No. 90-403 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMARK STUART GORDER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Julie A. Macek, Attorney at Law, Great Falls, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Elizabeth L. Griffing, Assistant Attorney General, 

Helena, Montana 

Patrick L. Paul, Cascade County Attorney, Great 

Falls, Montana 

Steven Hudspeth, Deputy County Attorney, Great 

Falls, Montana 'LED 

Submitted on Briefs: March 4, 1991 

MAY 2 3 1995 

Decided: May 23, 1991 

Filed: &d Smid 

CLERK OF SUPREME CO 

STARE OF MONTAN 

' clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant/appellant, Mark Stuart Gorder, was convicted of 

criminal possession of dangerous drugs, a felony pursuant to § 45- 

9-102, MCA, following a jury trial in the District Court of the 

Eighth Judicial District, Cascade County. He appeals. We reverse. 

On November 28, 1988, two agents from the State's Criminal 

Investigation Bureau traveled to Great Falls, Montana, to serve an 

arrest warrant on appellant for charges pending against him in 

another county in Montana. In the initial appearance on these 

charges appellant stated that his residence was a travel trailer 

located on Lot No. 12, Cascade Trailer Park, Cascade, Montana. 

Law enforcement officers applied for and received a search 

warrant for the travel trailer located in Cascade. They went to 

the trailer park and determined that appellant's trailer was in 

storage and had not been occupied recently. The officers searched 

the trailer and found a folded ten-dollar bill in the cupboard area 

above a couch which folded out to a bed. One officer picked up the 

bill, put it in his hand, examined it, then replaced the bill in 

the cupboard and photographed it. The officer testified that he 

noted a small amount of white powdery substance on the bill. 

When the bill was sent to the crime laboratory, the lab found 

the powder folded within the bill weighed .05 grams or 50 

milligrams which is one-twentieth of a gram. The powder tested 

positive for cocaine. The bill at no time was processed for 
fingerprints. 

One Bob Neer testified for appellant at trial, stating that 

he stayed with appellant in his trailer during a week to ten-day 

visit with appellant in Minnesota in February of 1988. Neer 

testified that during that visit he purchased half a gram of 

cocaine which was contained in a folded ten-dollar bill. While 

visiting appellant, Neer would empty his pockets and put the 

contents in the cupboard above the bed where the ten-dollar bill 

containing cocaine was later found by law officers. Neer further 

testified that he had forgotten the bill and some clothes in 

appellant's trailer. During cross-examination the deputy county 

attorney asked Neer, ''Did you ever tell the defendant you bought 

some cocaine?'I Neer answered : '!No. 

The issue is whether there was sufficient evidence to support 

the jury's verdict that appellant possessed dangerous drugs. 

In State v. Smith (1983), 203 Mont. 346, 661 P.2d 463, this 

Court held that felony criminal possession of a dangerous drug 

requires proof that a defendant (1) possessed (2) dangerous drugs. 

Section 45-2-101 (52) , MCA, defines llpossessionll as 'Ithe knowing 

control of anything for a sufficient time to be able to terminate 

control. Thus, the mental state of "kn~wingly'~ is also contained 

in the definition of possession of dangerous drugs. Section 45- 

9-102 (1) , MCA. 

Therefore to establish the offense of criminal possession of 

dangerous drugs, a felony, under 5 45-9-102, MCA, the State must 
prove: (1) knowing (2) control of a (3) dangerous drug for a 

sufficient time to be able to terminate control. See Compiler's 

Comments, !j 45-9-102, MCA. 

The standard of review to be applied 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 beyond a reasonable doubt. 

Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 

61 L.Ed.2d 560, 573; State v. McDonald (1987), 226 Mont. 208, 210, 

734 P.2d 1216, 1217. 

Here the State failed to prove beyond a reasonable doubt that 

appellant had "possession" of the cocaine. There is no evidence 

that appellant had any I1actual" possession of the cocaine. The 

State's evidence that the appellant had "constructive" possession 

of the ten-dollar bill containing traces of cocaine is not 

sufficient to find appellant guilty of a felony. 

Other than the fact that the trailer was owned by appellant, 

no evidence was presented to the jury as to appellant's ownership 

of the drug. The State did not rebut the testimony of Mr. Neer 

that he was the owner of the ten-dollar bill which contained the 

traces of cocaine. Where the drug belonged to Mr. Neer, there was 

a lack of showing that appellant had lldominion" over the drug. 

The State failed to prove the element of possession. 

The second element the State must prove beyond a reasonable 

doubt is that any possession of the drug by appellant must have 
been llknowingly.ll Section 45-2-101(33), MCA, provides that a 

person acts knowingly with respect to a circumstance described by 

a statute "when he is aware . . . that the circumstance exists." 

The State has failed to carry the burden of showing that appellant 

knew the prohibited substance was either in his lldominionll or 

"knownn to be in his llpossession.l' See State ex rel. Glantz v. 

District Court (1969), 154 Mont. 132, 461 P.2d 193. 

Other than the fact that the drug was found in appellant's 

trailer, no evidence was produced to tie appellant to the drug. 

Appellant testified that the last time he had lived in the trailer 

was in the summer of 1988 at Essex, Montana. People were in and 

out of the trailer in Essex. At the end of August the trailer was 

moved to Cascade. Appellant testified that in September of 1988, 

he cleaned out the trailer, prepared it for winter storage and took 

all items of value from the trailer. The evidence was that 

appellant's stored travel trailer had no water hook up, no 

electricity, no edible food, and the windows were shuttered and the 

door padlocked. Appellant further testified that the trailer, 

while parked in Cascade, was broken into twice and beer cans and 

other evidence of a party were left in the trailer. Another 

witness testified that he was with appellant when the first breakin was discovered. Appellant's father testified that after the 

second break-in he saw where the door of the trailer had been pried 

open when he put on a hasp for a new lock. 

Without any further proof of appellant's ownership or 
C I 

knowledge of the ten-dollar bill containing the drug, we hold that 

the mere fact that the bill was found in appellant's stored travel 

trailer would not allow any rational trier of fact to conclude that 

appellant had knowing possession of the drug. Such a result would, 

in this Court's opinion, be both unjust and unsupported by the 

evidence. 

We reverse the conviction of appellant for criminal possession 

of dangerous drugs and direct that charges against appellant in 

this matter be dismissed with prejudice. 

We concur: 

Chief Justice 

Justices 
Justice Fred J. Weber dissents as follows: 

Possession of dangerous drugs may be either I1actuall1 or 

llconstructivell. State v. Meader (1979), 184 Mont. 32, 42, 601 P.2d 

386, 392. Actual possession means that the drugs are in the 

personal custody of the person charged with possession; whereas 

constructive possession means that the drugs are not in actual 

physical possession butthat the person charged with possession has 

dominion and control over the drugs. Meader, 184 Mont. at 42, 601 

P.2d at 392. constructive possession is shown when a person either 

has control or a risht to control the drug. Meader, 184 Mont. at 

43, 601 P.2d at 392. 

The mental state of llknowinglyll may be inferred from the acts 

of the accused and the facts and circumstances connected with the 

offense. § 45-2-103(3), MCA. Although knowledge may not be 

inferred from mere possession alone, knowledge mav be proved by 

evidence of acts, declarations or conduct of the accused from which 

an inference of knowledse may be drawn. State v. Krum (1989) , 238 

Mont. 359, 362, 777 P.2d 889, 891. The question of intent 

therefore is a question for the iurv. Meader, 184 Mont. at 43, 601 

P.2d at 392. 

The facts cited by the majority opinion to support its 

conclusion are directly from defendant's own testimony. Defendant 

himself contradicted many of those facts during his testimony. 

When conflicting evidence exists, the credibility and weight given 

to the conflicting evidence is within the iurvls province. 5 26- 
1-302, MCA; Wheeler v. City of Bozeman (1988), 232 Mont. 433, 437, 

In the initial appearance on these charges defendant stated 

that his residence was a travel trailer located on Lot No. 12, 

Cascade Trailer Park, Cascade, Montana. A search warrant was 

obtained for the trailer and in the course of the search the 

officers found in a cupboard a folded ten-dollar bill containing 

approximately .05 grams of cocaine. 

Bob Neer, witness for the defense, testified that the folded 

ten-dollar bill containing cocaine belonged to him rather than the 

defendant and had been placed in the cupboard by him several months 

earlier. Defendant claims he did not know the bill was in the 

cupboard and argues that he could not have control when he did not 

know that the bill existed. The facts support a contrary 

inference. 

The trailer was registered to the defendant who admitted that 

he had purchased the trailer and had lived in the trailer until 

September of 1988. Defendant listed the trailer as his address 

when he was arrested. The travel trailer was not hooked up to 

water or power but the defendant admitted that he spent an 

occasional night there. He kept his belongings and clothing in the 

cupboards, including the cupboard where the cocaine was found. He 

used a padlock to secure the trailer. The officers who conducted 

the search of the trailer obtained keys from the defendant to the 

padlock on the trailer. The defendant testified that, in 

September, he prepared the trailer for winter and cleaned it out, 
including the cupboards. He also testified that the trailer had 

been broken into twice but that after the second break-in, he had 

cleaned the trailer, checked the cupboards, and put a bigger lock 

on the door. He continued to check the trailer regularly and had 

been in the trailer a couple of weeks prior to the search in 

November 1988. All of these activities by defendant occurred after 

Bob Neer allegedly left the ten dollar bill in the cupboard. The 

officer testified that the bill was easily seen when he opened the 

cupboard door. 

Under facts strikingly similar to this case, we recently held 

that the facts supported the inference that defendant had knowing 

control and possession of the cocaine. State v. Van Voast (1991), 

805 P.2d 1380, 48 St.Rep. 160. In the Van Voast case, the drugs 

were also found in a stored, locked trailer over which the 

defendant had dominion and control. We held that the defendant 

had constructive dominion and control over the drugs contained in 

the trailer. 

As in the Van Voast case, the facts in this case support the 

conclusion that any rational trier of fact could have found beyond 

a reasonable doubt the essential elements of the crime and are 

sufficient to support the conviction of knowing possession of 

dangerous drugs. By reversing this case, the majority has ignored 

the Van Voast case and has assumed the fact finding role of the 

jury . 
Chief Justice J. A. Turnage and Justice R. C. McDonough: 

We concur in the foregoing dissent of Justice Weber. 
Justice Terry N. Trieweiler concurring: 

I concur in the majority opinion. 

The thrust of the dissenting opinion is to point out that the 

defendant's testimony was contradicted--as if that fact is somehow 

relevant. 

The defendant did not have the burden of proving his 

innocence. The State had the burden of proving his guilt. 

In this case, the State had the burden of proving that the 

defendant knowinslv possessed a dangerous drug. All the State did 

prove was that residue of cocaine was found on a ten dollar bill 

located in a locked-up, uninhabitable travel trailer which the 

defendant had abandoned a couple of months before the drug was 

found. Those facts are simply not sufficient to put someone in 

jail for commission of a serious felony. 

Section 45-2-101(52), MCA, provides that l"[p]ossession' is 

the knowinq control of anything for a sufficient time to terminate 

control.I1 (Emphasis added.) 

Section 45-2-101(33), MCA, provides that a person acts 

knowingly with respect to a circumstance described in a statute 

"when he is aware . . . that the circumstance exists." 

The State has argued, and the dissenters have concluded, that 

this defendant did not have actual possession of a dangerous drug, 

but that he had constructive possession since he had dominion and 

control over the travel trailer in which the drug was found. 

However, constructive possession without knowledge is not 
sufficient for conviction of the crime of which the defendant was 

accused. Furthermore, this Court has previously held that 

knowledge may not be inferred from possession alone. State v. Krum 

238 Mont. 359, 362, 777 P.2d 889, 891 (1989). 

In this case, there was absolutely no substantial evidence to 

prove the defendant had knowledge that cocaine was located in his 

travel trailer, other than the fact that he owned the travel 

trailer. 

The mere fact that he had cleaned the trailer out at some time 

before abandoning it does not make it any more likely that he knew 

of the presence of drugs. In fact, it is more reasonable to infer 

that if he had been aware of the presence of the ten dollar bill 

when he cleaned the trailer out and abandoned it, he would not have 

left it in the trailer. 

Inconsistencies in the defendant's testimony did not change 

the fact that the State failed to prove a crucial element of the 

crime with which the defendant was charged. For these reasons, I 

concur in the majority opinion.