No. 88-63 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Pla-intiff and Respondent, 

-vsKELLY SATJOTS , 

Defendant and Appellant. 

APPEATJ FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.R. McNeil, Judge presidinq. 

COUNSE?., OF RECORD : 

For Appellant: 

Benjamin R. Anciaux, Polson, Montana 

For Respondent : 

F- Hon. Mike Greely, Attorney General, Helena, Montana 

co Dorothy McCarter, Asst. Atty. General, Helena 

3- 3 

~2 Larrp J. Nistler, County Attorney, Polson, Montana 

ril r? 

4 , , Mark Stermitz, Deputy County Attv., Polson, Montana 

!-. -3 Submitted on Briefs: Dec. 2, I988 I .!A 

Filed: 

December 30, 1988 

,K d 

-- &i+<.*f. :&, 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Kelly Salois appeals from a jury verdict in 

the Twentieth Judicial District, Lake County, Montana. 

Salois was convicted of criminal possession of dangerous 

drugs and criminal possession of drug paraphernalia, both 

misdemeanors. We affirm. 

In June, 1987, Lake County Sheriffs' officers made a 

lawful search of the residence of Phillip Shourds. When the 

officers entered Shourds' house, they detected the strong 

arouma of marijuana smoke. Salois was present in the house, 

along with seven or eight other people. The officers allowed 

five of these people to leave, including Salois. The 

officers then proceeded to search the house. 

The officers discovered marijuana or drug paraphernalia 

in nearly every room of Shourds' house. In the master 

bedroom, 71 hags of marijuana, totaling nearly 275 grams, 

were found on the floor between the bed and wall. In the 

master bedroom closet, officers found a 423 gram "block" of 

marijuana. In the living room, officers found marijuana, 

stems, seeds, cigarette butts (roaches) , and rolling papers. 

In the kitchen, officers found rolling papers, "roach clips," 

and marijuana literature. 

Of importance to this appeal are the items discovered 

in the house which connected Salois to the contraband. In a 

rear bedroom of the house, officers found small amounts of 

marijuana on the top of a highboy and more marijuana on the 

floor in a plastic bag. Also in that bedroom, officers found 

on the window sill a plastic bag containing rolling papers, a 

used "pot" pipe, and a check stub bearing Salois' name. 

Additionally, officers found in this bedroom seven documents, 

(e.q., envel-opes, identification card, check voucher, etc. ) 

with Salois' name on them. Officers found four such 
documents with Salois' name on them in the kitchen, and six 

more in the livingroom. Finally, another "pot" pipe was 

found inside Salois' car which was parked in front of 

Shourds' house. 

Salois was arrested June 12, 1987, and charged with 

criminal possession of dangerous drugs, a felony, and 

criminal possession of drug paraphernalia, a misdemeanor. 

Salois pleaded not guilty and trial was held on November 16 

and 17, 1987. The jury convicted Salois of misdemeanor 

possession of marijuana, not the felony charqe sought bv the 

State, and misdemeanor possession of drug paraphernalia. 

Salois raises three issues for review: 

1. Was it error for the District Court to deny Salois' 

motion for directed verdict or dismissal of the felony 

possession of dangerous drugs charge? 

2. Was there insufficient evidence to support the 

convictions since the State failed to scientifically test the 

contraband in the rear bedroom? 

3. Was there jury misconduct which required the 

District Court to declare a mistrial? 

Issue No. 1. 

Was the failure of the District Court to either grant a 

directed verdict or dismiss the felony charge reversible 

error because it "effected [sic] the jury's deliberations and 

perceptions of the case against Salois?" 

It is undisputed that the decision whether to grant a 

motion to dismiss or for a directed verdict lies within the 

sound discretion of the district judge. That decision will 

not be disturbed on appeal unless an abuse of discretion is 

shown. Furthermore, we have stated that a directed verdict 

should only be granted where there is no evidence upon which 

a jury could base a verdict. State v. Matson IMont. 1987), 
736 P.2d 971, 44 St.Rep. 874; State v. White Water (Mont. 

1981), 634 P.2d 636, 38 St.Rep. 1664. 

We conclude the District Judge did not abuse his 

discretion. A genuine factual issue existed whether Salois 

possessed a felony amount of marijuana. His personal 

belongings were found in most parts of the house, which could 

lead one to reasonably believe Salois had constructive 

possession of the marijuana in the master bedroom and was 

guilty of felony drug possession. Merely because the jury 

concluded Salois did not possess a felony amount of marijuana 

does not mean - no evidence existed upon which a felony 

conviction could be based. In any case, the argument is 

without merit. Salois was found not guilty of the felony 

charge. His allegations of some residual. prejudicial effect, 

while novel, are purely conclusory and without basis in fact 

or law. 

Issue No. 2. 

Was there insufficient evidence to support the 

convictions because the state failed to scientifically test 

all of the evidence? 

The Lake County Sheriff's office sent to the State 

Crime Laboratory, for chemical analysis, some of the evidence 

seized in the search. Tested were the large block found in 

the closet, the 71 bags containing a leafy substance found 

between the bed and the wall in the master bedroom (which 

also included the leafy substance found in the Living room) 

and the substance which was seized from a van parked in front 

of the house at the time of the search. 

The sheriff's department did not send the evidence 

found in the rear bedroom to the crime lab for scientific 

analysis. Because of this, Salois argues the evidence was 

insufficient to support the conviction. We disagree. 
Although we have previously stated that it is preferable to 

have suspected drug substances tested by the state crime lab, 

failure to do so does not always render the evidence 

insufficient to convict a defendant beyond a reasonable 

doubt. State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646; 

State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339. 

Detective Bruce Phillips, who executed the search, 

testified that he was a sergeant in the detective division 

and worked all undercover drug operations in Lake County. 

Phillips originally received his law enforcement training in 

1969, and has been continually employed as a law enforcement 

officer in Lake County since 1980. Phillips testified that 

he was trained and experienced in drug investigations and 

drug identification. Based on this knowledge and experience, 

it was his opinion the evidence found in the plastic bag on 

the window sill of the rear bedroom was marijuana and that 

the pipe had been used to smoke marijuana. Under examination 

at trial, Phillips explained what led him to believe the 

substance in the rear bedroom was marijuana. 

Direct examination by County Attorney Mr. Stermitz: 

Q. Detective Phillips, I'm handing you 

what has been previously marked State's 

Exhibit 7. What does that items [sic] 

appear to you to be? 

A. It's a plastic baggy containing what 

appears to be marijuana stems, seed, and 

a small amount of mariiuana leaf. 

Q. Do you know where that item came 

f ram? 

A. Yes. 

Q. Where? 

A. It was some of the residue and so 

forth that I collected out of the bedroom 

in the northwest corner of the Shourds' 

residence. 
Q. Why did you seize that particular 

item? 

A. It was apparent to me that it was 

contraband and to show that there was 

[sicl drugs also in that bedroom. 

Q. Did you notice anything about it that 

led you to believe that was contraband? 

A. The structure and color of the seeds, 

the type of stem and so forth, the 

consistency and color of the leaves is 

[sic] all consi-stent with what 1 know to 

be marijuana. 

Alice Ammen, a forensic scientist with the M.ontana 

State Crime Laboratory also testified. Amen stated that in 

the past she had tested marijuana about 2,000 times, and 

continued to analyse marijuana samples weekly at the crime 

lab. She also testified that the evidence sent to her by the 

Lake County Sheriff's office had been tested positive for 

THC, the chemical substance found in marijuana. At trial she 

was asked by the county attorney to examine the evidence 

found in the rear bedroom. 

Direct examination by Mr. Stermitz: 

Q. I realize you have not seen these 

items [State's Exhibits 1, 7, a.nd 211 

before but I wonder from your experience 

at the Crime Lab and all the examinations 

you've performed, if you could describe 

for the jury what any of these items show 

to you. 

A. Well, in State's Exhibit 21 it 

appears that there are some roaches, 

which are burnt butt ends of a handrolled cigarette. And there looks like 

mariiuana seeds and a small amount of 
green, leafy material and stems, which I 

would strongly suspect to contain THC. 

Cross-examination by defense counsel Mr. Anciaux: 

Q. So would you give us your opinion as 

to whether you think State's Exhibit 7 is 

marijuana or not. 

A. I would say, yes, it probably is. 

Q. Can you tell us in your opinion if 

that [State's Exhibit 81 is marijuana? 

A. I would give it a 99 percent chance 

of being marijuana. 

In reviewing a jury's verdict in a criminal case where 

it is alleged the evidence is insufficient to support the 

verdict, our task is to determine if the verdict is supported 

by substantial evidence. A verdict based on substantial 

evidence will not be disturbed on appeal. State v. Price 

(Mont. 1988), 762 P.2d 232, 234, 45 St.Rep. 1798, 1800; State 

v. Pepperling (1974), 166 Mont. 293, 300, 533 P.2d 283, 287; 

State v. Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 

834-35. 

We have previously examined this issue in Ostwald, 

supra, where we held there was sufficient credible evidence 

the suspected substance was marijuana. 

Defendant moved for a directed 

verdict of acquittal on that charge on 

the grounds that the "valtox kit" test 

used to identify the suspected substance 

is not specific for marijuana and 

therefore not conclusive. He contends 

that because the substance was never sent 

to the crime lab for positive 

identification, the State has not met its 

burden of proving beyond a reasonable 

doubt that it was in fact marijuana. The 
State concedes that the "valtox kit" test 

is not specific for marijuana but argues 

that when the test results are considered 

together with the testimony of the 

officer who performed the test, a prima 

facia showing was made that the substance 

was marijuana. The officer testified 

that his identification of the substance 

was based not only on the test results, 

hut also on the characteristic odor of 

marijuana with which he was familiar from 

past experience in possession cases. 

[Nl umerous cases hold that 

marijuana is not difficult to 

characterize without chemical analysis 

and that testimony of officers who have 

had experience searching for and 

identifying marijuana is sufficient. Cf. 

Cory v. State (1975), Okl.Cr., 543 P.2d 

565; State v. Maupin (1975), 42 Ohio 

St.2d 473, 330 N.W.2d 708. 

Ostwald, 591 P.2d at 652. 

F7e find the State has presented sufficient evidence 

from which the jury could find the substance found in the 

rear bedroom was marijuana. Not only did experts identify 

the substance as marijuana , but evidence of the contraband, 

and associated paraphernalia, was found in nearly every room 

in the house. Additionally, officers executing the search 

warrant testified that the house smelled of burning 

marijuana. 

Issue No. 3. 

Was there jury misconduct which required the District 

Court to declare a mistrial? 

Salois claims two jurors were overheard making 

statements hefore the case was submitted for the jury's 

deliberations which expressed prejudice and require a 

mistrial: 
One Juror: I'm glad I'm not associated 

with those people, that I don't have to 

associate with those people. 

Second Juror: Well, I guess we're on 

the jury. 

We have held that the standard of review for 

overturning a district court's ruling on a motion for 

mistrial requires clear and convincing evidence that the 

trial court's ruling was error. State v. Hedrick (Mont. 

1987), 745 P.2d 355, 357, 44 St.Rep. 1849, 1851; State IT. 

Murray (Mont. 1987), 741 P.2d 759, 762, 44 St.Rep. 1394, 

1397; State v. Counts (1984), 209 Mont. 242, 247-48, 679 P.2d 

1245, 1248; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 

420 P.2d 316, 317-18. Additionally, we held that if jury 

misconduct is shown tending to injure the defendant, 

prejudice will be rebuttably presumed: 

In this state, -- if jury misconduct 

- is shown tendina to iniure the 2 defendant. -. - 

prejudice to defendant is presumed. 

However, the presumption is not absolute 

and may be rebutted by testimony of the 

juror showing facts which prove that 

prejudice or injury did not occur. 

(Emphasis added; citation omitted.) 

Murray, 741 P.2d at 762, citing Counts, 679 P.2d at 1248. 

We conclude there was no initial showing of prejudice 

against Salois. The District Court had only the bare 

statement of Salois that these statements were made. No 

juror affidavits were presented to the court to support his 

claim. Yet even if the jurors had been overheard making 

these comments, it is not evident that the statements were 

directed at Salois or his witnesses. The statements, if 

made, were brief and do not support the claim that they 

injured the defense. The United States Supreme Court in 

Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 

L.Ed. 2d 424, recognized the distinction between a "brief 
encounter" and an "intimate association" as it pertains 

either to the relationship amongst jurors or between jurors 

and witnesses, and the extent to which prejudice to the 

defendant is shown. We accepted this reasoning in State v. 

Dickens (1982), 198 Mont. 482, 488, 647 P.2d 338, 341-42. 

The comments claimed to have been made here do not reflect on 

intimate association; but are merely indicative of a brief 

encounter. We conclude that Salois has not presented 

evidence sufficient to require a mistrial. 

Affirmed. 

We concur: