NO. 92-170 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

APPEAL FROM: District Court of the Nineteenth 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: 

Att orney at Law, Libby, Montana 

Hon. Marc Racicot, Attorney General, Jennifer 

Anders, Assistant Attorney General, Helena, Montana 

Scott B. Spencer, County Attorney, Libby, Montana 

Submitted on Briefs: July 9, 1992 

Filed: 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

A jury in the District Court for the Nineteenth ~udicial 

District, Lincoln County, convicted David Lee Lyons of three counts 

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 in violation of Just? 

4. Did the court err in refusing to give defendant's entrapment 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 apartment to talk 

to a third person about arranging a drug deal. A fourth individual 

present at Lyons's apartment, Denyce Larson, provided some marijuana for everyone to smoke and said she knew where to buy more for 
$25 per quarter ounce. Lyons and Turner both told Larson that they 

wanted to buy some and each arranged to pay 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. The marijuana for both buyers had 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 the basis 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 or giving Turner any prescription sleeping pills and 

maintained that Turner must 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 further 
testified 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 

truthfulv as far as undercover work. 

Lyons was convicted of three counts of selling dangerous drugs 

under 5 45-9-101, MCA, A fourth count charged against him was 

dismissed during trial. 

Did the court err in refusing to dismiss Count 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 dangerous drugs as defined in 5 50-32-101, MCA, or offering to 

do so. Section 45-2-301, MCA, provides: 

~ccountability for conduct of another. A person is 

responsible for conduct which is an 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 relevant part: 

When accountability exists. A person is legally accountable for the conduct of another when: . . . 

(3) either before or during the commission of an offense 

with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to 
aid 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 selling drugs. State v. 

Stokoe (1986), 224 Mont. 461, 464, 730 P.2d 415, 417. He moved 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 charge because 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. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 

414. The requisite elements for holding a person 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) the person 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 the marijuana: 

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 the money 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 the marijuana: 

Q. Now, what were the arrangements for getting the pot? 

You gave the money to Denyce and then you left. You mean 

-- 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 to work and she was telling Dave about how the 

deal was going. I didn't understand that totally how 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, I was 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, I was supposed to be 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' residence and pick 

up the marijuana? 

A. Yes, I did. 
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 saw marijuana? 

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 I was 

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. Define whining. 

A. Crying around, you know. He said there was only some 

for him. 

Q. Okay. 

A. And I asked him, I said, can't I split it with you? 

And you know, I wanted to get something out of the deal. 

Q. Is that unusual to do that if you don't get your 

marijuana to whine? 

A. No, sir, it is not. 

Q. Okay. So you complained about it. Did he offer to 

give you your money back? 

A. No, sir, I don't believe that he did. It was all a 

joke . 

Q. It was a joke they wouldn't give you any? 

A. Yes. 

Q. How did you know that it was a joke? 

A. Well, he told me finally, the bag, we had to split it 

in half. Anyway, my part was already in there. 

Q. All right. And so the bag comes out of the purse and 

then it is split? 

A. No, sir, it is not split yet. 

Q. Do you get your part? 

A. Yes, sir. 

Q. How does that come about? 
A. Well, David told somebody to grab something to split 

it. I think Angela went to the kitchen to get something, 

a plate or piece of cardboard. And then Jamie split it, 

okay. And 1 said, I get to pick. Usually that is how it 

is. Whoever has the drug 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 I picked 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. 

In the other cases cited by the State in which defendants were 

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 the buyer that she could deliver some cocaine 

to him only after she conferred with defendant; defendant drove his 

wife to deliver the cocaine to the buyer) ; State v. Downing (19891, 

240 Mont. 215, 783 P.2d 412 (defendant admitted that he helped set 

up the deaf; he arranged a meeting and was paid; he began the 

search for drugs for the buyer 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 that he "barged in" on 

the sale by Larson to Lyons to place his own order. The delivery 

of the marijuana to Lyons's apartment and Lyons's participation 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 light most 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 the purchaser of drugs is not 

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. 

I I 

Did the court err in permitting law officer opinion testimony 

regarding the credibility of the informant? 
The State concedes this issue. In State v. 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 

concerning a material fact and the testimony conflicts with that of 

the defendant. In the present case, the District Court allowed 

rebuttal character testimony about Turner for precisely that 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 evidence under this issue which relates to Counts Two and 

Three was testimony by Mike Brannon that he had obtained some pills 

from Lyons. 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 question he was asked, 

we hold that no violation of Just has been shown. If he 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 four pills? 

The District Court refused Lyons's offered entrapment 

instruction on the basis that an entrapment defense would be 

inconsistent with Lyons's defense that the sale of the four pills 

did not occur. The State did not brief this issue on appeal. 

Lyons cites Mathews v. United States (1988), 485 U.S. 58, 108 

S.Ct. 883, 99 L.Ed.2d 54, in which the United States Supreme Court 

held that, even if a criminal defendant denies one or 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 which may 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: