State v. Hendricks, 13269

• Decision Date: 19 October 1976
• Docket Number: No. 13269,13269
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Eugene HENDRICKS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 743

555 P.2d 743

171 Mont. 7

STATE of Montana, Plaintiff and Respondent, v. John Eugene HENDRICKS, Defendant and Appellant.

No. 13269.

Supreme Court of Montana.

Submitted Sept. 1, 1976.

Decided Oct. 19, 1976.

Stimatz & Engel, Joseph C. Engel, III, argued, Butte, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., John F. North, argued, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Edward McLean, Deputy County Atty., argued, Missoula, for plaintiff and respondent.

HASWELL, Justice.

Defendant appeals from his conviction of theft, aggravated assault, and two counts of sale of dangerous drugs in the district court, Missoula County.

On June 5, 1975, Officer Bill Olsen, of the Region One Anti-Drug Team, Missoula sheriff's office, and Keith Sorenson of the Glasgow police department, met defendant in Missoula.

According to Olsen's testimony, Hendricks said he would sell him 1,000 hits of speed. Olsen didn't have enough money, so then Hendricks said he could get some cocaine. The officers did not have enough money for this either, so Hendricks said he would get them some crystal methamphetamine. Officer Olsen and defendant went to a Missoula bar where Hendricks entered and returned. Hendricks then gave Olsen a paper packet containing powder in exchange for thirty dollars, representing it to be crystal methamphetamine. It was from this transaction that one count of sale of dangerous drugs resulted. The powder later proved to be caffeine, an uncontrolled substance.

The second count of criminal sale of dangerous drugs arose from an incident occurring in the early morning hours of June 8, 1975.

A couple of days after buying the packet of powder, Officer Olsen and Hendricks encountered each other on the street in Missoula. Hendricks asked the undercover officer if he had his money this time. The officer answered that he did, but when he refused to show it Hendricks poked him with a knife, later resulting in the aggravated assault charge. Olsen then pulled his gun. Olsen testified that Hendricks, upon seeing the gun, ran from Olsen shouting 'don't shoot! * * * Let's make a deal, * * * I've got the dope. * * *'

After Hendricks produced two paper packets from the trunk of his car and handed them to Olsen, Olsen attempted to place Hendricks under arrest. A scuffle and foot chase ensued. After Hendricks had been apprehended, Olsen returned to the Hendricks' car. A young woman passenger in the car was gone and the paper packets and knife could not be found.

The theft charge resulted after Hendricks' brother-in-law reported to police he had found items in the trunk of his car that proved to be stolen.

Defendant presents two issues for review:

(1) Did the evidence introduced at trial support the convictions of two counts, sales of dangerous drugs, under section 54-132(a), R.C.M.1947?

(2) Is it manifest error entitling defendant to a new trial on all issues, when a brother-in-law of the trial judge becomes a member of the jury?

With respect to the first issue defendant argues the prosecution failed to prove Hendricks intended to sell dangerous drugs when the one packet contained caffeine and the contents of the other two packets were not recovered.

Section 54-132(a), R.C.M.1947, provides:

'A person commits the offense of a criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange or give away, manufactures, prepares, cultivates, compounds or processes any dangerous drug as defined in this act.' (Emphasis added.)

The two counts of the information by which defendant was charged in the present case alleged defendant 'offered to sell' dangerous drugs on June 5 and again on June 8, 1975.

The jury was instructed as follows on this point:

'You are instructed that if you find in your deliberations that the defendant offered for sale what he believed to be a dangerous drug, you must find him guilty irregardless of whether or not the substance was in fact a dangerous drug.'

This instruction states essentially what defendant argues the law to be. Its meaning is essentially the same as defendant's offered instruction, but it is more clearly worded.

Defendant's argument is on a factual basis. Counsel argues that defendant knew the powder was not an illegal drug in spite of what he may have represented the contents of the paper packets to be when he sold them to the undercover officer. Counsel argues defendant's only intent was to obtain money.

Such a factual determination was for the jury and will not be set aside by this Court if there is substantial evidence to support the verdict.

We find there is substantial evidence to justify the jury's verdict that defendant thought he was selling dangerous drugs on June 5 and June 8, 1975.

On June 5, defendant obtained the substance from his source only seconds before he delivered it to Officer Olsen. He therefore did not have the opportunity to test it. The substance in fact looked like crystal methamphetamine. Within a block of the point that defendant and Officer Olsen got in the car after obtaining the substance, defendant insisted that Officer Olsen try some of it. Had defendant...