State v. Kopp

• Decision Date: 07 June 2011
• Docket Number: No. DA 10–0311.,DA 10–0311.
• Citation: 255 P.3d 160,2011 MT 125,360 Mont. 501
• Parties: STATE of Montana, Plaintiff and Appellee,v.Carissa KOPP, Defendant and Appellant.
• Court: Montana Supreme Court

360 Mont. 501

255 P.3d 160

2011 MT 125

STATE of Montana, Plaintiff and Appellee,

v.Carissa KOPP, Defendant and Appellant.

No. DA 10–0311.

Supreme Court of Montana.

Submitted on Briefs Jan. 5, 2011.Decided June 7, 2011.

For Appellant: Robin A. Meguire, Attorney at Law; Great Falls, Montana.For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana.Justice JIM RICE delivered the Opinion of the Court.

[360 Mont. 502] ¶ 1 Defendant Carissa Kopp appeals from the denial of her motion to dismiss the charge of criminal possession of dangerous drugs, a felony, by the Fifth Judicial District Court, Jefferson County. We consider the following issue:

¶ 2 Did the District Court err in denying Kopp's motion to dismiss pursuant to §§ 46–11–503 and –504, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The parties stipulated to the facts relevant to Kopp's motion to dismiss. On January 5, 2009, Kopp was cited with misdemeanor possession of drug paraphernalia, namely a spoon and baggies, found by Jefferson County Deputy Sheriff Shaun Gardner in a small blue bag in Kopp's possession. The next day, Kopp appeared before the Jefferson County Justice Court and pled guilty to the charge. Later that day, preliminary testing was performed in which residue in one of the baggies tested presumptively positive for methamphetamine. No testing was done on the liquid substance found in a syringe in the blue bag at that time. Deputy Gardner prepared an inventory report of the blue bag's contents indicating the syringe contained insulin. All of this evidence was sent to the state crime lab for testing, except for the syringe, which was mistakenly not sent.

¶ 4 In March 2009, the state crime lab reported that the residue on the spoon contained methamphetamine. The State charged Kopp in the District Court with criminal possession of dangerous drugs (methamphetamine), a felony, in violation of § 45–9–102, MCA, based on the residue found on the spoon. Kopp filed a motion to dismiss pursuant to §§ 46–11–503 and –504, MCA, due to her prior conviction on the paraphernalia charge.

¶ 5 Deputy Gardner discovered the syringe had not been sent. He forwarded it to the crime lab for testing and, in May 2009, the lab reported the substance in the syringe tested positive for methadone.¹ The State moved for leave to amend the information from possession of dangerous drugs (methamphetamine) to possession of dangerous drugs (methadone), a felony, in violation of § 45–9–102, MCA. After leave was granted and the State filed an amended information, Kopp renewed her motion to dismiss under §§ 46–11–503 and –504, MCA, asserting possession of the blue bag and the entirety of its contents constituted a single transaction for which she had already been convicted.

¶ 6 The District Court conducted a hearing and denied the motion in a ruling from the bench. Kopp then entered an Alford plea to the charge, reserving the right to appeal the denial of her motion to dismiss. The District Court imposed a three-year deferred sentence to the Department of Corrections. Kopp appeals.

STANDARD OF REVIEW

¶ 7 We review de novo a district court's decision on a motion to dismiss in a criminal case. State v. James, 2010 MT 175, ¶ 12, 357 Mont. 193, 237 P.3d 672 (citing State v. Gazda, 2003 MT 350, ¶ 10, 318 Mont. 516, 82 P.3d 20).

DISCUSSION

¶ 8 Did the District Court err in denying Kopp's motion to dismiss pursuant to §§ 46–11–503 and –504, MCA?

¶ 9 Kopp claims that the District Court erred by denying her motion to dismiss under § 46–11–504, MCA,² arguing that her conviction “was based on the same transaction as her prior conviction in justice court.” ³ We have applied a three-part test to determine when a subsequent prosecution is barred under this provision:

“(1) a defendant's conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued;

(2) the first prosecution resulted in an acquittal or a conviction; and

(3) the subsequent prosecution is based on an offense arising out of the same transaction [as that term is defined in § 46–1–202(23), MCA].”

State v. Cech, 2007 MT 184, ¶ 13, 338 Mont. 330, 167 P.3d 389 (quoting State v. Tadewaldt, 277 Mont. 261, 264, 922 P.2d 463, 465 (1996)). For a subsequent prosecution to be barred under § 46–11–504(1), MCA, all three factors must be met. State v. Neufeld, 2009 MT 235, ¶ 12, 351 Mont. 389, 212 P.3d 1063 (citing Gazda, ¶ 12). The statute “provides criminal defendants with greater protection against double jeopardy than the traditional double jeopardy ‘elements' test set forth by the United States Supreme Court in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.” Gazda, ¶ 12 (citing Tadewaldt, 277 Mont. at 268, 922 P.2d at 467). The District Court denied Kopp's motion on the basis of factor three, concluding that the offenses here did not arise from the same transaction. ⁴

¶ 10 “Same transaction” is defined, in relevant part, as “conduct consisting of a series of acts or omissions that are motivated by: (a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective.” Section 46–1–202(23), MCA. We have explained that “offenses arise from the same transaction when a defendant's underlying conduct of each prosecution is motivated by a purpose to accomplish the same criminal objective” and that the same transaction factor is not satisfied “when conduct charged in a subsequent prosecution is distinct from conduct charged in the initial prosecution.” Gazda, ¶¶ 20, 21 (citing State v. Sword, 229 Mont. 370, 374, 747 P.2d 206, 208–09 (1987); see also Tadewaldt, 277 Mont. at 266–67, 922 P.2d at 466).

¶ 11 Kopp argues that her offenses of possession of drug paraphernalia and possession of dangerous drugs arose out of the same transaction because they share the purpose, motivation, and criminal objective of possessing and using drugs. She argues that the contents of the blue bag formed the basis of both offenses and that her possession of paraphernalia was necessary and incidental to the criminal objective of ingesting a dangerous drug. She urges we reach the same result as in Sword. The State replies the charges are not part of the same transaction because Kopp's possession of paraphernalia was separate and distinct from her possession of dangerous drugs, arguing the paraphernalia had previously been used to ingest methamphetamine, while the syringe contained methadone to be used in the future by Kopp or another person. The State likens this case to our decision in Tadewaldt.

¶ 12 In Sword, we concluded that a Montana prosecution for making a false statement on a grizzly bear trophy license application arose out of the same transaction as the defendant's federal conviction for violating the Endangered Species Act of 1973. Sword, 229 Mont. at 371–72, 374, 747 P.2d at 207, 209. The defendant killed a grizzly bear in a wilderness area where grizzly bear hunting was prohibited and lied on his bear trophy license application about where he killed the bear. Sword, 229 Mont. at 371, 747 P.2d at 207. He pled guilty in federal court to violating the Endangered Species Act and was later charged in state justice court for subscribing to a materially false statement on the trophy license application. Sword, 229 Mont. at 371–72, 747 P.2d at 207. We considered the conduct underlying each offense and reasoned that the “false statements on his trophy license application .... as well as his other acts were motivated and necessary or at least incidental to the accomplishment of the criminal objective of possessing, carrying, and transporting of a grizzly bear taken unlawfully.” Sword, 229 Mont. at 374, 747 P.2d at 208–09; see also James, ¶¶ 6–9, 15 (concluding the charges of fleeing from or eluding a police officer and criminal endangerment, involving the same high-speed car chase, arose out of the same transaction because the “criminal objective—driving at high speed to elude capture—was the same as to each charge”).

¶ 13 In Tadewaldt we concluded that the charge of criminal possession of dangerous drugs did not arise from the same transaction as the defendant's charge of driving under the influence (DUI). Tadewaldt, 277 Mont. at 267, 922 P.2d at 466. Upon defendant's arrest for DUI, several pills were found in his possession which were later identified as dangerous drugs, leading to a possession charge. Tadewaldt, 277 Mont. at 263, 922 P.2d at 464. After judgment was entered on the misdemeanor DUI charge, defendant moved to dismiss the possession charge. Tadewaldt, 277 Mont. at 264, 922 P.2d at 464. We distinguished Sword, reasoning the defendant's criminal objective for DUI was unrelated to his possession of dangerous drugs. Tadewaldt, 277 Mont. at 266–67, 922 P.2d at 466. We noted the defendant had completed his “criminal objective” of DUI before the drugs were found in his possession, and that the drugs “had not been ingested and did not contribute to Tadewaldt's impairment.” Tadewaldt, 277 Mont. at 267, 922 P.2d at 466. We concluded that “in statutory terms, Tadewaldt's conduct in possessing the dangerous drugs was not motivated by a purpose to accomplish the ‘criminal objective’ of DUI, nor was it necessary or incidental to that ‘objective,’ ” and thus the defendant's conduct did not meet the definition of “same transaction” under the statute. Tadewaldt, 277 Mont. at 267, 922 P.2d at 466.⁵

¶ 14 Here, the District Court stated:

I'm prepared to accept Defendant's argument that possession of paraphernalia ... and possession of a syringe loaded with some unknown liquid ... arguably could have had, the same criminal objective; but I do not believe that it is so perfectly apparent that it must have had the same criminal objective, that it will fall within the same transaction.

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