              1" THE SUPREME COURT OF THE STATE O .
                                                 i''\~ONTII;NA

                                       2002 MT 298K




             Pia~iltrff Respondent,
                      and

         L


CHARLES WALTER FRICK,                                               "--
                                                                    ukii I
                                                                          a   ,$ q*r*
                                                                                ~ i r ~ a
             Defendant and Appella~lt.



APPEAL FROM:        District Court of the Twentieth Judicial District.
                    In arid for the County of Sanders,
                    The Honorable C. B. McNeil; Judge presiding.


COI,WSEL OF RECORD

             For Appellant:

                    Chad U'right, Appellate Defender Office. Helena, Montana

             For Respondent.

                    t-Ion. Mikc McGrath, Attonley Geiieral; John Paulson,
                    Assistarit Attorney General, Helena, Montana

                    Robert Zimmemlan, Sanders Courlt) Attorney, Thompson Falls, Montana


                                                   Subrn~tted Briefs: No\ ember 7. 2002
                                                            oil

                                                               Decided: Deccmher 12, 21102
Filed:
Justice '1-el-I-y I'rieweiler delivered the Opinion of rhc Court.
                5.

1      Pursuant to Section 1. Paragraph 3jc); Montana Supreme Court IOi"i             Intcrnai

C)pcrating Rules, the following dccisiorl shall not be cited as precedent but sha!l be filed as

a pubhc document m ~ t h Clerk of the Supreme Court and shall be rcported bq case t~tle,
                       the

Supreme Court cause number, and result to the State Reporter Publ~shtiig
                                                                       Cornpan! and to

West Group in the quarterly table of noncitable cases issued by this Court.

72     Defendant Charles Frick was charged with one count of criminal distribution of

dangerous drugs (marijuana) in the District Court for the Twentieth Judicial District in

Sandcrs C:ounty, Folio\\-ing trial by jury Frick was found guilty of the charge against him.

FIc appcals from his conviction. LVe affirm the judgment of the District Coun.

73     The sole issue on appeal is whether there was sufficient evidence to find Frick guilty

of criminal sale of dangerous drugs.

                   FACTUAI, AND PROCIEDLRAL, BACKGROUND

74
 1     In December 2000, Steve Montgomery was arrested for driving under the influence

of alcohol or drugs and Lvas also cited for driving without insurance and contributing to the

delinquency of a minor. At the time of his arrest, Montgomery was serving a three-year

deferred sentence for selling dangerous drugs (marijuana.) While being transported to jail,

Montgomery ofkreci to be an informant regarding other people involved ivith the sale of

drugs in Sanders County. In exchange, he sought leniency for his offense arid to avoid

revocation of his deferred sentence. After considering his offer, while Montgomery was in

jail, officers rliet with Montgomery to discuss being an inforl-llant. The ofticcrs suggested
                                                            assistaricc, but ~\lcintgomei-y
at least four people with whonr they could nse Monigorne~-y's

                                                                 arid
latcr tcstiiicd that he considered rhose pccipic "roc dangei.ousW declined to ,work aoainst.
                                                                                     0



them. I-lowever, Montgomery did agree to act as an inforniant against Frich. The policc

agreed to use tlontgomery as an informant, and the State promised to witlidra\v any petition

to revoke his defer~ed
                     sentence. The State did withdraw its petition and also dropped the

charge that Montgomery contributed to the delinquency of a minor.

75     On Cfecember 21, 2000, Montgomery met with Sheriff Gene Arnold and Deputy

Sheriff Darrell Chenoweth in preparation for a marijuana purchase from Frick. Chenowetlt

did a pat-down search of Montgomery and searched his pockets for drugs. Chenoweth did

noi search Montgon1e1-y's shoes or socks. After the search, Chenoweth attached a "body

wire" to Montgoniery's shirt and put the shirt on Montgomery.            Arnold then gave

Montgomery $60    ill   $20 denominations and drove his police car to a gas station so that

Montgomery could get some change for the drug pruehase. Montgomery \vent into the gas

station, purchased a soda, and walked several bloelts to a house rented or owned by Tammy

Weeks, Frick's girlfriend at the time. The officers followed Montgomery in their ear, and

monitored his conversations by way of tltc electronic listening device with which he was

equipped. The officers saw Montgomery approach Weeks' house, but did not see ltim enter.

'jh    Mor~tgomerywent to the house, knocked on the door, and %)asallowed irrsicie by

Weeks. 111sidethe ltousc, Montgomery allegedly purchased one to two grams of marijuana

from Fuick. After the alleged purcl~ase,
                                       Montgomery left Weeks' housc, was followed by

A-tmoltl and C'henow~th~ agreed to tneet them at the police department. .4t the police
                      and

                                              3
             the
depikritt~eni. sireriffs retrieved $3'1 and one to two grams ofmarijuana from Montgomery's

                                                                    in
pockcis. ?'he marijuana tcsicci positivc for a prohibited suhsiar~ci.       i k i d test aiid crime

lab results.

(17      On April 27,200 I , the Statc charged Frick by Information with one count of felony

criminal distribution ofdangerotis drugs, in violation of 3 45-0-101, LICA. At trial, the Statc

called Montgonlery as a witness, and in his testimony, he admitted that the State had agreed

to witlidraw tlie petition to revoke his deferred sentence. Ele admitted that he knew that Frick

was his sister's ex-boyfriend and that he did not like Frick in part because of the way hc

believed Frick had treated his sister. Molltgomery then testified regarding his recollection

of the allcgcd drug transaction. Eic testified that ~vhen entered the house he saw about six
                                                        he

people in the housc-three childre11 and three adults. The three adults were CVeeks, Frick. and

a personal friend of Montgomery's, Rober-t Thon~pson.Montgolnery testified that he went

to the bedroom door and knocked on it and that Frick opened the bedroom door.

Montgomery testified that he asked Frick if he could buy some marijuana and tliat Frick

agreed to sell niarijuana to Llontgomery. Frick allegedly pulled a small sandwich bag with

marijuana in it from his pocket and gave approximately two grams to tlontgomery.

blorttgomery said that he removed the cellopha~ie
                                                wrapper from a pack of cigarettes he was

carrying and placed the niarijuana in the cellophane. Montgomery testified that he put tlie

cellophane wrapper    ill   his pants pocket, gave Frick $20 for the marijuana, and leii Weeks'

house.
718    During Montgomery-'~
                          testimony, the Srate played a tape recording of ~virar been
                                                                               irad

overheard by way oit11e electronic iistcning device tlciril b) Mci~igninery. Whiic some of

thc voices and parts of the tapc were difficult to hear or understand; the tape did record %hat

sounded to be a transaction between &tontgomer>and another person to exchange $20 for

a cewaiu anlount of marijuana:

       MON'TGOMERY: Come here a minutc, wotild you'?

       [Background voice says something, unable to discern]

       MONTGOMERY: Vo way. . . Don't includes you [L.aughs]

       BACKGROCIND VOICE: I'm glad.

       IVONTGOMERY: Alright. [Chuckles]

       MOKTGOW ERY: Do you think you could get me a bag of weed? Even a little
       bit?

       VO!CE: I don't know.

       MONTGOMERY: You don't know'?

       VOICE: What an eighth'!

       MONTGOMERY: An eighth, a dime, a twenty, whatever.

       VOICE: 1'11 sell ya---I'llsell ya a little bit.

       MON'TGOMERY: Alright.

       VOICE: Bc back.

       [Approximate 20 second pause, with four intermittent coughs:;

       MONTGO&IERV: Got anything to put it in'?
       210kTiiOMER"i: [lnco~ap~aihensible
                                       taicirds] . . . ceilophttilc here. in
       pocket.

       M0NTC;OMEKY: How about--how about a twenty?

       VOICE: Alright, a twcnty ~vould fine
                                     be

       VOICE: That'll help you.

       MONTGOMERY: Sweet.

       [Pause]

       UNKKOWU VOICE: There you go.

       MOXl'GOM ERY: Okay.

After playing the tape for the jury, Frtck's attorney cross-exam~nedMontgomerq and

questioned Montgomery about several lnconsisteneies betueen the tape, prior statements, and

Montgomery's testimony when examined by the State. L particular, h'lontgomery's testimony
                                                   n

was inconsistcnt with regard to whether he knocked on the bedroom door, whether he

purchased t a o grants or four grams of n~arijnana, h e t h e he paid for the drugs before or
                                                  ~           r

after he received the drugs, and whether he went to the kitchen to find a cellophane wrapper

to hold the marijuana. Friek's attorney also pointed out that Montgoniery had not identified

or asked Frick to identify himself during the taped transaction, and that kilontgomery did not

count o ~thc money, as requested by thc sheriffs.
          ~ t

9      The jury, before deliberations, received the following cautionary instruction:

       You have heard the testimony that Steve Montgomery, a witness, has received
       a benefit from the state ~vith this case. YOLIsliould examine Steve
         Montgomery's testimony with greater caution than ti~at  ofothclwitrresscs. In
         evaluating that testimony, you should consider the extent to which it may have
         been influenced by ihc receipt of benefits firom the guvernn;ei~l.

Following its deliberstions, the jury returned its verdict that Frick was guilty as charged.

                                         DISCUSSION

% 10
SI
         IVas there sufficient evidence to find Frick guilty of criminal sale of dangerous drugs'?

     i   When reviewing a jury's verdict to determine whether sufficient evidence exists to

support a guilry verdict, we view the eviderlce in a light most favorable to the prosecution

and assess whether any rational trier of fact could h a w found that the State proved the

essential elements of the crime beyond a reasonable doubt. Stczte 1,. I1vorrs (1 9C)2),254 hlont.

360, 363, 838 P.2d 397, 399.

712      The jury found that Frick was g~iiltyof selling marijuana, a dangerous drug. in

violation of 9 45-9-101, MCA. Frick contends that the jury verdict must be reversed b e c a ~ ~ s e

'vlontgomet-y was st~chan t~nreliablewitness that there was insuftieient evidence for a

rational trier of fact to find that tlte State proved each elenient of the crime beyond a

reasonable doubt. Frick further contends that the tape recording of his con\-ersation was

incomprehensible and could not have supported tlie jury's verdict. The State rcsponds that

issues of h c t and witness credibility are matters which the jury is empowered to decide. 'l'he

State contends that the jury was properly provided with a cautionary jury instruction that

illontgoruet-y's testimony should be closely scrutinized since he received substantial benefits

from tlie State for his testimony, and that in spirc of that instruction, the jury found

hlontgornery credible and that this Court should not "second-guess" the jury,

                                                -,
9'13                           the                            OF
       To support a convictioi~, State must prove each ele~nent the crime beyond a

reasonable doubt. 7 elements of the crime charged in this case ari: set fo'orl1-1
                  %                                                              in         45-9-

iOi( 1). .MGA: "[a] person commits the offense of criminal distribution of dangerous drugs

ifthe person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give

away any dangerous drug; as defined in 50-32-101 ." "'To sell [drugs] mcans to kno~vingly

and intentionally transfer possession or ownership of the [drugsj to another for money or

other valuable consideration."' S'zute v. Br-own (1986), 232 Morit. 1, 5, 755 P.2d 1364. 1367

(quoting State v. ~bf(zrt-tii~ez
                             (1985), 21 6 Mont. 270, 272, 700 P.2d 99 1 , 902). Marijuana is

considered a "dangerous drug" within the meaning of        5   50-12-101, MCA. See      5   50-2-

221(4)(t), MCA (mari.juana is a Schedule I dangerous drug).

T14
i      There is little dispute that the State established the basic facts necessary to prove that

Frick sold marijuana to Montgomery. The State's expert and Chenoweth's testimony

established that the substance recovered from Montgomery was marijuana. The tape

recording and the testimony of Montgomery and the officers demonstrated that Montgomery

purchased marijuana from someone for $20. While some of the voices are difficult to

understand at some points on the tape, the tape is discernible at the point where an apparent

drug transaction is taking place. In addition, the rape is corroborated by the physical
                                                                                ,.
eviclence recovered and Montgomery and the deputy sheriffs' testimony. I he remaining

factual issue that the jury needed to determine was whetlier the State proved beyond a

reasonable doubt that Frick sold the drugs to Montgomery.
7i 5   From the record we conciudc that a rational trier of fact could find tilat thc Statc

proved beyond s rcasoiliiiiie doubt that Frick was ehc- person who sold the drugs. Ci~cnoiieth

testified that he witnessed Montgomery approach Weeks' liouse. b$ontgomcry testified that

Wceks was Frick's girlfriend and that Frick lived wit11 her. Tliese facts are not disputed by

the defendant. Finally, Montgomery testified that when he entered the house he saw only two

adult males, Robert Thompson and Charles Frick, and that he purchased the marijuana from

Frick alone. This evidence was sufficient for a rational hier of fact to find that Frick was

- of selling marijuana to Montgomery
euilty

1 6    Frick insists that Pvlontgomery's testimony was so incredible and motivated by the

desire to avoid prison that no rational jury could have found that the State proved beyond a

reasonable doubt that Frick sold marijuana to Montgomery. Frick suggcsts that the numerous

inconsistencies bettveen Montgomery's testimony and the tape from the "body wire" further

dc~nonstrate unreliability of Montgomery's testimony. However, we have previously-held
           thc

that "[tjhe weight of the evidence and credibility of the witnesses is exclusively the province

of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to

determine ivhich shall prevail," State   I,,. 0111irt1(Ic)85), 218   Mont. 260, 2 6 , 707 P.2d 11 17>

1 120. Furthcrmore:

       Only in those rare cases where the story told is so inherently improbable or is
       so nullified by material self-contradictions that no fair-minded person could
       believe it may we say that no lirin foundation exists for the verdict based upon
       it.
Stare   V,          (19821, 1 % bforrt. 4%. 50 1 , 647 P.2d 348, 35 I (quoting Slirlc v. (;iiinlos
             ;1f~~ivelI

( 1 91 6), 53 lhoni. I 18, 126. 162 P. 506. 599).            The record rtl-lecls that tlhrrc   -LVC~C


i~consisrcncies Mnntgome~y's
              in           testimony with pre~ious
                                                 statements and the tape from the

"body wire." However9his testimony was also corroborated by the tape from the body wire?

and we cannot conclude that Montgomery's testimony \?as "nullified by material self-

contradictions." It was the jury's duty to resolve any conflicts in the evidence, and the jury

resolved the conflicts in fal:or of the State. We concl~~de a rational jury could find that
                                                         that

the State proved the elements of the crime beyond a reasonable doubt.

'j 17        For these reasons; we affirm the jttdginent of tile District Court.


                                                                      <,
                                                 ...
                                                  ...
                                                                     / Justice

We Concur:
