State v. Jimmy Booth Jr.

2012 MT 40, 272 P.3d 89, 364 Mont. 190, 2012 Mont. LEXIS 44
CourtMontana Supreme Court
DecidedFebruary 21, 2012
DocketDA 11-0243
StatusPublished
Cited by17 cases

This text of 2012 MT 40 (State v. Jimmy Booth Jr.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jimmy Booth Jr., 2012 MT 40, 272 P.3d 89, 364 Mont. 190, 2012 Mont. LEXIS 44 (Mo. 2012).

Opinions

CHIEF JUSTICE McGRATH

delivered the Opinion of the Court.

¶1 Jimmy Steven Booth, Jr. (Booth), was charged with felony criminal possession of precursors to dangerous drugs pursuant to §45-9-107, MCA (Count I), and misdemeanor restricted possession of ephedrine or pseudoephedrine in violation of §50-32-501, MCA (Count II). He was convicted by a jury on January 5, 2011, and committed to the Department of Corrections for seven years with two years suspended on Count I, and given a six-month concurrent sentence to the Valley County Jail on Count II.

¶2 Booth appeals, claiming that the State presented insufficient evidence to convict him of criminal possession of precursors to dangerous drugs. He also claims that his defense counsel was ineffective in failing to move for dismissal of Count I at the close of the State’s case. We state the dispositive issue as follows:

¶3 Does § 45-9-107(1), MCA, require possession of two or more of the statute’s listed precursor chemicals as an element of the offense ?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Law enforcement received reports from two pharmacies in Glasgow that Booth and his companion, Rebekah Ostwald, were purchasing the maximum allowable amount of pseudoephedrine cold medicine. Pharmacy employees also reported that Booth appeared nervous, fidgety, and wore no coat despite single-digit temperatures. Further, both signed pharmacy logs using out-of-town addresses. Police made contact with the duo, who explained that they were on their way back home to Williston, North Dakota, from Ostwald’s National Guard training in Malta. They claimed to be stocking up on 12-hour pseudoephedrine products because Booth worked half-day shifts on oil rigs and could not stop working to take pills more frequently.

¶5 Ostwald would not consent to a search of her car, so police seized the car and applied for a search warrant. Upon receiving a warrant, a search yielded 10 boxes of cold medicine containing 10.08 grams of pseudoephedrine. The pills were from the two pharmacies in Glasgow, along with some purchased at Valley Drug in Malta. The search also revealed two bags of insulin syringes, a receipt for the purchase of pseudoephedrine from a Williston pharmacy, and a receipt for the purchase of Coleman fuel and lithium batteries from a WalMart in [192]*192Williston.

¶6 At trial, the State presented witnesses who testified that the pseudoephedrine, discovered in conjunction with the receipts for Coleman fuel and lithium batteries, was consistent with the manufacture of methamphetamine. Defense counsel conceded to Booth’s possession of 10.08 grams of pseudoephedrine, but argued that the State failed to prove all of the elements of Count I because Booth had not possessed the drug ‘in combination” with another precursor as required by statute. Despite making this argument, defense counsel failed to move for the dismissal of Count I at the close of the State’s argument.

STANDARDS OF REVIEW

¶7 We review a question on the sufficiency of the evidence to determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Azure, 2008 MT 211, ¶ 13, 344 Mont. 188, 186 P.3d 1269. Our review of a jury’s verdict to determine whether sufficient evidence exists to support the verdict is de novo. Azure, ¶ 13.

DISCUSSION

¶8 Booth was charged with criminal possession of precursors to dangerous drugs, an offense that a person commits when:

(a) the person possesses any material, compound, mixture, or preparation that contains any combination of the following with intent to manufacture dangerous drugs:
(i) phenyl-2-propanone (phenylacetone);
(ii) piperidine in conjunction with cyclohexanone;
(iii) ephedrine;
(iv) lead acetate;
(v) methylamine;
(vi) methylformamide;
(vii) n-methylephedrine;
(viii) phenylpropanolamine;
(ix) pseudoephedrine;
(x) anhydrous ammonia;
(xi) hydriodic acid;
(xii) red phosphorus;
(xiii) iodine in conjunction with ephedrine, pseudoephedrine, or red phosphorus;
[193]*193(xiv) lithium in conjunction with anhydrous ammonia; or
(b) the person knowingly possesses anhydrous ammonia for the purpose of manufacturing dangerous drugs.

Section 45-9-107(1), MCA. Violation of the statute is a felony.

¶9 A fundamental principle of our criminal justice system is that the State must prove every element of a charged offense beyond a reasonable doubt. State v. Daniels, 2011 MT 278, ¶ 33, 362 Mont. 426, 265 P.3d 623. As noted above, an element of §45-9-107(l)(a), MCA, requires that the defendant “possesses any material, compound, mixture, or preparation that contains any combination of the following [precursor chemicals]....” Booth argues that the State’s evidence was insufficient to convict him because, of the list of precursors set forth in §45-9-107(l)(i)-(xiv), MCA, he possessed pseudoephedrine alone. He argues that the plain language of the statute requires a showing he possessed a “combination” of the listed precursors. The State argues that the statute does not require the possession of two or more precursors.

¶10 From the outset, it is important to note that the receipt for the Coleman fuel and lithium batteries is not implicated in this appeal. The State’s expert testified that the receipt evidenced the classic pattern of acquiring the materials needed to manufacture methamphetamine, and was thus relevant to the issue of intent. However, Coleman fuel (petroleum naphtha) is not found within the §45-9-107(l)(a), MCA, list of precursor chemicals. Further, lithium is solely implicated when found ‘in conjunction with anhydrous ammonia.” Section 45-9-107(l)(a)(xiv), MCA. As such, our analysis is constrained to the argument of whether Booth’s possession of 10.08 grams of pseudoephedrine is proscribed by the statute.

¶11 In the construction of a statute, we are simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Section 1-2-101, MCA; State v. Stiffarm, 2011 MT 9, ¶ 12, 359 Mont. 116, 250 P.3d 300. Our function as an appellate court is to ascertain and carry out the Legislature’s intent by looking at the plain meaning of the words in the statute. Stiffarm, ¶ 12. If legislative intent can be determined by the plain meaning of the words, we may go no further in applying any other meaning or interpretation. Stiffarm, ¶ 12.

¶12 The State refers to the canon of statutory construction that ‘[t]he singular includes the plural and the plural the singular,” and argues that possession of “ ‘precursors’ would necessarily include possession of a single identified ‘precursor.’ ’’See §1-2-105(3), MCA. However, we cannot ignore that the Legislature saw fit to include the word [194]*194“combination” in the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 MT 40, 272 P.3d 89, 364 Mont. 190, 2012 Mont. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jimmy-booth-jr-mont-2012.