, 2007

                                                                    Decided:   June 26, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, the Supreme Court cause number, and disposition shall

be included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2    John Runningfisher (“Runningfisher”) appeals from an order of the District Court

for the Eighth Judicial District, Cascade County, denying his Motion for a New Trial.

Runningfisher contends that the court erred when it determined that the evidence

presented at trial supported the conclusion that the jury could have found, beyond a

reasonable doubt, that Runningfisher possessed dangerous drugs.

¶3    This case arose out of an incident which occurred on June 17, 2005, in Great Falls,

Montana. Runningfisher visited the backyard of a residence that police officers were

surveilling because it was the residence of a wanted fugitive. Runningfisher left the yard

and rode away on a bicycle. As he passed another yard, which belonged to Gregory

Pierce (“Pierce”), he stopped, put his foot down, and stumbled to avoid Pierce’s dog.

Pierce, who was training his dog, asked if Runningfisher was okay and Runningfisher

replied that he was. The police officers detained Runningfisher shortly thereafter at that

location. Pierce then yelled out that Runningfisher had dropped his keys. Runningfisher

denied that the keys were his. The officers inspected the keys and found a small vial

attached to the key ring.          Test results indicated that the vial contained

methamphetamines.


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¶4    On April 24, 2006, the jury returned a guilty verdict against Runningfisher on

charges of Criminal Possession of Dangerous Drugs, § 45-9-102, MCA, and Criminal

Possession of Drug Paraphernalia, § 45-10-103, MCA. Runningfisher based his motion

for a new trial on the ground that insufficient evidence was presented at trial to find him

guilty beyond a reasonable doubt of constructive possession of the key ring. The District

Court denied his motion and on August 11, 2006, the court sentenced Runningfisher to a

three-year deferred sentence on the conviction for Criminal Possession of Dangerous

Drugs and a six-month deferred sentence on the conviction for Criminal Possession of

Drug Paraphernalia.

¶5    On appeal, Runningfisher argues that the State produced insufficient evidence at

trial for a rational trier of fact to find, beyond a reasonable doubt, that he possessed

dangerous drugs. Runningfisher argues that he did not have dominion or control over the

keys to which the drugs were attached. Runningfisher contends that the police officers

never observed him in possession of the keys and that the police officers did not check

the keys for fingerprints.    Lastly, Runningfisher maintains that the police officers

concluded that the keys belonged to Runningfisher solely on the basis of Pierce’s

assumption that the keys belonged to Runningfisher.

¶6    In response, the State contends that although Pierce testified that he did not see

Runningfisher in possession of the keys and did not hear or see the keys fall onto his

lawn, Pierce was sure that the keys had been in Runningfisher’s possession. Pierce

testified that he had just mowed and cleaned his lawn that afternoon. He and his children

had been playing in the yard with their dog and the keys were not there before


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Runningfisher rode by. Pierce further testified that no one else had passed by the yard

besides Runningfisher. Lastly, Pierce testified that he found the keys on the lawn right

next to a fresh footprint in the newly mown grass where Runningfisher had put his foot

down to steady himself and avoid Pierce’s dog. The State asserts that, based on Pierce’s

testimony and the other evidence presented at trial, the jury found that the most

reasonable interpretation was that Runningfisher possessed the key ring and then dropped

it on Pierce’s property. Therefore, according to the State, when viewing all of the

evidence in the light most favorable to the prosecution, a rational trier of fact could have

found, beyond a reasonable doubt, that Runningfisher was in possession of the drugs and

drug paraphernalia attached to the key ring.

¶7     We review the sufficiency of the evidence to determine whether, after viewing the

evidence in the 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.

Shields, 2005 MT 249, ¶ 14, 328 Mont. 509, ¶ 14, 122 P.3d 421, ¶ 14 (citing State v.

Stevens, 2002 MT 181, ¶ 23, 311 Mont. 52, ¶ 23, 53 P.3d 356, ¶ 23). Further, “[i]n cases

where we consider the sufficiency of the evidence, we will not substitute our judgment

for that of the jury, which is able to view firsthand the evidence presented, observe the

demeanor of the witnesses, and weigh the credibility of each party.” Shields, ¶ 20 (citing

State v. Azure, 2002 MT 22, ¶ 48, 308 Mont. 201, ¶ 48, 41 P.3d 899, ¶ 48). A review of

the record leads us to conclude that the jury could have found Runningfisher guilty

beyond a reasonable doubt of criminal possession of dangerous drugs and criminal




                                               4
possession of drug paraphernalia and that the District Court correctly denied his motion

for a new trial.

¶8     Therefore, having reviewed the record in this matter, we have determined to

decide this case pursuant to Section I, Paragraph 3(d) of our 1996 internal operating rules,

as amended in 2003, which provides for memorandum opinions. It is manifest on the

face of the briefs and the record before us that the appeal is without merit because, in

viewing the evidence in the light most favorable to the prosecution, we determine that

there was sufficient evidence from which the jury could conclude that Runningfisher

constructively possessed the drugs and drug paraphernalia. Additionally, the legal issues

are clearly controlled by settled Montana law, which the District Court correctly

interpreted.

¶9     Accordingly, the judgment of the District Court is affirmed.


                                                        /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE




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