                                         No.    81-103

               I N THE SUPREME COURT O THE STATE O M N A A
                                      F           F OTN

                                                1982




STATE O MONTANA,
       F

               P l a i n t i f f and R e s p o n d e n t ,

    -vs-

GARY PHILLIP ANDERSON,

               Defendant and A p p e l l a n t .




Appeal from:   District Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
               I n a n d f o r t h e County o f F l a t h e a d , The H o n o r a b l e
               R o b e r t C. S y k e s , J u d g e p r e s i d i n g .


Counsel o f Record:

     For Appellant:

               Gary Doran, K a l i s p e l l ,         Montana

     F o r Respondent:

               Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
               Montana
               Ted 0. Lympus, County A t t o r n e y , K a l i s p e l l ,
               Montana




                                         Submitted on B r i e f s :       February 4 ,      1982

                                                             Decided:     A p r i l 8,   1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Defendant was arrested on April 15, 1980 in Flathead
County and charged with violation of section 45-9-101,
MCA, criminal sale of dangerous drugs, a felony.   He was
found guilty by a jury in the District Court of the Eleventh
Judicial District and sentenced to 40 years in Montana State
Prison.   He appeals from the judgment of conviction raising

the following issues:

     1.   Did the District Court err by allowing evidence of
a prior transaction involving defendant, contrary to the
court's order in limine, and by failing to grant defendant's
motions for mistrial based upon the evidence so admitted?
     2.   Did the District Court err by failing to grant
defendant's motion to dismiss, or to grant a judgment not-
withstanding the verdict for lack of corroboration of the
accomplice's testimony?
     3.   Did the District Court err by denying defendant's
offered instructions relating to the requirements of cor-
roborative evidence?

     The jury heard the testimony of four witnesses:   Joe
Mahurin, an undercover agent; Alan Harkins, a sheriff's

detective; Robert Fredericks, the accomplice; and Gary
Anderson, the defendant.
     Mahurin and Fredericks provided the bulk of the testimony

regarding the transaction in question.   Mahurin had established
contact with Fredericks and they dealt with each other
several times over small amounts of cocaine.   Mahurin expressed
a desire to purchase a larger quantity of the drug and to

"deal direct" with Fredericks' supplier.   A meeting was

then arranged for 7:00 p.m. on April 15, 1980 in the high
school parking lot.   During these arrangements, which were
made over the telephone, Fredericks seemed to be checking
each response with another person in the room.    Fredericks
testified that the defendant was with him when the call was
made, and had the cocaine on his person at that time.
     Fredericks and the defendant went to the meeting place
in defendant's car.   Mahurin arrived shortly thereafter.
Fredericks went to Mahurin's vehicle and produced the
cocaine (1 1/2 ounces).   Apparently upon Mahurin's request,
defendant was also waved over to the vehicle.    With all
three in the vehicle, Mahurin began to count out the money
($3,500).   At one point, he held the bag of cocaine up to

his eyes and defendant told him to "get it down, don't have
it up in the air."
    As the money was counted out, it was handed to Fredericks,
who would verify the amount.   Defendant also picked up some
of the money and recounted it.   When Mahurin started running
short of money, the two looked up and saw supporting police
officers move in to make the arrest.   At that point, defendant
called Mahurin a "narc" and said something to the effect
that "this is a bust."
     Defendant claims that he was not involved in the trans-
action, but was just providing transportation for his longtime
friend as he had done many times before.   ~ahurin'stestimony,
he contends, is as corroborative of his testimony as it is
of Fredericks'.
     At the outset of the trial, defendant's attorney made a
motion in limine to exclude any testimony relating to

defendant's involvement in an earlier transaction between
Fredericks and Mahurin.   The District Court granted the
motion, but denied all of defendant's later motions for
mistrial which were made in response to alleged breaches by
the prosecution of the order in limine.
     A thorough review of the transcript reveals the harm-
lessness of these alleged breaches.      We agree with the
District Court's impression "that instructions to the jury
and the evidence corrects any possible prejudice that might
have occurred,"   (Tr. at 97) and furthermore, that "the
defense attorney on cross examination opened a little ways
Pandora's Box" (Tr. at 99).       Great care was taken not to
contaminate the record with allusions to prior transactions.
Most importantly, many were elicited by defense questioning,
and were consonant with the defense's theory that Fredericks
was the "dealer" and defendant was involved only by use of
his car.   We find no error on the first issue.
     Next, we consider whether Mahurin's testimony provided
sufficient corroboration of Fredericks' accomplice testimony.
Our rule on the issue is statutory.      Section 46-16-213, MCA
reads :
     "A conviction cannot be had on the testimony of
     one responsible or legally accountable for the
     same offense, as defined in 45-2-301, unless the
     testimony is corroborated by other evidence which
     in itself and without the aid of the testimony of
     the one responsible or legally accountable for the
     same offense tends to connect the defendant with
     the commission of the offense. The corroboration
     is not sufficient if it merely shows the commission
     of the offense or the circumstances thereof."
     In addition, there is a wealth of case law which
enunciates principles best summarized in State v. Kemp
(1979),       Mont.     , 597 P.2d 96, 99, 36 St.Rep. 1215,
1218, and recently recited in State v. Forsyth (Decided
March 19, 1982), - Mont   .   I             ,
                                    - P.2d - 39 St.Rep. 540

at 544.
    ". . . First of all, the sufficiency of such
    evidence is a question of law. (Kemp citation
    omitted.) To be sufficient, it must show more
    than that a crime was in fact committed or the
    circumstances of its commission. It must raise
    more than the suspicion of the defendant's involve-
    ment or opportunity to commit the crime charged.
    But the evidence need not be sufficient by itself
    to support the defendant's conviction or even to
    make out a prima facie case against him. It may
    be circumstantial and can come from the defendant
    or his witnesses. (Kemp citation omitted.) Under
    section 46-16-213, MCA, it must be evidence which
    in itself and without the aid of the testimony of
    the one responsible or legally accountable for
    the same offense tends to connect the defendant
    with the commission of the offense."
    Mahurin provided the corroborative testimony in this
case.    In essence, that testimony established:
        that Mahurin wanted to start "dealing direct" with
Fredericks' supplier to obtain larger quantities of cocaine;
        that Fredericks and the party with whom he was checking
arrangements agreed to meet Mahurin in the high school
parking lot;
        that Fredericks arrived at the meeting with the defendant
and in the defendant's car;
        that in the course of the transaction, defendant
handled some of the money;
     This, in itself and without the aid of Fredericks'
testimony, does tend to connect the defendant with the
commission of the offense.    It is circumstantial, but as a
matter of law, it is not insufficient.
     Defendant argues that the alleged corroborative evidence
is equally consonant with a reasonable explanation pointing
toward innocent conduct, and is therefore speculative rather
than corroborative.    State v. Owens (1979), - Mont .         I



597 P.2d 72, 76, 36 St.Rep. 1182, 1187; State v. Coleman
(1978), 177 Mont. I, 28, 579 P.2d 732, 748; State v. Keckonen
(1938), 107 Mont. 253, 261, 84 P.2d 341, 344.       Indeed,
much of Mahurin's testimony can be made consistent with
defendant's innocence.   Defendant could have been just
providing transportation for Fredericks, especially since he
was invited out of his car.    Also, it is not unreasonable
that he would handle this large sum of money simply out of
curiosity. Neither is it implausible that he could innocently
recognize a "bust" or call Mahurin a "narc."    However, the
evidence does tend to connect him with the offense.      Whether
or not his explanation was believable was a factual question
for the jury.   State v. Rose (1980), - Mont    . -, 608 P.2d
1074, 1078, 37 St.Rep. 642, 647.    We therefore find the evidence
of corroboration sufficient.
     Defendant also disputes the District Court's denial of
three of his offered instructions.     These instructions all
relate to the requirements of corrobative evidence and
consist of language from section 46-16-213, MCA, and from
case law quoted in this opinion.    Owens, supra.    Since the
District Court found that sufficient corroboration did
exist, it is contended that the defendant must be allowed to
offer an instruction on the applicable law in order to guide
the jury in its deliberations.
     As we have noted, the sufficiency of such evidence is a
question of law.   Kemp, supra.    That determination was
properly made by the District Court.     The defendant is

entitled to a cautionary instruction "that the testimony of
an accomplice ought to be viewed with distrust      . . ."
Section 26-1-303 (4), MCA.    In this case, instruction no. 8
stated:
     "The testimony of ROBERT FREDERICKS ought to
     be viewed with distrust because he is an
     alledged [sic] accomplice and in weighing his
     testimony you are to further consider that he
     had been granted special concessions by the
     State for his testimony."
This instruction is clearly sufficient.             See again our
recent opinion in State v. Forsyth ( 1 9 8 2 ) , - Mont        .-    I



     P.2d -, 39 St-Rep. 540, 546.              There was no error.
Affirmed.

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                                                     Justice   d
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We Concur:




-
      Chief Justice
