 96-390




                                                      No. 96-390

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1997



STATE OF MONTANA,

                             Plaintiff and Respondent,

          v.

PETER WILLIAM HARPER,

                             Defendant and Appellant.



APPEAL FROM:                 District Court of the First Judicial District, In and for the County
of
                             Lewis
                             and Clark, the Honorable Dorothy McCarter, Judge Presiding.


COUNSEL OF RECORD:

                   For Appellant:

                             Kenneth H. Gray, Helena, Montana

                   For Respondent:

                             Honorable Joseph P. Mazurek, Attorney General; Micheal Wellenstein,
                             Assistant Attorney General, Helena, Montana

                             Mike McGrath, Cournty Attorney, Helena, Montana




                                                                     Submitted on Briefs: July 17, 1997

                                                                     Decided: August 12, 1997
                                                                     Filed:


                             __________________________________________
                                               Clerk



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Chief Justice J. A. Turnage delivered the Opinion of the Court.

      A jury in the First Judicial District Court, Lewis and Clark County, found Peter
William Harper guilty of two counts of misdemeanor possession of dangerous drugs and
possession of drug paraphernalia. He appeals. We affirm.
      Harper raises two issues on appeal:
      1. Whether his conviction of possession of methamphetamine is illegal on
grounds
that the State failed to prove that he was in "knowing control" of the drug "for a
sufficient time to be able to terminate control."
      2. Whether his sentence is illegal because the court failed to consider
alternatives
to imprisonment as required by    46-18-201, MCA, and State v. Pence (1995), 273
Mont. 223, 902 P.2d 41.
      At trial, the State presented evidence that from July 4 to July 6, 1995, Harper
hosted his ex-brother-in-law, Andy Lopez, and Lopez's companion, Debbie Curitan, at
his home near Helena, Montana. Lopez and Curitan did not know anyone besides Harper
in Helena. They came to Helena from Idaho to make a July 6 delivery to a buyer, at
Harper's home, of a large packet of methamphetamine with a value of between $50,000
and $75,000.
      At about 4:15 p.m. on July 6, 1995, Helena police officers searched Harper's
home. The lawfulness of the search has not been contested, and the fact that the
search
was a probation search was not disclosed to the jury.
      When the officers arrived at Harper's home, Harper, Lopez, and John Ferriter
were sitting at the kitchen table and Curitan was standing nearby. The officers told
Ferriter he could leave. When he stood up to go, Ferriter attempted to take three
twenty
dollar bills that were sitting on the table, but the officers did not allow him to
do so.
      In the bedroom which Harper identified as his, the officers found a hand scale
of
a type used to weigh drugs, a marijuana pipe, a bag of marijuana, and a wooden
container with residue of sodium acetate, which is commonly used as an adulterant to
methamphetamine. On top of Harper's refrigerator, the officers found a silver spoon
which Harper denied ever having seen before. In the living room, they found small
baggies of a type commonly used to hold powder drugs.
      The officers discussed bringing in a drug-sniffing dog to see if there was any
contraband they had missed. Harper appeared to become nervous, with sweat trickling
from his forehead. Soon thereafter, an officer discovered the large packet of
metham-
phetamine in Harper's freezer. When Harper was subsequently booked at the county
jail,
police discovered a bag of marijuana in his underwear.
      At trial, Harper denied that he had known the purpose of Lopez and Curitan's
visit
to Helena and denied knowledge of the methamphetamine in his freezer. He repudiated
his previous statements to investigating officers, one of whom testified that Harper
had
admitted to having used marijuana, methamphetamine, and cocaine with Curitan and
Lopez during their visit. Harper also repudiated his previous statements to the
officer

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that he was aware of marijuana and other drugs in his house. Despite his previous
admissions and despite the location in which it was discovered, Harper testified
that the
bag of marijuana in his underwear was not his.
     Helena Police Officer Jungers testified at trial that Lopez had told him that
when
he first arrived at Harper's house on July 4, he placed the large chunk of
methamphet-
amine on Harper's coffee table, in Harper's presence, and weighed out six little
baggies
of the stuff. Jungers testified that Lopez told him Harper commented that the
methamphetamine was "pretty stinky stuff," and then volunteered to help find buyers
for
the six small baggies of it. At trial, Lopez denied his previous statements to
Jungers,
saying that they were "words put into my mouth."   Lopez testified that Harper had no
knowledge of the methamphetamine.
     The jury found Harper not guilty of possession with intent to sell methamphet-
amine, but guilty of the lesser included offense of misdemeanor possession of the
dangerous drug. The jury also found Harper guilty of misdemeanor possession of
marijuana and misdemeanor possession of drug paraphernalia--namely, a scale, a
crushing
spoon, baggies, and a pipe. Based in part on his prior convictions and probation
status
at the time of these offenses, Harper was designated a persistent felony offender
and was
given consecutive prison sentences totaling thirty-one years, with ten years
suspended.
                                                              Issue 1
     Is Harper's conviction of possession of methamphetamine illegal on grounds that
the State failed to prove that he was in "knowing control" of the drug "for a
sufficient
time to be able to terminate control?"
     Criminal possession of dangerous drugs requires knowing control of the drugs for
a sufficient time to be able to terminate control. Sections 45-2-101(57) and 45-9-
102,
MCA. Harper contends that there was insufficient evidence that he had knowing
control
of the methamphetamine to support his conviction of that charge.
     Our standard of review of the sufficiency of the evidence is whether, after
reviewing 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. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686. The credibility of
witnesses and the weight to be given to their trial testimony are determined by the
finder
of fact, and if events are capable of different interpretations, the finder of fact
determines
which is the most reasonable. Ahmed, 924 P.2d at 686.
     Under the above standards, it was the jury's privilege to believe the testimony
of
Officer Jungers over that of Harper and Lopez. If the jury did so, it clearly could

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have
found that Harper had knowing control of methamphetamine during the two days when
he was aware of its presence in his home. Constructive possession or control may be
imputed when contraband is found in a place immediately and exclusively accessible to
the accused and subject to his dominion and control, which may be jointly shared with
another person. State v. Neely (1993), 261 Mont. 369, 374, 862 P.2d 1109, 1112.
Harper could have terminated his control of the methamphetamine at any point between
July 4 and July 6 by telling Lopez to leave his home or at least to remove the
drugs from
his home. See Neely, 862 P.2d at 1112. We conclude that a rational trier of fact
could
have found the essential elements of the crime of possession of the dangerous drug
methamphetamine beyond a reasonable doubt. We therefore hold that Harper's
conviction of possession of methamphetamine is supported by sufficient evidence.
                              Issue 2
      Is Harper's sentence illegal because the court failed to consider alternatives
to
imprisonment as required by    46-18-201, MCA, and State v. Pence (1995), 273 Mont.
223, 902 P.2d 41?
      Section 46-18-201(11), MCA, provides:
      In sentencing a nonviolent felony offender, the court shall first consider
      alternatives to imprisonment of the offender in the state prison, including
      placement of the offender in a community corrections facility or program.
      In considering alternatives to imprisonment, the court shall examine the
      sentencing criteria contained in 46-18-225. If the offender is subsequently
      sentenced to the state prison or the women's correctional system, the court
      shall state its reasons why alternatives to imprisonment were not selected,
      based on the criteria contained in 46-18-225.

In Pence, this Court vacated sentencing and remanded the case based upon the district
court's inadequate consideration and discussion in its judgment of the sentencing
criteria
set forth in   46-18-225, MCA, as required under the above statute. On appeal,
Harper
contends the requirements of    46-18-201(11), MCA, and Pence were not met here.
     This issue was not raised before the District Court. This Court has previously
refused to review whether a district court failed to consider alternatives to
imprisonment
when the issue has not been preserved below. See State v. Goulet (1996), 277 Mont.
308, 311-12, 921 P.2d 1245, 1247; State v. Nelson (1995), 274 Mont. 11, 19-20, 906
P.2d 663, 667-68. For the same reasons as those discussed in Goulet and Nelson, we
decline to further consider this issue.
     Affirmed.

                                                                       /S/       J. A.          TURNAGE

We concur:

/S/       KARLA M. GRAY
/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER
/S/       WILLIAM E. HUNT, SR.

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