State v. Wood

509 P.3d 601 (Table)

STATE of Montana, Plaintiff and Appellee,

v.Robert Larry WOOD, Defendant and Appellant.

DA 20-0607

Supreme Court of Montana.

Submitted on Briefs: April 6, 2022

Decided: May 24, 2022

For Appellant: William Boggs, Attorney at Law, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Jed C. Fitch, Beaverhead County Attorney, Russell Michaels, Deputy County Attorney, Dillon, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Robert Larry Wood appeals his 2020 conviction of Criminal Possession of Dangerous Drugs and Criminal Possession of Drug Paraphernalia, which also gave rise to the revocation of his suspended sentence from a previous drug conviction. Wood raises the following issues on appeal:

1. Whether the prosecutor's comments regarding constructive possession deprived Wood of a fair trial as a matter of plain error.

2. Whether the District Court committed reversible plain error in instructing the jury on the act and mental state elements of the offenses.

3. Whether there was sufficient evidence to sustain the conviction.

4. Whether the District Court should have credited Wood for nearly three years served on probation with no violations prior to his new offense.

We affirm the conviction and remand for the trial court to determine credit for time served on probation.

¶3 In 2017, Wood received a five-year suspended sentence for the offense of Criminal Possession of Dangerous Drugs, § 45-9-102(1), MCA (2015). In May 2019, Wood informed his probation officer (P.O.), Joel Stewart, that he used methamphetamine, a dangerous drug, in violation of his conditions of supervision, which prompted a search of Wood's vehicle. See §§ 45-9-102(1), 50-32-224(3)(d), MCA. In the back hatch of Wood's Nissan Pathfinder, P.O. Stewart saw two cans of Twisted Tea, which Wood said he picked up two days earlier while cleaning a fishing access site, and a backpack. The backpack contained smaller bags and pouches, including a Mary Kay leather cosmetics case, which, in P.O. Stewart's experience, is a type of receptacle often used to store drugs. Inside the case, P.O. Stewart discovered paraphernalia commonly used to smoke and intravenously inject methamphetamine and a baggie with "a little bit of crystalline powder."

¶4 A Sheriff's deputy responded to the scene and tested the powder and the paraphernalia using a Narcotics Identification Kit (NIK) field test. The results of the test indicated that the substance in the bag and on the paraphernalia was methamphetamine, although the County did not send the items to the State Crime Lab for testing. The State charged Wood with one felony count of Criminal Possession of Dangerous Drugs, in violation of § 45-9-102(1), MCA, and one misdemeanor count of Criminal Possession of Drug Paraphernalia, in violation of § 45-10-103, MCA.

¶5 Wood was tried by a jury in January 2020. During voir dire, the prosecutor asked several questions pertaining to the concept of constructive possession:

[State]: So, how many of you think that, if something is in your car, it's in your possession? Would anyone disagree with that? That an item in your car is in your possession?

Prospective Jury Panel: (No response.)

[State]: Everyone agrees that you have control over the things that are in your vehicle?

When one prospective juror expressed some doubt about this concept, the prosecutor elaborated:

[State]: So ... constructive possession means that, if you are, for instance, in your car, you have control over everything that's in your vehicle. Would you be able to accept ... that idea[?]

Juror No. 24: Is that knowingly or not knowingly?

[State]: And so, mental state is a different element of a crime that has to be proven.

Juror No. 24: I understand that.

...

[State]: So, what I'm talking about, with constructive possession, is the idea of whoever—however an item got into the vehicle, the mere fact that it's there and no one else is in the vehicle, the law would attribute possession—

Juror No. 24: I understand that.

[State]: —to that person. Can you accept that?

Juror No. 24: I can accept it. But there's still some gray area.

Because Juror No. 24 continued to challenge the notion of constructive possession, the prosecutor attempted to strike the juror for cause, but the court denied the request after defense counsel voir dired the juror. When another juror expressed skepticism about this concept, the State explained the difference between the act and the mental state:

[State]: But knowledge is a separate issue. ... So, for every crime there are, one of the elements is mental state. Does someone have a conscious object to do something? Or do they know of a high probability that those things are there. That's a little bit separate from possession. And so, what I'm talking about is just that one element of possession. ... But so, under the law, ... if you had that in your vehicle, you could be in possession of it under constructive possession. But it would depend on whether you knew it was there or not or knew of a high probability it would be there. Does that make sense?

The prosecutor eventually explained that possession and ownership are two different concepts, which seemed to assuage any remaining concerns the jurors had. In closing argument, the prosecutor returned to the theme of constructive possession, stating, "Under the law, the fact that the Defendant had meth and paraphernalia in his vehicle means that he was in possession." Defense counsel raised no objection to the prosecutor's remarks during voir dire or in closing.

¶6 P.O. Stewart testified that when he searched Wood's vehicle, he found syringes, a glass pipe, cotton balls, a bent spoon, a butane torch, and a rubber band, items characteristic of methamphetamine use, in the Mary Kay case that was in Wood's vehicle. He stated that, in his experience, it would be "uncommon for someone to have" methamphetamine and this kind of paraphernalia in his truck and not know about it. P.O. Stewart also testified that, although the baggie was not sent to the State Crime Lab, he is trained in identifying methamphetamine based on the unique appearance of the drug, and he believed the baggie contained methamphetamine. He also opined that Wood would have known the backpack was in the vehicle when he stashed the two cans of Twisted Tea in the back hatch two days prior to the search.

¶7 Deputy Ken Peterson, who performed the NIK field test, explained the NIK process for the jury. He testified that an NIK test is used in the field to establish a presumption regarding the nature of the tested substance. When agitated inside the test kit, methamphetamine will change from its usual clear color to bright blue. Deputy Peterson testified that when he tested the substance inside the baggie that came from Wood's vehicle, its color changed to bright blue. Deputy Peterson also testified that the cotton balls inside the Mary Kay case tested positive for methamphetamine. The test results corroborated Deputy Peterson's observation-based belief that the substance inside the baggie and on the paraphernalia was methamphetamine, a belief he formed based on his training and experience. Deputy Peterson explained that the decision to not send the items to the State Crime Lab was not unusual because there was a high degree of confidence that the substance was methamphetamine and that it belonged to Wood, the only occupant of the vehicle in which the drug was discovered.

¶8 The jury found Wood guilty on both counts, and the District Court granted the State's petition to revoke Wood's 2017 suspended sentence. The District Court sentenced Wood to the Montana Department of Corrections for a period of five years for his 2017 conviction. The court also imposed a suspended five-year sentence for Wood's new conviction of Criminal Possession of Dangerous Drugs to run consecutively with his 2017 sentence and six months in Beaverhead County Jail for Criminal Possession of Drug Paraphernalia, to run concurrently. The District Court credited Wood for nine days served without addressing Wood's on-the-record request that he receive "street time" credit for nearly three years of probation without any violations of his conditions.

¶9 1. Whether the prosecutor's comments regarding constructive possession deprived Wood of a fair trial as a matter of plain error.

¶10 Wood argues that the State committed prosecutorial misconduct because the prosecutor's statements regarding constructive possession during voir dire and closing argument were intended to mislead the jury into believing that crimes of possession lack a mental state element.

¶11 We generally do not address issues of prosecutorial misconduct not objected to at trial. State v. Ritesman , 2018 MT 55, ¶ 12, 390 Mont. 399, 414 P.3d 261. We may, however, exercise our discretion and review such issues under the plain-error doctrine. Ritesman , ¶ 12. We invoke plain-error review on an unpreserved issue if "the claimed error implicates a fundamental right" and "failure to review would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings, or compromise the integrity of the judicial process." State v. Williams , 2015 MT 247, ¶ 16, 380 Mont. 445, 358 P.3d 127. We invoke the plain-error doctrine sparingly and on a case-by-case basis. State v. Lawrence , 2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968.

¶12 "In reviewing a preserved claim of prosecutorial misconduct, we consider whether the prosecutor's comments were improper and whether they prejudiced the defendant's right...