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: DistrictCourt of theThirteenth Judicial District, 

### In and for the County of Yellowstone, The HonorableWilliam J. Speare, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Thompson & Sessions, Billings, Montana For Respondent: Marc Racicot, Attorney General, Kathy Seeley, AssistantAttorneyGeneral,LawrenceG.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, 1990JusticeWilliam 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 iswhether 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 thatwhile theywere searchinghis car,Ulstad mentioned
somemoney 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 tohaving 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 unreasonablenessof a drug possessor pointing out the specific area of the car 

### in which thedrugswere located. Conflicting testimonywas presented by thedeputiesas towhether ornot theglove compartmenthad 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, "Firstdeputy mentioned locked glovebox, 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 theprecise testimony which could solve it, and to weigh the probative value of the testimony against the danger of undue emphasis. This issue iscontrolledby 5 46-16-503(2), MCA, which states: After the juryhas retired for deliberation, if there is any disagreementamong 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 requestedmaybeqiven inthe discretion of the court. If such information is given, itmust be given in the presence of the county attorney and the defendant and his counsel. (Emphasisadded.) The trial court is authorized to exercise its discretion in providing the jurywith trial testimony. Unlessprejudice is shownby 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 thatthecourt shouldhave probed more deeply for aprecise statementof the jury's question. However, the court's actionwas correct. The questionwas unclear and the court properly decided not to interpret the testimony of thewitnesses 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