                                                                                        June 19 2012


                                         DA 11-0446

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 129



STATE 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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