No. 02-132

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 83

STATE OF MONTANA,

Plaintiff and Respondent,

v.

TONY R. BYERS,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula, Cause No. DC-00-456,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Margaret L. Borg, Lynn Fagan, Public Defender Office, Missoula, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Fred Van Valkenburg, Missoula County Attorney; Karen S. Townsend,

Deputy County Attorney, Missoula, Montana

Submitted on Briefs: January 9, 2003

Decided: April 17, 2003

Filed:

__________________________________________

Clerk
2

Justice Jim Regnier delivered the Opinion of the Court.

¶1 The Appellant, Tony R. Byers (“Byers”), was charged with conspiracy to commit

criminal production or manufacture of dangerous drugs, a felony, in violation of §§ 45-4-102

and 45-9-110, MCA; criminal production or manufacture of dangerous drugs, a felony, in

violation of §§ 45-4-102 and 45-9-110, MCA; criminal possession of dangerous drugs, a

felony, in violation of §§ 45-4-102 and 45-9-130, MCA; and criminal possession of drug

paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA. After the State presented

its case at trial, Byers moved for a directed verdict on the basis that there was insufficient

corroborative evidence to support the accomplice testimony, as required by § 46-16-213,

MCA. The District Court denied the motion and the jury returned a verdict of guilty on all

counts. Byers appeals from the District Court’s denial of his motion for a directed verdict.

We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err when it found that there was sufficient evidence to

corroborate the accomplice evidence as to Count I?

¶4 2. Did the District Court err when it found that there was sufficient evidence to

corroborate the accomplice evidence as to Count II?

BACKGROUND

¶5 Byers was charged by Information with several counts related to the possession and

manufacture of methamphetamine. He appeals his conviction as to Counts I and II. Because

Counts I and II are based on facts almost entirely separate from one another, we describe the
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facts in detail below.

STANDARD OF REVIEW

¶6 We review the denial of a motion for directed verdict in the same manner that we

review the sufficiency of evidence to support a conviction. See State v. Bower (1992), 254

Mont. 1, 6, 833 P.2d 1106, 1109. We examine “whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” State v. Mergenthaler (1994),

263 Mont. 198, 203, 868 P.2d 560, 562. The decision to direct a verdict at the close of the

State's case lies within the sound discretion of the trial court and will not be disturbed on

appeal absent an abuse of that discretion. See State v. Moore (1994), 268 Mont. 20, 64, 885

P.2d 457, 484, overruled on other grounds by State v. Gollehon (1995), 274 Mont. 116, 121,

906 P.2d 697, 701.

DISCUSSION

ISSUE ONE

¶7 Did the District Court err when it found that there was sufficient evidence to

corroborate the accomplice evidence as to Count I?

¶8 Narcotics detective Sandra Ann Bjorklund ("Officer Bjorklund") discovered a portable

methamphetamine lab while searching an apartment occupied by Jonathon Toth (“Toth”) and

Mary Hein (“Hein”). Items seized during the search include a black duffel bag containing

the portable methamphetamine lab, a marijuana pipe, a crack pipe, which can be used to

smoke methamphetamine, a Chap Stick container which had been hollowed out and
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contained methamphetamine residue, a snort tube, and two recipes for manufacturing

methamphetamine using ephedrine. 

¶9 Toth told Officer Bjorklund that a man named Tony helped him manufacture the

methamphetamine, and gave her a description of Tony and Tony’s car. Tony is the

defendant, Tony Byers. Hein testified at trial that Byers showed Toth and Hein how to

manufacture the methamphetamine and Toth wrote down the recipe. Hein also testified that

Byers sometimes stayed at her apartment, that some of the equipment in the apartment was

Byers’, that Byers would take some of the methamphetamine that was made in the apartment,

and that the methamphetamine lab belonged to Toth and Byers.

¶10 Toth and Hein were both charged as a result of the methamphetamine lab found in

their apartment. Toth accepted a plea agreement in which he was sentenced for

accountability for criminal production or manufacture of dangerous drugs and criminal

possession of dangerous drugs. Hein’s case was still pending at the time of Byers’ trial,

however she admitted she was involved in the manufacture of methamphetamine and she was

given use immunity for her testimony in Byers’ trial. Toth did not testify at Byers’ trial.

¶11 Count I of the Information charged Byers with conspiracy to commit criminal

production or manufacture of dangerous drugs, a felony, in violation of §§ 45-4-102 and 45-

9-110, MCA. It was alleged that on or about October 1 through 22, 2000, Byers, with the

purpose that the offense of criminal production or manufacture of dangerous drugs be

committed, agreed with Toth and/or Hein to commit that offense and performed an act in

furtherance of that agreement by providing the recipe and some of the materials for
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producing methamphetamine at their apartment, and also cooked the methamphetamine.

¶12 In a criminal proceeding, testimony of a person who is legally accountable is governed

by § 46-16-213, MCA, which states:

A person may not be found guilty of an offense on the testimony of one

responsible or legally accountable for the same offense . . . unless the

testimony is corroborated by other evidence that in itself and without the aid

of the testimony of the one responsible or legally accountable for the same

offense tends to connect the defendant with the commission of the offense.

¶13 We have previously addressed the guidelines for testing the sufficiency of

corroborating evidence. In State v. Kemp (1979), 182 Mont. 383, 597 P.2d 96, we

concluded: 

To be sufficient, corroborating evidence must show more than that a crime was

in fact committed or the circumstances of its commission. It must raise more

than a suspicion of the defendant's involvement in, or opportunity to commit,

the crime charged. But corroborative evidence need not be sufficient, by itself,

to support a defendant's conviction or even to make out a prima facie case

against him. Corroborating evidence may be circumstantial and can come

from the defendant or his witnesses. 

Kemp, 182 Mont. at 387, 597 P.2d at 99 (citations omitted). In State v. Kaczmarek (1990),

243 Mont. 456, 460, 795 P.2d 439, 442, we further determined that “corroborating evidence

is not insufficient merely because it is circumstantial, disputed, or possibly consistent with

innocent conduct; it is the jury's duty to resolve such factual questions.”

¶14 Since Toth and Hein were accomplices in the crimes with which Byers was charged

in Count I, corroborating evidence must be held to the standards in § 46-16-213, MCA.

Evidence about Byers’ methamphetamine lab in the Toth/Hein apartment was also given by

another accomplice, Daricek. Daricek testified that Byers told him Byers was staying at
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Toth’s house and that Toth had gotten too high, called the police, and turned himself in for

having a methamphetamine lab at his house. Byers told Daricek that the police had searched

Toth’s house and that Byers was hiding out because it was Byers’ methamphetamine lab at

Toth’s house.

¶15 Byers’ argues that Daricek’s testimony is insufficient because Daricek himself is an

accomplice for Count II of the charges against Byers. We disagree. We addressed a similar

issue in State v. Paulson (1991), 250 Mont. 32, 817 P.2d 1137. In Paulson, the defendant

was convicted of criminal possession of dangerous drugs with the intent to sell. Two

admitted drug dealers testified at Paulson’s trial that they had received shipments of drugs

from Paulson in the past. Their testimony was admitted for the purpose of showing a

common scheme, plan, or system. However, neither of the admitted drug dealers who

testified were involved in the drug shipments for which Paulson was charged. In Paulson

we held that “as to crimes, wrongs or acts other than those upon which the defendant is

charged, accomplice testimony need not be corroborated before it is admissible.” Paulson,

250 Mont. at 38, 817 P.2d at 1140 (emphasis added).

¶16 Byers urges us to distinguish the facts of Paulson from the facts of the present case

because here, Daricek, the accomplice, was facing charges relating to his acts with Byers

on a different Count. However, based upon the plain meaning of § 46-16-213, MCA, we

find that Daricek was not an accomplice to Count I, and hold, therefore, that Daricek’s

corroborative testimony was proper under the requirements of § 46-16-213, MCA. The

District Court did not err when it denied Byers’ motion for a directed verdict as to Count I.
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ISSUE TWO

¶17 Did the District Court err when it found that there was sufficient evidence to

corroborate the accomplice evidence as to Count II?

¶18 After the search of the Toth/Hein apartment, police received an anonymous

Crimestoppers tip that a man named Tom and his daughter were operating a

methamphetamine lab in a tan Winnebago behind Pro-Align in Missoula. Tom was

identified as Tom Turner (“Turner”). Law enforcement officers conducted surveillance of

the Winnebago and the premises by which it was parked, 2304 1⁄2 Ernest. During their

surveillance, the officers observed a silver Mercury Topaz belonging to Byers. 

¶19 The police obtained a search warrant for the Winnebago, the house on Ernest, and the

Mercury Topaz. When the officers arrived to execute the search warrant, the Winnebago

was not there. One of the detectives testified that he saw the Winnebago turn into the alley,

but when the driver spotted the officers, he stopped the Winnebago abruptly, backed it out

of the alley, and proceeded north on Clark Street. As the officers approached the house,

Daricek attempted to leave by a back door. He was apprehended and taken into custody.

Byers, who was inside the house, was also taken into custody. 

¶20 A second Crimestoppers tip informed the police that someone in a Winnebago was

dumping something into a Dumpster near Community Hospital. The time frame the caller

identified was consistent with the time between when the Winnebago was observed leaving

the scene of the search and when the Winnebago was located and seized by the police.

Turner testified that he was the driver of the Winnebago and he threw tubs and suitcases,
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which contained a methamphetamine lab, into a Dumpster behind Community Hospital.

¶21 The search of the house yielded items that were related to methamphetamine, but the

house did not contain a complete methamphetamine lab. Detectives found a crack pipe and

a plastic cup with a chemical smell and reddish liquid consistent with the color of iodine or

red phosphorus, which are required for certain methods of producing methamphetamine. 

¶22 In the Mercury Topaz, the detectives found items including a “fix kit” containing

syringes, a spoon, and methamphetamine residue; a digital scale, commonly used by drug

dealers to accurately measure small amounts; a crack pipe; a small black bag containing a

“fix kit” and coffee filters; a blue bag containing a “fix kit;” magazines with squares cut out

of the pages, commonly used to package methamphetamine because magazine paper is not

porous; and a coffee filter containing residue of methamphetamine. The Mercury Topaz also

contained a notebook listing amounts of items, including pseudoephedrine and iodine, and

a piece of paper listing ounce to gram conversions. 

¶23 The Winnebago contained items commonly used in the production of

methamphetamine, including a hand blender with white powder residue, matchbooks with

the cover and striker plates missing, Sudafed pills, and red phosphorus. Detectives also

found a crack pipe and a red cloth in the sink.

¶24 Bahne Klietz, a forensic scientist at the Montana State Crime Lab, analyzed the items

seized from the Winnebago and the Dumpster. She testified that more than one process is

available to make methamphetamine. Based upon her analysis, Klietz was able to conclude

that the red phosphorus/iodine method was used to make methamphetamine with the items
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seized from the Winnebago and Dumpster. Under this method, the red phosphorus and

iodine are reagents used to react with pseudoephedrine, usually purchased as cold pills, to

convert it to methamphetamine.

¶25 At the time of Byers’ trial, Turner had not been charged with any criminal offense,

and Daricek accepted a plea agreement for two counts of felony possession of

methamphetamine and was granted use immunity for his testimony against Byers.

¶26 In Count II, Byers was charged with criminal production or manufacture of dangerous

drugs, a felony, in violation of §§ 45-9-102 and 45-9-110, MCA. It was alleged that on or

about October 22 through November 1, 2000, Byers purposely or knowingly produced,

manufactured, prepared, cultivated, compounded or processed methamphetamine, a

dangerous drug as defined in § 50-32-101, MCA.

¶27 On appeal, Byers argues that evidence connecting him to the methamphetamine lab

found in the Dumpster is insufficient. Because Turner and Daricek are accomplices as to

Count II, their testimony must be corroborated by other evidence that in itself tends to

connect the defendant with the commission of the offense, pursuant to § 46-16-213, MCA,

as we discussed above.

¶28 We find that other evidence against Byers’, unrelated to the testimony of Turner and

Daricek, is sufficient to provide independent corroboration. Byers was present at the house

when the search warrant was executed upon the house and his Mercury Topaz. The Mercury

Topaz contained items used by drug dealers and methamphetamine manufacturers, namely

a digital scale, magazines cut into squares, methamphetamine residue, and clothing stained
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with iodine. The clothing stained with iodine is particularly significant because, as stated

above, the methamphetamine lab found in the Dumpster used the red phosphorus/iodine

method of manufacture. Clothes are typically stained with iodine when manufacturing

methamphetamine using the red phosphorus/iodine method. Additionally, Toth and Hein,

accomplices as to Count I, were able to corroborate the testimony of Daricek and Turner that

Byers knew the recipe for methamphetamine.

¶29 When viewed in the light most favorable to the State, we conclude that there was

sufficient corroborating evidence for the testimony of Turner and Daricek. A jury could

reasonably infer that Byers was involved in the manufacture of methamphetamine using the

lab found in the Dumpster. We hold that the District Court did not err in denying Byers’

motion for a directed verdict as to Count II.

¶30 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ TERRY N. TRIEWEILER

/S/ JIM RICE