No. 90-163 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCURTIS ALAN PAULSON, Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kenneth R. Olson argued; Attorney at Law, Great 

Falls, Montana. 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

George Schunk argued, Assistant Attorney General, 

Helena Montana; Patrick L. Paul, County Attorney, 

Great Falls, Montana; Stephen E. Hagerman, Deputy 

County Attorney, Great Falls, Montana. 

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Filed: 

Heard: March 6, 1991 

Submitted: April 4, 1991 

Decided: September 13, 1991 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, Curtis Alan Paulson, was convicted of the offense 

of criminal possession of dangerous drugs with the intent to sell, 

a felony pursuant to 5 45-9-103, MCA, following a jury trial in the 

District Court for the Eighth Judicial District, Cascade County. 

Defendant appeals. We affirm. 

The issues as restated are: 

1. Must accomplice testimony as to other crimes, wrongs or 

acts be corroborated before it is admissible? 

2. Should this Court adopt a sufficiency of the evidence 

standard of proof which must be met before evidence of other 

crimes, wrongs or acts is admissible? 

3. Did the District Court err when it admitted testimony of 

other crimes, wrongs or acts of the defendant? 

4. Was the defendant denied his right to effective assistance 

of counsel under the Sixth Amendment to the United States 

Constitution? 

5. Was the evidence sufficient to support a verdict of guilty 

on the charge of criminal possession of dangerous drugs with intent 

to sell? 

6. Does the sentence imposed constitute an excessive sanction 

in violation of the defendant's rights under the Eighth Amendment 

to the United States Constitution and Art. 11, 5 22 of the Montana 

Constitution? 

As background information, we summarize the evidence as 

submitted by the State. Where necessary, we will set forth 

2 
additional information. The defendant, Curtis Paulson, ran a 

marijuana importing and distribution business in Great Falls, 

Montana for a period of at least ten years. This evidence showed 

the following general pattern of operation. Paulson imported the 

marijuana from a grower in Hawaii. The marijuana was delivered by 

UPS to various addresses in Great Falls. Each package weighed from 

15 to 40 pounds and consisted of compressed bales of marijuana. 

The smell of the marijuana was suppressed through the use of 

multiple layers of plastic wrapping, duct tape, and baking soda to 

avoid detection by drug-sniffing dogs at airports. 

Paulson arranged to have the marijuana packages shipped to 

different addresses using incorrect first names for the recipients. 

Each recipient accepted the package from UPS and then marked the 

package "Return to Sender1'. The package was allowed to sit for a 

few days. This precaution was intended to create an alibi if law 

enforcement personnel traced the packages, obtained a search 

warrant, and seized the boxes. The recipient could claim the boxes 

did not belong to him because the name was incorrect and were 

waiting to be picked up by UPS. After the cautionary waiting 

period, Paulson either picked up the marijuana from the recipient 

or left the boxes with the recipient for storage until needed for 

sale. Paulson and the recipient broke up the marijuana as needed 

for sale, and weighed the marijuana and placed marketable 

quantities in plastic ziplock baggies. 

In November, 1988,the Great Falls Police Department's drug 

investigation led to a confidential informant who made several 
controlled buys of marijuana from Doug Smith at his home. A search 

of Doug Smith's home resulted in seizure of approximately four and 

one-half pounds of marijuana, a scale, cash, plastic baggies, and 

other paraphernalia typically used in sale operations. Doug Smith 

gave a detailed statement to the police and identified Curtis 

Paulson as his source of the marijuana. This information confirmed 

other sources that had over the past several years identified to 

authorities that Curtis Paulson was a major drug dealer in Great 

Falls. 

The State Identification Bureau tested the items seized from 

Doug Smith's home and found Curtis Paulsonls fingerprints on one 

of the bags of marijuana and on one of the baggies found with the 

scale. Paulson presented evidence to explain his fingerprints on 

the baggies found in Doug Smith's home through testimony of a 

witness who had observed Paulson and Doug Smith cleaning game birds 

in Doug Smith's back yard and placing the birds into baggies for 

freezing. 

A search of Curtis Paulsonls residence resulted in the seizure 

of 1,000-watt grow lamps, a hood, a timer, tubing, planters, a 

carbon dioxide dispenser, transformers, shipping boxes and labels, 

false picture identification cards, financial and banking records, 

and cash. No marijuana was found during the search. 

I 

Must accomplice testimony as to other crimes, wrongs or acts 

be corroborated before it is admissible? 

Over objections of defense counsel, the State presented 
testimony from two admitted Great Falls drug dealers that detailed 

Curtis Paulson's importation and distribution scheme in Great Falls 

spanning at least ten years. Jar1 Garber and Dale Davidson both 

had previously received UPS shipments of marijuana from Hawaii for 

Paulson in a manner similar to that described by Doug Smith. The 

testimony indicated that Paulson only used a recipient two or three 

times and then arranged delivery to a different recipient. Both 

Garber and Davidson were previous recipients of marijuana shipments 

for Paulson. Neither Garber nor Davidson were involved in any 

manner in the drug shipments for which Paulson was charged. 

Paulson argues that 5 46-16-213, MCA, requires corroboration 

of Smith's accomplice testimony to convict Paulson and therefore 

the same standard should apply to the accomplice testimony of 

Garber and Davidson as to other crimes, wrongs or acts. Section 

46-16-213, MCA, states: 

A conviction cannot be had on the testimony of one 

responsible or leqallv accountable for the same offense, 

as defined in 45-2-301, unless the testimony is 

corroborated by other evidence which in itself and 

without the aid of the testimony of the one responsible 

or legally accountable for the same offense tends to 

connect the defendant with the commission of the offense. 

The corroboration is not sufficient if it merely shows 

the commission of the offense or the circumstances 

thereof. (Emphasis supplied.) 

Section 46-16-213, MCA, prohibits a conviction on the 

testimony of a person legally accountable for the same offense 

unless that testimony is corroborated by other evidence. Neither 

Garber nor Davidson were chargeable with the crimes for which 

Paulson was convicted. We conclude there is no basis for applying 

S 46-16-213, MCA, to the testimony of Garber and Paulson. 
We hold that as to crimes, wrongs or acts other than those 

upon which the defendant is charged, accomplice testimony need not 

be corroborated before it is admissible. 

I1 

Should this Court adopt a sufficiency of the evidence standard 

of proof which must be met before evidence of other crimes, wrongs 

or acts is admissible? 

Defendant also argues that this Court should adopt a rule that 

before admitting the testimony the District Court must determine 

that the sufficiency of the evidence would support a finding by a 

jury that the defendant committed the other crimes, wrongs or acts. 

Huddleston v. United States (1988), 485 U.S. 681. Huddleston 

addressed the issue of the rule or standard to be applied in 

federal courts in determining the admissibility of other crimes, 

wrongs or acts evidence under Rule 404(b), Fed.R.Evid. 

In Montana, the Modified Just Rule determines the 

admissibility of other crimes, wrongs or acts under Rule 404(b), 

M.R.Evid. State v. Matt (Mont. 1991), - P.2d -, I 48 

St.Rep. 614, 616. Neither the old Just Rule under State v. Just 

(1979) , 184 Mont. 262, 602 P. 2d 957, nor the new Modified Just Rule 

in Matt incorporate a sufficiency of the evidence standard. While 

developing the Modified Just Rule in Matt, this Court considered 

imposing a standard of review in addition to the Modified Just Rule 

and concluded that the incorporation of Rules 404(b) and 403, 

M.R.Evid., into the Modified Just Rule was adequate protection 

against improper admissibility of Rule 404 (b) evidence. This Court 
concluded that a separate standard of review was neither necessary 

nor compatible with the Modified Just Rule. Upon reconsideration 

in this case we decline to impose such a standard of review to be 

used in addition to the Modified Just Rule in determining the 

admissibility of Rule 404(b) evidence. 

Did the District Court err when it admitted testimony of other 

crimes, wrongs or acts of the defendant? 

The defendant objected to two aspects of other crimes 

evidence. The first was the testimony by Garber and Davidson with 

regard to the shipment of drugs. The second was the objection to 

the testimony of Detective Lockerby that the 1,000-watt grow lamps, 

hood, timer, tubing, planters, carbon dioxide dispenser, and 

transformers were also evidence of a marijuana operation and 

admissible as other crimes evidence. Defendant asserts the other 

crimes testimony was highly prejudicial and improperly admitted 

under the Just Rule. Just, 184 Mont. 262, 602 P.2d 957. 

We will analyze the contentions on the part of the defendant 

under the Modified Just Rule as adopted in State v. Matt. The 

Modified Just Rule states: 

(1) The other crimes, wrongs or acts must be similar. 

(2) The other crimes, wrongs or acts must not be remote 

in time. 

(3) The evidence of other crimes, wrongs or acts is not 

admissible to prove the character of a person in order 

to show that he acted in conformity with such character; 

but may be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident. 
(4) Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, misleading 

of the jury, considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence. 

Element (1) of the Modified Just Rule requires that the other 

crimes, wrongs or acts be similar. With regard to the testimony 

of Garber and Davidson, such evidence related to Paulson's 

involvement in the distribution and sale of marijuana. Such 

testimony described methods of shipping marijuana from Hawaii to 

the witnesses in Great Falls, in a manner directly comparable to 

the method used in connection with the charged crimes as testified 

to by Smith. We conclude that element (1) has been met so far as 

the Garber and Davidson testimony is concerned. 

Defendant argues that the evidence of the possession of grow 

equipment is not similar to the charged offense. Detective 

Lockerby testified the equipment included 1,000-watt bulbs and 

transformers used to change voltage from 110 volts to about 400 

volts as needed, because of the amount of energy required by the 

light; and that grow equipment of this type and size is 

circumstantial evidence of an operation consistent with the 

cultivation of marijuana with intent to sell. We point out that 

the evidence was admissible as a part of the corpus delicti of the 

charged offenses. With regard to element (1) of the Modified Just 

Rule, the method by which Paulson had the grow equipment shipped 

was similar to the method by which Paulson had the marijuana 

shipped from Hawaii. Detective Lockerby testified that the 

shipping label on the package used for the shipping of the grow 
equipment was addressed to ItJim Garber,It at a Great Falls address. 

He further testified that the person who lived at that address was 

"Jarel Garber.It This allowed recipient Garber to retain the 

package for several days so that he could contend it was not 

addressed to him should police authorities investigate. We 

conclude that the admission of the grow equipment has met the 

requirements of element (1) of the Modified Just Rule. 

Under element (2) of the Modified Just Rule, defendant argues 

that the testimony on the part of Garber and Davidson established 

offenses too remote in time. Garber testified he had received a 

marijuana shipment two and one-half years before trial. Davidson 

testified that the defendant had been shipping marijuana from 

Hawaii for at least ten years. The District Court concluded that 

the testimonies showed a continuous pattern of conduct by the 

defendant and were therefore admissible. 

In State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 

139, this Court quoted from State v. Doll (1985), 214 Mont. 390, 

692 P.2d 473, stating: 

Whether evidence of prior crimes is too remote is 

directed to the discretion of the district court and is 

a matter that goes to the credibility of the evidence 

rather than its admissibility, unless the remoteness is 

so great that the proffered evidence has no value. 

We agree that an isolated incident from nine years ago 

is too remote; however, where there is a continuing 

pattern of similar conduct, the remoteness problem is 

alleviated. . . . 

The testimony of Garber and Davidson demonstrated that the 

defendant's conduct had occurred in a consistent manner over a 

period of close to ten years. We affirm the conclusion of the 
District Court that the Garber and Davidson testimony was not too 

remote in time under element (2) of the Modified Just Rule. 

So far as the evidence on grow equipment shipment is 

concerned, this evidence clearly was not remote in time. It 

occurred during the course of the commission of the acts charged. 

We conclude that the grow equipment evidence was not too remote in 

time under element (2) of the Modified Just Rule. 

The State introduced the testimony of Garber and Davidson for 

the purpose of showing a common scheme, plan or system. This is 

a permissible purpose under element (3) of the Modified Just Rule. 

Matt, 48 St.Rep. at 616. We conclude that the Garber and Davidson 

testimony tended to establish a plan and was properly admissible 

under element (3) of the Modified Just Rule. 

With regard to the grow equipment evidence, we have previously 

pointed out that the method of shipment was directly comparable to 

the method of shipment used with regard to marijuana. In addition, 

the grow equipment of the type and size found at Paulsonls 

residence is circumstantial evidence of an operation consistent 

with the cultivation of marijuana with intent to sell. We conclude 

that the grow equipment testimony was admissible under element (3) 

of the Modified Just Rule. 

With regard to element (4) of the Modified Just Rule, the 

defendant argues that the probative value of the other crimes 

evidence was substantially outweighed by the unfair prejudice of 

its admission so the evidence should not have been admitted. We 

conclude that as to the testimony of Garber and Davidson, and the 
evidence of the grow equipment, because the first three elements 

of the Modified Just Rule have been met, the probative value of the 

evidence has been established. See State v. Ramstad (1990), 243 

Mont. 162, 168, 793 P.2d 802, 806. We must next determine if 

unfair prejudice under element (4) of the Modified Just Rule is 

sufficient to outweigh the established probative value. In Matt, 

by the adoption of the Modified Just Rule, we clarified the 

procedural protections that are required under that Rule to 

protect against unfair prejudice. These procedures include: 

(1) Evidence of other crimes, wrongs or acts may not be 

received unless there has been written notice to the 

defendant that such evidence is to be introduced. The 

notice to the defendant shall specify the evidence of 

other crimes, wrongs or acts to be admitted, and the 

specific Rule 404(b) purpose or purposes for which it is 

to be admitted. 

(2) At the time of the introduction of such evidence, 

the trial court shall explain to the jury the purpose of 

such evidence and shall admonish it to weigh the evidence 

only for such purposes. 

(3) In its final charge, the court shall instruct the 

jury in unequivocal terms that such evidence was received 

only for the limited purposes earlier stated and that the 

defendant is not being tried and may not be convicted for 

any offense except that charged, warning them that to 

convict for other offenses may result in unjust double 

punishment. 

Matt, 48 St.Rep. at 616. 

Defendant challenges the adequacy of the Just notices. The 

State served several Just notices. The initial Just notice 

generally stated that the State intended to introduce other crimes 

evidence to show motive, opportunity, intent, preparation, plan, 

knowledge, identity or absence of mistake or accident. Such 

notices do not meet the specificity required in a Modified Just 
notice. See State v. Croteau (Mont. 1991), - P.2d -, -1 48 

However, subsequent Just notices did meet the requirements 

of the Modified Just Rule. Two of such subsequent notices 

qualified the general statement by pointing out that the State 

intended to present other crimes evidence to show: 

[Aldditional evidence of drug dealing which corroborates 

Doug Smith's testimony to-wit: showing a common pattern 

and scheme of Defendant to ship narcotics to individuals 

other than himself using a different first name for that 

individual; that the Defendant shipped drug paraphernalia 

to [name of witness] in the same manner as shipments of 

narcotics were made to other people, which ultimately 

would go to Defendant. (Emphasis supplied.) 

Two other notices followed the general statement with: 

[Tlhe drug dealings of Curtis Paulson and his 

relationship with Doug Smith, who is the State's witness 

in this case, including prior shipments of marijuana sent 

to Smith and other information dealing with drugs between 

them. The specific actions are found in the statement 

of Doug Smith taken by Detectives Larry Renman and Bryan 

Lockerby on May 2, 1989, a copy of which has been 

supplied to defense counsel. 

Those Just notices did adequately advise the defendant as to the 

matters to be included in the testimony of the other crimes 

witnesses. We conclude that the first procedural requirement under 

the Modified Just Rule was met in this case as to both the 

testimony of Garber and Davidson, and the evidence with regard to 

the shipment of grow equipment. 

The District Court clearly satisfied the second procedural 

requirement of the Modified Just Rule which requires the trial 

court to explain to the jury the purposes of the evidence and to 

admonish the jury to weigh the evidence only for such purposes. 
The required admonition was given to the jury by the District 

Court at all critical points and on four different occasions.. We 

conclude that the second procedural requirement of the Modified 

Just Rule was met. 

The third procedural requirement is that the court instruct 

the jury in unequivocal terms. Here, Instruction No. 16, given at 

the conclusion of the trial is identical to the instruction this 

Court has approved as meeting such third procedural requirement. 

Tecca, 220 Mont. at 174, 714 P.2d at 140. We conclude that the 

third procedural requirement of the Modified Just Rule was met. 

We conclude that the procedural protections contained in the three 

elements of the Modified Just Rule were met in this case. 

This leaves for evaluation whether or not unfair prejudice to 

the defendant outweighed the established probative value as 

described in element (4) of the Modified Just Rule. 10 James Wm. 

Moore, Moore's Federal Practice 5 403.10, contains an excellent 

description of the nature of the unfair prejudice which is required 

under element (4) of the Modified Just Rule: 

To guide courts in balancing the laprobative valuew 

and the Itunfair prejudicett of evidence, the Committee 

states that the latter term means evidence which has Itan 

undue tendency to suggest decision on an improper basis, 

commonly, though not necessarily, an emotional one." 

Application of this thought and the ultimate 

determination of admissibility are matters left to the 

discretion of the trial court and will necessarily be 

decided on a case by case basis. However, by 

restrictins the rule to evidence which will cause "unfair 

prejudicett - the draftsmen meant to caution courts that 

mere prejudicial effect is not a sufficient reason to 

refuse admission. Probative evidence will freauentlv be 

prejudicial to a party, but that does not mean that it 

will cause the fact finder to qround a decision on an 

emotional basis. Thus, evidence which tends to horrify, 
evoke sympathy or increase a desire to punish due to a 

prior act of a ~artv and whose probative value is slisht 

may be ~ro~erlv excluded. (Emphasis added.) (Citations 

omitted. ) 

After our review of the cases cited in support of the foregoing 

quote from Moore's Federal Practice, we conclude that it is an 

appropriate definition of unfair prejudice. We therefore adopt the 

foregoing as the holding of this Court in defining unfair prejudice 

under element (4) of the Modified Just Rule. 

In the present case, the testimony of Garber and Davidson, and 

the testimony with regard to the grow equipment was clearly 

prejudicial, but because it meets other aspects of the Modified 

Just Rule, that prejudice alone is not a sufficient reason to 

refuse admission. We conclude that the evidence is not of the type 

which would cause the jury to ground its decision on an emotional 

basis. The evidence is not of the type which tends to horrify, 

evoke sympathy or increase a desire to punish and whose probative 

value is slight. Here both aspects of the evidence are clearly 

significant to the issue of the commission by the defendant of the 

charged crimes. We therefore hold that the probative value of the 

Garber and Davidson testimony, and the evidence of the grow 

equipment, is not substantially outweighed by the danger of unfair 

prejudice or misleading of the jury under element (4) of the 

Modified Just Rule. 

Considering the Modified Just Rule as a whole, we conclude 

that the four substantive elements of the Modified Just Rule, and 

the procedural elements of the Modified Just Rule, have been 

properly satisfied in this case. We hold that the testimony of 

14 
Garber and Davidson and the evidence as to the grow equipment was 

properly admitted by the District Court as evidence of other 

crimes, wrongs or acts under the Modified Just Rule. 

Was the defendant denied his right to effective assistance of 

counsel under the Sixth Amendment to the united States 

Constitution? 

Defendant presents the following examples for his argument 

that he was ineffectively represented at trial: failure to 

formulate a workable trial strategy, failure to present a 

fingerprint expert, failure to adequately interview witnesses 

before trial, failure to object to critical evidence, failure to 

properly instruct the jury, and failure to present an effective 

closing argument. 

In State v. Kolberg (1990), 241 Mont. 105, 109, 785 P.2d 702, 

704, we stated: 

Ineffective assistance of counsel requires specific acts 

or omissions which prejudice defendant s case and result 

in the denial of a fair trial . . . First the defendant 

must show that counsells performance was deficient. This 

requires showing that counsel made errors so serious that 

counsel was not functioning as the counsel guaranteed the 

defendant by the Sixth Amendment. Second, the defendant 

must show that the deficient performance prejudiced the 

defense. To show prejudice, a defendant must show that, 

but for counsel's unprofessional errors, there was 

reasonable probability that the result of the proceeding 

would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the 

outcome of the trial. (Citations omitted.) 

In order for trial errors to rise to the level of ineffective 

assistance of counsel, those errors must stem from neglect or 

ignorance rather than from informed, professional deliberation. 
State v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 185, 189. 

This Court will not second-guess counsel's trial tactics and 

strategies and, where no prejudice is shown, counsel s professional 

deliberations will not be questioned. State v. Stewart (1988) , 235 

Mont. 239, 242, 767 P.2d 296, 298. The record contains no factual 

basis to support an argument that the alleged failures on the part 

of defendant's trial counsel stemmed from neglect or ignorance. 

Defendant fails to point to any evidence that proves his counsel's 

actions were anything other than trial tactics and strategies, or 

that his counsel's actions deprived him of a fair trial. We find 

no merit in defendant's contention that he was deprived of his 

right to effective assistance of counsel. 

Was the evidence sufficient to support a verdict of guilty on 

the charge of criminal possession of dangerous drugs with intent 

to sell? 

The defendant argues that his conviction for possession of 

dangerous drugs with intent to sell was not supported by sufficient 

evidence because the State failed to provide sufficient independent 

corroborating evidence to support the testimony of the accomplice, 

Doug Smith. In prior cases we have summarized the guidelines for 

testing the sufficiency of corroborating evidence: 

To be sufficient, corroborating evidence must show more 

than that a crime was in fact committed or the 

circumstances of its commission. It must raise more than 

a suspicion of the defendant's involvement in, or 

opportunity to commit, the crime charged. But 

corroborative evidence need not be sufficient, by itself, 

to support a defendant's conviction or even to make out 

a prima facia case against him. Corroboratins evidence 
may be circumstantial and may come from the defendant and 

his witnesses . . . 

Corroborating testimony is viewed in a light most 

favorable to the State. The corroborating evidence need 

only tend to connect the defendant with the crime charged 

and need not extend to every fact to which the accomplice 

testifies. Thus, corroborating evidence is not 

insufficient merely because it is circumstantial, 

dis~uted, or ~ossibly consistent with innocent conduct; 

it is the jury's duty to resolve such factual questions. 

(Cites Omitted.) [Emphasis added.] 

State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 P.2d 439, 

In the present case Doug Smith's testimony was corroborated 

by circumstantial evidence. Two of defendant's fingerprints were 

found on baggies found in Doug Smith's home that were used for 

packaging and marketing the marijuana. One of these baggies 

contained marijuana, the other baggie was found with other drug 

paraphernalia. Telephone records of the defendant's residence 

verified that six phones calls were made to the supplier in Hawaii 

in the two week period prior to one of the shipments of marijuana 

to Doug Smith's home. 

UPS records verified Doug Smith's testimony as to the dates 

of shipments and use of incorrect first names on shipping labels. 

The UPS witness also testified that it takes exactly three business 

days to receive a shipment from Hawaii. One of the shipments to 

Doug Smith's home arrived exactly three business days following the 

sixth phone call made from defendant's residence to the supplier 

in Hawaii. 

Doug Smith's testimony was also corroborated by the 

testimonies of Garber and Davidson. Both of these witnesses gave 

similar detailed accounts of the method used when they received 
drug shipments from Hawaii for the defendant. Jar1 Garber 

testified that he had also received a shipment of drug growing 

equipment for Paulson. Shipping labels found with the growing 

equipment at the residence of Paulson were addressed to ''Jimt1 

Garber, 1305 5th Avenue Northwest, Great Falls, Montana. 

Corroborative evidence must clearly (1) be independent, (2) 

point toward the defendant's guilt, and (3) provide a legally 

sufficient connection between the defendant and the offense. 

Kaczmarek, 795 P.2d at 442. Here the evidence meets this three 

part test, thus corroborating Smith's testimony and tending to 

establish Paulson's guilt. 

The proper standard of review for sufficiency of the evidence 

in a criminal case is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt. Kaczmarek, 795 P.2d at 442. Having determined 

that Smith's testimony was sufficiently corroborated by the 

physical evidence and by the corroborating testimonies of Garber 

and Davidson, the essential elements of possession of dangerous 

drugs with intent to sell have been met. Clearly, a rational jury 

could have found the defendant guilty in this case. We hold that 

the evidence was sufficient to support a verdict of guilty on the 

charge of criminal possession of dangerous drugs with intent to 

sell. 

VI 

Does the sentence imposed constitute an excessive sanction in 
violation of the defendant's rights under the Eighth Amendment to 

the United States Constitution and Art. 11, 5 22 of the Montana 

Constitution? 

Defendant received a twenty year sentence with five years 

suspended. He will not be eligible for parole for five years. In 

addition he was assessed a $30,000.00 fine and had his hunting 

privileges suspended during the twenty year period. 

Defendant's counsel prepared an affidavit containing 

computations based on sentencing statistics prepared by the Montana 

State Judicial Information Center outlining the sentences imposed 

in 1988 and 1989 for offenses of possession of dangerous drugs with 

intent to sell. Based on those statistics, defendant argues that 

his sentence is especially harsh for a first time offender and 

violates the United States and Montana Constitutions' prohibitions 

against imposition of excessive sanctions. 

Section 45-9-103(3), MCA, sets forth the sentence guidelines 

for criminal possession with intent to sell. That provision 

states: 

A person convicted of criminal possession with intent to 

sell . . . shall be imprisoned in the state prison for 

a term of not more than 20 years or be fined an amount 

not to exceed $50,000, or both. 

The District Court stated its reasons for defendant's sentence as 

follows: 

1. Testimony during trial established that this was a 

sophisticated operation wherein the Defendant attempted 

to insulate his activities through the use of other 

people. Testimony also revealed that the Defendant has 

been involved in drug dealings for approximately twelve 

years. 
2. The Defendant had a large income which was not 

explained to the Courtls satisfaction. There was 

testimony at the Sentencing hearing that much of the 

Defendant's income had not been reported for tax 

purposes. There was further testimony that the Defendant 

was engaged in money laundering. 

3. The Court considered the harm to society. 

4. The Court considered the recommendation contained in 

the Pre-Sentence Report, but notes that the officer who 

prepared the report was not present during the trial and 

did not have the benefit of hearing all the testimony. 

Furthermore, the officer did not have the benefit of the 

testimony which the State presented during the sentencing 

hearing. 

5. This court heard testimony from Det. Renman, that the 

total shipment containing some of the drugs introduced 

at trial had a wholesale value of approximately 

$27,000.00. The court is of the opinion that there 

should be no profit from the illegal sale of drugs. 

Furthermore, the Court feels that it is appropriate that 

those dealing in drugs ought to pay for some of the costs 

associated with the detection and prosecution of drug 

offenders and for these reasons fined the Defendant 

$30,000.00. 

6. The Defendant is an admitted non-user of drugs, yet 

he was convicted of possession of dangerous drugs with 

intent to sell. The Defendant is not an addict dealing 

to supply his own habit. The Defendant's motive is 

simply money. 

7. The Probation and Parole Officer recommended that the 

Defendant was not to hunt with a gun during the suspended 

portion of his sentence. This provision was made to 

comply with Federal Laws prohibiting a convicted felon 

from possessing a gun. 

8. In declaring the Defendant ineligible for parole for 

the first five years of his sentence it was the Courtls 

intention that the Defendant serve more than a token few 

months in the penitentiary. The facts and seriousness 

of this case have caused this Court to be concerned. The 

Defendant had a well planned operation which allowed him 

to escape the law for many years. Grow lights were found 

at the house of the Defendant. The State of Montana 

characterized the Defendant as a "major drug dealer". 

The Court cannot fix any mitigating factors other than 

this is the first time the Defendant has been caught and 

sentenced. 
These reasons set forth by the District Court are well-reasoned and 

supported by the evidence. The sentence itself is within the 

guidelines set forth in 5 45-9-103(3), MCA. We hold that the 

sentence imposed does not constitute an excessive sanction in 

violation of the defendant's rights under the Eighth Amendment to 

the United States Constitution and Art. 11, 5 22 of the Montana 

Constitution. 

Affirmed. 

We Concur: 0 

+?L*T~& Chief Justic 

Gd~/ ustice 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority s conclusion that accomplice 

testimony regarding past crimes, wrongs, or acts of the defendant, 

other than those charged, need not be corroborated before it is 

admissible. I conclude, based upon established precedent and 

logic, that it does need to be corroborated; and since such 

testimony was admitted in this case without corroboration, I would 

reverse the conviction of the defendant. For that reason, I would 

not reach the merits of the other issues raised by the defendant 

on appeal. 

In Huddleston v. United States (1988), 485 U.S. 681, 99 L.Ed.2d 771, 

108 S.Ct. 1496, in discussing the circumstances under which 

evidence of other acts could be admitted under Fed.R. Evid. 404 (b) , 

the United States Supreme Court stated that: 

We conclude that such evidence should be admitted if 

there is sufficient evidence to support a finding by the 

jury that the defendant committed the similar act. 

Huddleston, 485 U.S. at 685, 99 L.Ed.2d at 779-80, 108 S.Ct. at 1499. 

Under Montana law, the testimony of a co-conspirator, 

unsupported by independent corroborating evidence, is not 

sufficient to convict a defendant of the criminal act with which 

he is charged. The reasons are obvious. 

Testimony of co-conspirators is among the most unreliable 

forms of evidence available. Co-conspirators to a criminal act 

are, by definition, dishonest people to begin with. Added to their 

presumed character weaknesses there are invariably inducements for 
their testimony, such as lenient or favorable treatment from the 

State for their own criminal conduct. 

For example, in this case all three of the co-conspirators who 

testified that the defendant engaged in prior criminal acts had 

been caught selling drugs and bargained with the State of Montana 

for lenient treatment in exchange for their testimony against the 

defendant. Smith was charged with the same crime for which the 

defendant was convicted. The defendant was sentenced to 20 years 

in prison with five years suspended and required to serve a minimum 

of five years without parole. Smith was sentenced to five years 

in prison with all five years suspended. 

Dale Davidson was also charged with possession of drugs with 

intent to sell, but was promised that in exchange for his testimony 

the government would recommend a maximum sentence of 18 months, as 

opposed to the five years to which he would be exposed without 

favorable testimony. 

Jar1 Garber was promised that in exchange for his testimony 

he would be charged with only one attempt to sell cocaine, rather 

than three. At the time of defendant's trial, that charge had 

still not been filed. He gave the following testimony: 

Q. And what did they say they would do for you? 

A. Drop two counts of my sales. 

Q. Sale of cocaine? 

A. Correct. 

Q. Are you generally aware of the penalty for 

possession of cocaine? 
A. I am. 

A. Yeslitis. 

Q. Have you been charged? 

A. No, I have not. 

Q. So they got ya. They got you right where they want 

you? 

A. (Nods head. ) 

If an attorney practicing civil law in the State of Montana 

went to the lengths that the State regularly goes to in order to 

induce testimony from co-conspirators he would be subject to 

disciplinary proceedings for violation of Rule 3.4 of Montana's 

Rules of Professional Conduct. Yet, such conduct is freely 

permitted in the prosecution of criminal cases when inducing 

testimony of witnesses as disreputable as those who testified 

against the defendant in this case. 

The majority seeks to distinguish testimony of co-conspirators 

when used simply to prove uncharged prior crimes from testimony of 

co-conspirators which is offered to prove the crime that has been 

charged. However, the distinction is one of form rather than 

substance. The fact is that the evidence of prior crimes was 

offered in an effort to convict the defendant of the crime charged, 

even though we have a stated public policy in 5 46-16-213, MCA, 

that such evidence is unreliable without corroboration. 
The majority has offered no authority for permitting 

uncorroborated testimony of an accomplice to prove prior crimes, 

when by statute, such testimony could not have been offered to 

prove the crime charged. However, there is prior authority for 

excluding this evidence. 

Texas has a statute similar to 9 46-16-213, MCA. Article 

38.14, Tex. Code Crim. Proc. Ann., dealing with Testimonv of 

Accom~lice, states: 

A conviction cannot be had upon the testimony of an 

accomplice unless corroborated by other evidence tending 

to connect the defendant with the offense committed; and 

the corroboration is not sufficient if it merely shows 

the commission of the offense. 

The Texas Court of Appeals, in Bustamante v. State (Tex. Ct . App. 

1982), 653 S.W.2d 846, 849, rev. dismissed 702 S.W.2d 193 (Tex. Crim. 

App. 1985), concluded that based on that state's similar statute 

the trial court erred when it admitted extraneous offenses based 

solely upon uncorroborated testimony of an accomplice. The court 

in Bustamante relied upon the 1931 case of Welh v. State (1931) , 

118 Tex. Crim. 355, 42 S.W.2d 607, which "held that it was 

necessary to corroborate evidence of extraneous offenses in 

reversing a conviction for possession of liquor for purposes of 

sale.It Bustamante, 653 S.W.2d at 848-49. Furthermore, the court in 

Bustamante stated : 

We conclude that the intent of the legislature in 

enacting Sec. 38.14 Tex. Code Crim. Pro. Ann. was to make 

its terms applicable to extraneous offenses as well as 

to primary offenses. Therefore, in the case before us 

it was error to admit this uncorroborated evidence of 
extraneous offenses and, having admitted it, to refuse 

to give the jury a proper limiting charge. 

It makes no sense to establish by statute a public policy to 

the effect that people of Montana cannot be convicted of a criminal 

charge based on the uncorroborated testimony of an alleged 

co-conspirator, but then allow the State to circumvent that public 

policy by convicting people with uncorroborated testimony of 

co-conspirators regarding acts that are not even the subject of the 

State's charges. Either the testimony is unreliable or it is not. 

It cannot be unreliable if offered to directly convict the 

defendant, and reliable if offered to indirectly convict the 

defendant. 

For these reasons I would reverse the judgment against the 

defendant and remand this case to the District Court for retrial. 

During retrial I would require that the testimony of the people who 

claim to have been partners in the defendant's sale of drugs either 

be corroborated or excluded. 1 Tfi~&& 

Ju tice 

I concur with the foregoing dissent of Justice Trieweiler.