No. 89-164 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTIMOTHY ERNEST KRUM, 

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Defendant and Appellant. 

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APPEAL FROM: District Court of the Thirteenth ~udicial District, 

In and for the County of Yellowstone, 

The Honorable Russell ~illner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, ~illings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

Harold Hanser, County Attorney; Charles Bradley, Deputy 

County Attorney, ~illings, Montana 

Filed: 

Submitted on ~riefs: July 13, 1989 

Decided: August 10, 1989 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Krum appeals his January 4, 1989, conviction following a twoday trial by jury in the Thirteenth Judicial District for criminal 

possession of a dangerous drug in violation of section 45-9-102 (1) , 

MCA. Krum was sentenced on February 7, 1989, to five years in the 

Montana State Prison. This sentence was scheduled to run consecutively to the prison term currently being served by Krum on another 

offense. 

Krum asserts on appeal that there was insufficient evidence 

in the record to sustain his conviction. We disagree and herein 

affirm Krum's conviction for criminal possession of a dangerous 

drug. 

Krum was charged by information on July 19, 1988, for 

violation of section 45-9-102 (I), MCA. Jury trial was held January 

3 and 4, 1989. Prior to trial, a stipulation was entered into 

between the State and the defendant. The stipulation was read by 

the court to the jury at the opening of the State's case. 

The following facts were contained in the stipulation: Krum's 

arrest on July 12, 1988, was lawful. At the time of his arrest, 

two pill bottles were taken from his backpack. The two bottles 

contained 173 yellow caplets (State's Exhibit 1) One bottle 

originally contained Dilaudid and the prescription for that was 

issued in the name of Bill Davis, Krumls stepfather. The prescription label was affixed to that bottle. The pills were analyzed by 

the state crime lab, and it was determined that the caplets in 

Exhibit #1 contained Talwin NX, a Schedule IV controlled substance 

which contains pentazocine, a Schedule IV analgesic (pain killer). 

See section 50-32-229, MCA. The chain of possession of both 

bottles and their contents had not been disturbed and there is no 

evidence of tampering. 
At trial, Krum testified that he found two bottles of pills 

in a park located six blocks from his stepfather's house. He 

testified that he read the label which was affixed to one bottle 

and believed the contents to be Dilaudid. He put the bottles in 

his backpack and had them there for two or three days prior to his 

arrest. He was in possession of them at the time of his arrest. 

Krum further testified that the bottle to which was affixed 

the prescription label made out to his stepfather was not one of 

the two bottles he found in the park and put in his backpack. Krum 

asserted that someone had switched the bottles and assumed the 

switch was made by law enforcement personnel. When questioned 

about his theory regarding the Krum said law enforcement 

personnel could have gone to his stepfather's house, rang the front 

doorbell, and asked for a bottle of Davis' prescription pain 

killers. Krum denied on cross-examination that he took the pills 

from his stepfather's house while Krum was living there. 

The State's evidence consisted of the stipulation, the bottles 

and the pills. On appeal, Krum asserts that there is insufficient 

State's evidence to sustain a conviction because he did not I1knowl1 

the contents of the bottles to be a controlled substance; rather, 

he believed he was in possession of Dilaudid. We do not agree. 

Felony criminal possession of a dangerous drug requires proof 

that a defendant: (1) possessed (2) dangerous drugs. State v. 

Smith (1983), 203 Mont. 346, 661 P.2d 463. lnPossession" is defined 

as: 

[tlhe knowing control of anything for a suff icient time to be able to terminate control. 

Section 45-2-101(52), MCA. Thus, the mental state of 'lknowinglyll 

is also contained in the definition of possession of dangerous 

drugs. Section 45-9-102(1), MCA. "Knowingly1' is defined as 

follows: 
"Knowinglyn--a person acts knowingly with 

respect to conduct or a circumstance described 

by a statute defining an offense when he is 

aware of his conduct or that the circumstance 

exists . . . when knowledge of the existence 

of a particular fact is an element of an 

offense, such knowledge is established if a 

person is aware of a high probability of its 

existence . . . 

Section 45-2-101 (33) , MCA. 

Additionally, a mental state may be inferred from the acts of 

the accused and the facts and circumstances connected with the 

offense. Section 45-2-103, MCA. The court instructed the jury in 

Instruction Nos. 4 and 7 that the State had to prove that Krum 

ffpurposelyff possessed Talwin. The result was that the State had 

to prove that Krum both purposely and knowingly was in control of 

a dangerous drug. As noted in the elements set forth above, the 

State is only obligated to prove ffknowingff control of the dangerous 

drug. However in this case, the State carried its burden of proof 

on the instruction of ffpurposelyff as well. No prejudice to Krum 

can be found in the erroneous placement of this additional burden 

on the State. 

The standard of review applied to this case is whether, after 

reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the three 

essential elements of the crime charged (violation of section 45- 

9-102(1), MCA) beyond a reasonable doubt. If so, then there is 

sufficient evidence to support the verdict. Jackson v. Virginia 

(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. 

McDonald (Mont. 1987), 734 P.2d 1216, 44 St.Rep. 593. We conclude 

that a rational trier could find all elements satisfied and thus, 

for the reasons set forth below, there was sufficient evidence to 

support the verdict. 

a. Knowledge. 
Krum hinges his defense on what he asserts is his lack of 

knowledge. That argument is without merit. Although knowledge 

cannot be inferred from mere possession alone, knowledge may be 

proved by evidence of acts, declarations or conduct of the accused 

from which an inference of knowledge may be drawn. State v. 

Anderson (1972), 159 Mont. 344, 351, 498 P.2d 295, 299. With that 

in mind, we examine Krum's conduct and declarations. 

Krum was carrying the two bottles of pills when he was 

arrested. He stated he believed them to be a prescription of 

Dilaudid which he found in the park. Although he testified that 

he examined the pills and believed them to be Dilaudid, the record 

reflects that each yellow pill was marked with the letter "T" on 

one side. Further, Krum testified that part of the prescription 

label was torn from the bottle, but the part that remained showed 

that the prescription was issued in the name of "Billy D." Yet, 

Krum stated these pills he "foundv could not have belonged to his 

stepfather, Bill Davis. 

When questioned as to whether he had taken the pills with his 

stepfather's name on them while he had been living in his stepfather 's home, Krum responded that l'someonetl must have switched 

the pill bottles on him. 

Krumls testimony regarding where he had obtained the two 

bottles of controlled substances and how his stepfather's prescription bottle got in his backpack was incredible. This raised an 

inference allowing the jury to disbelieve Krum. Viewing this in 

the light most favorable to the State, there is sufficient evidence 

to prove "knowledgev beyond a reasonable doubt. The remaining 

elements are not as easily contested. 

b. Control. 

Krum was exercising exclusive control of the two pill bottles 

and their contents when he placed them into his backpack. He kept 
them in his backpack for two or three days. That time is certainly 

of a sufficient length wherein Krum could have terminated control. 

However, Krum did not terminate his control over the contents of 

the two bottles, and they were still in his backpack when he was 

arrested. 

It is hard to dispute control when Krum was carrying the pills 

around for two or three days. At one point on cross-examination, 

Krum was asked why he did not throw the drugs away if he had found 

them. Krum answered, "1 more or less forgot they were in there 

... That testimony is still insufficient to dispute that Krum 

had control of the pills for a sufficient time to terminate 

control. 

The State proved this element beyond a reasonable doubt. 

c. Dangerous Drug. 

The results of the state crime lab analysis of the contents 

of the pill bottles revealed them to be Talwin, NX, a prescription 

drug containing pentazocine. The defendant stipulated to the 

result and to the accuracy of the results. 

A dangerous drug, as defined by section 50-32-101, MCA, means 

any substance or immediate precursor delineated in Schedules I-V 

in the statutes. In section 50-32-229, MCA, the Schedule IV 

controlled substances are listed. At section 50-32-229(5)(a), 

pentazocine is specifically listed by name as a dangerous drug. 

Little more can be said regarding this element, especially since 

the defendant stipulated to the results of the crime lab analysis. 

Based on the foregoing analysis, we conclude there was 

sufficient evidence to support the jury's verdict. Krum's conviction for violation of section 45-9-102(1), MCA, and the sentence 

imposed thereon are hereby affirmed. 

Chief Justice 

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We concur: 

' Justices