State v. Downing
| Decision Date | 08 December 1989 |
| Docket Number | No. 89-155,89-155 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Samuel Mark DOWNING, Defendant and Appellant. |
| Court | Montana Supreme Court |
Martin John Elison, Missoula, for defendant and appellant.
Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, John W. Robinson, Ravalli County Atty., Margaret Tonan, Deputy County Atty., Hamilton, for plaintiff and respondent.
Samuel Downing appeals his conviction of accountability in the sale of dangerous drugs, methamphetamine, following a jury trial in the Fourth Judicial District Court, Ravalli County. We affirm.
The appellant raises the following issues:
1. Did the District Court err by failing to grant the defendant's motion for a directed verdict following the State's case-in-chief?
2. Does the record contain sufficient evidence to support the jury verdict?
The facts are not in dispute. The State's case-in-chief relied on the testimony of Agents Mark Brady and Robert Fairchild of the Montana Criminal Investigation Bureau. They testified that together with an unidentified informant, they formed an undercover team which attempted to purchase illicit drugs in Hamilton, Montana. The informant identified potential sellers and Agent Brady made contact. Agent Fairchild acted as backup officer monitoring and taping the conversations through a "wire" worn by Brady.
The informant introduced Brady to the appellant as a possible source of drugs. When Brady asked the appellant if he could buy some "crank" or methamphetamine, Downing indicated that he had none, but arranged a meeting between Brady and Earl Ohl. Ohl also had no crank, but expected to receive a shipment that evening.
The following day while in route to Ohl's house to purchase the drugs, Agent Brady and the informant came across the appellant. Downing accompanied the party to Ohl's home where Ohl introduced Brady to Mark Huskins. Huskins sold Brady one gram of methamphetamine for $110. Brady, Downing, Ohl, and Huskins were all present during the sale. On their way out, Brady passed $10 to Downing.
The defense consisted of testimony by appellant Downing and his girlfriend, Julie Phelps. They corroborated most of the facts as given by Agents Brady and Fairchild, but emphasized the inadequacy of the connection between Downing's assistance and Huskins' drug sale. Downing admitted that he helped set up a deal between Brady and Ohl, but testified that he was not aware that Huskins would actually make the sale. He testified that he did not introduce Brady to Huskins, did not encourage the sale, and took no part in the transaction.
The issues presented are whether the record contains sufficient evidence to sustain the trial court's refusal to grant the defendant's motion for a directed verdict and to sustain the jury's verdict. The decision to grant or refuse a directed verdict is within the trial court's discretion. State v. Miller (Mont.1988), 757 P.2d 1275, 1282, 45 St.Rep. 790, 798. Whether a defendant is an accomplice, however, is a question for the jury. State v. Gonyea (1987), 225 Mont. 56, 59, 730 P.2d 424, 426. The trial court's standard in considering a directed verdict, and this Court's standard in reviewing the trial court decision, gives full consideration to the jury's role.
The relevant question 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.
Miller, 757 P.2d at 1283, 45 St.Rep. at 798. (Citation and emphasis deleted.)
This is the same standard for this Court in determining whether the evidence was sufficient to warrant the jury's verdict. Miller, 757 P.2d at 1286, 45 St.Rep. at 803. We must determine whether a reasonable jury could have found the essential elements of accountability following the State's case-in-chief and following the defendant's case-in-chief.
The relevant accountability section incorporates the essential elements.
A person is legally accountable for the conduct of another when:
. . . . .
either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.
Section 45-2-302(3), MCA. (Enumeration added.)
The first element is not in dispute. The appellant does not contend that evidence fails to show that Downing's actions occurred prior to or during the underlying offense.
The second element requires that accountability be predicated upon a separate, underlying offense. See Matter of B.D.C. (1984), 211 Mont. 216, 221, 687 P.2d 655, 657 (). According to the information filed against Downing, the underlying offense was Huskins' sale of methamphetamine. The parties do not dispute that the underlying crime actually occurred, but they apparently have some contentions as to its parameters for accountability purposes. Downing's accountability is predicated only upon Huskins' sale of drugs. It does not attach to any illegal acts by Earl Ohl. Nor does it attach to Agent Brady's purchase of drugs. See State v. Stokoe (1986), 224 Mont. 461, 464-65, 730 P.2d 415, 417 (). The question, then, is limited to whether Downing assisted Mark Huskins in selling drugs.
The third element goes to the defendant's mental state. The statute requires only that the defendant purposely abetted the crime. This Court, however, also requires the accomplice to act "knowingly, voluntarily and with common intent with the principal offender...." Gonyea, 225 Mont. at 58, 730 P.2d at 426; State v. Nordahl (1984), 208 Mont. 513, 517, 679 P.2d 241, 243. "Purposely" is defined as having the conscious objective to engage in the criminal act or cause the criminal act. Section 45-2-101(58), MCA. "Knowingly" is defined as aware that it is highly probable that the criminal act will result. Section 45-2-101(33), MCA.
Regardless of whether the "purposely" or "knowingly" standard is applied, we, like the jury, are faced with the same decisive question: what criminal act did Downing intend to abet? Downing admittedly intended to abet Agent Brady in purchasing crank. In so doing, the appellant necessarily intended to aid someone in selling the drugs. The appellant argues that he intended only to facilitate a sale by Earl Ohl. He asserts that he did not envision a sale by Mark Huskins and therefore is not accountable for that sale. The District Court and the jury found this interpretation of the evidence to be much too narrow and we agree.
During the State's case-in-chief, Agent Brady testified as follows:
Q. What happened once you ... made contact with the defendant? What then happened?
A. There were conversations between myself, the informant, and Mr. Downing about the availability of dangerous drugs.
Q. What did you ask specifically? Do you recall?
A. At one point in time, Mr. Downing asked what type of drug we were looking for and I mentioned crank.
...
Q. Once that made known [si...
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