No. 01-541

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 210

STATE OF MONTANA,

Plaintiff and Respondent,

v.

LAWRENCE JAMES RATHBUN

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Dawson,

The Honorable Richard A. Simonton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Cynthia K. Thornton, Miles City, Montana

For Respondent:

Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant

Montana Attorney General, Helena, Montana; Gerald J. Navratil, Scott

Herring, Dawson County Attorney’s Office, Glendive, Montana

Submitted on Briefs: October 17, 2002

 Decided: August 12, 2003

Filed:

__________________________________________

Clerk
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Lawrence Rathbun (Rathbun) was found guilty of two felony drug-related charges

and one misdemeanor drug-related charge. He was sentenced to the Department of

Corrections (DOC) for ten years, six years suspended, for each felony charge. He was

sentenced to the county jail for ninety days for the misdemeanor charge. All sentences were

to run concurrently. Rathbun appeals. We affirm.

ISSUES

¶2 The issues before this Court are: 1) whether the District Court abused its discretion

when it determined that Rathbun did not meet the burden of proof for commitment to the

Department of Health and Human Services, and 2) whether the evidence presented was

sufficient to support a guilty verdict to the offense of criminal possession of dangerous drugs

with the intent to distribute. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In early December 1999, officials from the Dawson County Sheriff's office, acting

on a tip, visited Rathbun at his rural home approximately fifteen miles from Glendive,

Montana. They explained that they had received information that Rathbun was growing,

using and selling marijuana. Rathbun readily admitted to growing and using marijuana for

medicinal purposes. He has long suffered from multiple sclerosis and other medical

conditions and believes that marijuana eases the pain, spasms and discomfort of his various

ailments. Rathbun denied ever selling marijuana but told the officers that he shared or gave
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marijuana away on occasion. The Dawson County Undersheriff asked to confiscate the

plants but Rathbun refused. The following day, the officers returned with a search warrant,

took Rathbun into custody, and seized Rathbun's plants and the grow operation equipment.

¶4 On January 11, 2000, Rathbun was charged with 1) criminal production or

manufacture of dangerous drugs, a felony; 2) criminal possession of dangerous drugs with

intent to distribute, a felony; and 3) criminal possession of drug paraphernalia, a

misdemeanor. He pled not guilty to each count. On October 30, 2000, a jury trial began and

on November 1, the jury reached a unanimous verdict and found Rathbun guilty of each of

the three counts.

¶5 At the March 13, 2001 sentencing hearing, the District Court imposed concurrent tenyear Department of Corrections sentences, with six years suspended, for each felony charge.

The court imposed numerous conditions upon Rathbun's suspended sentence, ordering him,

among other things, to pay fines, surcharges and fees and to refrain from alcohol and drug

use. Additionally, Rathbun was sentenced to ninety days in county jail for the misdemeanor

offense of criminal possession of drug paraphernalia, to run concurrently with the felony

sentences. Rathbun appeals.

STANDARD OF REVIEW

¶6 This Court reviews a criminal sentence for legality only. Thus, our review is confined

to whether the sentence is within the parameters provided by statute. State v. Scarborough,

2000 MT 301, ¶ 90, 302 Mont. 350, ¶ 90, 14 P.3d 1202, ¶ 90. We review the sufficiency of

evidence to support a jury verdict to determine whether, after viewing the evidence in the
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light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Porter v. State, 2002 MT 319,

¶ 12, 313 Mont. 149, ¶ 12, 60 P.3d 951, ¶ 12 (citation omitted).

DISCUSSION

¶7 Issue 1: Did the District Court abuse its discretion when it determined that Rathbun

did not meet the burden of proof for commitment to the Department of Health and Human

Services?

¶8 Section 46-14-311, MCA, requires a sentencing court to consider a defendant's claims

of mental disease or defect in sentencing. It provides:

Whenever a defendant is convicted on a verdict of guilty or a plea of guilty or

nolo contendere and claims that at the time of the commission of the offense

of which convicted the defendant was suffering from a mental disease or

defect that rendered the defendant unable to appreciate the criminality of the

defendant's behavior or to conform the defendant's behavior to the

requirements of law, the sentencing court shall consider any relevant evidence

presented at the trial and shall require additional evidence as it considers

necessary for the determination of the issue, including examination of the

defendant and a report of the examination as provided in 46-14-202 and

46-14-206. 

¶9 Additionally, § 46-14-312, MCA, provides:

(1) If the court finds that the defendant at the time of the commission of the

offense of which the defendant was convicted did not suffer from a mental

disease or defect as described in 46-14-311, the court shall sentence the

defendant as provided in Title 46, chapter 18. 

(2) If the court finds that the defendant at the time of the commission of the

offense suffered from a mental disease or defect as described in 46-14-311,

any mandatory minimum sentence prescribed by law for the offense need not

apply and the court shall sentence the defendant to be committed to the

custody of the director of the department of public health and human services
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to be placed, after consideration of the recommendations of the professionals

providing treatment to the defendant, in an appropriate correctional or mental

health facility for custody, care, and treatment for a definite period of time not

to exceed the maximum term of imprisonment that could be imposed under

subsection (1). . . .

¶10 At the sentencing hearing, Rathbun argued that the progressive nature of his multiple

sclerosis affected his cognitive function and that he suffers from mild to moderate dementia.

Rathbun requested that either his sentence be suspended or that he be sentenced to the

Department of Health and Human Services (DPHHS) for placement in an appropriate mental

health facility.

¶11 Courts are required to consider a defendant's mental condition, in part, to better

determine the appropriate commitment regime and to avoid cruel and unusual punishment.

State v. Korell (1984), 213 Mont. 316, 690 P.2d 992. This consideration, however, must be

of the defendant's mental condition "at the time of the commission of the offense of which

[he was] convicted." Moreover, the mental condition must have rendered the defendant

"unable to appreciate the criminality of [his] behavior or to conform [his] behavior to the

requirements of law." Section 46-14-311, MCA.

¶12 The District Court explained at sentence pronouncement that it considered all of the

evidence presented during the trial and during the sentencing hearing. Such evidence

included, but was not limited to, 1) Rathbun's physical, mental and emotional conditions as

documented and testified to by medical professionals; 2) his self-proclaimed intent to

challenge Montana's laws on medicinal usage of marijuana and his apparent unwillingness

to change his behavior; 3) his age and financial condition; 4) his threats to law enforcement
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officers; and 5) his lack of prior criminal history. After examining and evaluating all the

evidence, the court concluded that Rathbun had not met his burden establishing either that

he was suffering from a mental disease or defect at the time of his offense, or that he was

unable, because of his mental condition, to conform his conduct to the requirements of the

law. 

¶13 Upon concluding that Rathbun had failed to establish the requisite mental condition

for commitment to the DPHHS, the court sentenced him to two concurrent ten-year

sentences to the DOC, with six years suspended. The District Court, noting that the state of

Montana had no "ideal place" for Rathbun, considering his unique needs and offense, stated

that it specifically chose the DOC over a commitment to Montana State Prison based on

Rathbun's circumstances. 

¶14 The maximum penalty for criminal production or manufacture of marijuana is

imprisonment in state prison for a term not to exceed ten years, and provides for a fine not

to exceed $50,000. Section 45-9-110(4), MCA. The maximum penalty for criminal

possession of dangerous drugs with intent to distribute is imprisonment in state prison for

a term of not more than twenty years, or a fine in an amount not to exceed $50,000, or both.

Section 45-9-103(3), MCA. The maximum penalty for criminal possession of drug

paraphernalia is imprisonment in the county jail for not more than six months, a fine of not

more than $500, or both. Section 45-10-103, MCA. Under these statutes, the court's

imposition of concurrent ten-year sentences for both the manufacture and distribution of

dangerous drugs offenses is well within the parameters of the sentencing statutes.
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¶15 In light of the foregoing, and in light of the fact that the District Court's explanations

at sentencing reflect that it properly took into account all relevant evidence in concluding

that a DPHHS sentence was not indicated, we conclude that the District Court did not abuse

its discretion in finding that Rathbun did not meet his burden of proof under § 46-14-311,

MCA, and in sentencing Rathbun to a commitment that is within the parameters provided

by the applicable statutes. 

¶16 Issue 2: Was there sufficient evidence presented to support a guilty verdict to the

offense of criminal possession of dangerous drugs with the intent to distribute?

¶17 Rathbun claims that there was insufficient evidence presented to the jury to support

a guilty verdict on the charge of criminal possession of dangerous drugs with the intent to

distribute. The relevant portion of the applicable statute, § 45-9-103, MCA, Criminal

Possession with Intent to Distribute, provides:

(1) A person commits the offense of criminal possession with intent to

distribute if the person possesses with intent to distribute any dangerous drug

as defined in 50-32-101. 

¶18 Under this statute, not only must the State prove that Rathbun possessed marijuana,

which is a dangerous drug as defined in § 50-32-101, MCA, but it must also prove that he

intended to distribute it. There is no dispute regarding Rathbun's possession. However, we

note, as did Rathbun and the State, that the term "distribute" is not defined within § 45-9-

103, MCA, or included within the definitions of criminal code terms in § 45-2-101, MCA.

The State argues that the offense of criminal distribution of dangerous drugs is committed

when a person "sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or
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give away any dangerous drug." Section 45-9-101, MCA. The State, therefore, concludes

that the "distribution" element of § 45-9-103, MCA, has been met because Rathbun admitted

to giving away marijuana. Additionally, the State argues that because Rathbun admitted to

giving some marijuana away on occasion, that this was sufficient "for a rational jury to find

that Rathbun possessed the marijuana with the intent to distribute." 

¶19 Prior to 1999, § 45-9-103, MCA, defined the offense of criminal possession with

intent to "sell" rather than "distribute." Under the previous statute, we recognized the

difficulty in proving criminal intent. "Because it is seldom subject to direct proof, intent

must be inferred from the acts of the accused and the facts and circumstances of the offense."

State v. Hall (1991), 249 Mont. 366, 371, 816 P.2d 438, 441 (citation omitted). We noted

in Hall, as well as other cases, that possession of articles traditionally used in sales

transactions could be used to infer that a defendant intended to sell, not just personally

consume, dangerous drugs. See State v. Garberding (1990), 245 Mont. 356, 801 P.2d 583;

State v. Hulbert (1994), 265 Mont. 317, 877 P.2d 25. These cases are distinguishable from

the case at bar, however, because of the statutory change. We have not had occasion, prior

to now, to analyze the meaning of "distribute" in the amended statute.

¶20 We conclude that the lack of a definition of "distribute" in § 45-9-103, MCA, is not

a fatal flaw. We can interpret § 45-9-103, MCA, as well as discern the legislative intent of

the statute, based upon § 45-9-101, MCA, which precisely defines the offense of criminal

distribution to include one who "sells, barters, exchanges, gives away, or offers to sell,
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barter, exchange, or give away any dangerous drug." Rathbun admitted to giving away his

marijuana on occasion; thus the elements of § 45-9-103, MCA (1999), have been met. 

CONCLUSION

¶21 For the foregoing reasons, we affirm the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ JIM RICE

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