No. 12136 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

LARRY FRATES , 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant : 

Towe, Neely and Ball, Billings, Montana. 

Gerald J. Neely argued, Billings, Montana. 

For Respondent: 

Honorable Robert L. Woodahl, Attorney General, 

Helena, Montana. 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana. 

Harold F. Hanser, County Attorney, argued, Billings, 

Montana. 

Submitted: May 16, 1972 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Larry Frates, appeals from a judgment of conviction of the crime of criminal sale of dangerous drugs entered on 

June 10, 1971, following jury trial and verdict of guilty in the 

district court of the thirteenth judicial district, county of 

Yellowstone, the Hon. Charles Luedke, district judge presiding. 

Following denial of his motion for a new trial, defendant appeals 

from the judgment of conviction. 

Defendant was arrested on the night of March 17, 1971, in 

Room 105 of the Imperial 400 Motel in Billings by officers of 

the Billings police department following a sale by defendant of 

900 LSD tablets to an undercover police officer, Richard Stelzer. 

Two officers of the Billings police department, Sgt. Jack Samson 

and Detective Pat Hagel, occupied the adjoining motel room and 

heard the entire conversation between defendant and Officer 

Stelzer by means of an electronic "bug" planted in the telephone 

in Room 105, which transmitted the conversation through the 

telephone in the room they occupied. 

At trial, defendant admitted his actions of March 17, 1971, 

but offered testimony and evidence to support his defense of 

entrapment by the Billings police and the Yellowstone County 

sheriff's departments. 

During trial it developed that a police informer, Dale 

Anderson, a bartender at the Midway Bar in Billings, had purchased 

100 LSD tablets from defendant on two separate occasions within 

days of the crime charged, and played a significant role in 

arranging the meeting at the Imperial 400 Motel between Officer 

Stelzer and defendant culminating in the sale of 900 LSD tablets 

with which defendant was charged. 

Defendant was duly charged with the latter sale, tried 

by jury, convicted, and sentenced to twenty years in the state 
prison. Following denial of his motion for a new trial, defendant appeals from his conviction. 

Defendant raises seven issues on appeal: 

1. The court erred in refusing to give defendant's offered 

instruction No. 7. 

2, The court abused its discretion in admitting evidence 

where there was an incomplete chain of possession. 

3. The court abused its discretion in allowing informant 

to testify to alleged prior sales. 

4. Entrapment having been shown as a matter of law, the 

court erred in not granting a directed verdict of acquittal at 

the close of the prosecution's case. 

5. The court erred in not striking all testimony relating 

to conversations taking place in the motel room in question. 

6, The court erred in not granting a new trial or directing 

a verdict of acquittal at the close of defendant's case. 

7. The court erred in overruling defendant's objection to 

plaintiff's offered instruction No. 4. 

Directing our attention to Issue 1, we observe that defendant's offered instruction No, 7 is covered by the court's 

instruction No. 2, which is the cautionary instruction taken 

verbatim from Instruction No. 1, M.J.I.G. Accordingly there 

is no error in the court's refusal of defendant's offered 

instruction No. 7 covering the same point in slightly different 

language. State v. Lagge, 143 Mont. 289, 388 P.2d 792; State 

v, Logan, 156 Mont. 48, 473 P,2d 833. 

In Issue No. 2, defendant argues the district court abused 

its discretion in admitting evidence of dangerous drugs where 

there was an incomplete chain of possession. The evidence 

establishes a chain of possession of the LSD tablets from defendant to the arresting officers; from there to tagging, marking 

and storing in the evidence vault at the Billings police department; the packaging and addressing of four of the tablets 

to the Bureau of Narcotics and Dangerous Drugs in San Francisco; 
the receipt of the four pills by this agency; their examination, 

testing, and identification by chemist Chan of that agency; 

and, the return of the plastic container, the mailing box, and 

the mailing wrapper,bearing the handwriting of one of the 

Billings officers, to the Billings police department. Under such 

circumstances, the absence of the direct testimony of the person 

who actually mailed them to San Francisco is immaterial and in 

no sense breaks the chain of possession, precluding their admissibility in evidence. 

Issue No. 3 concerns the admission of testimony by informant 

Anderson of alleged prior sales of dangerous drugs by defendant. 

The state's evidence disclosed that Dale Anderson was requested by the Billings police department to assist it in curbing 

the drug traffic in Billings and to relay information on drug 

traffic as a paid informer, Anderson was given the names of 

two suspects of particular interest to the Billings police department, one of whom was Ron Novasio and the second, the defendant. 

In late February or early March 1971, defendant came to 

the Midway Bar in Billings where Anderson was employed as a 

bartender. Anderson told defendant that he wanted to go into 

a "partnership" with defendant in the illegal drug field. 

Anderson informed defendant he was not getting supplied like he 

should, and asked if defendant could assist him. Defendant 

replied that he was not sure at that time, but he would let 

Anderson know. Again, about a week later, defendant and Anderson 

came into contact and discussed their possible agreement. 

On March 9, 1971, approximately a week and a half after 

their last meeting, defendant came to the Midway Bar and handed 

Anderson a sack containing 100 capsules of LSD. Defendant told 

Anderson the capsules were LSD, which could be sold for double 

the amount of money needed to purchase them. Anderson turned 

the capsules over to Detective Hagel, who gave Anderson $150 

so that he could pay defendant. About a week later, on March 14, 
1971, defendant returned to the Midway Bar and handed Anderson 

another sack containing 100 LSD capsules which were again turned 

over to Detective Hagel. It is the evidence of these prior 

transactionq admitted at the trial over the objection of defendant, 

that is one of the principal assignments of error. 

The general rule in regard to the admissibility of evidence 

of other crimes is stated in 29 Am,Jur.2d, Evidence, 5320,p.366: 

"It is a well-established common-law rule that in a 

criminal prosecution proof which shows or tends to 

show that the accused is guilty of the commission of 

other crimes and offenses at other times, even though 

they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing 

the commission of the particular crime charged * * *." 

~ontana's adherence to the above quoted general rule is 

recited in State v. Jensen, 153 Mont. 233, 238, 455 P.2d 631, 

which states: 

"* * * Montana recognizes the general rule "'that 

when a defendant is put upon trial fox one offense, 

he should be convicted, if at all, by evidence which 

shows that he is guilty of that offense alone; and 

evidence which in any manner shows, or tends to show, 

that he has committed another crime wholly independent. 

even though it be a crime of the same sort, is irrele-• 

vant and inadmissible." Williams v. State, 68 Ok1,Cr. 

348, 352, 98 P,2d 937, 939.' State v. Tiedemann, 139 

Mont. 237, 362 P.2d 529 (1961). The reason for this 

rule is---the defendant is entitled to be informed 

of the crime charged so as to prepare his defense and 

proof of other crimes subjects him to surprise and 

defense of multiple collateral or unrelated issues, 

State v. Nicks, 134 Mont. 341, 332 P.2d 904, (1958).11 

(Emphasis added) 

Jensen, then goes on to state a recognized exception to this 

general rule: 

11 There are recognized exceptions to this general rule: 

similar acts with the same prosecuting witness, State 

vs. Sauter, 125 Mont. 109, 232 P.2d 731 (1951); similar 

acts not too remote in time, State vs. Nicks, supra; 

and 'where the evidence of other crimes tends to establish 

a common scheme, plan or system and where such other crimes 

are similar to, closely connected with and not too remote 

from the one charged, and also where they are so that 

proof of one tends to establish the other.' State v. 

Merritt, Mont , 5'/ P. State v, 

Gran~berr:?~140 Mo~:~~?O: 367 $!2!8:6d1;?%$) . " (Emphasis 

added) 

The weight of authority, although not pursued in Jensen, is 

favorable to this exception to the general rule. State v, McDaniel, 80 Ariz. 381, 298 P.2d 798; Warren v. State, 95 Ga.App. 
79, 97 S.E.2d 194; State v, Whiting, 173 Kan. 711, 252 P.2d 884; 

Commonwealth v. Kline , 361 Pa. 434, 65 A.2d 348. 

We recognize that the admission of such evidence is an 

exception to the general rule and accordingly we are obligated 

to look very carefully at the relative probative value of such 

evidence, if any, and weigh it against the prejudice inherent 

in this type of evidence in the light of the actual need to 

introduce such evidence by the state. 

The evidence of the two prior sales of LSD to the informer 

in the instant case is part of the corpus delicti of the crime 

with which the defendant is charged. It is a part of the totality 

of events and occurrences leading to and culminating in the sale 

of the 900 LSD tablets to the undercover police officer of which 

defendant was convicted. It tends to explain the circumstances 

leading to the commission of the crime charged, establishes 

defendant's intent to commit the crime charged, and negatives 

the defense of entrapment. As such, it is clearly relevant, 

probative and competent evidence tending to prove the crime 

charged. The fact that it is inherently prejudicial to defendant 

does not detract from its admissibility under such circumstances, 

particularly where, as here, no element of surprise is involved. 

Defendant argues that such evidence is not admissible in 

the state's case-in-chief as the defense of entrapment had not 

been raised by defendant at this juncture. The record belies 

this claim. Defendant had made his opening statement immediately 

following that of the state before the introduction of any evidence and although such opening statement is not transcribed in 

the record on appeal, the record indicates the defense of entrapment had been raised therein by the following remark of the trial 

judge in response to defendant's objection to the admissibility 

of evidence of the two prior sales of LSD: 

"THE COURT: Well, it seems to me that the die 

is pretty well cast by virtue of the opening 

statements made on both sides, to which neither 
made any objection. And the rule in Montana is 

that provided by State v. Jensen, 153 Mont. 233, 

and under the circumstances 1'm going to overrule the objection. 11 

Issue No. 4 is whether entrapment was established as a 

matter of law entitling defendant to a directed verdict of 

acquittal, The law of entrapment is set forth in our recent 

decision in State v. Karathanos, Mon t . 9 493 P.2d 326, 

330, 29 St.Rep. 81, 88, which we quote in pertinent part: 

"Defendant now contends that he was entrapped into 

commitllng the offense charged. With this contention, 

we cannot agree. Entrapment occurs only when the 

criminal intent or design originates in the mind of 

the police officer or informer and not with the 

accused, and the accused is lured or induced into 

committing a crime he had no intention of committing. 

Only when the criminal design originates, not with 

the accused, but in the mind of government officers 

and the accused is by persuasion, deceitful representations, or inducement, lured into the commission of a 

criminal act, can a case of entrapment be made out. 

In short, there is a controlling distinction between 

inducing a person to do an unlawful act and setting 

a trap to catch him in the execution of a criminal 

design of his own conception. The fact that the 

Yellowstone County sheriff's office afforded the opportunity or facility for the commission of the 

offense, does not come within the entrapment rule. 

In this class of offenses, usually committed secretly, 

it is difficult if not almost impossible to secure 

the evidence necessary to convict by any other means 

than by the use of decoys, Certainly, there can be 

no objection to their use if the officers do not by 

persuasion, deceitful representations or inducement, 

lure a person who otherwise would not be likely to 

break the law, into a criminal act. State v. Wong 

Hip Chung, 74 Mont. 523, 241 P, 620; State v. Parr, 

129 Mont. 175, 283 P.2d 1086; 22 C,J.S. Criminal-Law 

55 45(1), 45(2), 45(4), p. 137," 

Here, the evidence is conflicting precluding entrapment as a 

matter of law, and the jury resolved this conflict against the 

defendant. 

There is no merit in defendant's issue No. 5. It is based 

on the failure of the state to permit inspection and copying 

of the tape recording of the conversation between defendant 

and the undercover police officer in the motel room at the time 

of sale. The uncontradicted evidence shows that the tape was 

unintelligible, inaudible, not available, and not used prior to 

or at the trial. Under such circumstances the claimed error is 

without substance, 
Defendant's issue No. 6 is encompassed in the other errors 

claimed and need not be separately discussed, 

In issue No. 7, the final issue, defendant claims that the 

word "suspect" as used in court's instruction No. 11 was error. 

Instruction No. 11 reads in pertinent part: 

"On the other hand, where a person already has the 

readiness and willingness to break the law, the 

mere fact that law enforcement officers or their 

agents provide what appears to be a favorable opportunity is not entrapment. For example, when law 

enforcement officers or their agents suspect that 

a person is engaged in the illicit sale of dangerous 

drugs, it is not entrapment for law enforcement officers or their agents to pretend to be someone else 

and to offer, either directly or through an informer 

or other decoy, to purchase narcotics from such 

suspected person." (Emphasis supplied) 

I I Defendant contends the term suspect" was error and the words 

"has reasonable grounds for believing" should have been substituted. The use of the word "suspect" is entirely proper where, 

as here, the balance of the instruction clearly indicates that 

the impetus for commission of the crime must emanate from defendant and that the law enforcement officers can do no more 

than create the opportunity for its commission by posing as 

prospective purchasers of contraband. 

The judgment of the district 

Associate Justice 

/M:,f Justice r