No. 12875 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA, Plaintiff and Respondent,


### -vs

# - WAYNE THOMAS, Defendant and Appellant.
Appeal from: District Court of the Fifth Judicial District, Honorable Frank 

### E. Blair, ~udge prescding. Counsel of Record: For Appellant: Jardine and McCarthy, Whitehall,., Montana JackM. McCarthy argued, Whitehail, Montana For Respondent: Hon. Robert 

### L. Woodahl, Attorney General, Helena, Carl



### Mont? 

### Kraft,AssistantAttorneyGeneral, argued, Helena, Montana Chester 

### L. Jones, County Attorney, argued, Ennis,

Montana

Submitted: January 22, 1975

-P. +. h. 

### 2 - ' ;;- Decided: 

# - .i -I Filed: 

### :-EL. L-, 

## 5 , ''5Mr. JusticeWesley Castles delivered the Opinion of the Court. This 

### is an appeal by defendant, Wayne Thomas, from a judgment of the districtcourt, Madison County, sittingwithout a jury, convicting him of the 

### crime of saleof dangerous drugs. At2:00 p.m. on February 22, 1974, Christy Johns, age 15, was brought before the Superintendent of the Twin Bridges High School. Atthat 

### time, she was found tobe inpossession of a blue plastic box, within which was a plastic sandwich bag containing some green material, subsequently determined tobe marijuana

# . At trial, MissJohns testified: That she and Rhonda Shelly approached defendant inthe Blue Anchor Restaurant in Twin Bridges on February 20, 1974, and that the conversation concerned the purchase of marijuana from defendant; that she and Miss Shellymetwith defendant atapproximately 8:00 a.m. on February 22, 1974, atwhich 

### timedefendant transferred a plastic bag toMissShelly. MissJohns stated she assumed the bag conta.ined marijuana. MissShelly placed the bag inher sock. MissJohns did not see theplastic bag again until about noon inthe washroom of the Blue Anchor; that thereMissShelly transferred toher the blue box, within which was a plastic bag and its contents, which she put inher sock. MissJohns indicated she and MissShellymetwith defendant, who was sittingalone at a booth atthe Blue Anchor, between 12:15 and 12:20 p.m. on February 22, 1974, and they paid defendant the sum of $15. Defendant catagorically denied he had ever metwith MissJohns and MissShelly either atapproximately 8:00 a.m. or atnoontime on February 22, 1974. MissShelly did not testify. Bruce and Sheila Burke, husband and wife, testified they meet each day atnoontime and have lunch atthe Blue Anchor, often with defendant. They testified that neither MissJohns

### nor Miss Shelly ever came near their booth at 

### any time they
were having lunch with defendant. However, they were unable to recall whether or not they had Lunch with defendant on February 22, 1974. Mrs. Gage, a realtor, testified that she entered the Blue Anchor for lunch at approximately 12:25 or 12:30 p.m. on February 22, 1974, and sawdefendant and Burkes eating lunch in the same booth. Mrs. Lovejoy, owner of the Blue Anchor,
was working as a waitress on February 22, 1974. She testified that defendant did eat lunch with the Burkes on that day; that she saw no one go near the booth occupied by defendant and the Burkes; but added: "Imean, 

### Iwas busy. I couldn't really say one way or the other." The issues presented by defendant can be summarized:

(1) Whether the district court erred in admitting into evidence the blue plastic box containing the marijuana because it was not identified nor connected to defendant by competent evidence? (2)

### Whether the district court erred in determining that the plastic bag taken fromMiss Johns at 2:00 p.m. was the
same plastic bag given to Pliss Shelly at 8:00 a.m.? (3)

### Whether the district court erred in determining that 

### Yiss ,Johnsand Miss Shelly were in the Blue Anchor and paid $15 to defendant on February 22, 1974? (4) Whether the evidence proved defendant guilty beyond
a 

### reasonable doubt? The district court did not err in admitting into evidence the blue plastic box containing the marijuana. Defendant contends the state failed to establish by competent evidence that the piastic bag delivered to Miss Shelly contained marijuana; that it was the same plastic bag delivered to Miss Johns atnoontime; nor that it was the same plastic bag taken from MissJohns. In other words, defendant urges that the state must establish a continuous chain of possession from the defendant tothe Superintendent. In support defendant cites Joyner v. Utterback, 196 Iowa 1040, 195N.W. 594, wherein the Iowa court held that if
one link ina chain of possession ismissing the exhibit could not be introduced into evidence, That case should be distinguished, however, and the rule not applied inthe present situation. InJoyner, authorities seized a certain bottle from petitioner's place of business and found it tobe inviolation of a statuteprescribing alcohol by content. The state failed toestablish a chain of possession from the time of confiscation until the time of introduction intoevidence. The court required 

### a complete chain of possession after confiscation by law enforcement officials. However, here MissJohns identified the plastic box and the plastic bag which were introduced by the state. Her testimony inexorably linked defendant tothem. Defendant, however, simply alleges that the possibility of tampering existed while the plastic bag was inthe possession of MissShelly. This


### mere conjecture by defendant isnot sufficient topreclude the introduction of this evidence. Defendant's burden was to show affirmatively that tampering had taken place. In Statev. Olsen, 152 Mont. 1, 10, 445 P.2d 926, this Court said:

"I 

## * * *In each case the trialjudge before he admits it inevidence must be satisfied that inreasonable probability the articlehas not been changed in important respects. Wigmore, Evidence, 3d Ed., S 437(1); 32 C.J.S. Evidence 

### B 607. Inreaching his conclusion he must be guided by the nature of the article, the 

### circumstances surrounding the preservation and custody of 

### it, and the likelihood of intermeddlers tampering with 

### it.'

### " 

## * 

## * * A ietermination of whether a foundation has been properly laid in order tointroduce exhibits into evidence rests with the lower court and such a determination 

### willnot be overturned unless there 

### is a clear abuse of discretion, a situationnot present here." We find no abuse of discretion on thepart of the districtcourt inadmitting into evidence the plastic box containing themarijuana. The districtcourt acted within its discretion as the trier of fact indetermining that theplastic bag taken from MissJohns at2:00 p.m. was the same asthat delivered toMissShelly by defendant that morning; thatMiss Johns and MissShelly were inthe Blue Anchor and paid $15 to defendant on February 22, 1974; and that defendant was guilty beyond a reasonable doubt. Such decisions properly rested with the trier of fact, giving whatever weight it deemed proper to the evidence submitted to it. After closing arguments, the district court indicated the circumstances which compelled it tobelieve the testimony of Xiss Johns and discount the testimony of defendant's witnesses. The testimony of MissJohns, together with the other witnesses for the state, was sufficient to support a finding of guiltybeyond a reasonable doubt of the crime of sale of dangerous drugs. Certainly, the giving or transfer of themarijuana, without even considering the cash trans£ er, establisv the crime beyond a reasonable doubt. Finding no error, the judgment isaffirmed.

We concur: ',
. " [dd..',.t L*' 

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# . Chief Justice

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