State v. Ramirez: When “Mere Presence” and Accomplice-Caution Jury Instructions Are Properly Denied

Introduction

In State v. E. Ramirez, 2025 MT 232, the Supreme Court of Montana affirmed the Butte-Silver Bow District Court’s refusal to give two defense-requested jury instructions in a narcotics distribution prosecution: a “mere presence” instruction and an accomplice-witness credibility instruction (often called an accomplice-caution or accountability-based witness instruction). The decision clarifies two practical rules of Montana criminal procedure:

A trial court does not abuse its discretion by refusing a “mere presence” instruction when the jury is otherwise accurately instructed on all elements and mental states required for the charged offense, thereby foreclosing conviction based solely on presence.
An accomplice-witness distrust instruction is improper absent evidence that the witness is legally accountable for the defendant’s charged offense under Montana’s accountability statute and is further improper when it conflicts with a defense of complete innocence.

The case arises from a Southwest Montana Drug Task Force investigation into a California–Montana drug trafficking operation. After a controlled delivery of a fentanyl-laden parcel to a Butte residence, investigators searched an Airbnb associated with the targets. There, in a bedroom tied to Eric Ramirez, officers found bulk fentanyl and methamphetamine, a cutting agent, a loaded handgun, and other distribution paraphernalia. A cooperating witness, Trevor Handy, testified he drove Ramirez to Helena for drug-related exchanges. A jury convicted Ramirez of two counts of criminal possession with intent to distribute (fentanyl and methamphetamine) and acquitted him on a heroin count.

On appeal, Ramirez challenged only the denial of his two proposed jury instructions. The Supreme Court affirmed.

Summary of the Opinion

The Court, per Justice Rice, held that the District Court did not abuse its discretion in declining to give the “mere presence” instruction because the court’s existing instructions accurately covered the elements of the charged offenses, including possession, intent to distribute, and the “purposely” or “knowingly” mental states. This necessarily precluded a conviction based on mere presence, making the additional instruction unnecessary.

The Court also upheld the denial of the accomplice-witness distrust instruction. The record did not establish that Handy was “responsible or legally accountable for the same offense” as Ramirez. Handy’s cooperation and separate federal charge did not make him an accomplice to Ramirez’s charged conduct; nor did his driving Ramirez to Helena or prior drug use with him. Further, the proposed instruction conflicted with Ramirez’s trial position of complete innocence—a separate ground for denying such an instruction under Montana law.

The convictions on Counts I (fentanyl) and II (methamphetamine) were affirmed; Ramirez’s acquittal on Count III (heroin) remained undisturbed.

Analysis

Precedents Cited and Their Influence

State v. Ellerbee, 2019 MT 37. Central to the Court’s analysis, Ellerbee approved a trial court’s refusal to give a “mere presence” instruction where the jury is otherwise properly instructed on the elements of the offense (e.g., “knowingly,” “possession,” “dangerous drugs”). The Court here follows the same path: when the elements and definitions are correctly charged, a “mere presence” instruction is surplusage and its omission does not prejudice substantial rights.
State v. Chaffee, 2014 MT 226. Ramirez leaned on Chaffee to argue the defense is entitled to a “mere presence” instruction when that is the core theory. The Court distinguished Chaffee as an accountability case (the defendant’s liability hinged on another’s acts), where the “mere presence” instruction correctly framed accountability doctrine. By contrast, Ramirez was not charged under an accountability theory; and the jury here received complete elements instructions. Thus, Chaffee did not compel a “mere presence” instruction.
State v. Hood (1931) and State v. Gorder (1991). The Court characterized these as sufficiency-of-the-evidence decisions, not jury-instruction cases. Because Ramirez did not raise a sufficiency challenge—and because the State presented ample physical and testimonial evidence—these precedents did not advance his instructional claim.
United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011), and United States v. Reed, 575 F.3d 900 (9th Cir. 2009). Cited as persuasive authority, these federal cases align with Montana’s approach: courts may deny a “mere presence” instruction where the prosecution’s proof goes beyond presence and the jury is otherwise properly instructed on all elements.
State v. Wells, 2021 MT 103; State v. Daniels, 2011 MT 278; State v. Archambault, 2007 MT 26. These decisions reaffirm the governing standards: broad trial court discretion in fashioning instructions; reversal only for prejudicial error; and assessment of instructions “as a whole” for accuracy and fairness.
State v. Charlo-Whitworth, 2016 MT 157; State v. Johnson (1993); State v. Hall, 2003 MT 253. These cases guide accomplice-witness instructions. They hold that (a) giving the instruction presupposes an accomplice and is subject to the court’s discretion; (b) it is proper when there is significant accomplice testimony and the defendant requests it; and (c) it is improper if unsupported by evidence or inconsistent with the defendant’s claim of innocence. The Court applied these principles to deny Ramirez’s request.

Legal Reasoning

The Court applied the abuse-of-discretion standard to both instructional rulings and assessed prejudice by asking whether the jury was “fully and fairly” instructed on the applicable law when the instructions are viewed as a whole.

On the “mere presence” instruction, the Court reasoned that the jury received correct and complete instructions on:

The elements of criminal possession with intent to distribute dangerous drugs.
The mental states of “purposely” and “knowingly.”
Definitions of “distribution,” “possession,” and “dangerous drugs.”

Because those instructions required the State to prove more than mere proximity (i.e., actual or constructive possession coupled with the specific intent to distribute), they necessarily foreclosed conviction based solely on being present where drugs were found. The proposed “mere presence” instruction would have simply reiterated that point—at best redundant, and potentially confusing given its archaic phrasing. Under Ellerbee, the trial court thus acted within its discretion in declining it.

On the accomplice-witness instruction, the Court turned to two independent barriers:

No evidence of legal accountability: Montana statutes and caselaw require that the distrust instruction be reserved for a “proper occasion,” meaning the witness is an accomplice—“responsible or legally accountable for the same offense” as the accused. See §§ 46-16-213, 26-1-303(4), and 45-2-302, MCA; Charlo-Whitworth. Handy’s conduct—using drugs with Ramirez at another time, driving him to meetings, and a separate federal conspiracy plea—did not make him an accomplice to the particular fentanyl and methamphetamine offenses charged against Ramirez. There was no showing Handy shared Ramirez’s criminal intent or exercised dominion or control over the drugs found in Ramirez’s room.
Conflict with theory of innocence: Under Charlo-Whitworth and Hall, a defendant asserting complete innocence cannot simultaneously ask the court to instruct the jury that a testifying witness aided in the defendant’s commission of the charged acts. Ramirez consistently maintained he was uninvolved; counsel even acknowledged discomfort that requesting the instruction implicitly conceded guilt. This strategic inconsistency further justified denial.

The Court also emphasized that the State’s case rested on “overwhelming circumstantial and physical evidence”—well beyond mere presence—making the refusal of both instructions non-prejudicial.

Application to the Record

The Supreme Court cataloged the evidence tying Ramirez to the distribution enterprise:

Physical nexus to Bedroom 1: Clothing of Ramirez’s size, his luggage, and a toothbrush bearing his DNA were found in the room Handy identified as his.
Bulk drugs and distribution tools: In a backpack next to Ramirez’s luggage, officers found seven bags of fentanyl powder (approximately 28 grams each), roughly 409 grams of methamphetamine, benzocaine (a cutting/bulking agent), and a loaded handgun.
Additional indicia of distribution: Elsewhere in the Airbnb, officers found additional drugs, a digital scale with residue, packaging materials, and $4,000 cash.
Eyewitness testimony: Handy testified Ramirez conducted drug-related exchanges in Helena and associated with a known California participant (“Esco”).
Cash on person and travel pattern: Ramirez was stopped leaving the Airbnb area in a vehicle associated with trafficking and had $1,385 cash on him.

Against that backdrop, the Court found the case far removed from a “mere presence” scenario. Likewise, although Handy provided important testimony, the record did not demonstrate his participation in Ramirez’s possession or distribution of the fentanyl and methamphetamine in Bedroom 1, precluding an accomplice-witness instruction.

Distinguishing Sufficiency-of-the-Evidence Cases

Ramirez cited Hood and Gorder—older cases reversing convictions for insufficient evidence—to argue for a “mere presence” instruction. The Court rejected the analogy because those cases addressed whether the trial evidence met the burden of proof, not whether a defendant was entitled to a particular instruction. Ramirez did not raise a sufficiency challenge, and, in any event, the State’s proof here was stronger than in those cases.

Impact and Practical Implications

Instructional practice in Montana: Trial courts retain broad discretion to decline duplicative “mere presence” instructions when the elements are completely and correctly charged. Defense counsel should ensure any requested theory-of-defense instruction adds substantive clarification not otherwise captured in the elements and definitional instructions.
Accomplice-witness cautions are not generic impeachment tools: The instruction is reserved for “proper occasions,” i.e., when the witness is legally accountable as an accomplice to the defendant’s specific offense. Merely being part of the broader drug milieu, cooperating with law enforcement, or facing separate charges is insufficient. Practitioners seeking such an instruction must connect the witness to the precise offense via § 45-2-302, MCA (aiding, abetting, soliciting, facilitating, etc.).
Consistency with defense theory matters: Requests for accomplice-based instructions can backfire if the defense maintains complete innocence; Montana law disfavors jury directions that imply the defendant committed the actus reus where the defense denies the acts altogether.
Drug prosecutions and evidentiary glue: This decision underscores what evidence moves a case beyond “mere presence”: room-specific ties (DNA, clothing size), bulk drugs, distribution paraphernalia (scales, packaging, cutting agents), firearms, cash, and corroborating eyewitness testimony.
Appellate posture: Instructional error requires showing prejudice to substantial rights. Where the record reflects comprehensive element instructions and strong proof beyond presence, the likelihood of reversal for refusing a “mere presence” instruction diminishes.

Complex Concepts Simplified

Mere presence instruction: A proposed charge telling jurors that simply being at the scene of a crime, without more, is not enough for conviction. It is most salient in accountability prosecutions or possession cases hinging on proximity without proof of knowledge, control, or intent.
Possession with intent to distribute: Requires proof that the defendant knowingly possessed a controlled substance (actual or constructive possession—i.e., dominion or control over the drugs) and intended to distribute it (inferred from quantity, packaging, tools, cash, communications, etc.).
Purposely/Knowingly: Mental states defined by Montana law. “Purposely” means it is the person’s conscious object to engage in conduct or cause a result. “Knowingly” means awareness of the conduct or that a result is practically certain.
Accomplice/Legal accountability: Under § 45-2-302, MCA, a person may be accountable for another’s criminal conduct if, with the requisite mental state, they aid, abet, facilitate, solicit, or otherwise promote the commission of the offense. An “accomplice-witness” instruction tells jurors to view such testimony with distrust.
“Proper occasion” for accomplice-witness instruction: Under §§ 46-16-213 and 26-1-303(4), MCA, and cases like Charlo-Whitworth, the instruction should be given when the record shows significant accomplice testimony about the defendant’s charged offense and the defense requests it—provided it aligns with the defense theory.
Cutting agent (benzocaine): A non-controlled substance used to dilute drugs (e.g., fentanyl) to increase volume for sale—an indicator of distribution rather than personal use.

Conclusion

State v. Ramirez confirms and sharpens Montana’s approach to two frequently litigated jury instructions:

“Mere presence” instructions need not be given when the jury is already properly instructed on all elements and mental states that necessarily require “something more” than presence for conviction.
Accomplice-witness distrust instructions are appropriate only when the evidence supports that the witness is legally accountable for the same offense and when the instruction does not contradict a defense of complete innocence.

The decision reinforces the trial court’s broad instructional discretion and signals to practitioners that instructional requests must be both record-grounded and theory-consistent. In drug cases, the presence of room-specific links, bulk quantities, paraphernalia, firearms, and cash will typically defeat “mere presence” arguments and lessen the need for specialized defense instructions where the standard elements are correctly charged.