State v. Ellerbee

• Decision Date: 12 February 2019
• Docket Number: DA 17-0059
• Citation: 434 P.3d 910,2019 MT 37,394 Mont. 289
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jason W. ELLERBEE, Defendant and Appellant.
• Court: Montana Supreme Court

394 Mont. 289

434 P.3d 910

2019 MT 37

STATE of Montana, Plaintiff and Appellee,

v.Jason W. ELLERBEE, Defendant and Appellant.

DA 17-0059

Supreme Court of Montana.

Submitted on Briefs: October 10, 2018

Decided: February 12, 2019

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Martin D. Lambert, Gallatin County Attorney, Erin Murphy, Deputy County Attorney, Bozeman, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellant Jason W. Ellerbee appeals the jury verdict and Sentencing Order of the Eighteenth Judicial District Court, Gallatin County, finding Ellerbee guilty of criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. We address the following issues on appeal:

Issue One: Whether Double Jeopardy precluded the State from retrying Ellerbee.

Issue Two: Whether the jury was correctly instructed on the charge of criminal possession of dangerous drugs during Ellerbee's second jury trial.

Issue Three: Whether the District Court abused its discretion by overruling Ellerbee's hearsay objection regarding his traveling companions' conflicting statements to officers during Ellerbee's second jury trial.

Issue Four: Whether cumulative trial error requires reversal.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In early 2015, the Missouri River Drug Task Force (Task Force) began investigating Michael Santos after learning that Santos was distributing methamphetamine in Gallatin County. Through a confidential informant, the Task Force learned that Santos would be traveling out of state to obtain methamphetamine. On April 2, 2015, the Task Force applied for and received a search warrant to install a tracking device on Santos's vehicle. In the process of placing the tracking device, a detective with the Task Force observed Santos and Ellerbee occupying the vehicle.

¶4 On April 9, 2015, the tracking device alerted the Task Force that Santos's vehicle had left the Bozeman area. The vehicle stopped at a Wal-Mart in Butte, and then proceeded to Spokane, Washington. From Spokane, the vehicle traveled north to a residence in Elk, Washington, and then returned to Bozeman. Early on the morning of April 10, 2015, the Task Force requested that Montana Highway Patrol stop Santos's vehicle once it reentered Gallatin County. Trooper Erick Fetterhoff observed and followed Santos's vehicle and eventually stopped the vehicle for failing to use a turn signal and for having a cracked windshield.

¶5 Once Fetterhoff approached the vehicle, he observed that Santos was driving, Ellerbee was asleep in the backseat, and Rebecca Phillips was in the front passenger seat. Fetterhoff noted that Santos and Phillips were both nervous and uncomfortable in dealing with him. Fetterhoff asked the pair where the three of them were going. Phillips responded that they were returning to Bozeman from Spokane after visiting a relative. After being removed from the vehicle to conduct a pat-down search, Santos told Fetterhoff they had visited a close friend near Spokane named "Sandy." When Fetterhoff asked Phillips for the name of the relative she had visited, she initially could not provide a name before offering that it was "Sandy."

Phillips later clarified to officers assisting Fetterhoff that "Sandy" was Ellerbee's aunt.

¶6 Fetterhoff issued Santos a warning for the traffic offenses and cited Phillips for not having a valid insurance card in the vehicle. Fetterhoff told Santos and Phillips that they were free to leave, but that he did not believe their stories and that he suspected there were drugs in the car. Santos then admitted to having marijuana in his coat pocket, a methamphetamine pipe in the vehicle, and that Phillips had recently consumed methamphetamine. Fetterhoff seized the vehicle and obtained a search warrant.

¶7 After the vehicle was seized, Ellerbee woke up and confirmed his identity to officers assisting Fetterhoff. Ellerbee corrected Phillips that "Sandy" was not his aunt, but was instead just a friend. After running Ellerbee's name, officers assisting Fetterhoff arrested Ellerbee on outstanding warrants.

¶8 During the search of the vehicle, officers discovered twenty-seven grams of methamphetamine stowed under the rear seat. Officers additionally found a receipt from the Butte Wal-Mart for a $ 900 MoneyGram from Santos to a "Sandy Trower" and drug paraphernalia used for ingesting methamphetamine. The Task Force also applied for and received a search warrant authorizing a search of Ellerbee's cell phone, which was seized during his arrest. On Ellerbee's phone, officers found text messages to a "Sandy Trower." The sender, identifying as "Jason," indicated that Ellerbee was going to travel to meet with "Sandy" about obtaining an ounce of an unidentified substance. There were also texts discussing a MoneyGram, the MoneyGram's confirmation number, and that the MoneyGram would be sent through a Wal-Mart. The MoneyGram confirmation number matched the receipt for the MoneyGram located inside the vehicle.

¶9 On September 14, 2015, the State charged Ellerbee with one count of criminal possession of dangerous drugs with intent to distribute, a felony in violation of § 45-9-103, MCA. On March 29-30, 2016, the case proceeded to a jury trial. At the close of the State's case, Ellerbee's counsel moved for a directed verdict based on insufficiency of the evidence. The District Court denied the motion and submitted the case to the jury. The jury was unable to reach a verdict and the District Court declared a mistrial.

¶10 On April 26, 2016, the State amended the Information to charge Ellerbee with criminal possession of dangerous drugs, a felony in violation of § 45-9-102, MCA. On August 8-9, 2016, the District Court conducted a second jury trial on the amended charge. The State presented the same witnesses and admitted the same evidence.

¶11 During Ellerbee's second trial, Ellerbee's counsel objected on hearsay grounds to officer testimony repeating Santos's and Phillips's conflicting statements about "Sandy" during the traffic stop. The District Court overruled the objection, finding that the statements were offered to show inconsistent statements made by Santos and Phillips and not for the truth of the matter asserted. The District Court provided the jury with a cautionary instruction that the pair's statements were being admitted for this limited purpose. At the close of trial, Ellerbee also requested that a "mere presence" jury instruction be given, which the District Court refused.

¶12 On August 9, 2016, the jury found Ellerbee guilty of criminal possession of dangerous drugs. The District Court designated Ellerbee a persistent felony offender and sentenced him to five years in the Montana State Prison.

STANDARD OF REVIEW

¶13 We review a district court's denial of a motion for a directed verdict de novo. State v. McAlister , 2016 MT 14, ¶ 6, 382 Mont. 129, 365 P.3d 1062 (citing State v. Swann , 2007 MT 126, ¶¶ 18-19, 337 Mont. 326, 160 P.3d 511 ). We review the sufficiency of the evidence in a criminal case to determine whether "after reviewing 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." State v. Polak , 2018 MT 174, ¶ 34, 392 Mont. 90, 422 P.3d 112 (citing State v. Rosling , 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102 ; State v. Roedel , 2007 MT 291, ¶ 35, 339 Mont. 489, 171 P.3d 694 ).

¶14 We review a district court's decision regarding jury instructions for an abuse of discretion. State v. Kaarma , 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609 (citing Ammondson v. Nw. Corp. , 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1 ). "A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." Kaarma , ¶ 6 (citing Ammondson , ¶ 30 ).

¶15 We review a district court's evidentiary rulings for abuse of discretion. Kaarma , ¶ 11 (citing State v. Huerta , 285 Mont. 245, 254, 947 P.2d 483, 489 (1997) ). District courts have "broad discretion to determine whether evidence is relevant and admissible." Kaarma , ¶ 11 (citing State v. Duffy , 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453 ).

DISCUSSION

¶16 Issue One: Whether Double Jeopardy precluded the State from retrying Ellerbee.

¶17 Article II, Section 17 of the Montana Constitution and the Due Process Clause of the United States Constitution protect the accused "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." State v. Davis , 2012 MT 129, ¶ 11, 365 Mont. 259, 279 P.3d 162 ; Statev. Newman , 2005 MT 348, ¶ 19, 330 Mont. 160, 127 P.3d 374 (quoting In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) ). A trial court is authorized to direct a verdict of acquittal where there is insufficient evidence, as a matter of law, to support a conviction. Section 46-16-403, MCA. When proof beyond a reasonable doubt has not been established, a district court may dismiss a criminal action at the close of the prosecution's evidence. Section 46-16-403, MCA ; Davis , ¶ 11.

¶18 It is a crime to possess any dangerous drug, including methamphetamine. Section 45-9-102, MCA. "Possession" is the knowing control of anything for a sufficient time to be able to terminate control. Section 45-2-101(59), MCA. "Constructive possession" occurs when the "accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." State v. Caekaert , 1999 MT 147, ¶ 10, 295 Mont. 42, 983 P.2d 332 (...