STATE v RUONA
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No. a2101 I N THE SUPREME C U T O T E STATE O MONTANA OR F H F 1972 THE STATE O M N A A F OTN, P l a i n t i f f and Respondent, -VS - ESKO K. RUONA, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Charles Luedke, Judge p r e s i d i n g . Counsel of Record : For Appellant : John L. Adams, Jr. argued, B i l l i n g s , Montana. For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana. David V. Gliko, A s s i s t a n t Attorney General, argued, Helena, Montana. Harold F. Hanser, County Attorney, B i l l i n g s , Montana. Ernest F. Boschert, Deputy County Attorney, argued, B i l l i n g s , Montana. Submitted: Decided: ~ i l e: d JUL 2 O 1977 A p r i l 20, 1972 Jut 2.0 19g M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. This i s an appeal from a jury v e r d i c t and judgment of conviction of the crime of criminal possession of dangerous drugs from t h e d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t , Yellowstone County. On A p r i l 1, 1971, a t approximately 5:15 a.m., defendant Esko K. Ruona was a r r e s t e d f o r d r i v i n g t h e wrong way on a one way s t r e e t i n t h e c i t y of B i l l i n g s . A f t e r stopping defendant, t h e patrolman parked d i r e c t l y behind defendant's v e h i c l e , Before t h e o f f i c e r could take f u r t h e r a c t i o n , defendant s l i d over from t h e d r i v e r ' s s i d e t o t h e passenger s i d e of h i s v e h i c l e , crawled out of t h e c a r on h i s hands and knees, and then proceeded t o walk Defendant had no d r i v e r ' s l i c e n s e . over t o t h e p o l i c e c a r . He was t r a n s p o r t e d t o t h e B i l l i n g s P o l i c e S t a t i o n f o r booking on t h e two t r a f f i c offenses. The p o l i c e s t a t i o n was s e v e r a l blocks from the scene of t h e a r r e s t . A t t h e p o l i c e s t a t i o n during t h e booking procedure and p r i o r t o posting bond, defendant emptied h i s pockets. Among t h e personal possessiors of defendant t h e r e was a small p l a s t i c capsule with a hypodermic needle stuck through i t , After t h e defendant posted bond, t h e a r r e s t i n g o f f i c e r volunteered t o t r a n s p o r t defendant t o wherever he wished t o go. Defendant accepted t h e r i d e and t h e o f f i c e r returned defendant t o the general area where h i s c a r was parked, The o f f i c e r then returned t o t h e c a r which defendant had been d r i v i n g when a r r e s t e d . While examining t h e pavement area under t h e passenger s i d e where defendant made h i s e x i t from t h e c a r , he found two objects--a p l a s t i c b o t t l e and a p l a s t i c bag. Both t h e b o t t l e and t h e bag contained drugs, which defendant i s now charged with having i n h i s possession. The o f f i c e r took the b o t t l e and bag t o t h e p o l i c e s t a t i o n where they were placed i n t h e evidence l o c k e r , along with t h e needle defendant had l e f t a t t h e s t a t i o n when booked. On t h e following day, A p r i l 2, 1971, defendant was a r r e s t e d f o r possess i o n of dangerous drugs. T r i a l was had on May 10, 1971, r e s u l t i n g i n a j u r y v e r d i c t of g u i l t y on May 11, 1971, A t t r i a l , i t was developed t h a t t h e c a r defendant was d r i v i n g on A p r i l 1, 1971, had been borrowed from a f r i e n d . Testimony of t h e a r r e s t i n g o f f i c e r i n d i c a t e d t h a t although i t was a cold morning, t h e p l a s t i c b o t t l e and p l a s t i c bag found underneath t h e c a r were f r e e from f r o s t , It was noted a t t r i a l t h a t a f i n g e r p r i n t found on t h e p l a s t i c b o t t l e was n o t t h a t of defendant, but t h e r e were o t h e r p r i n t s t h a t could n o t be i d e n t i f i e d . The a r r e s t i n g o f f i c e r a l s o t e s t i f i e d he had taken defendant t o t h e v i c i n i t y of 805 N. 27th S t r e e t i n B i l l i n g s , a f t e r he made b a i l on t h e morning of t h e t r a f f i c a r r e s t ; and although defendant walked i n t h e general d i r e c t i o n of 805 N, 27th S t r e e t , he d i d not a c t u a l l y s e e him e n t e r t h e house, The s t a t e made r e f e r e n c e t o t h i s house i n i t s opening statement t o the j u r y t o t h e e f f e c t t h a t drugs had been found a t 805 N. 27th S t r e e t , Throughout t h e t r i a l repeated attempts were made by t h e s t a t e t o introduce evidence concerning t h e house, which was c h a r a c t e r i z e d a s a "hippy pad", Defendant on appeal p r e s e n t s t h e following i s s u e s f o r t h i s Court's examination: 1, The opening statement and t r i a l r e f e r e n c e t o t h e residence a t 805 N. 27th S t r e e t , when no f a c t s connecting defendant t o t h e residence were proven. 2, Introduction of t h e hypodermic needle i n t o evidence without connecting i t t o t h e crime, 3. Lack of evidence t o convict defendant of t h e crime of possession. 4. Challenge t o s e v e r a l j u r y i n s t r u c t i o n s , i . e . , the giving of I n s t r u c t i o n s 14 and 16 and r e f u s a l of defendant's o f f e r e d I n s t r u c t i o n 8. W look f i r s t t o t h e contention t h a t defendant was pree judiced by t h e s t a t e ' s i n j e c t i o n of r e f e r e n c e s t o t h e residence a t 805 N. 27th S t r e e t . I n reviewing t h e r e c o r d , i t appears t h e s t a t e was attempti n g by r e s g e s t a e o r proof of general circumstances t o place defendant a t t h e residence i n question on t h e n i g h t of h i s t r a f f i c The house i s i n t h e a r r e s t o r very n e a r i n time t o the a r r e s t . same general a r e a where defendant was stopped; and t h e a r r e s t i n g o f f i c e r returned defendant t o t h a t a r e a a f t e r t h e processing a t the police station. This appeared t o be an attempt t o connect defendant t o a known p l a c e of drug u s e , a s a general circumstance surrounding t h e a c t u a l possession from which the j u r y could draw an "inference" a s s e t f o r t h i n S t a t e ex r e l . Glantz v. D i s t . Court, 154 Mont. 132, 142, 461 P.2d 193 (1969), more r e c e n t l y discussed and approved i n S t a t e v. Anderson, Mon t . 9 29 S t . Rep. I n Glantz t h e Court s a i d : ** "* t h i s Court does not mean t o imply, however, t h a t t h e s t a t e i s r e l i e v e d of t h e burden of showing t h a t defendant knew t h e v r o h i b i t e d substance was i n h i s vossession. such knowledge can be proved by evidence of a c t s , d e c l a r a t i o n s , o r conduct of t h e accused from which t h e i n f e r e n c e may be drawn t h a t he knew of t h e e x i s t e n c e of t h e prohibited substance a t t h e place where i t was found." (Emphasis supplied) .- . This theory was i n i t i a l l y presented t o the j u r y i n t h e s t a t e ' s opening statement. A t t h a t time, t h e s t a t e intended t o introduce evidence l a t e r i n the c a s e t o support t h a t theory. However, a s t h e record d i s c l o s e s , such o f f e r was denied. After t h e i n i t i a l opening statement and up t o t h e time t h a t t h e o f f e r was denied, t h e record d i s c l o s e s numerous r e f e r e n c e s t o t h e address 805 N. 27th Street, which defense counsel repeatedly objected to, and in most instances was sustained. We note that defense counsel presented nine objections at trial and was sustained on eight of them. We also note that defense on several occasions during cross-examination questioned witnesses in regard to the premises. Reviewing the entire record and the discussions and arguments on the objections, we feel that the court sufficiently protected defendant's rights and cautioned the state to submit its offer, which when presented was denied in this language: "Gentlemen, it appears to me that from whatever angle you approach this, from res gestae or proof of a collateral fact or a part of general circumstances making up circumstantial proof of the State's case, that the decision is largely discretionary with the Court, to be made in the light of all circumstances appearing, and after considering the Offer of Proof and the general circumstances appearing in this case, I think that the Court is required as a matter of fairness to the Defendant at this time to deny the Offer of Proof. ''In effect, so far as the State is concerned, this will place some very severe limitations on the use of 805 North 27th Street in further testimony in the case. 11 Immediately following this ruling the state rested its case. As to the opening statement when viewed in light of the course of the trial, we find that there was simply a failure of proof by the state of a relationship between defendant and the named premises. The opening statement itself does not constitute evidence against defendant. It was an expression of the theories which the prosecution would attempt to prove in the evidence to be subsequently produced. We do not condone broad, unproven statements and do not suggest that an opening statement should be free from a test of its prejudicial aspects as was applied by this Court in State v. Zachmeier, 151 Mont. 256, 441 P.2d 737. Zachmeier held that the damaging opening statements of prosecution were not of the nature that the jury would completely disregard. Too, we are not unmindful of this Court's admonitions 568, in State v. Langan, 151 Mont. 558/ 445 P.2d 565 and cases cited therein. Furthermore, as stated in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L ed 2d 171, cited in Langan, the test remains: "Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction?" In the instant case the offered evidence was denied admission by the court after eight of nine objections by the defense counsel were sustained. The opening remarks of this case do not compare to the gravity of the remarks in Zachmeier, which involved a confession of guilt, inadmissible under the Miranda rule. Therefore, we hold that these references in the opening statement and during trial were not of such a nature as to contribute to the defendant's conviction. ~efendant's second issue questions the admission in evidence of the hypodermic needle which defendant left at the police station and argues that such needle was not connected to the crime, thus defendant was prejudiced by its admission. Reviewing the record we find two established facts that defense has not refuted. ( ) Defendant admitted at trial that 1 he had received treatment at the Montana State Hospital at Warm Springs for drug abuse prior to the incidence of his arrest. (2) He admitted at trial that he had used a similar type needle to shoot drugs at an earlier unspecified time but during the course of events leading up to his first treatment at Warm Springs. The test of relevancy of this evidence to the crime of criminal possession of drugs is stated Evidence (1954), at p. 317: in McCormick, Law of "What i s the standard of relevance o r probative q u a l i t y which evidence must meet i f i t i s t o be admitted? W have s a i d t h a t i t must 'tend t o e e s t a b l i s h ' t h e i n f e r e n c e f o r which i t i s offered." Defendant's second i s s u e expands i n t o h i s t h i r d i s s u e , which questions whether t h e evidence shows t h e defendant was i n possession of dangerous drugs when i n f a c t t h e drugs were l y i n g on a public s t r e e t beneath a borrowed automobile he had been driving. Defendant f u r t h e r argues t h e i d e n t i f i a b l e f i n g e r p r i n t found on t h e p l a s t i c b o t t l e was n o t h i s . However, t h i s ignores t h e f a c t t h a t upon a n a l y s i s by the B i l l i n g s p o l i c e department and t h e Federal Bureau of I n v e s t i g a t i o n , i t was determined t h a t t h e r e were s i x l a t e n t f i n g e r p r i n t s of which only one was i d e n t i f i a b l e and t h a t one was n o t t h a t of defendant. I n t h e evidence produced a t t r i a l and o f f e r e d t o e s t a b l i s h defendant's possession of t h e drugs, we have t h e a r r e s t i n g o f f i c e r ' s testimony t h a t he found t h e drugs beneach t h e c a r defendant had been d r i v i n g ; and t h a t t h e b o t t l e and p l a s t i c bag containing t h e drugs d i d n o t have f r o s t on them, while the surrounding a r e a was covered with f r o s t . From t h i s a j u r y could reasonably decide t h e b o t t l e and bag had n o t been l y i n g on t h e s t r e e t t h e e n t i r e n i g h t , b u t had been placed t h e r e r e c e n t l y . Evidence l i n k i n g defendant's c o n s t r u c t i v e possession of the drugs i s found i n t h e a r r e s t i n g o f f i c e r ' s testimony i n regard t o h i s stopping of defendant f o r t h e t r a f f i c offense. The o f f i c e r t e s t i f i e d t h a t defendant a f t e r stopping proceeded t o crawl o u t of t h e passenger s i d e of h i s v e h i c l e on h i s hands and knees; t h a t although he was unable t o observe defendant's hands f o r a b r i e f moment while defendant was crawling out of the c a r , he was a b l e t o determine t h a t defendant's hands d i d touch the ground. Further, t h a t upon r e t u r n i n g t o t h e c a r and f i n d i n g t h e drugs beneath t h e c a r , i t was h i s observation t h a t h e t i r e s of defendant's v e h i c l e would have run over and crushed the bottle and bag if these objects had been on the street before defendant pulled over to the curb. On the basis of evidence produced at trial and the circumstances under which the drugs were found, we feel the rationale of Glantz, heretofore discussed, sufficiently answers defendant's second and third issues questioning the admissibility and weight of the evidence. There was sufficient evidence submitted to the jury for it to find constructive possession and we find nothing in defendant's arguments testing the evidence to disturb the verdict. As to defendant's issues pertaining to instructions given or refused, we have examined the record and find no error. Court's Instruction 14 was taken verbatim from section 93-1301-4, R.C.M. 1947, which states: "When an inference arises. An inference must be founded : It 1. On a fact legally proved; and, "2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of the business, or the course of nature. tt This instruction was cited with approval by this Court in State v. Barick, 143 Mont. 273, 283, 389 P.2d 170. court's Instruction 16 defines constructive possession as: "when a person has the intent to have, and has knowledge that he has capability of control although not in actual physical control but such thing is under his dominion." This instruction is grounded on the decision of this Court in State v. Trowbridge, 157 Mont. 527, 487 P.2d 530. ~efendant'soffered Instruction 8 was refused, but defendant argues on appeal that the jury should have been instructed on what constituted abandonment. We find that the facts of this case do not warrant an instruction on abandonment and thus the trial court was not in error in refusing defendant's Instruction 8. The judgment of the t r i a l court is affirmed, m e concur: / Associate Justices.
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