No. DA 06-0614 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 156N

STATE OF MONTANA, Plaintiff and Respondent,

v. JOHN RUNNINGFISHER, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighth Judi cial District, In and For the County of Cascade, Cause No. ADC 2005-337, Honorable Thomas M. McK ittrick, Presiding Judge

COUNSEL OF RECORD: For Appellant: Jim Wheelis, Chief Public Defender, Roberta R. Zenker, Assistant Public Defender, Helena, Montana For Respondent: Hon. Mike McGrath, Montana Attorn ey General, Sheri K. Sprigg, Assistant Attorney Gene ral, Helena, Montana Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: May 31, 2007 Decided: June 26, 2007 Filed:

__________________________________________ ClerkJustice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. Its case title, the Supr eme Court cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 John Runningfisher (“Runningfisher”) appe als from an order of the District Court for the Eighth Judicial Dist rict, Cascade County, denying his Motion for a New Trial. Runningfisher contends that the court e rred when it determined that the evidence presented at trial supported th e conclusion that the jury could have found, beyond a reasonable doubt, that Runningfishe r possessed dangerous drugs. ¶3 This case arose out of an in cident which occurred on June 17, 2005, in Great Falls, Montana. Runningfisher visited the backyard of a residence that police officers were surveilling because it was the residence of a wanted fugitive. Runningfisher left the yard and rode away on a bicycle. As he passe d another yard, which belonged to Gregory Pierce (“Pierce”), he stopped, put his foot do wn, and stumbled to avoid Pierce’s dog. Pierce, who was training his dog, asked if Runningfisher was okay and Runningfisher replied that he was. The police officers detained Runningfisher shortly thereafter at that location. Pierce then yelled out that Runnin gfisher had dropped hi s keys. Runningfisher denied that the keys were his. The officer s inspected the keys an d found a small vial attached to the key ring. Test resu lts indicated that the vial contained methamphetamines.

2¶4 On April 24, 2006, the jury returned a guilty verd ict against Runningfisher on charges of Criminal Possession of Danger ous Drugs, § 45-9-102, MCA, and Criminal Possession of Drug Paraphernalia, § 45-10-1 03, MCA. Runningfisher based his motion for a new trial on the ground that insufficient evidence was presented at trial to find him guilty beyond a reasonable doubt of constructive possession of th e key ring. The District Court denied his motion and on August 11, 2 006, the court sentenced Runningfisher to a three-year deferred sentence on the convict ion for Criminal Possession of Dangerous Drugs and a six-month deferred sentence on the conviction for Criminal Possession of Drug Paraphernalia. ¶5 On appeal, Runningfisher argues that the State produced insuffi cient evidence at trial for a rational trier of fact to find, beyond a reasonable doubt, that he possessed dangerous drugs. Runningfisher argues that he did not have dominion or control over the keys to which the drugs were attached. Ru nningfisher contends that the police officers never observed him in possession of the keys and that the police officers did not check the keys for fingerprints. Lastly, Runningfisher maintain s that the police officers concluded that the keys belonged to Runnin gfisher solely on the basis of Pierce’s assumption that the keys be longed to Runningfisher. ¶6 In response, the State contends that alt hough Pierce testified that he did not see Runningfisher in possession of the keys and did not hear or see the keys fall onto his lawn, Pierce was sure that the keys had be en in Runningfisher’s possession. Pierce testified that he had just mowed and cleaned hi s lawn that afternoon. He and his children had been playing in the yard with their dog and the ke ys were not there before

3Runningfisher rode by. Pierce further testif ied that no one else had passed by the yard besides Runningfisher. Lastly, Pierce testified that he found the keys on the lawn right next to a fresh footprint in the newly mown grass where Runningfisher had put his foot down to steady himself and avoid Pierce’s dog. The State asserts that, based on Pierce’s testimony and the other eviden ce presented at trial, the jury found th at the most reasonable interpretation was that Runningfish er possessed the key ring and then dropped it on Pierce’s property. Therefore, accord ing to the State, when viewing all of the evidence in the light most favorable to the pros ecution, a rational trier of fact could have found, beyond a reasonable doubt , that Runningfisher was in possession of the drugs and drug paraphernalia attached to the key ring. ¶7 We review the sufficiency of the evidence to determin e whether, after viewing the evidence in the light most favorable to the pr osecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. State v.

Shields , 2005 MT 249, ¶ 14, 328 Mont. 509, ¶ 14, 122 P.3d 421, ¶ 14 (citing State v.

Stevens , 2002 MT 181, ¶ 23, 311 Mont . 52, ¶ 23, 53 P.3d 356, ¶ 23). Further, “[i]n cases

where we consider the suffici ency of the eviden ce, we will not subs titute our judgment for that of the ju ry, which is able to view firsthand the evidence presented, observe the demeanor of the witnesses, and we igh the credibility of each party.” Shields , ¶ 20 (citing

State v. Azure , 2002 MT 22, ¶ 48, 308 Mont. 201, ¶ 48, 41 P.3d 899, ¶ 48). A review of

the record leads us to conc lude that the jury could ha ve found Runningfisher guilty beyond a reasonable doubt of criminal po ssession of dangerous drugs and criminal

4possession of drug paraphernalia and that the District Court correctly denied his motion

for a new trial. ¶8 Therefore, having reviewed the record in this matter, we have determined to decide this case pursuant to Section I, Paragra ph 3(d) of our 1996 in ternal operating rules, as amended in 2003, which provides for memo randum opinions. It is manifest on the

face of the briefs and the record before us th at the appeal is without merit because, in viewing the evidence in the lig ht most favorable to the prosecution, we determine that

there was sufficient ev idence from which the jury coul d conclude that Runningfisher constructively possessed the drugs and drug para phernalia. Additionally, the legal issues are clearly controlled by settled Montana la w, which the District Court correctly interpreted. ¶9 Accordingly, the judgment of the District Court is affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ JIM RICE

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