State v. Wilkes

• Decision Date: 09 February 2021
• Docket Number: DA 19-0367
• Citation: 403 Mont. 180,480 P.3d 823,2021 MT 27
• Parties: STATE of Montana, Plaintiff and Appellee, v. Stormi Renea WILKES, Defendant and Appellant.
• Court: Montana Supreme Court

403 Mont. 180

480 P.3d 823

2021 MT 27

STATE of Montana, Plaintiff and Appellee,

v.Stormi Renea WILKES, Defendant and Appellant.

DA 19-0367

Supreme Court of Montana.

Submitted on Briefs: June 17, 2020

Decided: February 9, 2021

For Appellant: Caitlin Boland Aarab, Boland Aarab, PLLP, Great Falls, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Ben Krakowka, Deer Lodge County Attorney, Anaconda, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Defendant Stormi Renea Wilkes (Wilkes) appeals the judgment of the Montana Third Judicial District Court, Deer Lodge County, sentencing her, upon jury verdict for felony possession of methamphetamine and misdemeanor possession of drug paraphernalia, to a net five-year suspended term of commitment to the Montana Department of Corrections (DOC) and a $15,000 fine. We address the following restated issues:

1. Whether the District Court erroneously deviated from the statutory presumption that a defendant is entitled to a deferred imposition of sentence on a first-offense Criminal Possession of Dangerous Drugs (CPDD)?

2. Whether the District Court erroneously imposed the fine required by § 45-9-130(1), MCA (market rate fine), without considering its relative proportionality to the gravity of Wilkes's adjudicated criminal conduct and ability to pay?

We affirm in part, reverse in part, and remand.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On November 9, 2017, while on evening patrol in and about the City of Anaconda, Anaconda-Deer Lodge County law enforcement Officers Jack Doemel (Doemel) and Peter Lorello (Lorello), observed a red Subaru traveling on Montana Highway 1 with expired registration. Upon effecting an investigatory traffic stop near the Anaconda slag pile, the officers encountered Wilkes driving the vehicle and ascertained that she did not own the vehicle, was unable to specifically identify who did, and was unable to produce the requested insurance and registration information for the vehicle. Wilkes explained, however, that she was on her way back to Missoula after visiting her friend Adam in Anaconda. Another officer had seen the red Subaru parked in front of Adam Reiss's (Reiss) residence at 401 Cherry Street in Anaconda the night before.

¶3 Upon further investigation, the officers observed that the vehicle driven by Wilkes had a license plate registration tag issued for a different vehicle. Upon identifying Wilkes's passenger as David Skaw (Skaw), the officers ascertained that he was the subject of an active arrest warrant out of Missoula. Two other officers arrived and arrested Skaw on the warrant. The officers later found methamphetamine and a butane torch on Skaw at the detention center during intake processing.

¶4 Back at the scene of the traffic stop, Doemel issued Wilkes citations for operating a vehicle with expired registration, altered registration tags, and no proof of liability insurance. He advised Wilkes that the vehicle would be towed to a safe location pending identification of the owner. He offered her a ride to a nearby gas station due to the inclement weather, but she declined and said she would try to get a ride from a friend, either "Adam" or "Johnny."

¶5 While Wilkes was calling for a ride, the officers intently scanned the inside of the vehicle with their flashlights and observed a small plastic Ziploc bag on the floor near the front passenger door where Skaw had been sitting. In the backseat area, they observed a small glass cylinder with a melted end that appeared to be a methamphetamine pipe. While Wilkes was talking on the phone in the driver's seat, the officers asked her about those items. She picked both up and, without hesitation, handed them to Doemel. Based on those observations, and the knowledge that Skaw was in possession of suspected methamphetamine and paraphernalia when arrested, Doemel asked Wilkes for consent to search the vehicle. Wilkes declined and the officers had the vehicle towed to the detention center pending application for a search warrant.

¶6 Upon obtaining a warrant and searching the vehicle, the officers found a heat-sealed rubber tube, a couple of syringes, and some pieces of cotton in a backpack that Wilkes had previously claimed as hers. In a separate duffle bag containing men's clothing, they found several empty Ziploc bags and another Ziploc bag containing approximately 30 grams of methamphetamine. Also found in the vehicle was a woman's purse containing syringes, tweezers, cotton swabs, "bags with [suspected drug] residue on them," and another person's identification card. In the center console they found a suspected Clonazepam tablet, and a scale with suspected drug residue. Behind the driver's seat, officers found a glass vial containing a small quantity of suspected methamphetamine. The vehicle search further yielded a Fed-Ex box containing an extraordinarily large quantity (220.99 grams) of methamphetamine. The shipping label on the box was addressed to "E and H Enterprises," 401 Cherry Street, in Anaconda and indicated that Fed-Ex delivered the box on November 9, 2017, from an address in Tucson, Arizona. Based on their observations from the traffic stop, and their resulting collective knowledge that Reiss lived at 401 Cherry Street, Wilkes claimed him as her friend, and another officer had observed the vehicle she was driving, and which contained the Fed-Ex box, parked outside Reiss's residence the night before, the officers obtained a warrant to search Reiss's residence.

¶7 The residence search yielded various items of drug-related contraband, but nothing further linking Wilkes to those items or related illegal activity at that location. The officers nonetheless arrested the two men present in the home at the time of the search—Reiss and Erik Henderson (Henderson). In a subsequent 90-minute police interrogation, Henderson only briefly mentioned Wilkes, stating that "she is a good person." However, in a later interview with defense investigator Preston Davis, Henderson allegedly stated, inter alia , that Wilkes was present with him, Weiss, and Skaw at Reiss's residence the day before when the four of them sat down together and weighed and apportioned the large quantity of methamphetamine shipped to the residence from Arizona. He described Wilkes as "second" to Skaw and alleged that she had previously suggested that they have the Fed-Ex box containing the methamphetamine shipped directly to her home in the Bitterroot Valley for further distribution by her and Skaw.

¶8 The State separately charged Reiss, Henderson, Skaw, and Wilkes in separate cases. The State charged Wilkes with four offenses: felony criminal possession of methamphetamine with intent to distribute (CPDD with Intent to Distribute); felony criminal possession of methamphetamine (CPDD-methamphetamine); felony criminal possession of Clonazepam (CPDD-Clonazepam); and misdemeanor criminal possession of drug paraphernalia. Prior to trial, on the State's motion, the District Court dismissed the CPDD-methamphetamine and CPDD-Clonazepam charges, and the case proceeded to trial on the CPDD with Intent to Distribute methamphetamine and misdemeanor drug paraphernalia charges.

¶9 At Wilkes's trial, Doemel testified, inter alia , that the methamphetamine shipment from Arizona was extraordinary insofar that it included large crystals that weighed 30-40 grams each, compared to the one or half gram street sales typical in the Anaconda area. He testified further that the methamphetamine found in the Fed-Ex box was still wet and odorous, indicating only recent manufacture, and, to his knowledge, was the largest quantity of methamphetamine seized by law enforcement in the Anaconda area to date. Doemel thus opined that the methamphetamine found in the Fed-Ex box was most likely recently manufactured in Mexico.

¶10 The State also presented the testimony of Henderson at Wilkes's trial. He gave only limited testimony, however, that he lived at 401 Cherry Street in Anaconda in November 2017 and that the State similarly charged him with Criminal Distribution of Dangerous Drugs (methamphetamine) based on his unspecified interaction with Wilkes and Skaw on November 9, 2017. When questioned further about the specifics of the distribution operation and Wilkes's involvement therein, Henderson asserted his right to remain silent. Henderson's assertion of right further thwarted the State's case against Wilkes when the District Court sustained her objection that his prior statements about Wilkes to the defense investigator were inadmissible due to her resulting inability to cross-examine him about them in accordance with her right to confront adverse witnesses.

¶11 At the close of evidence, the District Court instructed the jury on felony possession of methamphetamine with intent to distribute, and misdemeanor drug paraphernalia possession, as charged. However, the court also alternatively instructed the jury on felony criminal possession of methamphetamine as a lesser-included offense of CPDD with Intent to Distribute. During closing argument, the State asserted that Wilkes was guilty of the greater intent to distribute charge, rather than the lesser-included possession charge, based on the large quantity of methamphetamine found in the Fed-Ex box in the vehicle she was driving, an amount far in excess of an amount that she would have reasonably possessed for personal use. Wilkes essentially argued, however, that she was not guilty of the greater offense because she was not purposely or knowingly in possession of any quantity of methamphetamine with intent to distribute. She argued, rather, that she "was simply at the wrong place at the wrong time with a person she didn't know" was in possession of illegal drugs.

¶12 The jury found Wilkes guilty of the lesser included offense of methamphetamine possession, rather than possession with intent to distribute, and misdemeanor possession of drug...