No. 12875 

IN THE 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 

Jack M. 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 , ''5 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by defendant, Wayne Thomas, from a 

judgment of the district court, Madison County, sitting without 

a jury, convicting him of the crime of sale of dangerous drugs. 

At 2:00 p.m. on February 22, 1974, Christy Johns, age 

15, was brought before the Superintendent of the Twin Bridges 

High School. At that time, she was found to be in possession 

of a blue plastic box, within which was a plastic sandwich bag 

containing some green material, subsequently determined to be 

marijuana . 

At trial, Miss Johns testified: That she and Rhonda 

Shelly approached defendant in the 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 Shelly met with defendant at approximately 8:00 a.m. 

on February 22, 1974, at which time defendant transferred a 

plastic bag to Miss Shelly. Miss Johns stated she assumed the 

bag conta.ined marijuana. Miss Shelly placed the bag in her sock. 

Miss Johns did not see the plastic bag again until about noon 

in the washroom of the Blue Anchor; that there Miss Shelly transferred to her the blue box, within which was a plastic bag and 

its contents, which she put in her sock. Miss Johns indicated 

she and Miss Shelly met with defendant, who was sitting alone 

at a booth at the 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 met with 

Miss Johns and Miss Shelly either at approximately 8:00 a.m. or 

at noontime on February 22, 1974. Miss Shelly did not testify. 

Bruce and Sheila Burke, husband and wife, testified they 

meet each day at noontime and have lunch at the Blue Anchor, 

often with defendant. They testified that neither Miss Johns 
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 saw defendant and Burkes eating lunch 

in the same booth. Mrs. Love joy, 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: "I mean, I was 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 from Miss 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 ,Johns and 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 at 
noontime; nor that it was the same plastic bag taken from 

Miss Johns. In other words, defendant urges that the state 

must establish a continuous chain of possession from the defendant to the Superintendent. 

In support defendant cites Joyner v. Utterback, 196 

Iowa 1040, 195 N.W. 594, wherein the Iowa court held that if 

one link in a chain of possession is missing the exhibit could 

not be introduced into evidence, That case should be distinguished, however, and the rule not applied in the present situation. In Joyner, authorities seized a certain bottle from 

petitioner's place of business and found it to be in violation 

of a statute prescribing alcohol by content. The state failed 

to establish a chain of possession from the time of confiscation until the time of introduction into evidence. The court 

required a complete chain of possession after confiscation by 

law enforcement officials. 

However, here Miss Johns identified the plastic box 

and the plastic bag which were introduced by the state. Her 

testimony inexorably linked defendant to them. Defendant, however, simply alleges that the possibility of tampering existed 

while the plastic bag was in the possession of Miss Shelly. This 

mere conjecture by defendant is not sufficient to preclude the 

introduction of this evidence. Defendant's burden was to show 

affirmatively that tampering had taken place. 

In State v. Olsen, 152 Mont. 1, 10, 445 P.2d 926, this 

Court said: 

"I * * *In each case the trial judge before he 

admits it in evidence must be satisfied that 

in reasonable probability the article has not 

been changed in important respects. Wigmore, 

Evidence, 3d Ed., S 437(1); 32 C.J.S. Evidence 

B 607. In reaching 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 to introduce 

exhibits into evidence rests with the lower court 

and such a determination will not be overturned 

unless there is a clear abuse of discretion, a 

situation not present here." 

We find no abuse of discretion on the part of the 

district court in admitting into evidence the plastic box containing the marijuana. The district court acted within its discretion as the trier of fact in determining that the plastic 

bag taken from Miss Johns at 2:00 p.m. was the same as that 

delivered to Miss Shelly by defendant that morning; that Miss 

Johns and Miss Shelly were in the 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 to believe the testimony of 

Xiss Johns and discount the testimony of defendant's witnesses. 

The testimony of Miss Johns, together with the other witnesses 

for the state, was sufficient to support a finding of guilty beyond a reasonable doubt of the crime of sale of dangerous drugs. 

Certainly, the giving or transfer of the marijuana, without even 

considering the cash trans£ er, establisv the crime beyond a 

reasonable doubt. 

Finding no error, the judgment is affirmed. 

We concur: 

', . " 

[dd..',.t L*' ,-,,,,--,--,,L':~I ,----... a-d~~i~~*L . Chief Justice 

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Justices - 5 -