No. 89-491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ROBERT A. SORENSEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David W. Harman, Libby, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena Montana 

Scott B. Spencer, Lincoln County Attorney, Libby, 

Montana 

Filed: 

Submitted on Briefs: March 22, 1990 

Decided: May 3, 1990 e 

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

A jury in the District Court for the Nineteenth Judicial 

District, Lincoln County, found Robert A. Sorensen guilty of 

multiple counts of criminal possession, possession with intent to 

sell, conspiracy to sell, and sale of marijuana. He appeals. We 

affirm. 

The issues are: 

1. Did the District Court err in denying Sorensents pretrial 

motions to suppress evidence on grounds of illegal arrest and 

search and violation of Sorensents right of privacy? 

2. Did the court err in allowing Wayne Wagner to testify? 

3. Did the court err in allowing into evidence the photograph 

of a person in a marijuana patch? 

4. Did the court err in denying Sorensent s severance motion? 

5. Did the court err in denying Sorensents motion to dismiss 

for insufficient evidence? 

6. Was Sorensen denied his right to speedy trial? 

7. Was Sorensen denied his right to a fair trial because of 

cumulative error? 

During the summer of 1988, the Lincoln County Sheriff s Off ice 

received information from a confidential informant that marijuana 

was growing in a field in a remote area near Troy, Montana. Upon 

investigating, officers found other marijuana patches in the same 

area. The marijuana plants were growing in a mixture of peat and 
potting soil. The smaller plants were in Grodan brand starter 

cubes. Nursery stakes, styrofoam cups, plastic five-gallon 

buckets, chicken wire, and "twisty tiestt (used to secure garbage 

bags) were found in the fields. All of the marijuana patches were 

located on United States Forest Service land, and United States 

Forest Service and United States Fish and Wildlife agents joined 

in the investigation. Surveillance cameras were set up in several 

of the marijuana patches. 

Later that summer, an informant told Officer Bernall of the 

Lincoln County Sheriff's Office that defendant Sorensen was growing 

the marijuana on the Forest Service property and storing it at his 

land, and that Sorensen was a ''major dealer1' in marijuana. 

Sorensen owned and lived on one of eight twenty-acre parcels in a 

subdivision near the marijuana patches. Law enforcement personnel 

began watching Sorensenls property. They observed a padlocked 

bunker with ventilation vents, several other out-buildings, and two 

gardens in which nothing was planted. Photographs from the 

surveillance cameras in the marijuana patches showed two people 

believed to be tending the marijuana, a man, believed to be 

Sorensen, and a woman. 

On the afternoon of August 17, 1988, Wayne Wagner was observed 

entering Sorensenls house. When he left the house, he carried a 

duffel bag which appeared to be full. The same afternoon, Sorensen 

discovered one of the officers doing surveillance on his property. 
Afterward, other officers doing surveillance saw Sorensen jump onto 

his motorcycle, go to where Wagner was camping on nearby Forest 

Service land, yell and whistle for Wagner, and engage in an 

animated conversation with Wagner. Sorensen and Wagner then 

returned to Sorensen's house. The officers immediately initiated 

proceedings to obtain a search warrant and, about an hour later, 

arrested Sorensen. 

When the search warrant arrived, the officers searched 

Sorensen's property. Among the items discovered were loaded 

weapons and books on growing marijuana. One book described in 

detail how to grow wild marijuana without getting caught. The 

officers also found plastic five-gallon buckets, 251 styrofoam 

cups, 141 Grodan starter cubes, peat, chicken wire, 47 bags of 

potting soil, and "twisty ties." A plastic bucket found in one of 

Sorensen's vehicles was the same bucket on which, days before, an 

officer had scratched his initials in one of the marijuana patches. 

The officers also found notebooks which contained what they 

believed were coded watering schedules for the marijuana patches. 

Wagner's duffel bag was seized from his camp. It contained a 

waterproof bag of marijuana. 

Also seized from Sorensen's house was a power bill from a home 

he owned in Spokane, Washington. The officers felt that the amount 

of the bill was suspiciously high. Pursuant to a Washington search 

warrant, the home was searched. Grow lights, Grodan starter cubes, 
drying racks, many marijuana plants, and packaged marijuana were 

found . 

The information filed against Sorensen in Montana District 

Court included nine counts of felony possession of dangerous drugs 

with intent to sell, one count for each of nine marijuana patches. 

Sorensen was also charged with one count of sale of a dangerous 

drug to Wayne Wagner and one count of conspiring with Wagner to 

commit the sale of dangerous drugs. After a five-day jury trial, 

Sorensen was convicted of three misdemeanor counts of possession 

of marijuana, six counts of felony possession with intent to sell, 

and the counts of felony sale and conspiracy. He appeals. 

I 

Did the District Court err in denying Sorensenls pretrial 

motions to suppress evidence on grounds of illegal arrest and 

search and violation of Sorensenls right of privacy? 

Montana's constitution provides, at Article 11, Section 10, 

that I1[t]he right of individual privacy is essential to the wellbeing of a free society and shall not be infringed without the 

showing of a compelling state interest. Sorensen contends that 

this provision protected him from trespass on his property by law 

enforcement officers. While the officers have not acknowledged 

that they trespassed on his property, Sorensen maintains that they 

must have, in order to see his buildings in the detail in which 

they were described in the search warrant. 
The protection afforded under Montana's constitutional right 

of privacy is broader than the right of privacy guaranteed under 

the United States Constitution. State v. Sierra (1985), 214 Mont. 

472, 692 P.2d 1273. However, it is not boundless. The ''open 

fields1' doctrine, providing that the right of privacy in one's home 

does not extend to open fields within the view of the public, has 

been recognized under Montana's right of privacy. State v. Charvat 

(1978), 175 Mont. 267, 269, 573 P.2d 660, 661. Sorensen argues 

that because his property is heavily wooded, the open fields 

doctrine does not apply. But we hold that Sorensen did not have 

a legitimate expectation of privacy which would prevent law 

enforcement officers from observing the buildings on his unfenced 

twenty acres of land. 

Sorensen further contends that he was illegally arrested at 

his home at night without a warrant. Section 46-6-401, MCA, sets 

forth the circumstances under which a police officer may make an 

arrest. Sorensen argues that none of the listed circumstances were 

present in this case. 

We disagree. Subsection (l)(d) of 3 46-6-401, MCA, provides 

that an officer may make an arrest without a warrant if "he 

believes on reasonable grounds that the person is committing an 

offense or that the person has committed an offense and the 

existing circumstances require his immediate arrest." At the time 

Sorensen was arrested, officers knew that someone was growing 
marijuana on federal land, and they believed that it was Sorensen. 

Sorensen was now aware that he was under surveillance, and a 

summer-long investigation was in jeopardy. Given the opportunity, 

Sorensen would have every reason to destroy evidence on his 

property connecting him to the marijuana patches. We conclude that 

the exigent circumstances required Sorensenls immediate arrest to 

prevent destruction of evidence on his property. 

Sorensen also claims that the application for the search 

warrant for his property was inadequate because it did not 

establish probable cause and contained material falsehoods. The 

District Court considered the application for the warrant as though 

it did not contain four paragraphs which Sorensen successfully 

argued were in error. Even in the absence of those paragraphs, the 

court held that the application set forth probable cause for the 

issuance of a search warrant. 

Without the paragraphs which were in error, the application 

alleged that the affiant (Officer Bernall) had been told and shown 

by a citizen informant that marijuana was growing in a certain 

field in the Troy area. It stated that a confidential, credible, 

and reliable informant had told the affiant that Sorensen was 

involved in marijuana and grew "acresI1 of it; that nine other 

fields of marijuana had been discovered on Forest Service land to 

the northeast, west, and south of Sorensenls property; that the 

marijuana plants were cultivated and were set in a peat moss and 
potting soil mixture; that Forest Service employees had observed 

a peat moss bed on Sorensen's property; and that the informant had 

said that Sorensen stored marijuana in a bunker on his property and 

a bunker had been observed on Sorensenfs property. It also stated 

that two years earlier, marijuana fields which had been observed 

in the same general area were destroyed and that the parents of two 

juveniles reported to police that Sorensen had threatened bodily 

injury to the juveniles, who he believed had destroyed the fields. 

We hold, as did the District Court, that the application 

contained sufficient information to provide probable cause to issue 

the search warrant for Sorensenfs property. 

I1 

Did the court err in allowing Wayne Wagner to testify? 

Wayne Wagner was called by the prosecution to testify as an 

accomplice and co-conspirator. He testified that he obtained the 

marijuana found in his duffel bag from unnamed persons in Bonnerls 

Ferry, Montana. The prosecution impeached him with his previous 

statement (to one of the officers who arrested him) that he got the 

marijuana from Sorensen and that he had established a regular 

clientele to whom he sold marijuana. Sorensen argues that the 

State should not have been allowed to call Wagner as a witness 

because its only purpose in calling him was to impeach his 

testimony with his earlier statement implicating Sorensen. 
Sorensen cites federal case law holding that where the primary 

purpose of calling a witness is to impeach that witness with a 

previous statement, the rule against hearsay precludes the 

testimony and overrides the right to impeach the witness's 

credibility. E.g., United States v. Hogan (5th Cir. 1985), 763 

F.2d 697. Those holdings are premised on Rule 607, Fed.R.Evid. 

Montana has not adopted that interpretation of the comparable 

Montana rule. 

Rule 801 (d) (1) , M.R. Evid., provides that if a declarant 

testifies at trial and is subject to cross-examination on a prior 

inconsistent statement, the prior statement is not hearsay. We 

conclude that, in this instance, sufficient indicia of reliability 

were provided by the defense's right to cross-examine Wagner on the 

prior statement and the jury's concomitant opportunity to determine 

whether the prior statement or Wagner's testimony at trial was more 

worthy of belief. We hold that the District Court did not err in 

allowing Wagner's testimony. 

Did the court err in allowing into evidence the photograph of 

a person in a marijuana patch? 

The State introduced into evidence a photograph from a 

marijuana-growing magazine seized from Sorensen's house. The photo 

showed a man standing in what appeared to be a marijuana patch. 

Officer Bernall testified that he believed the person in the photo 
was Sorensen. Sorensen contends that the person in the photo did 

not look like him and that it was an abuse of the court's discretion to allow the photo into evidence. He contends that the 

prejudicial effect of the photo outweighed its probative value. 

He also claims that the photo should not have been admitted without 

notice of other crimes evidence as required by this Court's opinion 

in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. 

It is not a crime to stand in what appears to be a marijuana 

field. There was no need for Just notice before the photo could 

be introduced into evidence. Further, Sorensen took full advantage of his opportunity at trial to argue to the jury that the man 

in the picture was not him. And, in relation to all of the 

evidence against Sorensen presented at trial, the photo's prejudicial effect is questionable. We conclude that Sorensen has not 

shown that the District Court abused its discretion in admitting 

the photo into evidence. 

IV 

Did the court err in denying Sorensenls severance motion? 

Sorensen argues that trial of the conspiracy and sale counts 

should have been severed from trial on the other counts charged 

against him because the evidence on these two counts was so weak. 

He claims that the District Court's failure to grant his motion to 

sever was an abuse of discretion warranting reversal. 
Sorensen makes only a general allegation of prejudice from 

"the sheer overwhelming number of counts1' with I1only circumstantial 

evidence for proof." On the other hand, several reasons support 

joinder of trial on all counts. All of the offenses were committed 

in the summer of 1988. As the State presented its case, they were 

all part of a common scheme to gain financial benefit from the sale 

of marijuana. Proof and witnesses overlapped on the charges. We 

conclude that the charges brought against Sorensen in this action 

were, in the words of 5 46-11-404, MCA, I1connected together in 

their cornmi~sion.~~ Sorensen has not made a sufficient showing that 

he was prejudiced by the joinder to warrant overruling the District 

Court's discretion in denying the motion to sever. 

v 

Did the court err in denying Sorensen's motion to dismiss for 

insufficient evidence? 

At the conclusion of the State's case, Sorensen moved to 

dismiss the possession counts against him on the grounds of 

insufficient evidence. The District Court denied the motion. 

Sorensen argued, and again argues here, that the State did not 

adequately tie him personally to the marijuana fields. 

The District Court's standard of review on the motion to 

dismiss, like our standard of review on appeal, was whether any 

rational trier of fact could have convicted Sorensen of the 
offenses with which he was charged. See State v. Rodriguez (Mont. 

1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781. 

The evidence tying Sorensen personally to the marijuana 

patches included: pictures of a person believed to be Sorensen on 

an ATV (all-terrain vehicle) near the marijuana fields and 

Sorensen's similar ATV, found in the search of his property; the 

proximity of the marijuana patches to Sorensen' s property; the 

bucket with the officer's initials scratched on its bottom, found 

in Sorensen's vehicle; the books on growing wild marijuana; the 

drying racks, peat, potting soil, plastic buckets, and other 

gardening supplies found in Sorensen's house; and the notebooks 

containing what appeared to be watering codes. We hold that there 

was sufficient evidence that a rational trier of fact could have 

found Sorensen guilty of the charges in Counts I through IX. 

Sorensen also argues that Wagner's testimony alone is 

insufficient to convict him on the sale and conspiracy counts. 

However, Wagner's testimony was not the only evidence relating to 

those charges. Other evidence presented by the State as to the 

counts of sale of marijuana and conspiracy to sell marijuana 

included the following: the marijuana from Wagner's duffel bag and 

the officers1 testimony about when it got there; the sheer amount 

of both the marijuana crop and the gardening equipment on Sorensen's property; the evidence from Sorensen's Spokane house, 

including marijuana packaged for sale; weapons and ammunition which 
linked Sorensenls Spokane house with his house outside Troy; and 

the contrast between Sorensenls small claimed income and his large 

apparent expenditures. We conclude that based on the evidence 

presented at trial a rational trier of fact could have found 

Sorensen guilty of the charges of sale and conspiracy to sell 

marijuana. 

VI 

Was Sorensen denied his right to speedy trial? 

Four factors are considered in evaluating a claim of denial 

of the right to speedy trial: the length of the delay, the reason 

for the delay, the defendant's assertion of the right to speedy 

trial, and prejudice to the defendant resulting from the delay. 

State v. Curtis (Mont. 1990), 787 P.2d 306, 313, 47 St.Rep. 277, 

283. The first factor, length of the delay, serves as a trigger 

to a speedy trial inquiry. Curtis, 787 P.2d at 313. 

A period of 250 days elapsed between Sorensen's arrest and his 

trial. That period is sufficient to trigger a speedy trial 

inquiry. State v. Waters (1987), 228 Mont. 490, 493, 743 P.2d 617, 

619. 

Sorensen claims that the entire 250-day delay is attributable 

to the State and that he was denied his right to speedy trial by 

this delay. A chronology of relevant events includes: 
August 17, 1988 - Sorensen arrested 

August 30, 1988 - Sorensen released on bail 

September 15, 1988 - Information filed 

September 22, 1988 - Sorensen moved for a substitution 

of district judge 

October 6, 1988 - Judge Wheelis assumed jurisdiction 

November 14, 1988 - Arraignment; Sorensen filed motions 

to sever and to suppress evidence 

November 21, 1988 - Judge Wheelis recused himself 

November 30, 1988 - Judge Harkin assumed jurisdiction 

March 23, 1989 - Trial set for April 26, 1989 

April 7, 1989 - Pretrial motions heard; Sorensen's 

motions to suppress were denied 

April 14, 1989 - Sorensen moved to dismiss for lack 

of speedy trial 

April 24, 1989 - Speedy trial motion denied 

April 26, 1989 - Trial commenced 

Sorensen argues that he was forced to move for a substitution of 

district judge because Judge Keller, who was originally assigned 

the case, was the judge who had authorized the search warrant for 

Sorensenls house. Sorensen did not want the judge who had 

originally determined that there was probable cause for the search 

to preside at the suppression hearing on the same issue. 

Any delay caused by the defendant's assertion of procedural 

rights will not weigh against the State. State v. Kelly (1983), 

203 Mont. 159, 160-61, 661 P.2d 26, 27. Sorensenls motion for 
substitution of district judge was an assertion of a procedural 

right, and there is no indication that the State purposely I1forced" 

this occurrence. We hold that the time between September 22, 1988, 

and October 6, 1988, is not chargeable to the State. The time 

during which Sorensen's motions to suppress were pending, from 

November 14, 1988, to April 7, 1989, is not totally chargeable to 

either party. Some of that delay resulted from Judge Wheelis 

recusing himself and some resulted from the heavy caseload of the 

deputy county attorney, as stated in his affidavit before the 

District Court. That leaves only sixty-six days. That time 

includes institutional delays inherent in calendaring the case and 

as a result of Judge Wheelis's retirement. 

Sorensen asserted his right to speedy trial in a timely manner 

by moving to dismiss for lack of speedy trial on April 14, 1989. 

That motion was denied. As to the prejudice caused by the delay, 

this Court looks to three interests: preventing oppressive pretrial incarceration, minimizing the defendant's anxiety and 

concern, and limiting the impairment of the defense. Curtis, 787 

P.2d at 315. Because Sorensen was out on bail, the first interest 

has no weight. He has not shown anxiety and concern greater than 

that inherent in being accused of a crime. He has not shown 

prejudice to the defense of his case resulting from the delay. He 

does argues that he was deprived of his livelihood from his coin 
shop during the delay because his inventory of coins was seized in 

the search of his house. 

To summarize, while the total delay in this case was long 

enough to trigger a speedy trial inquiry, the portion of the delay 

attributable to the State can largely be explained as time 

institutionally necessary in scheduling a trial. While Sorensen 

raised his right to speedy trial in a timely manner, he has not 

demonstrated significant prejudice fromthe delay. After considering the four speedy trial factors collectively, we hold that the 

State did not violate Sorensenls right to a speedy trial. 

VII 

Was Sorensen denied his right to a fair trial because of 

cumulative error? 

Sorensen argues that he was denied his right to a fair trial 

because of the cumulative effect of improperly admitted evidence 

of prior acts without notice to the defense, the improper use of 

Wagner's testimony, the introduction of irrelevant exhibits, and 

the court's failure to sever the conspiracy and sale counts. 

We have discussed most of these issues individually and have 

concluded that Sorensen has not shown error. Application of the 

doctrine of cumulative error requires a finding of prejudicial 

error affecting the substantial rights of the defendant. State v. 

Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177, 187-88. We 
hold that Sorensen has shown no prejudicial error which deprived 

him of his right to a f a i r t r i a l . 

Affirmed. 

We concur: 

f Chief Justice --