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                                                               No. 97-568

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 295

                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                     RICHARD G. FLATLEY,

                                                     Defendant and Appellant.

                             APPEAL FROM: District Court of the Fifth Judicial District,

                                               In and for the County of Jefferson,

                                     The Honorable Frank M. Davis, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                 Jack H. Morris, Jardine & Morris, Whitehall, Montana

                                                            For Respondent:

                            Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan,

                                       Assistant Attorney General, Helena, Montana

                          Valerie D. Wilson, Jefferson County Attorney, Boulder, Montana

                                           Submitted on Briefs: December 16, 1999
                                               Decided: November 30, 2000

                                                                   Filed:

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                                    __________________________________________

                                                                     Clerk



Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 By Information filed in the District Court for the Fifth Judicial District in Jefferson
County, the Defendant, Richard Flatley, was charged with criminal sale of dangerous
drugs by accountability, a felony, in violation of §§ 45-9-101, 45-2-301, and -302, MCA.
At the close of the State's case, Flately moved the District Court to dismiss the action
based on insufficient evidence. The District Court denied Flately's motion and he was
subsequently convicted. Flately appeals the District Court's denial of his motion to
dismiss. We reverse the judgment of the District Court.

¶2 Although a number of issues were raised on appeal, we find the following issue
dispositive:

¶3 Did the District Court err when it denied the Defendant's motion to dismiss based on
insufficient evidence?

                                                FACTUAL BACKGROUND

¶4 Alan Real agreed with Ray Malley, an agent for the Southwest Montana Drug Task
Force, to arrange a drug purchase from the Defendant, Richard Flatley, who was an
acquaintance of Real's. Real testified that he tried to call Flatley five or six times and left
several messages, but that Flately did not return his calls. When Real eventually contacted
Flately, Real testified that the following conversation occurred:

        Q. And what happened?

        A. Told him I was going to Boulder that night, the night that I was coming over; and
        he said, "Well, come on over."

        Q. Okay. And what did you do then?



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        A. Then I got hold of the Southwest Drug Task Force.

        Q. Okay. Did you tell anyone from the Southwest Drug Task Force that Rick Flately
        said, "I could buy a quarter ounce of marijuana in Boulder for $65?"

        A. I told them that I could buy one over there. But, and I also told them that Rick
        Flately said that. But Rick Flatley never said that.

        Q. Why did you tell them that then?

        A. Because they wanted me to set Rick Flatley up. And I know when I go to
        Boulder, nine times out of ten I can get a bag of marijuana.

¶5 On June 6, 1996, Real met with Agent Timothy Barkell and Agent Malley of the drug
task force in Whitehall, Montana. Real and Barkell drove from Whitehall to Boulder,
Montana in Barkell's car. Malley followed in his car. When they arrived in Boulder,
                                                         (1)
Barkell fixed a wire on Real's body. After Real identified Flatley's house, Barkell
parked his car in Flatley's driveway and remained in the car. Malley was parked half a
block away, where he was listening to the transmission of Real's conversation and taking
photographs.

¶6 Real then exited Barkell's car and walked to the back of the house, where Flatley and
Lucas Janacaro were repairing a car. Real testified that he asked Flatley, "Well, can you
hook me up?" to which, Flatley responded, "No, the guy's gone fishing." Real testified that
he then asked Janacaro if he could help him get some marijuana; and that Janacaro
responded, "we have to go to Jefferson City because I want to get some for myself too. So
can you guys give me a ride?" The recording device that Real was wearing recorded the
conversation as follows:

        Flatley: So how long are you going to be in town?

        Real: Oh, not long hopefully.

        Flatley: No Shit.

        Real: Yeah.


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        Flatley: That dude's gone.

        Real: Oh, he is?

        Flatley: Yeah, he's up fishing.

        Real: Can you hook me up?

        Janacaro: Yeah.

        Real: How much per quarter?

        Janacaro: For a quarter, um, we can go to Jefferson City and it's sixty-five at
        Jefferson City. They're pretty fat.

Janacaro testified that Flatley did not introduce him to Real; and that Flatley did not tell
Real that he could get him drugs. Real testified:

        Q. Okay. And isn't it true that then Mr. Flatley never directed Mr. Real to ask you
        about getting hooked up; correct.

        ....

        A. Right, correct.


Following the conversation in Flatley's yard, Real, Flatley, and Janacaro walked to the car
where Barkell was waiting. Barkell testified that the following conversation resulted:

        A. They came out, and [Real] introduced me as his uncle. [Flatley] asked if I was
        looking for some marijuana, and I said yeah. And he said, "how much?" And I said,
        "I'd like to get an ounce." And then I believe he said he didn't believe he could get
        an ounce at this time but could get a quarter ounce. And [] Janacaro joined in and
        said, "Yeah, we can get a quarter ounce."

        ....

        Q. Did they say where they could get the marijuana?

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        A. They told me we could go to Jefferson City if I'd give them a ride; and if we
        couldn't get it in Jefferson City, we could go to Helena.

        Q. Okay, and when you say "they", do you recall specifically who was talking?

        A. Rick [Flatley] and Lucas [Janacaro].

        Q. Both of them were talking to you?

        A. Right.

¶7 Before they left for Jefferson City, Real testified that Barkell suggested that Janacaro
call the supplier. Janacaro testified that Flatley also suggested calling the supplier.
Janacaro, however, responded that the supplier did not have a phone. While driving to
Jefferson City, Barkell testified the following conversation occurred:

        Q. Okay. Now on the way over there, did you have some conversation about what
        was going to happen when you got there; or can you recall?

        A. Yes, I asked, I asked if this bud we were picking up is good bud. And both
        [Flatley] and [Janacaro] said, "Yeah, it's excellent bud." And [Flatley] made a
        statement that he used to always have bud on hand, but the cops are watching him
        now. And so now he only hooks people up.

¶8 When the group arrived in Jefferson City, Barkell parked the car at Ting's Bar. Flatley
and Janacaro exited the car and walked to Justin Jones' house, while Barkell and Real
waited in the car. Jones was not home, but his mother said he was at the dredge ponds.
After Flatley and Janacaro returned to the car, Barkell drove to the dredge ponds.
According to Barkell, both Flatley and Janacaro directed him to the ponds. He testified:

        A. Both [Flatley] and [Janacaro] were telling me the way to go to the dredge pond.
        "Turn around here, go up this dirt road, take a right at the stop sign."

        Q. Was it kind of a landmark in Jefferson City?

        A. The dredge pond?


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        Q. Yes.

        A. I-Apparently, I guess.

When they arrived at the dredge ponds, Janacaro went to talk with Jones, while Flatley,
Real, and Barkell remained in the car. Janacaro then returned to the car with Jones, where
Janacaro introduced Jones to Barkell. Janacaro and Jones entered the car and Barkell
drove back to Ting's bar.

¶9 Once at Ting's bar, Barkell gave Janacaro $65. Jones and Janacaro then exited the car.
Flatley, Real, and Barkell remained in the car. Janacaro testified that he and Jones then
went to Jones' house, where Jones gathered a quarter ounce of marijuana. Jones and
Janacaro returned about 15 minutes later. Jones then gave Barkell a bag of marijuana
which he placed under his seat. Jones and Janacaro remained in Jefferson City and Real,
Flatley, and Barkell departed for Boulder. While driving to Boulder, Barkell testified the
following conversation occurred:

A. I took it and I put it under my seat. And then as we were driving back to Boulder,
[Flatley] asked me to see it. I handed him a baggy. He smelled it and handed it back to me,
and I put it back under my seat.

        Q. Did he say anything after he smelled it?

        A. He said, "This is good bud."

        Q. Okay.

        A. Or skunk bud. Skunk bud I believe.

When they arrived in Boulder, Real and Barkell returned Flatley to his house.

                                                  STANDARD OF REVIEW

¶10 We review the sufficiency of the evidence to support a criminal conviction 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. Medrano (1997), 285 Mont. 69, 73, 945 P.2d 937,
939.
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                                                             DISCUSSION

¶11 Did the District Court err when it denied the Defendant's motion to dismiss based on
insufficient evidence?

¶12 "A person commits the offense of criminal distribution of dangerous drugs if the
person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give
away any dangerous drug, as defined in 50-32-101." Section 45-9-101(1), MCA. Section
45-2-301, MCA, provides:

        A person is responsible for conduct which is an element of an offense if the conduct
        is either that of the person himself or that of another and he is legally accountable
        for such conduct as provided in 45-2-302, or both.

A person is legally accountable for the conduct of another when:

        (3) either before or during the commission of an offense with the purpose to
        promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to
        aid such other person in the planning or commission of the offense.

Section 45-2-302(3), MCA. To convict a person of criminal distribution of dangerous
drugs by accountability, the state must prove the defendant promoted or facilitated the sale
of drugs. State v. Lyons (1992), 254 Mont. 360, 366, 838 P.2d 397, 401. Mere presence at
the scene of a crime is, however, insufficient to establish criminal responsibility. State ex
rel. Murphy v. McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909 (holding that the
defendant's presence during a deliberate homicide was insufficient to hold him
accountable, even though he said the victim "had this coming.")

¶13 Flatley contends that he did not arrange the drug transaction between Jones and
Barkell; that he did not introduce Janacaro to Real or Barkell; and that the drug transaction
between Barkell and Jones would have taken place whether or not he traveled to Jefferson
City with Barkell, Real, and Janacaro. In reliance on State v. Downing (1989), 240 Mont.
215, 217, 783 P.2d 412, 414, the State responds that Flatley had the intent to facilitate the
drug transaction between Barkell and Jones.

¶14 In Downing, an informant introduced Downing to an undercover agent, who asked

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Downing if he could purchase drugs. Downing, 240 Mont. at 216, 783 P.2d at 413.
Downing responded that he had no drugs, but that he would arrange for the agent to meet
Ohl. Ohl also had no drugs, but said the he was expecting a shipment. The following day,
the informant, the agent, and Downing drove to Ohl's house, where Ohl introduced the
agent to Huskins, who sold the agent drugs for $110. Downing, 240 Mont. at 216, 783
P.2d at 413. In affirming Downing's conviction, we said:

        Viewing this evidence in the light most favorable to the prosecution, a reasonable
        jury could have found that [Downing] intended to aid in a drug sale by whomever
        had the drugs available. Downing's intent was not necessarily limited to a sale by
        Earl Ohl. [The agent] initiated an open invitation to purchase drugs from whomever
        Downing could contact. On the testimony presented, the fact that Ohl happened to
        be the most accessible dealer, would not preclude a jury from finding that
        [Downing] intended to abet a drug sale by some other individual.

Downing, 240 Mont. at 219, 783 P.2d at 415.

¶15 Unlike the defendant in Downing, who intended to facilitate a drug sale, even if not
with the original provider, Flately only intended to connect Real with one person, and that
person had gone fishing. No transaction occurred. "Accountability must be predicated
upon a separate, underlying offense." Downing, 240 Mont. at 217, 783 P.2d at 414.

¶16 Real testified that after he asked Flatley to hook him up, Flately responded, "No, the
guy's gone fishing." Janacaro testified that Flatley did not introduce him to Real; and that
he offered to get Real drugs without being prompted by Flatley. A rational trier of fact,
viewing the evidence in the light most favorable to the prosecution, could not have found
that Flatley purposely promoted or facilitated the sale of drugs by Jones to Barkell. It was
Janacaro who facilitated the transaction between Barkell and Jones, not Flatley. Mere
presence is insufficient to prove accountability. See State ex rel. Murphy, 171 Mont. at
125, 556 P.2d at 909.

¶17 Flatley waited in the car when Janacaro talked to Jones at the dredge ponds, and
Flatley waited in the car when Janacaro and Jones went to retrieve the drugs at Jones'
house. Further, there was no evidence that Flatley ever discussed the drug transaction with
Jones. During the course of the evening, Flatley made statements which revealed his
knowledge of drugs and the drug trade, but such knowledge does not amount to a criminal
offense. Therefore, we conclude that the District Court erred when it denied the


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Defendant's motion to dismiss based on insufficient evidence.

¶18 The Judgment of the District Court is reversed.

                                                /S/ TERRY N. TRIEWEILER

                                                               We Concur:

                                                        /S/ J. A. TURNAGE

                                                /S/ WILLIAM E. HUNT, SR.

                                                      /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART

1. A wire is a recording device that is hidden under a person's clothing.




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