No. 90-592 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,
v. WILLIAM ROBERT BERNHARDT, Defendant and Appellant. 

### JUN

### 111991

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin,Judge presiding.

COUNSEL OF RECORD: ForAppellant: William Dee Morris, Helena,Montana For Respondent: HonorableMarc Racicot, Attorney General, Barbara C. Harris,Assistant Attorney General, Helena, Montana; Robert 

### L. Deschamps 111, Missoula County Attorney, Missoula, Montana

Submitted on ~riefs:March 21, 1991 Decided: June 11, 1991 Filed:

ClerkJusticeWilliam E. Hunt, Sr., delivered the opinion of the Court. The defendant William Robert Bernhardt was found guilty of criminal possession of dangerous drugs by a jury sitting in the Fourth Judicial District,Missoula County. He appeals from that verdict. We affirm. The solequestionpresented for review iswhether substantial evidence was introduced at trial upon which to convict the defendant of criminal possession ofmethamphetamine. On or about March 13, 1989, the defendant was arrested in downtownMissoula fordomesticabuse. During thepat-downto check for weapons, the arresting officer felt a round container in the defendant's clothing,which he assumed to be a tobacco container. The defendant was then handcuffed and placed in the back of the squad car. The officer testified that on the ride to the station the defendantwas moving around in the back seat quite a bit, rocking back and forth. After they reached the jail parking lot, the officer heard a noise that sounded to him like a hard container dropping onto somemetal. The officer took the defendant to jail,where paraphernalia customarily used to take drugs was found in his pocket. The arresting officer returned to the patrol car and checked the back seat area. Under the cushion of the back seat, he found asmall green plastic container and two "bindles.I1 ~esidue in the container latertested positive forcocaineand thematerial inthe bindles tested positive formethamphetamine. The defendantwas convictedby a jury of criminal possession of methamphetamine, and the court sentenced him to five years in theMontana State Prison, all of which were suspended. The issue is whether substantial evidence was presented at trial to convict the defendant of possession ofmethamphetamine. The arresting officer testified that it was during the pat down search that he initially felt the objectwhich seemed like a chewing tobacco can that laterproved to be a cocaine container. The defendantmaintains that that evidence could support a charge of possession of cocaine, since that was what was found in the container, but not possession of methamphetamine. He states that the evidence does nothing to directly connect the defendant with the two bindles of methamphetamine found in the vicinity of the plastic container. The defendant reasons that the jury verdict must have been "based on inferences only, a use of circumstantial evidence forbiddenby law." The evidence supporting the defendant's conviction for possession of methamphetamine is sufficient to support the verdict. "Our standardofreviewon issuesof substantial evidence is that a conviction cannot be overturned if the evidence, when viewed in a light most favorable to the prosecution, would allow
a rational trier of fact to find the essential elements of thecrime beyond a reasonable doubt." State v. Tome, 228 Mont. 398, 400, 742 P.2d 479, 481 (1987),citing Statev. Kutnyak, 211Mont. 155, 174, 685 P.2d 901, 910 (1984). "When circumstantial evidence issusceptibletotwo interpretations, onewhich supports guiltand the other which supports innocence, the trier of fact determines which is the most reasonable." State v. Tome, 228 Mont. at 401, 742 P.2d at 481. We have defined "substantialt1 as "such relevant evidence as
a reasonable mind might accept as adequate to support a concl~sion.~~ Statev. Kutnvak, 211Mont. at 174, 685 P.2d at 910. ~lPossessionw is the element of the crime in question here. possession^ is defined as the knowing control of anything for a sufficient time to be able to terminate control. Section 45-2-101(52), MCA. The testimony of the officer established the defendant's presence and position in the car,his motions, and the sound of an itemhitting against metal in the back seatwhile the defendantwas sitting there. The officer testified that the round containermatched the sizeand shape of the container earlier felt in the defendant's pocket and that thebindles of methamphetamine
were with the container when found. The officer also testified that the police vehicle was locked when he and the defendantwere away from it and that he recalled no one else who could have deposited the items.The foregoing evidence of possession of the bindles of methamphetamine is substantial enough to support the trier of fact's verdict of guilty. ~fkirmed.

we Concur: