DA 11
- 0446 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 129 STATE OF MONTANA, Plaintiff and Appellee, v. JAMES LEE DAVIS, Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Custer, Cause No. DC 10
- 69 Honorable Gary L. Day, Presiding Judge COUNSEL OF RECORD:

For Appellant: Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott , Assistant Appellate Defender,Helena, Montana For Appellee : Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana Wyatt Glade, Custer County Attorney, Miles City, Montana Submitted on Briefs: May 23, 2012 Decided: June19, 2012 Filed:

__________________________________________ Clerk June 19 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Appellant James Lee Davis(Davis) appeals from his convictionin the Sixteenth Judicial District, Custer

County, of one count of criminal distribution of dangerous drugs by accountability pursuant to §§ 45
- 9
- 101, 45
- 2
- 301 and 45
- 2
- 302(3), MCA. Davis claims that the State presented insufficient evidence to prove beyond a reasonable doubt that he provided assistance in the drug deal that preceded his charge. We restate the issue as follows: ¶2 Issue: Did the District Court err when it denied Davis’ m otion to dismiss the charge of criminal distribution of dangerous drugs by accountability on the basis of insufficient evidence ? BACKGROUND ¶3 Davis was charged following a sale of methamphetamine that took place on April 19, 2010, at the Miles City home of Tina Gergen and her roommate Mickell Syring. Davis did not live with the pair , but he spent a large portion of his time at the ho me because he was in a relationship with Syring. As part of an investigation being conducted by law enforcement , an informant began to record drug transactions between himself and Gergen. The informant , who worked with Gergen and had purchased methamphet amine from her s ev eral times prior to becoming an informant, was recruited for the role after a drug
- related arrest. ¶4 On April 16, 2010, the informantc alled Gergen ’ s cell phonet o see if she had methamphetamine available for sale. Gergen told him that she wasn ’ t sure if she had the3

key for al ockbox that contained the drugs , which was kept in Syring ’ s bedroom
. Although Syring was not at home, Dav is was present and was asked by Gergen to look for the key. S he told the informantthat he should call back in 30 minutes. Davis answered the phone when the informantcalled back, stating, “ [Tina] told me to tell you, we don ’ t have a key. ” The informant thena sked Davis to tell Gergen that he would

“ catch up with her next week sometime. ” ¶5 On April 19, 2010, the informantand Gergen made arrangements by phone for the purchase of methamphetamine. The deal was completed later that day when the informantpurchased the drugs from Gergen at the front door of her home. The informant testified that he did not see D avis during this purchase. ¶6 In the following months, ag ents purchased methamphetamine from Gergen and Syring multiple times. D avis was not present at any of these transactions, although Syring and Gergen drove his truck to one of the sales. A searchwarrant was executed th e following September at Gergen and Syring ’ s home and law enforcement seized the lockbox, drug paraphernalia, a scale, and a substance used to cut methamphetamine. Charges were filed ag

ainst Gergen, Syring and Davis. D avis was specifically charged with criminaldistribution of dangerous drugs by accountability for the purchase that took place on April 19 th
. Because his truck was driven to one of the sales, he was also charged with felony possession of property subject to criminal forf eiture pursuant to § 45
- 9
-206, MCA. ¶7 Davis mo ved to dismiss his charges , arg uing that there was insufficient evidence to charge him with either offense. His motion was denied. At the close of the State ’ s4

case during athree
- day jury trial , the District Court denied a second motion for a directed verdict based upon insufficient evidence. Davis’ counsel unsuccessfully argued that the State had merely showed his presence on April 16, but had presented no credible ev idence reg

arding his knowledge of or assi stance with the later transaction. Thej ury subsequently convicted him of criminal distribution of dangerous drugs by accountability, but found him not guilty of possession of property subject to criminal forfeiture. Heappe als from the court ’ s denial of his motion to dismiss. STANDARD S OF REVIEW ¶8 The denial of a motion to dismiss in a criminal case presents a question of law which we review de novo. State v. LeMay , 2011 MT 323, ¶ 27, 363 M ont. 172, 266 P.3d 1278. “ We review a question on the sufficien cy of the evidence to sustain a conviction to determine whether, after viewing the evidence in a light most fa vorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ” State v. Booth , 2012 MT 40, ¶ 7, 364 Mont. 190, 272 P.3d 89. ANALYSIS ¶9 Davis arg

ues that he only participated in conv ersations on April 16 , that failed to materialize into a drug deal, and that the State provided no evidence that he assist ed Gergen with the April 1 9 transaction
. Accordingly, he arg ues that the evidence was insufficient to support the jury’s finding of guilt. The State argues that Davis’ assistance prior to the deal actually happening was sufficient for conviction under Montana law.5

¶10 Issue: Did the District Court err when it denied Davis’ m otion to dismiss the charge of criminal distribution of dangerous drugs by accountability on the basis of insufficient evidence ? ¶11 ‘ “ The Due Process Clause protects the accused against conv iction except upon proof b eyond a reasonable doubt of ev ery fact necessary to constitute the crime with which he is charged. ’ ” State v. Newman , 2005 MT 348, ¶ 19, 330 Mont. 160,1 27 P.3d 374 (quoting In re Wi nship , 397 U.S. 358, 364, 90 S. Ct. 1068 ( 1970))
. When proof beyond a reasonable doubt has not been established, § 46
- 16
-403, MCA, permits the dismissal of

a criminal action at the close of the prosecution’s evidence
. “ A motion to dismiss for insufficient evidence is appropriate only if, viewing the evidence in the light mo st fa vorable to the prosecution, there is not sufficient evidence upon which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. ” State v. Rosling, 2008 MT 62 , ¶ 35, 342 Mont. 1,180 P.3d 1102
. Daviscontend s here, as he did at the District Court, that the evidence is insufficient for a rational trier of fact to find the essential elements of criminal distribution of dangerous drugs by accountability pursuant to §§ 45
- 9
- 101, 45
-2
- 301 and 45
-2
- 302(3), MCA. Weagree. ¶12 A person is accountable for an offense when “ either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense
. ”Section 45
-2
- 302 (3), MCA. A person commits the offense of criminal distribution of dangerous drugsw hen that person “ sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug
. ”6

Section 45
- 9
- 101 (1), MCA. Accordingly, the State was required to establish that Davis promoted or facilitatedGergen ’s sale of methamphetamine to the informanton April 19, 2010. State v. Flatley , 2000 MT 295 , ¶ 12, 302 Mont. 314, 14 P.3d 1195 ( c iting State v. Lyons , 254 Mont. 360, 366, 838 P.2d 397, 401 (1992) )
. ¶13 The Statef

ocuses on the “either before or during the commission of an offense” language within § 45
- 2
- 302(3), MCA, for the arg ument that Davis’ presence during the search for the key on April 16, and his subsequent conversationwith the informant constituted effort st o aid Gergen’s sale of drugs three days later. However, Davis’ alleged efforts in this case are similar to those of the defendant in Flatley , in that both defendants’ effort s were not “predicated upon a separate, underlying offense .” Flatley , ¶ 15 ( citing State v. Downing, 240 Mont. 215, 217, 783 P.2d 412, 414 (1989) ). In Flatley , the defendant’s efforts to arrange a drug transaction were negated because the dealer had gonef ishing. Flatley , ¶

¶ 6, 15. Accordingly, when one of the defendant’sf riends later offered to get drugs from a different source with no prompting from Flatl ey himself, this Court held that there was insufficient evidence to convict him of accountab ility f or that sale because his prior actions were not coordinate with the underlying offense. See Flatley, ¶ 16. Here , the State was unable to establish that Davis’ actions on April 16 were untaken to facilitate or promotethe transaction that took place between Gergen and the informant on April 19. ¶14 The State also cites to State v. Maetche , 2008 MT 184, 343 Mont. 464, 185 P.3d 980, for the proposition that circumstantial evidence can be used to overcome the presumption that mere presence at the time a crimei s committed does not necessarily7

ma ke a person accountable for that crime. In this case, Davis was not presentat Gergen’s house on April 19 during the sale of the drugs , and there is no indication that he played any part facilitating the transaction. ¶15 Davis’ p resence during a failed transaction days earlier is insufficient to prove accountability. Gergen’s statement that Davis was searching for the key, and Davis’ later ag reement to relay the message that the informantwould “catch up with her next we ek sometime” conv

eyed nothing more than thep lain meaning of both messages. Neither wasindicative of any role in the April 19 sale. Therefore, arational trier of fact, viewing the evidence in the light most fa vorable to the prosecution, could not have found that Davis purposely promoted or facilitated the sale of drugs by Gergen to the informant
. CONCLUSION ¶16 Based on the foregoing, we rev ersethe judgment of the

District Court and dismiss Davis’ criminal distribution of dangerous drugs by accountability charge with prejudice.
/S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE