                                         No. a2101

            I N THE SUPREME C U T O T E STATE O MONTANA
                             OR    F H         F

                                            1972



THE STATE O M N A A
           F OTN,

                                P l a i n t i f f and Respondent,

           -VS   -
ESKO K. RUONA,

                                Defendant and Appellant.



Appeal from:         D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                     Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record :

       For Appellant :

                 John L. Adams, Jr. argued, B i l l i n g s , Montana.

       For Respondent:

                 Hon. Robert L. Woodahl, Attorney General, Helena,
                  Montana.
                 David V. Gliko, A s s i s t a n t Attorney General, argued, Helena,
                  Montana.
                 Harold F. Hanser, County Attorney, B i l l i n g s , Montana.
                 Ernest F. Boschert, Deputy County Attorney, argued,
                  B i l l i n g s , Montana.



                                                       Submitted:          A p r i l 20, 1972

                                                          Decided:       Jut 2.0 19g
~ i l e:
       d    JUL 2 O 1977
M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court.

           This i s an appeal from a jury v e r d i c t and judgment of
conviction of the crime of criminal possession of dangerous
drugs from t h e d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s -
t r i c t , Yellowstone County.
           On A p r i l 1, 1971, a t approximately 5:15 a.m., defendant
Esko K. Ruona was a r r e s t e d f o r d r i v i n g t h e wrong way on a one way
s t r e e t i n t h e c i t y of B i l l i n g s .   A f t e r stopping defendant, t h e
patrolman parked d i r e c t l y behind defendant's v e h i c l e ,                   Before
t h e o f f i c e r could take f u r t h e r a c t i o n , defendant s l i d over from
t h e d r i v e r ' s s i d e t o t h e passenger s i d e of h i s v e h i c l e , crawled
out of t h e c a r on h i s hands and knees, and then proceeded t o walk
over t o t h e p o l i c e c a r .      Defendant had no d r i v e r ' s l i c e n s e .          He
was t r a n s p o r t e d t o t h e B i l l i n g s P o l i c e S t a t i o n f o r booking on t h e
two t r a f f i c offenses.          The p o l i c e s t a t i o n was s e v e r a l blocks from
the scene of t h e a r r e s t .
           A t t h e p o l i c e s t a t i o n during t h e booking procedure and
p r i o r t o posting bond, defendant emptied h i s pockets.                         Among
t h e personal possessiors of defendant t h e r e was a small p l a s t i c
capsule with a hypodermic needle stuck through i t ,
           After t h e defendant posted bond, t h e a r r e s t i n g o f f i c e r
volunteered t o t r a n s p o r t defendant t o wherever he wished t o go.
Defendant accepted t h e r i d e and t h e o f f i c e r returned defendant
t o the general area where h i s c a r was parked,                       The o f f i c e r then
returned t o t h e c a r which defendant had been d r i v i n g when a r r e s t e d .
While examining t h e pavement area under t h e passenger s i d e where
defendant made h i s e x i t from t h e c a r , he found two objects--a
p l a s t i c b o t t l e and a p l a s t i c bag.     Both t h e b o t t l e and t h e bag
contained drugs, which defendant i s now charged with having i n
h i s possession.          The o f f i c e r took the b o t t l e and bag t o t h e p o l i c e
s t a t i o n where they were placed i n t h e evidence l o c k e r , along with
t h e needle defendant had l e f t a t t h e s t a t i o n when booked.                  On t h e

following day, A p r i l 2, 1971, defendant was a r r e s t e d f o r posses-
s i o n of dangerous drugs.
          T r i a l was had on May 10, 1971, r e s u l t i n g i n a j u r y v e r d i c t
of g u i l t y on May 11, 1971,
          A t t r i a l , i t was developed t h a t t h e c a r defendant was
d r i v i n g on A p r i l 1, 1971, had been borrowed from a f r i e n d .
Testimony of t h e a r r e s t i n g o f f i c e r i n d i c a t e d t h a t although i t was
a cold morning, t h e p l a s t i c b o t t l e and p l a s t i c bag found under-
neath t h e c a r were f r e e from f r o s t ,         It was noted a t t r i a l t h a t
a f i n g e r p r i n t found on t h e p l a s t i c b o t t l e was n o t t h a t of de-
fendant, but t h e r e were o t h e r p r i n t s t h a t could n o t be i d e n t i f i e d .
The a r r e s t i n g o f f i c e r a l s o t e s t i f i e d he had taken defendant t o
t h e v i c i n i t y of 805 N.     27th S t r e e t i n B i l l i n g s , a f t e r he made b a i l
on t h e morning of t h e t r a f f i c a r r e s t ; and although defendant
walked i n t h e general d i r e c t i o n of 805 N, 27th S t r e e t , he d i d not
a c t u a l l y s e e him e n t e r t h e house,
          The s t a t e made r e f e r e n c e t o t h i s house i n i t s opening
statement t o the j u r y t o t h e e f f e c t t h a t drugs had been found
a t 805 N.     27th S t r e e t ,    Throughout t h e t r i a l repeated attempts
were made by t h e s t a t e t o introduce evidence concerning t h e
house, which was c h a r a c t e r i z e d a s a "hippy pad",
          Defendant on appeal p r e s e n t s t h e following i s s u e s f o r
t h i s Court's examination:
          1,    The opening statement and t r i a l r e f e r e n c e t o t h e
residence a t 805 N. 27th S t r e e t , when no f a c t s connecting de-
fendant t o t h e residence were proven.
          2,    Introduction of t h e hypodermic needle i n t o evidence
without connecting i t t o t h e crime,
          3.    Lack of evidence t o convict defendant of t h e crime
of possession.
            4.     Challenge t o s e v e r a l j u r y i n s t r u c t i o n s , i . e . ,   the
giving of I n s t r u c t i o n s 14 and 16 and r e f u s a l of defendant's
o f f e r e d I n s t r u c t i o n 8.
            W look f i r s t t o t h e contention t h a t defendant was pre-
             e
judiced by t h e s t a t e ' s i n j e c t i o n of r e f e r e n c e s t o t h e residence
a t 805 N. 27th S t r e e t .
            I n reviewing t h e r e c o r d , i t appears t h e s t a t e was attempt-
i n g by r e s g e s t a e o r proof of general circumstances t o place
defendant a t t h e residence i n question on t h e n i g h t of h i s t r a f f i c
a r r e s t o r very n e a r i n time t o the a r r e s t .             The house i s i n t h e
same general a r e a where defendant was stopped; and t h e a r r e s t i n g
o f f i c e r returned defendant t o t h a t a r e a a f t e r t h e processing
a t the police station.                  This appeared t o be an attempt t o connect
defendant t o a known p l a c e of drug u s e , a s a general circumstance
surrounding t h e a c t u a l possession from which the j u r y could draw
an "inference" a s s e t f o r t h i n S t a t e ex r e l . Glantz v. D i s t .
Court, 154 Mont. 132, 142, 461 P.2d 193 (1969), more r e c e n t l y
discussed and approved i n S t a t e v. Anderson,                                Mon t   .         9



                             29 S t . Rep.
            I n Glantz t h e Court s a i d :
           "*    **      t h i s Court does not mean t o imply,
           however, t h a t t h e s t a t e i s r e l i e v e d of t h e
           burden of showing t h a t defendant knew t h e
           v r o h i b i t e d substance was i n h i s vossession.
           such knowledge can be proved by evidence of
           a c t s , d e c l a r a t i o n s , o r conduct of t h e accused
           from which t h e i n f e r e n c e may be drawn t h a t
                             -   -
                                                                -     .- .
           he knew of t h e e x i s t e n c e of t h e prohibited
           substance a t t h e place where i t was found."
           (Emphasis supplied)
            This theory was i n i t i a l l y presented t o the j u r y i n t h e
s t a t e ' s opening statement.              A t t h a t time, t h e s t a t e intended t o
introduce evidence l a t e r i n the c a s e t o support t h a t theory.
However, a s t h e record d i s c l o s e s , such o f f e r was denied.                     After
t h e i n i t i a l opening statement and up t o t h e time t h a t t h e o f f e r
was denied, t h e record d i s c l o s e s numerous r e f e r e n c e s t o t h e
address 805 N. 27th Street, which defense counsel repeatedly
objected to, and in most instances was sustained.   We note that
defense counsel presented nine objections at trial and was
sustained on eight of them.    We also note that defense on several
occasions during cross-examination questioned witnesses in regard
to the premises.    Reviewing the entire record and the discussions
and arguments on the objections, we feel that the court suffi-
ciently protected defendant's rights and cautioned the state to
submit its offer, which when presented was denied in this language:
        "Gentlemen, it appears to me that from whatever
        angle you approach this, from res gestae or proof
        of a collateral fact or a part of general circum-
        stances making up circumstantial proof of the
        State's case, that the decision is largely discre-
        tionary with the Court, to be made in the light of
        all circumstances appearing, and after considering
        the Offer of Proof and the general circumstances
        appearing in this case, I think that the Court is
        required as a matter of fairness to the Defendant
        at this time to deny the Offer of Proof.
        ''In effect, so far as the State is concerned, this
        will place some very severe limitations on the use
        of 805 North 27th Street in further testimony in
        the case. 11
        Immediately following this ruling the state rested its
case.
        As to the opening statement when viewed in light of the
course of the trial, we find that there was simply a failure of
proof by the state of a relationship between defendant and the
named premises.    The opening statement itself does not constitute
evidence against defendant.    It was an expression of the theories
which the prosecution would attempt to prove in the evidence to
be subsequently produced.   We do not condone broad, unproven
statements and do not suggest that an opening statement should
be free from a test of its prejudicial aspects as was applied
by this Court in State v. Zachmeier, 151 Mont. 256, 441 P.2d 737.
        Zachmeier held that the damaging opening statements of
prosecution were not of the nature that the jury would completely
disregard. Too, we are not unmindful of this Court's admonitions
                                  568,
in State v. Langan, 151 Mont. 558/ 445 P.2d 565 and cases cited
therein.   Furthermore, as stated in Fahy v. State of Connecticut,
375 U.S. 85, 84 S.Ct. 229, 11 L ed 2d 171, cited in Langan, the
test remains:
       "Is there a reasonable possibility that the
       inadmissible evidence might have contributed
       to the conviction?"
In the instant case the offered evidence was denied admission
by the court after eight of nine objections by the defense counsel
were sustained.
       The opening remarks of this case do not compare to the
gravity of the remarks in Zachmeier, which involved a confession
of guilt, inadmissible under the Miranda rule. Therefore, we hold
that these references in the opening statement and during trial
were not of such a nature as to contribute to the defendant's
conviction.
       ~efendant's second issue questions the admission in evidence
of the hypodermic needle which defendant left at the police station
and argues that such needle was not connected to the crime, thus
defendant was prejudiced by its admission.
       Reviewing the record we find two established facts that
defense has not refuted.   ( ) Defendant admitted at trial that
                            1
he had received treatment at the Montana State Hospital at Warm
Springs for drug abuse prior to the incidence of his arrest. (2)
He admitted at trial that he had used a similar type needle to
shoot drugs at an earlier unspecified time but during the course
of events leading up to his first treatment at Warm Springs.
       The test of relevancy of this evidence to the crime of
criminal possession of drugs is stated       in McCormick, Law of
Evidence   (1954), at p. 317:
          "What i s the standard of relevance o r probative
          q u a l i t y which evidence must meet i f i t i s t o be
          admitted? W have s a i d t h a t i t must 'tend t o
                                e
          e s t a b l i s h ' t h e i n f e r e n c e f o r which i t i s offered."
          Defendant's second i s s u e expands i n t o h i s t h i r d i s s u e ,
which     questions whether t h e evidence shows t h e defendant was i n
possession of dangerous drugs when i n f a c t t h e drugs were l y i n g
on a public s t r e e t beneath a borrowed automobile he had been
driving.
          Defendant f u r t h e r argues t h e i d e n t i f i a b l e f i n g e r p r i n t
found on t h e p l a s t i c b o t t l e was n o t h i s .      However, t h i s ignores
t h e f a c t t h a t upon a n a l y s i s by the B i l l i n g s p o l i c e department and
t h e Federal Bureau of I n v e s t i g a t i o n , i t was determined t h a t t h e r e
were s i x l a t e n t f i n g e r p r i n t s of which only one was i d e n t i f i a b l e
and t h a t one was n o t t h a t of defendant.
          I n t h e evidence produced a t t r i a l and o f f e r e d t o e s t a b l i s h
defendant's possession of t h e drugs, we have t h e a r r e s t i n g o f f i c e r ' s
testimony t h a t he found t h e drugs beneach t h e c a r defendant had
been d r i v i n g ; and t h a t t h e b o t t l e and p l a s t i c bag containing t h e
drugs d i d n o t have f r o s t on them, while the surrounding a r e a was
covered with f r o s t .       From t h i s a j u r y could reasonably decide
t h e b o t t l e and bag had n o t been l y i n g on t h e s t r e e t t h e e n t i r e
n i g h t , b u t had been placed t h e r e r e c e n t l y .
          Evidence l i n k i n g defendant's c o n s t r u c t i v e possession of the
drugs i s found i n t h e a r r e s t i n g o f f i c e r ' s testimony i n regard
t o h i s stopping of defendant f o r t h e t r a f f i c offense.                  The o f f i c e r
t e s t i f i e d t h a t defendant a f t e r stopping proceeded t o crawl o u t of
t h e passenger s i d e of h i s v e h i c l e on h i s hands and knees; t h a t
although he was unable t o observe defendant's hands f o r a b r i e f
moment while defendant was crawling out of the c a r , he was a b l e
t o determine t h a t defendant's hands d i d touch the ground.                           Further,
t h a t upon r e t u r n i n g t o t h e c a r and f i n d i n g t h e drugs beneath t h e
c a r , i t was h i s observation t h a t h e t i r e s of defendant's v e h i c l e
would have run over and crushed the bottle and bag if these objects
had been on the street before defendant pulled over to the curb.
       On the basis of evidence produced at trial and the circum-
stances under which the drugs were found, we feel the rationale
of Glantz, heretofore discussed, sufficiently answers defendant's
second and third issues questioning the admissibility and weight
of the evidence. There was sufficient evidence submitted to the
jury for it to find constructive possession and we find nothing
in defendant's arguments testing the evidence to disturb the
verdict.
       As to defendant's issues pertaining to instructions given
or refused, we have examined the record and find no error.
       Court's Instruction 14 was taken verbatim from section
93-1301-4, R.C.M.    1947, which states:
       "When an inference arises. An inference must be
       founded :
            It
                 1. On a fact legally proved; and,
            "2. On such a deduction from that fact as is
       warranted by a consideration of the usual propensi-
       ties or passions of men, the particular propensities
       or passions of the person whose act is in question,
       the course of the business, or the course of nature. tt
This instruction was cited with approval by this Court in State
v. Barick, 143 Mont. 273, 283, 389 P.2d 170.
       court's Instruction 16 defines constructive possession
as: "when a person has the intent to have, and has knowledge
that he has capability of control although not in actual physical
control but such thing is under his dominion."       This instruction
is grounded on the decision of this Court in State v. Trowbridge,
157 Mont. 527, 487 P.2d 530.
       ~efendant'soffered Instruction 8 was refused, but defendant
argues on appeal that the jury should have been instructed on what
constituted abandonment.      We find that the facts of this case
do not warrant an instruction on abandonment and thus the trial
court was not in error in refusing defendant's Instruction 8.
          The judgment of the t r i a l court is affirmed,




m   e concur:         /




      Associate Justices.
