In re R.L.H., 03-673.

• Decision Date: 19 July 2005
• Docket Number: No. 03-673.,03-673.
• Citation: 2005 MT 177,116 P.3d 791
• Court: Montana Supreme Court
• Parties: In the Matter of R.L.H., a Youth Under the Age of Eighteen.

116 P.3d 791

2005 MT 177

In the Matter of R.L.H., a Youth Under the Age of Eighteen.

No. 03-673.

Supreme Court of Montana.

Submitted on Briefs October 26, 2004.

Decided July 19, 2005.

COPYRIGHT MATERIAL OMITTED

For Appellant: Margaret L. Borg, Chief Public Defender, Missoula, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney; Leslie Halligan, Deputy County Attorney, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶1 R.L.H., a juvenile female, appeals from an order entered July 3, 2003, in the Youth Court for the Fourth Judicial District, Missoula County, finding her a delinquent youth and committing her to the custody of the Department of Corrections for placement at Riverside Correctional Center. R.L.H. was 16 years old at the time the Order was entered. We affirm the commitment to Riverside Correctional Center based on possession of methamphetamine. We reverse and remand for dismissal of the charges of possession of opiates, a felony, and possession of marijuana, a misdemeanor.

¶2 We address the following issues on appeal:

¶3 1. Did the Youth Court err in denying R.L.H.'s Motion to Dismiss the petition alleging possession of methamphetamine based on a positive uranalysis test?

¶4 2. Did the Youth Court err in admitting into evidence R.L.H.'s admission that she used methamphetamine on or about December 19, 2002?

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 R.L.H. first entered the juvenile justice system in March of 2001, at age 13, when she was charged with misdemeanor theft, obstructing an officer, disorderly conduct, and habitual truancy. Pursuant to a consent decree entered August 16, 2001, R.L.H. was placed in the Florence Crittendon Group Home.

¶6 On April 9, 2002, R.L.H. was adjudicated a delinquent youth, based on two misdemeanor assaults. She was put on probation until age 18, and placed at Children's Comprehensive Services in Butte. R.L.H. completed treatment and was released on probation to the care of her grandparents.

¶7 On September 12, 2002, R.L.H. was found to have violated the terms of her probation by using and possessing marijuana. She was again found to be a delinquent youth. Her probation was reinstated and she was placed in shelter care.

¶8 On December 23, 2002, the Missoula County Attorney filed a Second Petition to Revoke R.L.H.'s probation, alleging she ran away from shelter care and tested positive, via a urinalysis, on December 19, 2002, for illegal drugs, including methamphetamine, opiates and marijuana. On January 2, 2003, R.L.H. appeared in Youth Court with her counsel and after acknowledging that she was aware of all of her rights, including the right to remain silent, she admitted using methamphetamine on or about December 19, 2002. The admission was made based on the understanding that the County Attorney would recommend a treatment program as the disposition. The County Attorney did as agreed, and R.L.H. was ordered to treatment at Shodair Hospital.

¶9 At Shodair, R.L.H. was diagnosed with alcohol and cannabis dependency, methamphetamine abuse, and bipolar disorder. The Shodair team recommended residential care as R.L.H. refused to remain in less restrictive treatment programs. R.L.H. was treated at Shodair from January 3, 2003, to February 14, 2003, when she ran away.

¶10 On March 5, 2003, the Missoula County Attorney filed a Third Petition to Revoke. The petition alleged R.L.H. committed the offenses of felony possession of methamphetamine, felony possession of opiates, and misdemeanor possession of marijuana. In order for her to be placed in a youth detention facility, it was necessary to secure a determination that R.L.H. was guilty of an offense that would be a felony crime if committed by an adult. Sections 41-5-341(1); 41-5-206(1)(b)(x), MCA. The charges in the petition were based on the uranalysis test of December 19, 2002, and on the admissions made on January 2, 2003, in open court.

¶11 R.L.H. denied the allegations of the Third Petition to Revoke and filed a Motion to Dismiss, claiming possession by ingestion or consumption was insufficient to prove possession of a dangerous drug under Montana law. The Youth Court denied the motion.

¶12 The petition was set for a jury trial. R.L.H. filed a motion to exclude evidence, to prevent the introduction of the admissions she made on January 2, 2003. The motion to exclude was denied.

¶13 At the close of the evidence at the jury trial, R.L.H. moved for a directed verdict, again claiming that ingestion of illegal drugs was insufficient to prove possession. This motion was likewise denied.

¶14 A jury found R.L.H. guilty of all three charges in the Third Petition to Revoke. On July 3, 2003, R.L.H. appeared with counsel for disposition. The Youth Court committed R.L.H. to the custody of the Department of Corrections for placement at Riverside Correctional Center, a secure youth detention facility. This appeal followed.

II. STANDARD OF REVIEW

¶15 The denial of a motion to dismiss a formal petition in Youth Court is a matter of law which we review de novo, determining only whether the court correctly interpreted the law. State v. R.B. "J" C., 2004 MT 254, ¶ 7, 323 Mont. 62, ¶ 7, 97 P.3d 1116, ¶ 7.

¶16 We treat a motion to exclude testimony as a motion to suppress. State v. Baldwin, 2003 MT 346, ¶ 11, 318 Mont. 489, ¶ 11, 81 P.3d 488, ¶ 11. Our standard of review for a Youth Court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous, and whether those findings are correctly applied as a matter of law. Baldwin, ¶ 11.

III. DISCUSSION

ISSUE ONE

¶17 Did the Youth Court err in denying R.L.H.'s Motion to Dismiss the petition alleging possession of methamphetamine based on a positive uranalysis test?

¶18 A person commits the offense of criminal possession of dangerous drugs if the person possesses any dangerous drug defined in § 50-32-101(6), MCA. Section 45-9-102, MCA. Methamphetamine is a dangerous drug. Possession is the knowing control of anything for a sufficient time to be able to terminate control. Section 45-2-101(58), MCA. Possession can be either actual or constructive. State v. Neely (1993), 261 Mont. 369, 374, 862 P.2d 1109, 1112. Constructive possession may be imputed when the substance is subject to the defendant's dominion and control. Neely, 261 Mont. at 374, 862 P.2d at 1112. Whether constructive possession can be proved by a positive urinalysis is an issue of first impression in Montana.

¶19 R.L.H. argues that she was not in "possession" of dangerous drugs because once the drugs were in her system, she did not have dominion or control over them. Accordingly, R.L.H. urges this Court to follow those state courts that have held that once a person injects or ingests an illegal substance into their body and it is assimilated into the blood stream, they cease to possess the substance because they lose dominion and control over it. See, e.g., State v. Flinchpaugh (1983), 232 Kan. 831, 659 P.2d 208; People v. Spann (1986), 187 Cal.App.3d 400, 232 Cal.Rptr. 31; State v. Downes (1977), 31 Or.App.1183, 572 P.2d 1328.

¶20 In the alternative, R.L.H. argues that if this Court concludes that the presence of an illegal substance in a person's blood or urine constitutes circumstantial evidence of prior possession, such circumstance is not sufficient to prove guilt beyond a reasonable doubt in criminal proceedings because it is impossible to determine from a urinalysis or blood test when or how the substance entered the body and whether it was taken knowingly. Flinchpaugh, 659 P.2d at 212.

¶ 21 R.L.H. next argues that if the Montana Legislature had intended to criminalize possession of dangerous drugs by ingestion or consumption, it would have explicitly done so. Since this language is absent from both the statutory language criminalizing the possession of dangerous drugs found in § 45-9-102, MCA, and the statutory definition of "possession" found in § 45-2-101(58), MCA, R.L.H. argues that the Montana Legislature did not contemplate possession by ingestion. R.L.H. notes that Senate Bill No. 439, proposing to include "consumption by any means" in the statutory definition of possession, was defeated in the 2003 legislative session. She argues that this is further proof that the Legislature did not intend to criminalize possession by ingestion. See State v. Schroeder (S.D.2004), 674 N.W.2d 827, 831 (holding a positive urinalysis is sufficient to support a conviction for possession where the legislature amended the statute governing the definition of a controlled substance to include substances once they have been absorbed in the body).

¶ 22 In jurisdictions which have enacted separate statutes that criminalize both the "use" and the "possession" of dangerous drugs, courts have held that evidence of use, such as a positive urinalysis, cannot also be used to support a separate charge for possession. See, e.g., Spann, 232 Cal.Rptr. at 35; Downes, 572 P.2d at 1330. However, Montana has not adopted statutes creating such separate offenses, and the reasoning of such cases does not apply.

¶ 23 We do conclude that once a substance is ingested and then assimilated into the bloodstream, the person who ingested it does cease to exercise dominion and control over the substance. See, e.g., Spann, 232 Cal.Rptr. at 32; Downes, 572 P.2d at 1330; Flinchpaugh, 659 P.2d at 210; State v. Thronsen (Alaska App.1991), 809 P.2d 941, 942. However, like many of those jurisdictions which have addressed this issue, we also conclude that the presence of an illegal substance in the body constitutes circumstantial evidence of prior possession of that substance. The theory is that in order to have ingested the drug the person had to have possessed it, if even for a short period of time. See, e.g., United States v. Blackston (3d Cir.1991), 940 F.2d 877, 887. We...