State v. Rose12/30/1998
l arguments do not apply to that conviction and we examine this issue on its merits. The standard of review of sufficiency of evidence on appeal is whether, after reviewing the evidence in the 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. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686; cert. denied ___ U.S. ___, 117 S.Ct. 748, 136 L.Ed.2d 686 (1997).
23 Rose argues that he was unaware of the presence of the methamphetamine-laden spoon in the van, so that he cannot properly be convicted of possession of dangerous drugs pursuant to § 45-9-102, MCA, which requires proof of "knowing control of the drugs for a sufficient time to be able to terminate control." State v. Harper (1997), 284 Mont. 185, 188, 943 P.2d 1255, 1257. The basis for this contention is Rose's own testimony that he was unaware of the presence of the drug in the van.
24 Credibility of witnesses and the weight to be given to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686. The trier of fact is not required to blindly accept the defendant's version of the facts. State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24. Moreover, " f events are capable of different interpretations, the trier of fact determines which is most reasonable." Brogan, 261 Mont. at 87, 862 P.2d at 24.
25 The jury was presented with evidence that Rose was driving the van in which the methamphetamine-laden spoon was found. The spoon, which had his initial, "R," and which Rose admitted was similar to other spoons in his house, was found in the driver's door pocket of the van, within Rose's immediate reach. In addition, the jury was entitled to consider Rose's own testimony that he used illegal drugs on the night of the burglary.
26 Possession of a dangerous drug may be either actual or constructive. See, e.g., State v. Neely (1993), 261 Mont. 369, 862 P.2d 1109.
Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another person.
Neely, 261 Mont. at 374, 862 P.2d at 1112, citing State v. Meador (1979), 184 Mont. 32, 43, 601 P.2d 386, 392.
27 Based on the evidence presented to the jury in this case, a rational trier of fact could have found that Rose had constructive possession of the methamphetamine-laden spoon in the driver's door pocket of the van. We therefore affirm Rose' conviction on that count.
28 In summary, we hold that Rose was not afforded effective assistance of counsel as to the charge of accountability for aggravated burglary and that this was prejudicial to his defense. We reverse his conviction on that count and remand for further proceedings consistent with this Opinion. We affirm Rose's conviction of criminal possession of dangerous drugs.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and LEAPHART concur.
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