No. 13887 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTERRANCE ALAN PETKO, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Edward Dussault, Judge presiding. 

Counsel of Record: 

For Appellant: 

Edward Yelsa argued, Anaconda, Montana 

For Respondent : 

Hon. Mike Greeley, Attorney General, Helena, Montana 

Charles R. Anderson, argued, Assistant Attorney General, 

Helena, Montana 

John Radonich, County Attorney, Anaconda, Montana 

Submitted: June 5, 1978 

Filed: 3ui3 1373 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

On January 6, 1977 defendant Terrance Alan Petko was 

arrested and subsequently charged in the District Court, Deer 

Lodge County, with two counts: Felony possession of marijuana 

and possession with intent to sell. The second count was subsequently dropped during trial. The case was tried to a jury, 

defendant was found guilty and given a deferred imposition of 

sentence under the condition that he pay $500 within six months. 

From this sentence defendant appeals and alleges six specifications of error: 

1. Whether the warrantless arrest of defendant was lawful? 

2. Whether the conviction should be reversed because 

evidence which was viewed by the jury and commented on by witnesses 

was subsequently suppressed by the trial judge? 

3. Whether the fact that defendant never entered a formal 

plea of not guilty is a jurisdictional defect warranting a new 

trial? 

4. Whether the state's expert could properly testify that 

the evidence seized was marijuana? 

5. Whether it was error for the District Court to refuse 

to give defendant's proposed instructions 7 and 19? 

6. Whether a fine of $500 payable within six months is a 

proper condition pursuant to a deferred imposition of sentence? 

The events leading to the warrantless arrest of defendant 

Petko, were: 

Officers Bernard May and Kichard Ivankovich were driving 

south on Maple Street in Anaconda at approximately 11:30 p.m., 

Jaunuary 6, 1977. Maple Street was well lit by street lights. The 

officers were traveling at approximately 10 to 15 miles per hour. 
In front of 508 Maple the officers observed two persons approaching 

a blue Rambler automobile. One person was tall, slender, had 

shoulder length hair and was wearing a dark blue coat. The other 

person was shorter and wore a lighter colored coat. The shorter 

of the individuals was carrying a large grocery sack and acted 

nervous and peculiar at the officers drove by. The officers continued to observe the two and saw the shorter man place the grocery 

sack in the street behind the sheel of a truck parked on Maple 

Street. Then both individuals hurriedly got into a Rambler automobile and left in a northerly direction at a high rate of speed. 

The officers retrieved the abandoned sack. Inside the sack 

they found 21 cellophane bags containing a substance which appeared 

to be marijuana and a metric scale. The officers then attempted to 

find the Rambler automobile but were unsuccessful. After radioing 

the city police and the highway patrol for assistance the officers 

returned to the vicinity of 508 Maple and parked near the alley 

between Maple and Elm. Approximately fifteen or twenty minutes 

after the initial encounter with the two individuals, the officers 

observed defendant coming down the alley behind 508 Maple carrying 

a large grocery sack. Defendant was tall, had a slender build 

and was wearing the same color coat as the person seen in front of 

508 Maple. The officers believed him to be the same person they had 

seen when the. first sack of marijuana was abandoned on Maple Street. 

When the officers entered the alley defendant started to 

run, jumped a fence and ran across Elm Street. As the officers 

pursued they identified themselves and Officer Ivankovich fired 

a warning shot in the air. Defendant slipped, fell to the ground 

and was apprehended by Officer May. The sack found in the possession 

of defendant at the time of his arrest revealed 24 cellophane bags 

and one large plastic sack which contained a substance that appeared 

to be marijuana. 
Chemical analysis subsequently disclosed the first 

grocery sack contained 530 grams of marijuana and the second 

grocery sack found in possession of defendant contained 858 

grans of marijuana. 

A search was conducted of defendant's car and his house 

at 508 Maple but the evidence seized therein was suppressed on 

motion of defendant. 

Defendant was charged with two counts: 

1. Felony possession of dangerous drugs under section 

54-133, R.C.M. 1947. 

2. Criminal possession of dangerous drugs with intent 

to sell pursuant to section 54-133.1, R.C.M. 1947. 

Following the District Court's suppression of the 

marijuana contained in the first grocery sack found in the street 

the proseuction dismissed the second count since section 54-133.1 

requires one kilogram or more. Thereafter the jury was admonished 

to disregard the first grocery sack of marijuana and to consider 

only the first count of felony possession, based upon the second 

grocery sack of marijuana found in the possession of defendant. 

Defendant's conviction for possession of the second grocery 

sack containing 858 grams of marijuana which was taken from defendant's possession at the time of his arrest is the subject 

of this appeal. 

In Issue No. 1 defendant contends the arrest was illegal 

and therefore the search and seizure incident to the arrest was 

also illegal and the admission of the fruits of the search at trial 

constituted reversible error. 

The criteria for testing the sufficiency of a warrantless 

arrest, as in this case, was recently stated by this Court in State 
v. Lenon, (1977), Mont . , 570 P.2d 901, 34 St.Rep. 1153, 

1156, quoting from State v. Hill, (1976), Mont . -9550 P.2d 

390, 33 St. Rep. 496: 

"'Probable cause to arrest without a warrant exists 

where the facts and circumstances within the officer's 

knowledge and of which he had reasonably trustworthy 

information are sufficient in themselves to warrant a 

man of reasonable caution in the belief that an offense 

has been or is being committed."' 

The facts and circumstances within the officers' personal 

knowledge at the time of defendant's arrest were: 

a) Two individuals were seen emerging from 508 Maple 

Street at 11:30 p.m.; 

b) Maple Street was illuminated by street lights; 

c) The two individuals were one tall man, with a slender 

build, shoulder length hair and a dark blue coat, and a shorter 

man with a light colored coat; 

d) The two men acted nervous and suspicious when the 

officers drove by, and the shorter man hurriedly placed a grocery 

bag which he was carrying behind the wheel of a Datsun pickup, 

and both men jumped into a Rambler automobile and left at a high 

rate of speed; 

e) The officers retrieved the abandoned grocery bag and 

found 21 cellophane bags containing a substance believed to be 

marijuana and a metric scale; 

f) Both officers were experienced and trained in the 

detection of marijuana; 

g) After an unsuccessful search for the Rambler automobile 

the officers returned to the vicinity of 508 Maple and fifteen or 

twenty minutes after their first encounter, they saw defendant 

walking down the alley behind 508 Maple, carrying a grocery bag 

similar to the one previously abandoned on Maple Street; 
h) Defendant met the description of the taller of the two 

individuals who abandoned the marijuana found on Maple Street. He 

appeared to the officers to be the same individual; and 

i) Upon seeing the officers defendant attempted to escape, 

and continued to do so even though the officers' identified themselves to him. 

These facts and circumstances would justify a man of 

reasonable caution to believe that an offense has been or was 

being committed and there was sufficient probable cause to arrest 

defendant. 

Defendant's arrest was based upon probable cause and 

therefore a lawful arrest. The seizure of the grocery sack in 

his possession and in plain view was made pursuant to a valid 

lawful arrest. The District Court properly denied the motion to 

suppress this evidence. 

Regarding Issue No. 2, the trial court reversed its ruling 

on the state's exhibits which consisted of the contents of the 

first grocery bag abandoned on Maple Street and this evidence was 

shown to the jury and commented upon by witnesses prior to its 

exclusion. During the time the court delayed ruling upon the 

admissibility of the exhibits, the bags of marijuana and the metric 

scale were displayed before the jury and commented upon by Officer 

May, Officer Ivankovich and the forensic chemist, Arnold Melnikoff . 

Officer Ivankovich testified at length on the finding of the evidence, 

the contents of the bag, and how the scale was used to weigh fine 

weights. The scale was attributed as having come out of the house 

of Terrance Petko at 508 Maple Street. The question was asked 

Officer Ivankovich - "~ould this be something that would be used by 

somebody who would be packaging in the form of lids?" Officer 

Ivankovich answered "Yes". 
530 grams of marijuana and a weight scale, similar to ones 

typically used for weighing marijuana for sale was displayed to 

the jury and commented on by state witnesses. When the trial judge 

decided to suppress the above evidence he admonished the jury to 

disregard the first grocery sack of marijuana and to consider only 

the first count, felony possession of marijuana based upon the 

second grocery sack of marijuana found in defendant's possession. 

It is apparent the trial court committed error by allowing 

the jury to view the evidence and permit the witnesses to comment 

upon it. However, we must examine all of the circumstances 

surrounding the error and determine if the defendant's right to a 

fair trial was substantially prejudiced and therefore entitle him 

to a new trial. 

The District Court did reserve its ruling on the state's 

exhibits which consisted of the contents of the first grocery bag 

abandoned on Maple Street. This evidence was shown to the jury 

and commented upon by witnesses prior to its exclusion. 

Defendant was originally charged with two counts : felony 

possession and possession with intent to sell. When the District 

Court suppressed the marijuana contained in the first grocery bag 

found by the officers on Maple Street, the possession with intent 

to sell was dismissed. The conviction on appeal is felony possession, which results from the possession of marijuana in excess of 

60 grams. The second grocery bag, which was in the defendant's possession at the time of his arrest, contained 858 grams of marijuana! 

Certainly the jury could not ignore this evidence regardless of 

viewing the original grocery bag and its contents. If this was 

a borderline case as to the amount possessed or as to possession, 

then defendant may have a legitimate argument. But in light of the 

abundance of evidence presented against him on the felony possession 
charge, there is little persuasion in the argument that defendant 

is entitled to a new trial. State v. Bradford, (1978), Mont . 

35 St. Rep. 

Issue 3. It appears that the formal entry of a plea by the 

defendant was never completed. Defendant contends this oversight 

on the part of the District Court requires a reversal of his conviction even though defendant was represented by counset a t a l l 

times, was informed of the charges against him and tried by a jury 

of his peers. 

This contention is answered by section 95-1608, R.C.M. 

1947, which provides: 

''No irregularity in the arraignment which does not 

affect the substantial rights of the defendant shall 

affect the validity of any proceeding in the cause if 

the defendant pleads to the charge or proceeds to trial 

without objecting to such irregularity." (Emphasis 

supplied. ) 

The Revised Commission Comment to section 95-1608 states: 

"The real question in all criminal cases on appeal 

is whether the substantial rights of the defendant 

have been adversely affected. The purpose of this 

section is to prevent reversal where the court has 

strayed from the procedure set forth, but the failure 

has not hindered the defense. 

"The burden is upon the defendant to object, if any 

irregularity in connection with the arraignment 

is going to affect his defense. This does not 

override any of the defendant's substantial constitutional rights even though not objected to." 

The defendant did not object to any irregularity before 

proceeding to trial and we find no prejudice arising from this - 

irregularity. 

Issue 4. Defendant argues the court erred in allowing 

expert testimony as to the substance found in the grocery bags 

being marijuana. He argues this testimony embraced an ultimate 

issue to be decided by the jury. There is no dispute that Mr. 

Melnikoff was qualified as an expert in his field of forensic 
chemistry and was testifying as an expert witness when he stated 

that in his mind he had no doubt the evidence seized was marijuana. 

This was his opinion based on the tests he ran on the substance 

seized and such testimony was properly received. 

Rule 704, Montana Rules of Evidence, specifically states: 

"Testimony in the form of an opinion or inference 

otherwise admissible is not objectionable because 

it embraces an ultimate issue to be decided by the 

trier of fact .'I 

Though the Montana Rules of Evidence were not in effect at the time 

of this trial Rule 704 is merely a restatement of and is not 

intended to change existing Montana law. As Commission Comment to 

Rule 704 states: 

"* * * Its affect is to specifically abolish the 

rule against opinions on ultimate issues of fact, 

not currently followed in Montana. Therefore, 

this rule is consistent with existing Montana 

law. Kelly v. John R. Daily Co., 56 Mont. 63,79, 

181 P. 326 (1919); State v. Shannon, 95 Mont. 

280, 286, 26 P.2d 360 (1933); State v. Campbell, 

146 Mont. 251, 258, 405 P.2d 978 (1965); Rude 

v. Neal, 165 Mont. 520, 525, 530 P.2d 428 (1974); 

and McGuire v. Nelson, 167 Mont. 188, 536 P.2d 768, 

(1975) .'I 

As this Court stated in McGuire v. Nelson, (1975), 167 Mont. 188, 

200, 536 P.2d 768, in rejecting the test of whether the opinion 

invades the province of the jury: 

"The true test would seem to be whether the subject 

is sufficiently complex so as to be susceptible to 

opinion _evidence, and whether the witness is properly 

qualified to give his opinion." 

Here the proper identification of marijuana requires 

chemical testing conducted by a qualified person, and Arnold Melnikoff was properly qualified to give such an opinion. 

Issue 5. Defendant contends the court erred in not giving 

his proposed instructions, number 7 and number 19. 

Defendant's proposed instruction number 7 reads: 
"You may not find the defendant guilty as charged 

unless you have first found that, in addition to the 

other elements of the crime charged, that said marijuana 

admitted in evidence herein would produce a hallucinogenic effect on a person, and this must be concluded 

by you beyond a reasonable doubt ." 

~efendant's proposed instruction number 19 reads: 

"The term Dangerous Drug means any depressant, 

stimulant, hallucinogenic, or narcotic drug. 

"A hallucinogenic drug is a drug which produces 

hallucinations, that is sensory perceptions not 

founded upon subjective reality." 

Defendant was convicted of felony possession of dangerous 

drugs pursuant to section 54-133, R.C.M. 1947. Section 54-133 

prohibits the possession of any dangerous drug, as defined in 

action 54-301, R.C.M. 1947. Section 54-301(5) defines "Dangerous 

drug1' as any drug substance, or immediate precursor in Schedules 

I through V. Schedule I, found in section 54-305, lists marijuana 

as a dangerous drug. 

Marijuana is grouped with hallucinogenic drugs, but this 

does not call for the trier of fact to make a specific finding 

as to its hallucinogenic capabilities. The legislature has made 

that determination. 

The determination for the trier of fact is whether the 

substance introduced at trial is in fact marijuana, as defined 

by section 54-301(16), which states: 

"Marijuana (marihuana) means all plant material from 

the genus cannabis containing tetrahydrocannabinal 

(THC) or seeds of the genus capable of germination." 

The presence of THC is essential and this the reason for and the 

necessity of chemical analysis. The jury is not required to find 

that marijuana admitted into evidence is hallucinogenic but only 

that it meets the definition of section 54-301(16). The District 

Court's Instruction No. 8 fully explained the elements of this 

offense. 
Therefore, the District Court properly denied the 

defendant's proposed instructions requiring the jury to find 

that the marijuana would produce an hallucinogenic effect and 

defining the term hallucinogenic. 

Issue 6. Whether the District Court committed error in 

imposing a fine of $500, payable within six months after May 31, 

1977, after defendant was found guilty of criminal possession of 

dangerous drugs and the court deferred the imposition of sentence. 

We hold the imposition of a $500 fine or payment as a 

condition of probation after deferred imposition of sentence to 

be a nullity and of no force or effect and that the same be vacated 

and set aside to conform with this Court's Opinion in State v. 

Merlin Babbit , (1978), Mont . -9 574 P.2d 998, 35 St.Rep. 

154. 

The judgment of the District Court in all other respects is 

af firmed. 

Justice 

We Concur: 

Chief Justice