DA 20-0341

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 225N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

SAMUEL RICHARD BONKO,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District,

In and For the County of Big Horn, Cause No. DC 2019-47

Honorable Matthew Wald, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Jeavon C. Lang, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant 

Attorney General, Helena, Montana

Gerald Ray Harris, Big Horn County Attorney, Randen Schoppe, Deputy 

County Attorney, Hardin, Montana

Submitted on Briefs: August 31, 2022

 Decided: November 9, 2022

Filed:

__________________________________________

Clerk

11/09/2022

Case Number: DA 20-0341
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Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion, shall not be cited and does not serve 

as precedent. Its case title, cause number, and disposition shall be included in this Court’s 

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. 

¶2 Samuel Richard Bonko appeals his convictions for felony criminal possession of 

dangerous drugs and misdemeanor resisting arrest. Bonko contends the District Court 

erred when it: (1) allowed the State to amend its Information; (2) allowed the State to call 

additional witnesses that had not been previously identified; (3) admitted evidence over 

Bonko’s objection to the chain of custody; and (4) denied Bonko’s motion to dismiss for 

insufficient evidence as to the resisting arrest charge.1

¶3 On June 17, 2019, officers from the Big Horn County Sheriff’s Office went to a 

truck stop to investigate a tip that Bonko was there and had an outstanding warrant for his 

arrest. Deputy Ty Cruikshank arrived first and pulled his patrol vehicle in behind a truck 

at one of the gas pumps. Deputy Cruikshank approached the person pumping gas at the 

truck, Clayvin Herrera. Herrera advised Deputy Cruikshank that Bonko was inside the 

truck. When Deputy Cruikshank knocked on the rear passenger window, Bonko moved 

from the passenger seat towards the driver’s seat and began to struggle with Herrera. 

1 At trial, Bonko moved for a directed verdict, which is properly treated as a motion to dismiss for 

insufficient evidence pursuant to 46-16-403, MCA. State v. McWilliams, 2008 MT 59, ¶ 36, 341 

Mont 517, 178 P.3d 121. 
3

¶4 During this time, Big Horn County Sheriff’s Sergeant Michael Atkinson arrived and 

parked his patrol vehicle in front of the truck. Bonko then put the truck in reverse and 

backed up in the direction of Deputy Cruikshank who was now standing outside his vehicle. 

Bonko then began to drive forward in an attempt to drive around Sergeant Atkinson’s 

vehicle. The truck lurched forward then came to a stop. Sergeant Atkinson observed other 

passengers inside the truck struggling with Bonko for control of the vehicle until one of 

the passengers was able to turn off the engine.

¶5 Sergeant Atkinson and Deputy Cruikshank ordered Bonko to exit the truck multiple 

times. When Bonko did not comply, they struggled to remove him from the truck. Deputy 

Cruikshank warned Bonko he would tase him if he continued to refuse to comply with their 

instructions to get out of the truck. Deputy Cruikshank eventually tased Bonko which 

enabled the officers to remove him from the truck.

¶6 While searching Bonko incident to the arrest, Sergeant Atkinson found, among other 

items, a bag containing a white crystal substance. The officers placed the seized items on 

the truck while they completed Bonko’s arrest. Deputy Cruikshank then secured the items 

seized from Bonko and transported Bonko to the jail. Deputy Cruikshank completed a 

field test of the white substance which tested positive for methamphetamine. Deputy 

Cruikshank weighed the bag with the substance at 0.39 grams. Deputy Cruikshank then 

took the bag of white substance and placed it in the evidence locker. 
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¶7 The State charged Bonko with criminal possession of dangerous drugs and resisting 

arrest.2 The State’s Information stated that the alleged offenses took place “on or about 

June 18, 2019.” However, the State’s Motion to File an Information Direct as well as the 

Affidavit of Probable Cause alleged that the crimes occurred on or about June 21, 2019, 

which was the date on which the documents were filed. On the first day of trial, testimony 

during the State’s case-in-chief clarified that the actual date of the alleged offenses was 

June 17, 2019. Over Bonko’s objection, the District Court allowed the State to amend the 

Information to change the offense date to June 17, 2019. In allowing the amendment, the 

District Court noted that Bonko did not rely on the incorrect offense date for an alibi 

defense and generally acknowledged his presence when and where the offenses occurred.

¶8 During trial, Bonko objected to the bag containing the white crystal substance and 

the chain of custody log being introduced into evidence based on improper foundation and 

chain of custody. Bonko argued that the State failed to establish chain of custody because 

the State attempted to establish foundation and chain of custody exclusively through 

Deputy Cruikshank, who testified that he did not know what happened to the evidence after 

it was deposited in the evidence locker. The District Court sustained Bonko’s objection 

but allowed the State to call three additional witnesses: the evidence technician for the Big

Horn County Sheriff’s Office; the officer who transported the items from the evidence 

locker to the crime lab; and the forensic scientist who completed the chemical analysis 

2 The State also charged Bonko with Criminal Possession of Drug Paraphernalia but conceded 

Bonko’s motion to dismiss that charge at the conclusion of the State’s case-in-chief.
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report. Bonko objected to these witnesses on the basis that they had not been identified 

during discovery. 

¶9 The District Court overruled Bonko’s objection, explaining that the testimony 

merely related to establishing chain of custody and Bonko already knew that the contents 

of the bag were placed in an evidence locker and later tested by a crime lab. The District 

Court permitted Bonko an opportunity to interview the witnesses prior to their testimony. 

After the witnesses’ testimony, the State moved to admit the bag and the chemical analysis 

report. Bonko again objected, arguing that the State failed to establish chain of custody 

because: (1) one of the arresting officers testified that, at some point during the arrest, the 

bag was briefly placed on the back of the truck; (2) one of the arresting officers testified 

that the bag looked similar to the bag he pulled out of Bonko’s pocket during the arrest; 

and (3) a bystander could have theoretically tampered with the bag during Bonko’s arrest. 

The District Court overruled Bonko’s objection. 

¶10 At the conclusion of the State’s case-in-chief, Bonko moved to dismiss the charges 

for insufficient evidence. The District Court denied Bonko’s motion. As to the criminal 

possession of dangerous drugs charge, the District Court reiterated its prior ruling on the 

chain of custody issue and held the evidence sufficient to sustain the charges. As to the 

resisting arrest charge, the District Court held that, when viewing the evidence in the light 

most favorable to the State, sufficient evidence existed upon which a rational trier of fact 

could have found beyond a reasonable doubt that Bonko resisted arrest. 

¶11 During deliberations, the jury submitted a question, asking in relevant part: “What 

day of the week was June 17th?” The parties agreed the District Court should decline to 
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answer. The jury found Bonko guilty of possession of methamphetamine and resisting 

arrest. 

¶12 “We review a district court’s decision to permit an amendment to a criminal 

complaint or information for an abuse of discretion.” State v. Hardground, 2019 MT 14, 

¶ 7, 394 Mont. 104, 433 P.3d 711 (internal citation omitted). We review a district court’s 

ruling regarding the adequacy of the foundation for the admission of evidence for an abuse

of discretion. State v. McCoy, 2012 MT 293, ¶ 11, 367 Mont. 357, 291 P.3d 568 (internal 

citation omitted). “A district court’s ruling to allow testimony of witnesses is reviewed for 

abuse of discretion.” State v. Bowen, 2015 MT 246, ¶ 20, 380 Mont. 433, 356 P.3d 449 

(internal citation omitted). “A district court abuses its discretion when it acts arbitrarily 

without the employment of conscientious judgment or exceeds the bounds of reason 

resulting in substantial injustice.” Hardground, ¶ 7 (internal citation omitted).

¶13 “This Court reviews de novo a district court’s conclusion as to whether sufficient

evidence exists to support a jury’s verdict.” City of Bozeman v. Howard, 2021 MT 230, 

¶ 10, 405 Mont. 321, 495 P.3d 72 (internal citation omitted). When doing so, “we view

the evidence in the light most favorable to the [State] to determine whether a rational trier 

of fact could have found all the essential elements of the offense beyond a reasonable 

doubt.” City of Bozeman, ¶ 10 (internal citation omitted). 

¶14 Bonko contends that the District Court abused its discretion by allowing the State 

to amend its Information. Although he concedes the amendment was as to form, he argues 

that allowing the State to correct the offense date by one day prejudiced his substantive 

rights because he relied on the date discrepancy in his defense, and “the jury was focused 
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and confused by the date, as indicated by the question to the court during deliberations” as 

to what day of the week the alleged offenses occurred.

¶15 Section 46-11-205(3), MCA, provides:

The court may permit an information to be amended as to form at any time 

before a verdict or finding is issued if no additional or different offense is 

charged and if the substantial rights of the defendant are not prejudiced. 

We have previously held that an amendment of the information as to the alleged dates of

the offenses was an amendment as to form that did not prejudice the defendant because the

same crimes were charged, the elements and proof required did not change, and the

defendant was informed of the charges against him. State v. Yecovenko, 2004 MT 196,

¶ 32, 322 Mont. 247, 95 P.3d 145.3 

¶16 As in Yecovenko, the amendment to the Information alleged the same crimes, the

elements and proof required did not change, and Bonko was informed of the charges

against him. Bonko’s argument that he was relying on the date discrepancy in his defense 

might have some merit if it were legal to possess methamphetamine and resist arrest in Big

Horn County on Tuesdays but not on Mondays. As it stands, his argument fails. The

District Court did not abuse its discretion by allowing the State to amend the Information.

¶17 Bonko claims that the District Court abused its discretion when it allowed the State 

to call additional witnesses to establish foundation and chain of custody. The District Court 

carefully considered Bonko’s objections to the witnesses and concluded Bonko did not 

3 However, when proof of an element of the charged offense, or rebuttal by the defense, “requires 

evidence of conduct on a specific date or dates,” the amendment may be considered one of 

substance. Hardground, ¶ 17.
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suffer undue prejudice or surprise because the testimony of the undisclosed witnesses 

merely related to establishing chain of custody and Bonko already knew that the contents 

of the bag were placed in an evidence locker and later tested by the crime lab. To mitigate 

any potential prejudice, the District Court provided Bonko with a reasonable time and 

opportunity to interview the witnesses prior to their testimony. The District Court did not 

abuse its discretion in allowing the witnesses’ testimony.

¶18 Bonko contends the District Court abused its discretion when it admitted the bag of 

white crystal powder because the State failed to establish the chain of custody. Bonko 

argues that the State failed to demonstrate a continuing chain of possession because one of 

the arresting officers testified that, at some point during the arrest, an officer briefly placed 

the bag on the back of a truck within both reach and line of sight. Bonko also argues that 

the State failed to demonstrate that there was no substantial change in the bag because an 

arresting officer testified that the bag looked similar, and a bystander could have 

theoretically tampered with the bag.

¶19 To admit evidence, the State must show (1) a continuous chain of possession and 

(2) no substantial change in the evidence occurred while it was in the State’s possession. 

McCoy, ¶ 13 (internal citation omitted). “The State does not need to show that it possessed 

the evidence at all times . . . .” State v. Bowser, 2005 MT 279, ¶ 30, 329 Mont. 218, 123 

P.3d 230 (internal citation omitted). The State does not need to show that it would be 

impossible to tamper with evidence. McCoy, ¶ 13 (internal citation omitted). If the State 

satisfies these two elements, the defendant must “show that the evidence has been tampered 

with while in the State’s custody.” Bowser, ¶ 30 (internal citation omitted). 
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¶20 The State established through testimony a continuous chain of possession. Deputy 

Cruikshank testified that he placed the evidence in the evidence locker. The evidence 

technician testified that the evidence was immediately checked out for transport to the 

crime lab. The officer who transported the evidence to the crime lab testified regarding 

transport of the evidence. Finally, the crime lab technician testified that she tested the 

contents of the bag, which tested positive for methamphetamine. Bonko presented no 

credible argument of a substantial change to the evidence while in the State’s possession. 

The District Court did not abuse its discretion by holding that the State adequately 

established the evidentiary chain of custody.

¶21 Bonko contends the District Court erred when it denied his motion to dismiss for 

insufficient evidence as to the resisting arrest charge because he did not use or threaten to 

use physical force or violence and did not know that he was being arrested.

¶22 Section 45-7-301(1)(a), MCA, provides:

A person commits the offense of resisting arrest if the person knowingly 

prevents or attempts to prevent a peace officer from effecting an arrest by:

(a) using or threatening to use physical force or violence against the peace 

officer or another.

A person uses physical force against a peace officer when they forcefully resist the officer’s 

effort to restrain them by failing to comply with directions, pulling away from the officer, 

and making their body rigid and stiff. State v. Sutton, 2018 MT 143, ¶ 26, 391 Mont. 485, 

419 P.3d 1201.

¶23 Bonko physically resisted the officers’ efforts to remove him from the truck to the 

point where, after being warned, Deputy Cruikshank had to tase Bonko in order to get him 
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out of the truck. Bonko’s assertion that there was insufficient evidence for a rational trier 

of fact to find he knowingly resisted arrest is not credible. As the District Court noted: 

“[T]he officers were in marked patrol cars, there was a car on each side of the vehicle which 

Mr. Bonko was in, the officers were in uniform, and clearly making clear directives to 

[Bonko] to comply.” The officers’ directives to Bonko to get out of the truck and the 

ensuing struggle lasted several minutes. Although Bonko claims he was unaware of the 

warrant that was out for his arrest, he attempted to flee in the truck as soon as Deputy 

Cruikshank approached. Viewing the evidence in a light most favorable to the State, a 

rational trier of fact certainly could have found all the essential elements of resisting arrest 

beyond a reasonable doubt. City of Bozeman, ¶ 10. The District Court did not err by 

denying Bonko’s motion to dismiss for insufficient evidence. 

¶24 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. This appeal presents 

no constitutional issues, no issues of first impression, and does not establish new precedent 

or modify existing precedent. Bonko’s convictions for felony criminal possession of 

dangerous drugs and misdemeanor resisting arrest are affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR