DA 06-0299 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 213N

STATE OF MONTANA, Plaintiff and Respondent,

v. SCOTT DOUGLAS JOHNSON, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 05-364 Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD: For Appellant: Jeffry L. Olson, Office of State Publ ic Defender, Great Falls, Montana For Respondent: The Honorable Mike McGrath, Attorney General; Sheri K. Sprigg, Helena, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula C ounty Attorney; Dale Mrkich, Jennifer Clark, Deputy County Atto rneys, Missoula, Montana

Submitted on Briefs: April 18, 2007 Decided: August 28, 2007

Filed:

__________________________________________ ClerkChief Justice Karla M. Gray deli vered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c ), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be in cluded in this Court's quarterly list of nonciteable cases published in the Paci fic Reporter and Montana Reports. ¶2 Scott Douglas Johnson appeals from the judgment and sentence entered by the Fourth Judicial District Court, Missoula C ounty, upon a jury verdict convicting him of the felony offenses of criminal possession of dangerous drugs and failure to comply with registration requirements. We affirm. ¶3 The restated issues on appeal are: ¶4 1. Did the District Court err in denying Johnson’s motion for a directed verdict on the charge of failure to register? ¶5 2. Was the evidence sufficient to support the jury’s verdicts?

BACKGROUND ¶6 In August of 2005, the State of Montana charged Johnson by information with the felony offenses of failure to comply with se xual offender registration requirements and criminal possession of dangerous drugs, as well as a misdemeanor charge. The supporting affidavit stated: 1) Johnson was ordered to regist er as a sexual offender and, after his release from prison, had last regist ered his address at the Missoula Poverello Center; (2) he left the Poverello Center in February of 2005; 3) Johnson’s probation

2officer received information th at Johnson was living at a different address; 4) law

enforcement officers found Johnson at that a ddress in July of 2 005; and 5) officers discovered a baggie in Johnson’s possession wh ich contained a substance later identified as methamphetamine. ¶7 Johnson pled guilty to the misdemeanor charge an d not guilty to the felony charges. The District Court he ld a jury trial. Johnson move d for a directed verdict at the close of the State’s case-in-chief and again at the close of all evid ence. The District Court denied the motion. The jury returned ve rdicts of guilty on bot h felony charges, and the court entered judgment and sentence. Johnson appeals.

STANDARDS OF REVIEW ¶8 We review de novo a district court’s conclusion pursuant to § 46-16-403, MCA— known as the “directed verdict statute”—regarding whether suffi cient evidence exists in a criminal case to support a fi nding or verdict of guilty. See State v. Swann , 2007 MT 126, ¶¶ 18-19, 337 Mont. 326, ¶¶ 18 -19, 160 P.3d 511, ¶¶ 18-19. A criminal defendant is entitled to a directed verdict only if reas onable people could not conclude from the evidence, taken in a light most favorable to the prosecution, that guilt has been proved beyond a reasonable doubt. See State v. Struble , 2004 MT 107, ¶ 26, 321 Mont. 89, ¶ 26, 90 P.3d 971, ¶ 26 (citation omitted). ¶9 The standard of review regarding the su fficiency of the evid ence to support a conviction in a criminal case is nearly identical, differing only because of the different point in a criminal case at which the issue ar ises. Thus, we review the sufficiency of the evidence to support a jury verdict of guilty to determine whether, view ing the evidence in

3the light most favorable to the prosecution, a ny rational trier of fact could have found the

essential elements of the crim e beyond a reasonable doubt. See State v. Weigand , 2005 MT 201, ¶ 7, 328 Mont. 198, ¶ 7, 119 P.3d 74, ¶ 7 (citation omitted). DISCUSSION ¶10 1. Did the District Court err in deny ing Johnson’s motion for a directed verdict on the charge of failure to register? ¶11 Under the Sexual or Violent Offender Registration Act (SVORA), a sexual or violent offender who knowingly fa ils to register certain inform ation, verify registration, or keep registration current may be se ntenced to prison, fined, or both. See § 46-23-507, MCA. Section 46-23-505, MCA (2003), in effect wh en Johnson was charged, sets forth in pertinent part that, if an offender requi red to register pursuant to SVORA “changes residence,” the offender shall give written notification of the “new address” to the appropriate agency within 10 days. ¶12 Section 1-1-215(3), MCA, provides that a residence cannot be lost until another is gained. Relying on that stat ute, Johnson asserts the State did not prove he gained a new

residence at the address where he was arrest ed or any other locatio n. However, Johnson provides no authority for his apparent position that the St ate has the burden of proving

the location of a new residence as an element of the offense of failure to register, with respect to the “changes residence” language in § 46-23-505, MCA (2003 ). M. R. App. P. 23(a)(4) requires such authority. We also no te that Johnson requested a jury instruction placing the burden on the State to prove he ch anged his residence to the street address where he was arrested, the District Court refused the requested instruction, and Johnson

4does not assert instructional error. Thus, we need not address this matter further. ¶13 Regarding Johnson’s motion for a directed ve rdict at the close of the State’s casein-chief, the State submitted ev idence that the Poverello Cent er’s policy allows a person to stay there for no more than 30 days at one time, and the cente r’s records reflected Johnson stayed there only between January 30 and February 12, 2005 . The State also

submitted evidence that Johnson wa s arrested in July of 2005 at the street address his probation officer had provi ded to officers. ¶14 We conclude that, taking this evidence in a light most favorable to the prosecution, a reasonable person could conclude, at the clos e of the State’s case-in-chief, that Johnson changed residences and failed to keep his registration current , as contemplated in § 46- 23-505, MCA (2003) and, therefore, that guilt had been prove n beyond a reasonable doubt. Thus, we hold the Di strict Court did not err in denying Johnson’s motion for a directed verdict at the close of the State’s case-in-chief. For that reason, we need not

address his renewed motion at the close of the entire case. ¶15 2. Was the evidence sufficient to suppo rt the jury’s verdicts? ¶16 Regarding the charge of failure to regist er, Johnson reiterates his assertion that the State had the burden to prove he acquired a new residence in relation to the “changes residence” language containe d in § 46-23-505, MCA (2003)— again, without advancing authority as required by M. R. App. P. 23(a)(4). We will not address this further. ¶17 Johnson also points to testimony from himself and other witnesses about his asserted homelessness and staying various places after he left the Po verello Center, in an effort to support his position that insufficien t evidence supported the jury’s verdict on the

5failure to register charge. We note that, in addition to that evidence, a detective testified that homeless people have registered in Missoula by providing locations such as “Northwest Side of the Reserve Street Bridge.” ¶18 The issue here is whether sufficient evid ence supports the ju ry’s verdict, not

whether the evidence could have supported a different result. See Weigand , ¶ 7 (citation omitted). Viewing the evidence recited above in a light most favorable to the prosecution, we conclude sufficient evidence existed on which a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. ¶19 Johnson also contends insu fficient evidence supports the jury’s verdict on the charge of criminal possession of dangerous drugs. He relies on certain conflicting testimony and the discovery of the baggie at th e detention center rather than during an earlier “pat down” search. ¶20 Determinations of the credib ility and weight of testimony are within the exclusive province of the jury, and conf licting testimony does not rende r the evidence insufficient to support a guilty verdict. State v. Borsberry , 2006 MT 126, ¶ 20, 332 Mont. 271, ¶ 20, 136 P.3d 993, ¶ 20 (c itations omitted). Moreover, as set forth above, the issue is not

whether the evidence wo uld have supported a different verdict. See Weigand , ¶ 7. Viewing the evidence in the lig ht most favorable to the prosecution, we conclude a

rational trier of fact coul d have found Johnson guilty beyond a reasonable doubt of criminal possession of a dangerous drug. We hold, therefore, that sufficient evidence supported the jury’s verdict on the felony drug charge.

6¶21 Affirmed.

/S/ KARLA M. GRAY We concur:

/S/ JAMES C. NELSON /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ JIM RICE

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