State v. Starr
| Decision Date | 31 May 1983 |
| Docket Number | No. 82-124,82-124 |
| Citation | 664 P.2d 893,204 Mont. 210,40 St.Rep. 796 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Aaron STARR, a/k/a Frank Wetch, Defendant and Appellant. |
| Court | Montana Supreme Court |
Overfelt Law Firm; Gary Overfelt, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.
Aaron Starr was convicted upon jury trial in the District Court, Thirteenth Judicial District, Yellowstone County, Montana, on one count of felony sale of dangerous drugs, and one count of felony attempt (theft). He was sentenced to 15 years at the Montana State Prison, with the last 7 1/2 years suspended.
We reverse his conviction for felony sale of dangerous drugs and dismiss that count against him; we affirm his conviction for felony attempt (theft). We remand the cause to the District Court for resentencing on his conviction of felony attempt (theft).
Starr, sometimes known as Frank Wetch, accompanied by a man named Russell, met with Howard Pederson (an undercover agent employed by the Yellowstone County Criminal Investigation Division) on September 13, 1981. Starr offered to sell Pederson one pound of "cocaine for $30,000." Pederson declined saying he was only interested in purchasing 11 pounds of cocaine. However, Pederson performed two "field tests" on the substance offered. The first test was negative, the second test was positive. A positive test does not necessarily indicate that the substance is cocaine, since the results can be positive for several substances, including lidocaine, a prescription drug, not defined as a dangerous drug under section 50-32-101, MCA. Pederson told Starr that he was not interested in purchasing the substance on that date, but stated he would buy 5 kilos on a subsequent date. Starr and his wife testified that the substance offered for sale on September 13, 1981, was in fact lidocaine and not cocaine.
The grounds on which we reverse Starr's conviction for felony criminal sale of dangerous drugs (the offer to sell of September 13, 1981) are that the evidence is not sufficient beyond a reasonable doubt to sustain his conviction under the statute defining the offense, and that error occurred in the instructions.
Section 45-9-101, MCA, provides in part:
"(1) A person commits the offense of criminal sale of dangerous drugs if he ... offers to sell ... any dangerous drug as defined in 50-32-101."
To sustain the conviction of Starr on an offense under this statute, the State was required to prove that (1) Starr (2) offered to sell (3) a defined dangerous drug. The statute, in its form at the time of this alleged offense, does not include the offer of sale of a look-alike drug such as lidocaine.
The State must prove beyond a reasonable doubt every element of the crime charged. State v. Hamilton (1980), Mont., 605 P.2d 1121, 37 St.Rep. 70.
Under the testimony of the chemist for the state crime laboratory, a witness produced by the State, it is clear that the field tests used by Pederson on September 13, 1981, to test the substance that was being offered for sale, would yield a positive blue color, whether the substance was cocaine or lidocaine:
Other than the field tests, there was no proof offered by the State as to the nature of the substance that Starr was offering for sale on September 13, 1981. Such lack of proof as to the exact nature of the substance offered by Starr differentiates this case from State v. Dunn (1970), 155 Mont. 319, 332, 472 P.2d 288. In Dunn, although the State was not able to produce the substance sold by the defendant Dunn because his two recipients had swallowed the substance, their testimony as to the effect of the drugs on them and their hallucinations for a considerable period of time thereafter sufficed to prove that the substance which the defendant had sold or offered to sell was actually LSD.
In this case, the State produced circumstantial evidence through the field tests administered by Pederson that the substance offered may have been cocaine; its subsequent evidence indicates also that the substance may have been lidocaine. The rule in Montana is that to justify a conviction on circumstantial evidence, the facts and circumstances must not only be entirely consistent with the theory of guilt, but must be inconsistent with any other rational theory. State v. Stoddard (1966), 147 Mont. 402, 412 P.2d 827.
We therefore hold that the evidence is not sufficient beyond a reasonable doubt to sustain Starr's conviction on the offer to sell dangerous drugs.
Starr also relies in this appeal on error in the instructions regarding the charge of the criminal sale of dangerous drugs.
In pertinent part, the District Court instructed the jury:
In instruction no. 9, the court instructed the jury with respect to each of the four counts with which Starr was originally charged, that "the State must prove beyond a reasonable doubt that each element of each offense was committed or perpetrated purposely or knowingly by the defendant as a voluntary act."
In the same instruction, instruction no. 9, the court defined the terms "purposely" and "knowingly," in the language of the respective statutes defining the same. Section 45-2-101(58), MCA [purposely]; section 45-2-101(33), MCA [knowingly].
The defendant offered his proposed instructions no. 20 and 22 as follows:
It will be seen by the instructions given and refused as above set out that the court instructed the jury that Starr could be convicted of the crime of offering to sell dangerous drugs if he believed the substance he was offering was a dangerous drug; while, under the instructions offered by Starr, he could not be convicted of the crime of offering to sell dangerous drugs unless he knew that the substance offered was in fact a dangerous drug.
Starr contends that the count charging him with offering to sell dangerous drugs required the State to prove as an element of the offense his specific intent to transfer then or in the future a dangerous drug. The State, on the other hand, contends that Starr's assertion that the substance offered for sale must in fact be a dangerous drug is a narrow reading of the statute defining "offer for sale" as a crime, a reading not compelled by the language or purpose of the statute, nor by any general policy of Montana's criminal law.
Of course it is the duty of the District Court to instruct the jury on every issue or theory having support in the evidence. State v. Thomas (1966), 147 Mont. 325, 413 P.2d 315. In determining whether to give an instruction, the inquiry of the District Court must only be whether any evidence exists in the record to warrant an instruction on the theory or issue submitted. See State v. Buckley (1976), 171 Mont. 238, 242, 557 P.2d 283; State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. Conversely, when no evidence exists to support a submitted instruction, such form of instructions should not be given. An example is State v. Buckley, supra, where the District Court had withdrawn an instruction on mitigated deliberate homicide, this Court approved the withdrawal on the ground that there was no evidence in the cause upon which the court could have submitted the lesser-included offense of mitigated deliberate homicide.
Here, there was no evidence that Starr believed that he was in fact offering cocaine for sale. To that extent, there was instructional error in this cause, since the instruction had no foundation in...
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