State v. Flatley
| Decision Date | 30 November 2000 |
| Docket Number | No. 97-568.,97-568. |
| Citation | 2000 MT 295,14 P.3d 1195 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Richard G. FLATLEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Jack H. Morris, Jardine & Morris, Whitehall, MT, For Appellant.
Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena, MT, Valerie D. Wilson, Jefferson County Attorney, Boulder, MT, For Respondent.
¶ 1 By Information filed in the District Court for the Fifth Judicial District in Jefferson County, the Defendant, Richard Flatley, was charged with criminal sale of dangerous drugs by accountability, a felony, in violation of §§ 45-9-101, 45-2-301, and 302, MCA. At the close of the State's case, Flatley moved the District Court to dismiss the action based on insufficient evidence. The District Court denied Flatley's motion and he was subsequently convicted. Flatley appeals the District Court's denial of his motion to dismiss. We reverse the judgment of the District Court.
¶ 2 Although a number of issues were raised on appeal, we find the following issue dispositive ¶ 3 Did the District Court err when it denied the Defendant's motion to dismiss based on insufficient evidence?
¶ 4 Alan Real agreed with Ray Malley, an agent for the Southwest Montana Drug Task Force, to arrange a drug purchase from the Defendant, Richard Flatley, who was an acquaintance of Real's. Real testified that he tried to call Flatley five or six times and left several messages, but that Flatley did not return his calls. When Real eventually contacted Flatley, Real testified that the following conversation occurred:
¶ 5 On June 6, 1996, Real met with Agent Timothy Barkell and Agent Malley of the drug task force in Whitehall, Montana. Real and Barkell drove from Whitehall to Boulder, Montana in Barkell's car. Malley followed in his car. When they arrived in Boulder, Barkell fixed a wire on Real's body.1 After Real identified Flatley's house, Barkell parked his car in Flatley's driveway and remained in the car. Malley was parked half a block away, where he was listening to the transmission of Real's conversation and taking photographs.
¶ 6 Real then exited Barkell's car and walked to the back of the house, where Flatley and Lucas Janacaro were repairing a car. Real testified that he asked Flatley, "Well, can you hook me up?" to which, Flatley responded, "No, the guy's gone fishing." Real testified that he then asked Janacaro if he could help him get some marijuana; and that Janacaro responded, The recording device that Real was wearing recorded the conversation as follows:
Flatley: No Shit.
Real: Oh, he is?
Flatley: Yeah, he's up fishing.
Real: Can you hook me up?
Janacaro: Yeah.
Janacaro testified that Flatley did not introduce him to Real; and that Flatley did not tell Real that he could get him drugs. Real testified:
Following the conversation in Flatley's yard, Real, Flatley, and Janacaro walked to the car where Barkell was waiting. Barkell testified that the following conversation resulted:
¶ 7 Before they left for Jefferson City, Real testified that Barkell suggested that Janacaro call the supplier. Janacaro testified that Flatley also suggested calling the supplier. Janacaro, however, responded that the supplier did not have a phone. While driving to Jefferson City, Barkell testified the following conversation occurred:
¶ 8 When the group arrived in Jefferson City, Barkell parked the car at Ting's Bar. Flatley and Janacaro exited the car and walked to Justin Jones' house, while Barkell and Real waited in the car. Jones was not home, but his mother said he was at the dredge ponds. After Flatley and Janacaro returned to the car, Barkell drove to the dredge ponds. According to Barkell, both Flatley and Janacaro directed him to the ponds. He testified:
When they arrived at the dredge ponds, Janacaro went to talk with Jones, while Flatley, Real, and Barkell remained in the car. Janacaro then returned to the car with Jones, where Janacaro introduced Jones to Barkell. Janacaro and Jones entered the car and Barkell drove back to Ting's bar.
¶ 9 Once at Ting's bar, Barkell gave Janacaro $65. Jones and Janacaro then exited the car. Flatley, Real, and Barkell remained in the car. Janacaro testified that he and Jones then went to Jones' house, where Jones gathered a quarter ounce of marijuana. Jones and Janacaro returned about 15 minutes later. Jones then gave Barkell a bag of marijuana which he placed under his seat. Jones and Janacaro remained in Jefferson City and Real, Flatley, and Barkell departed for Boulder. While driving to Boulder, Barkell testified the following conversation occurred:
When they arrived in Boulder, Real and Barkell returned Flatley to his house.
¶ 10 We review the sufficiency of the evidence to support a criminal conviction to determine 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. State v. Medrano (1997), 285 Mont. 69, 73, 945 P.2d 937, 939.
¶ 11 Did the District Court err when it denied the Defendant's motion to dismiss based on insufficient evidence?
¶ 12 "A person commits the offense of criminal distribution of dangerous drugs if the person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug, as defined in XX-XX-XXX." Section 45-9-101(1), MCA. Section 45-2-301, MCA, provides:
A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.
A person is legally accountable for the conduct of another when:
(3) 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. To convict a person of criminal distribution of dangerous drugs by accountability, the state must prove the defendant promoted or facilitated the sale of drugs. State v. Lyons (1992), 254 Mont. 360, 366, 838 P.2d 397, 401. Mere presence at the scene of a crime is, however, insufficient to establish criminal responsibility. State ex rel. Murphy v. McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909 ()
¶ 13 Flatley contends that he did not arrange the drug transaction between Jones and Barkell;...
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