NO. 92-170 IN THE SUPREME COURT OF THE STATE OF MONTANA

APPEAL FROM: District Court of theNineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: David 

### W. Harm For Respondent: Attorney at Law, Libby, Montana

Hon. Marc Racicot, Attorney General, Jennifer Anders, AssistantAttorney General, Helena,Montana Scott B. Spencer,County Attorney, Libby,Montana

Submitted on Briefs: July 9, 1992 Filed:

ClerkChief Justice J. 

### A. Turnage 

### delivered 

### the Opinion 

### of the 

### Court. A jury in the District Court for the Nineteenth ~udicial District,Lincoln County, convictedDavid Lee Lyons of threecounts of criminal sale of dangerous drugs. We reverse on all three counts, with directions that Count One be dismissed. The dispositive issues are: 1. Did the court err in refusing to dismiss Count One for lack of sufficient evidence? 2. Did the court err 

### in permitting law officer opinion testimony regarding the credibility of the informant? To aid the court and counsel on remand, we also briefly address the following issues: 3. Was other crimes evidence admitted inviolation of Just? 4. Did the court err in refusing to give defendant's entrap

### ment instruction concerning Count Three, the sale of four pills? Between September 1990 and May 1991, an undercover drug operation was conducted in Lincoln County, Montana, in which Hal Turner acted as an undercover agent for the Lincoln County Sheriff's Department. During his employment, Turner became acquainted with defendant Lyons. On December 12,1990,Turner went to Lyons's apartmentto talk to a thirdperson about arranging adrug deal. A fourth individual present at Lyons's apartment, Denyce Larson, provided some marijuana for everyone to smoke and said she knewwhere to

### buy more for$25per quarter ounce. Lyonsand Turnerboth told Larsonthat they wanted to buy someand each arranged topay for a quarter ounce to be delivered to Lyons's apartment later that evening. Turner later returned to Lyons's apartment to pick up his marijuana. Themarijuana for both buyershad been delivered in one bag. After some joking around, Lyons's girlfriend divided the marijuana into two bags, which Lyons readjusted to his satisfaction. Then Turner was allowed to choose which bag to take as his. This transaction is thebasis of Count One charged against Lyons. Counts Two and Three relate to sales of prescription sleeping pills by Lyons to Turner on December 18 and 19, 1990. Count Two alleged that Lyons gave Turner one pill and Count Three alleged that he sold Turner four more pills. Turner testified that these transactions occurred at Lyons's residence. Lyons testified on his own behalf. He essentially admitted that the transaction charged as Count One occurred. However, he denied selling orgivingTurnerany prescription sleepingpills and maintained that Turnermust have stolen the pills from him. At the close of the defense's case, the State asked to be allowed to offer character evidence in rebuttal to rehabilitate witness Turner because, it argued, Turner's credibility had been directly attacked by the defense. The court granted the motion. Officer Klint, a Lincoln County detective, testified about the importance of credibility in an undercover agent. He furthertestified that planting 

### evidence is illegal, 

### that he had 

### checked into Turnerfs background before Turner began to work as an undercover agent, and that, in his opinion, Turner was ''very truthfulvas 

### far as undercover work. Lyons was convicted of threecountsof sellingdangerousdrugs under 5 45-9-101, MCA, A fourth count charged against him was dismissed during trial.

Did thecourt err in refusing to dismissCount One for lack of sufficient evidence? Lyons was convicted under Count One of criminal sale of dangerous drugs in violation of 55 45-9-101 and 45-2-301, MCA. Section 45-9-101, MCA, defines the offense of sale of dangerous drugs as, inter alia, selling, bartering, exchanging, or giving away dangerousdrugsasdefined 

### in 5 50-32-101, MCA, or offeringto do so. Section 45-2-301, MCA, provides: ~ccountability

### for conduct of another. A person 

### is responsible forconductwhich isan element of an offense 

### if the conduct 

### is either that 

### of 

### the person 

### himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both. The companion statute, § 45-2-302, MCA, provides in relevantpart: When accountabilityexists. 

### A person is legallyaccountable for the conduct of another when:



# . . . (3) either before orduring thecommissionof an offense 

### with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts toaid such other person in the planning or commission of the offense. 

# . . . Lyons argues that as a co-buyer he cannot be guilty of the crime of sale of dangerous drugs through the accountability statute. He quotes the general rule that a purchaser of illegal drugs is not an accomplice to the crime of sellingdrugs. Statev. Stokoe (1986),224Mont. 461,464, 730 P.2d 415, 417. Hemoved for dismissal of Count One after he and the State had presented their respective cases-in-chief,but the motion was denied. 

### A motion to dismiss 

### a criminal chargebecause of insufficient evidence should be granted only when there is no evidence upon which a trier of fact could render a verdict. State v. Miller

(l988), 231 Mont. 497, 509, 757 P.2d 1275, 1282. This Court's standard of review of the propriety of the trial court's ruling on such a motion is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Statev. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 414. The requisite elements forholding aperson legally accountable for the conduct of another under Montana's accountability statutes are that 1) either before or during 2) the commission of

an offense 3) with the purpose to promote or facilitate such commission 4) theperson solicits, aids, abets, agrees,or attempts to aid such other person in the planning or commission of the offense. Downinq, 783 P.2d at 414.Turner testified as follows about ordering themarijuana: Q. Okay. And then what transpired next? A. Denyce said that she, there was some available that was $25.00 a quarter. Q. Okay. A. Okay. And David said that he wanted one. And I said well, I wanted one, too, just kind of barged in, too. And nothing was, barged in, the pot was smoked, okay, then

## -- Q. Okay. A. Finally, David asked for something about themoney part, okay. She needed the money. I said why sure, gets my money out and gave her $25.00. He testified as follows concerning the delivery of themarijuana: Q. Now, what were the arrangements for getting thepot? You gave themoney toDenyce and thenyou left. Youmean 

## -- what was supposed to be, mailed to you or what? A. Okay, there was a mix-up there, right. She said she had to go towork and shewas telling Dave abouthow the deal was going. Ididn't understand that totallyhow it was going to go down. So then when she left, I asked Jamie, I said, well,what is the deal? She said she got to go to work and, you know, Iwas worried about did 

### I get ripped off for $25.00. And 

### I am going to get something? And she said well later then around 6:00 or something. So anyway, Iwas supposed tobe there later. Q. So whatever that conversation was, you were to go back to the Lyons' residence and pick up the marijuana? A. Right. Q. And did you go back to the Lyons' residenceand pick up the marijuana? A. Yes, Idid.Q. And who was present? A. David 

### Lyons, Jamie Popp again,me and Angela Smith. Q. Did Denyce or Mike show up at 

### any time

### when you

### were there the second time? A. No, 

### sir. Q. Okay. Was there any marijuana that you saw the second time? A. Oh, yes, 

### sir. Q. How did it come about that you sawmarijuana? A. 

### Well, David told Jamie to get it out, okay. 

### Q. Okay. And then what did Jamie do? A. Got it out of her purse. Q. Okay. And how was it packaged? 

### A. Okay, it 

### was rolled in one bag. David 

## -- well, 

### I suppose I should back up. Q. Let's 

### just go through it? A. Okay. Q. You said all 

### in one bag. Was 

### it supposed to be in one bag? A. Hmmm, well, I

### didn't think 

### so. 

### I thought that 

### Iwas supposed to get a package, okay. 

### Q. Who else was supposed to get a package? A. 

### David was supposed 

### to get a package. Q- And was anything said about why it was 

### in one package? 

### A. Yes. First told 

### the story there is none 

### for you. Q. 

### Is that what somebody said?

### A. David Lyons said. Q. 

### Okay. And how did you react to that? A. I started whining, okay. Q. 

### Definewhining. A. Crying around,youknow. He said therewas only some forhim. Q. 

### Okay. A. And 

### I asked him, 

### I said, can't 

### I split it with you? And youknow, I

### wanted toget something out of thedeal. Q. 

### Is that unusual to do that if you don't get your marijuana to whine? A. No, sir, it is not. Q. 

### Okay. Soyou complained about it. Did he 

### offer to give you yourmoney back? A. No, sir, 

### Idon't believe that he did. Itwas all a joke

## . Q. 

### Itwas a joke they wouldn't give you any? A. Yes. Q. 

### How did you know that itwas a joke? A. Well,he toldme finally,thebag,wehad to split it in half. Anyway, my part was already in there. Q. 

### All right. And sothebag comes out of thepurse and then it is split? A. No, sir, it is not split yet. Q. 

### Do you get yourpart? A. Yes, sir. Q. 

### How does that come about?

### A. 

### Well, David 

### told somebody to grab something to split it. IthinkAngela went to thekitchen toget something, aplate or piece of cardboard. And then Jamie split 

### it, okay. And 1 said, Iget topick. Usually that ishow it is. Whoever has thedrug splits it and the other person gets to pick, okay. Q. Okay. A. So I picked but Dave didn't like the way that I picked because 

### Ipicked the big bag. So then he got in 

### it and, you know, mixed 

### it around more so it looks better. And then I got to pick my bag.

Q. What did you do with the marijuana after that? A. Wrapped it up and put it in

### my pocket.



### Intheother casescitedby 

### the 

### State 

### inwhichdefendantswere convicted of sale of dangerous drugs under the accountability statutes, there was evidence that the defendants in some manner promoted or facilitated the drug sales. State v. Gommenginger

(lggo), 242 Mont. 265, 790 P.2d 455 (with respect to Count 

### TV, defendant's wife told thebuyer 

### that she coulddeliver somecocaine tohim onlyafter sheconferred with defendant;defendant drovehis wife todeliver the cocaineto thebuyer);State v. Downing (19891, 240Mont. 215, 783 P.2d 412 (defendant admitted 

### thathe helped set up the deaf; he arranged a meeting and was paid; he began 

### the search for drugs for thebuyer with the seller, but did not intend to limit his search to the seller).In the present case, there was no evidence that Lyons had a purpose to promote or facilitate the sale of marijuana to Turner. This drug deal was not pre-arranged; it was not the reason Turner went to Lyons's apartment. Turner testified thathe "barged in" on the saleby Larson to Lyons to place his own order. The delivery of themarijuana to Lyons's apartment and Lyons'sparticipation in dividing the marijuana into separate bags for himself and Turner show nothing more than that Lyons acted to obtain some marijuana for himself. Even when viewed in the lightmost favorable to the State, the best that can be said is that Lyons and Turner were parallel buyers from Larson. We conclude that, in this case, no rational trier of fact could have found all of the elements of sale by accountability beyond a reasonable doubt and that this case falls under the general rule set forth in Stokoe that thepurchaser ofdrugs isnot an accomplice to the crime of selling drugs. We therefore hold that the District Court erred in denying the motion to dismiss Count One. Because of this holding,we will not address the issue Lyons raised concerning the surveillance tape introduced into evidence on Count One. II Did the court err inpermitting law officer opinion testimony regarding the credibility of the informant?The State concedes this issue. In Statev. Webb (Mont. 1992), 828 P.2d 1351, 1356, 49 St.Rep. 236, 239, this Court ruled that character evidence regarding a witness is not admissible into evidence solely on the basis that the witness has testified concerningamaterial factand the testimonyconflictswith that of the defendant. In the present case, the District Court allowed rebuttal character testimony about Turner forpreciselythat reason --that Turner's testimony as to material facts concerning Counts Two and Three conflicted with Lyons's testimony as to the same facts. We therefore reverse Lyons's convictions on Counts Two and Three. I11 Was other crimes evidence admitted in violation of 

## Just? The evidenceunder this issuewhich relates to Counts Two and Threewas testimonyby Mike Brannon thathe had obtained somepills fromLyons. No immediate objection was made to this testimony,but

a brief was filed and an objection was made the next day. Because no objection was made at the time and because Brannon's testimony was unresponsive to the questionhe was asked,

we hold that no violation of

## Justhas been shown. Ifhe testifies

on retrial, Brannon should be advised not to mention obtaining pills from Lyons unless he is specifically asked about it.IV 

### Did the court err in refusing to give defendant's entrapment instruction concerning Count Three, the sale of fourpills? The District Court refused Lyons's offered entrapment instruction on the basis that an entrapment defense would be inconsistentwith Lyons's defense that the sale of the four pills did not occur. The State did not brief this issue on appeal. Lyons citesMathews v. 

### United States (1988), 485 

### U.S. 58, 108 

### S.Ct. 883, 99 

### L.Ed.2d 54, 

### inwhich theUnited States Supreme Court held that,even if a criminal defendantdenies oneor more elements of the crime with which he is charged, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. While we do not wish to prejudge the evidence whichmay be presented on retrial of Counts Two and Three, we call the attention of the District Court to the Mathews opinion. Reversed 

### as to Counts One, Two, and Three. Remanded with instructions that Count One be dismissed.

Chief Justice 

# fd.-=3-We 

### concur: