No. 90-338 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF 

-vDAVID VAN VOAST, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Manley; Manley Law Offices; Polson, Montana 

For Respondent: 

Marc Racicot, Attorney General; Kathy Seeley, Asst. 

Atty. General; Helena, Montana 

Larry Nistler, Lake County Attorney, Robert S. 

Anderson, Lake County Dep. Atty.;Polson, Montana 

Submitted on Briefs: January 3, 1991 

Decided: February 12, 1991 (. Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, David Van Voast, was convicted of the offense of 

criminal possession of dangerous drugs, a felony pursuant to 5 45- 

9-101, following a non-jury trial in the District Court for the 

Twentieth Judicial District, Lake County. Defendant appeals. We 

affirm. 

The issues are: 

1. Was there substantial, credible evidence that defendant 

knowingly possessed dangerous drugs? 

2. Was the defendant denied his right to a speedy trial? 

3. Did the ~istrict Court err in granting the State's motion 

to add a witness twenty-four days before trial? 

4. Did the District Court err when it denied defendant's 

motion to suppress evidence seized during search and seizure? 

5. Did the District Court err when it denied the defendant's 

motion to reopen the suppression hearing? 

On May 26, 1989, five officers of the Lake County drug task 

force executed a search warrant authorizing the search of 

defendant's residence, outbuildings and nearby vehicles for a large 

caliber single action Colt-type revolver and other evidence and 

fruits of the crime of Intimidation, a felony. One of the officers 

found a loaded handgun in the side pocket of a recliner located in 

the living room of defendant's residence. Lying on top of the 

weapon was a plastic baggie containing a green leafy substance, 

believed to be marijuana. Because of the discovery of the 

marijuana, a second warrant was issued authorizing seizure of 

2 
marijuana and other evidence and fruits of the crime of Criminal 

Possession of Dangerous Drugs from the defendant's residence, 

outbuildings, and nearby vehicles. During the second search, a 

camping trailer located approximately 130 feet from the defendant's 

residence was found to be locked and secured. The camper belonged 

to the defendant. The key to the camper was discovered on a rack 

of keys above the telephone in defendant's residence. Using the 

key, the officers unlocked the camper and discovered two plastic 

bags containing approximately 173 grams of marijuana inside a black 

bag stowed in a seat compartment. 

I 

Was there substantial, credible evidence that defendant 

knowingly possessed dangerous drugs? 

The test applied by this Court to determine whether the 

evidence is sufficient to support the verdict is whether, after 

viewing the evidence in light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. State v. Krum (1989), 238 

Mont. 359, 362, 777 P.2d 889, 891. 

Defendant argues that while the State may have shown 

constructive possession of marijuana because defendant owned the 

camper where the marijuana was found, there was no evidence offered 

that he 'lknowinglyl' possessed the substance. Therefore the 

essential element of the mental state of "knowing posse~sion~~ was 

not satisfied. 

Defendant makes an invalid distinction between l'constructive 
possessionv' and "knowing possessionn. Possession of dangerous 

drugs may be either llactuall' or llconstructive". 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 but that the person 

charged with possession has dominion and control over the drugs. 

Meader, 184 Mont. at 42, 601 P.2d at 392. In order to find either 

actual or constructive possession, the fact finder must find that 

there was "knowingw possession. flPossessionll is defined as 'Ithe 

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

terminate control.tt 1 45-2-101 (52), MCA. The mental state of 

'Iknowingly1' is therefore included as part of the definition of 

'lpossessionw, whether it be actual or constructive. A mental state 

may be inferred from the acts of the accused and the facts and 

circumstances connected with the offense. 5 45-2-103(3), MCA; 

Krum, 238 Mont. at 361, 777 P.2d at 890. 

In this case there was adequate evidence presented to support 

a conclusion that defendant "knowinglyu' possessed the marijuana. 

The first baggie of marijuana was found in defendant Is living room 

in the side pocket of defendant's chair on top of his handgun. The 

large bags of marijuana were found in a locked camping trailer 

which belonged to the defendant. The camper was parked within 130 

feet of defendant's residence. The key to the camper was found 

hanging above the telephone in defendant's residence. Defendant's 

girlfriend denied that she had keys to the camper. These 
circumstances support the conclusion that defendant had knowing 

control and possession of the marijuana. We affirm the holding of 

the District Court that defendant was in knowing possession of 

dangerous drugs. 

Was the defendant denied his right to a speedy trial? 

Any person accused of a crime is guaranteed a speedy trial by 

the Sixth Amendment to the United States Constitution, which is 

made applicable to the states by the Fourteenth Amendment. Klopfer 

v. North Carolina (1967), 386 U.S. 213. The test used to determine 

whether the constitutional right to a speedy trial has been 

violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, and 

was adopted by this Court in Briceno v. District Court 

Mont. 516, 518, 568 P.2d 162, 163-64: 

These cases involve a sensitive balancing of four 

factors, in which the conduct of the prosecution and 

defendant are weighed in determining whether there has 

been a denial of the right to a speedy trial. The four 

factors to be evaluated and balanced are: 

(1) Length of delay; 

(2) Reason for delay; 

(3) Assertion of the right by defendant; and 

(4) Prejudice to the defendant. 

No single factor is determative. Each facet of the analysis 

is weighed in light of the surrounding facts and circumstances. 

State v. Morris (1988), 230 Mont. 311, 317, 749 P.2d 1379, 1382. 

The right to speedy trial attaches at the moment a defendant 

is accused, and that may occur at the time of arrest, at the time 

of the filing of a complaint or information, or at the time of 

indictment. Morris, 230 Mont. at 315, 749 P.2d at 1381. In this 
case there were 225 days between the defendant's arrest and his 

trial. This delay is long enough to trigger the speedy trial 

inquiry. State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d 

1365, 1370. The State now has the burden of providing a reasonable 

explanation for the delay and showing that the defendant was not 

prejudiced by the delay. State v. Curtis (1990), 241 Mont. 288, 

301, 787 P.2d 306, 313. The 225 day delay in this case was 

institutional delay and is chargable to the State. However 

institutional delay weighs less heavily than other kinds of delays 

in the balancing process. Curtis, 241 Mont. at 301, 787 P.2d at 

315. 

In considering whether the defendant was prejudiced, the court 

must look to the interests protected by the right to speedy trial: 

(1) to prevent oppressive pretrial incarceration, (2) to minimize 

the defendant's anxiety and concern, and (3) to limit the 

impairment of the defense. Barker, 407 U.S. at 532; Curtis, 241 

Mont. at 303, 787 P.2d at 315. 

The defendant was out on bond during the entire period from 

arrest until trial and so the first interest was protected. 

As to the second interest, defendant testified that stress was 

causing him to drink ''heavier than I want to1' and that he had 

trouble sleeping at night. The anxiety and concern alleged by the 

defendant are not excessive for one charged with a felony and are 

not sufficient to violate the right to speedy trial. A certain 

amount of anxiety and concern is inherent in being accused of a 

crime. Curtis, 241 Mont. at 303, 787 P.2d at 316. 
The crucial factor in a prejudice determination is whether the 

defense has been impaired. State v. Waters (1987), 228 Mont. 490, 

494, 743 P. 2d 617, 620. No evidence was presented that the defense 

was impaired by the delay. The defendant testified at the hearing 

on the speedy trial motion that the potential defense witnesses 

were available to testify, had not forgotten what had happened and 

had no memory loss. 

In sum, the delay in this case was institutional. The 

defendant suffered little more anxiety than would normally be 

expected. Most importantly, the defense was not impaired by the 

delay. We affirm the District Court's holding that the State did 

not violate the defendant's right to a speedy trial. 

Did the District Court err in granting the State's motion to 

add a witness twenty-four days before trial? 

Section 46-15-322, MCA, requires the State to show good cause 

for adding a witness after arraignment. In this case the State 

made a motion to the District Court to add a witness from the State 

Crime Lab. The information charging the defendant listed as 

witnesses "Lori Moffatt, State Crime Lab and Unknown, State Crime 

Lab". Twenty-four days prior to trial, the State filed a motion 

to replace I1Unknown, State Crime Lab", with the name of ItAlice 

Ammen, Division of Forensic Sciencett. The motion stated that Ms. 

Ammen's report and resume had been previously provided to the 

defendant and that counsel for the defendant had no objection to 

the addition of the witness. Defense counsel filed a brief in 
opposition to the State's motion to add Ms. Ammen, stating that 

there had been a misunderstanding and defense did object. 

Section 46-15-329, MCA, gives district courts the flexibility 

to impose sanctions commensurate with a failure to comply with 

discovery orders. The statute does not mandate automatic exclusion 

for noncompliance. Waters, 228 Mont. at 495, 743 P.2d at 621. By 

its terms, 5 46-15-329, MCA, provides that Itthe court may impose 

any sanction that it finds just under the circumstances . . .I1 

Imposition of sanction is a matter best left to the sound 

discretion of the District Court. Such discretion allows the court 

to consider the reason why disclosure was not made, whether the 

noncompliance was willful, the amount of prejudice to the opposing 

party, and any other relevant circumstances. Absent a clear abuse 

of discretion, the decision of the District Court must be upheld. 

Waters, 228 Mont. at 495, 743 P.2d at 621. 

In this case the reason disclosure was not made earlier was 

the lack of knowledge of which forensic scientist from the State 

Crime Lab would be testifying. There is no indication of willful 

noncompliance with the discovery statutes. Defendant knew Ms. 

Ammen's identity 24 days before trial and can claim no surprise. 

The District Court did not err when it granted the State's motion 

to add this witness. 

IV 

Did the District Court err when it denied defendant's motion 

to suppress evidence seized during search and seizure? 

Two search warrants were executed on defendant's residence and 
surrounding area. Defendant attacks both searches based on 

probable cause and claims the evidence should be suppressed. 

The test for determining probable cause for issuance of a 

search warrant is the "totality of the circumstances1' test set 

forth in Illinois v. Gates (1983), 462 U.S. 213. State v. Sundberg 

(1988), 235 Mont. 115, 119, 765 P.2d 736, 739. An affidavit 

supporting a search warrant is to be interpreted by the magistrate 

and examined by the reviewing court in a common-sense, realistic 

fashion. State v. O'Neill (1984), 208 Mont. 386, 393, 679 P.2d 

760, 764. The issuing magistrate must only determine that there 

is a probability, not a prima facie showing of criminal activity. 

OINeill, 208 Mont. at 393, 679 P.2d at 764. The review of the 

sufficiency of an affidavit is not a de novo review and the 

magistrate's determination should be paid great deference by 

reviewing courts. Sundberq, 235 Mont. at 122-23, 765 P.2d at 741. 

In this case, the totality of the circumstances provided 

probable cause to issue both search warrants. The first warrant 

was issued on the probability that evidence of the crime of 

intimidation would be found in the defendant's residence, 

outbuildings, or nearby vehicles. An informant who was working for 

the drug team had gone to the defendant's home in order to 

investigate the defendant's involvment in drug-related activities. 

The defendant pulled a handgun, pointed it at him, and threatened 

to kill him if he were a police agent. The informant had provided 

reliable information on prior occasions. The officer's affidavit 

supporting the first warrant contained sufficient details to 
establish probable cause. 

Defendant claims that the drug team had targeted him for 

prosecution and that the intimidation charge was only a pretext to 

gain access to defendant's residence to search for drugs. 

Defendant also attacks the credibility of the affiant and claims 

that the application was based on false information. The evidence 

does not substantiate these claims. We conclude that the first 

warrant was supported by a sufficient showing of probable cause. 

We affirm the District Court's refusal to suppress the evidence 

discovered in the first search. 

Defendant asserts that the second warrant was based on an 

illegal search during execution of the first warrant. Defendant's 

girlfriend testified that the officers found the marijuana in the 

side pocket of the defendant's chair only after they had removed 

the gun and then used a backscratcher to dig down deeper into the 

pocket. Based on the testimony of the officers involved in the 

first search, the District Court held that the marijuana was in 

plain view when the officer who found the gun pulled open the 

pocket to retrieve the gun. We conclude that the second warrant 

was supported by a sufficient showing of probable cause based on 

the plain view doctrine. 

The defendant also attempts to attack the second warrant on 

the basis that there was false information in the application. 

There was no showing of false information affecting the validity 

of the warrant application. The District Court correctly refused 

to suppress the evidence that was discovered during execution of 
the second warrant. 

v 

Did the District Court err when it denied the defendant's 

motion to reopen the suppression hearing? 

The defendant filed a motion for leave to reopen the 

suppression hearing based on new evidence. The officer seeking the 

first search warrant had testified in a trial of a nonrelated case. 

Defendant alleged that the officer had perjured himself because his 

testimony in the nonrelated trial had contradicted testimony he had 

given in this defendant's suppression hearing. Defendant argues 

this perjury proves that the officer was not credible and therefore 

the first search warrant was based on misinformation. 

When a search warrant is issued, the determination of probable 

cause must be made from the four corners of the search warrant 

application. State v. Isom (1982), 196 Mont. 330, 341, 641 P.2d 

417, 423. The alleged perjured testimony was not related to the 

facts asserted in the off icer's affidavit and has no bearing on the 

validity of the search warrant. Defendant has not established that 

the statements made in the search warrant application were false. 

We affirm the District Court's refusal to reopen the suppression 

hearing. 

Affirmed. 

We Concur: