NO. 90-295 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Defendant, 

v. 

GARY LEROY ULSTAD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson, Thompson & Sessions, Billings, 

Montana 

For Respondent: 

Marc Racicot, Attorney General, Kathy Seeley, 

Assistant Attorney General, Lawrence G. Allen, Legal 

Intern, Helena, Montana; Harold L. Hanser, 

Yellowstone County Attorney, Charles Bradley, 

Deputy, Billings, Montana 

Filed: 

Submitted on briefs: September 27, 1990 

Decided: December 18, 1990 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

On October 30, 1989, the appellant Gary Ulstad was tried and 

convicted in the Thirteenth Judicial District, Yellowstone County, 

of one count of criminal possession of dangerous drugs, a felony. 

He appeals from that conviction. We affirm. 

The sole issue raised on appeal is whether the District Court 

erred by refusing to permit the jury to rehear portions of the 

trial testimony. 

On December 31, 1988, appellant Gary Ulstad and a companion 

were detained by members of Yellowstone County law enforcement. 

Ulstad consented to a search of his car and motel room. Police 

testified that while they were searching his car, Ulstad mentioned 

some money in the glove compartment about which he was concerned. 

When the police opened the compartment, they retrieved 1.3 grams 

of cocaine from a plastic bag, an empty bindle, and two syringes. 

Ulstad later admitted to having used drugs earlier in the day, but 

denied any knowledge of the substance found in his car. His 

fingerprints were not on the package containing drugs. At trial, 

Ulstad attempted to raise a reasonable doubt about whether he was 

"in posse~sion~~ of the cocaine by insinuating that his companion 

had placed it in the glove compartment of his car without his 

knowledge. In support of his argument, Ulstad pointed to the 

unreasonableness of a confessed drug user consenting to a search 

of an area where he knew drugs would be, and the unreasonableness 
of a drug possessor pointing out the specific area of the car in 

which the drugs were located. Conflicting testimony was presented 

by the deputies as to whether or not the glove compartment had been 

locked prior to the search. 

Shortly after the jury retired to deliberate, the bailiff 

delivered a message to the court from the jury. The note read, 

"First deputy mentioned locked glove box, second Deputy said it was 

not. Could you verify the question. Defense counsel requested 

that the testimony of the second deputy be read back to the jury. 

The court refused. It was unclear exactly which information the 

jury wanted, and the court would not let counsel decide that by 

choosing which testimony to read back. The court stated that the 

jury had heard all the evidence and would have to resolve it. On 

appeal, Ulstad maintains that the court did not exercise its 

discretion by failing to determine the exact nature of the jury's 

difficulty, to isolate the precise testimony which could solve it, 

and to weigh the probative value of the testimony against the 

danger of undue emphasis. 

This issue is controlled by 5 46-16-503(2), MCA, which states: 

After the jury has retired for deliberation, if there is 

any disagreement among the jurors as to the testimony or 

if the jurors desire to be informed on any point of law 

arising in the cause, they must require the officer to 

conduct them into court. When the jurors are brought 

into court, the information requested may be qiven in the 

discretion of the court. If such information is given, 

it must be given in the presence of the county attorney 

and the defendant and his counsel. (Emphasis added.) 

The trial court is authorized to exercise its discretion in 

providing the jury with trial testimony. Unless prejudice is shown 
by reason of the court's refusal to require reading of testimony, 

no abuse will be found. State v. LaFontaine, 157 Mont. 490, 487 

P.2d 301 (1971). The appellant protests that the court should have 

probed more deeply for a precise statement of the jury's question. 

However, the court's action was correct. The question was unclear 

and the court properly decided not to interpret the testimony of 

the witnesses for the jury, or to allow defense counsel to choose 

which testimony to have read back to the jury verbatim. This 

decision did not prejudice the appellant. There was no abuse of 

discretion. 

Affirmed. 

Justice