STATE v LAUBACH
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No. 82-02 I N THE SUPREME COURT O THE STATE OF M N A A F OTN 1982 STATE OF MONTANA, P l a i n t i f f and Respondent, -VS- ROBIN LAUBACH, D e f e n d a n t and A p p e l l a n t . Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f M u s s e l s h e l l , The H o n o r a b l e Nat A l l e n , J u d g e p r e s i d i n g . C o u n s e l o f Record: For Appellant: Church, H a r r i s , Johnson & W i l l i a m s ; A n d e r s o n , Great F a l l s , M ~ n t a n a Michael B. For Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , i l e l e n a , Montana John P r a t t , County A t t o r n e y , Roundup, Montana Submitted on B r i e f s : Decided: :VUk L 3 iY8L Filed: J u n e 1 7 , 1982 November 1 0 , 1982 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The defendant appeals a Musselshell County conviction of burglary arising from a jury trial in June 1981. Defendant presents three issues on the question of corroborating evidence, and one issue on sentencing. First, he contends the testimony of an accomplice was not sufficiently corroborated and therefore the trial court should have granted his motion for a directed verdict. Second, he contends the trial court failed to properly instruct the jury on defining corroborating evidence. Third, he contends the trial court failed to instruct the jury that the testimony of an accomplice should be viewed with distrust. Fourth, he contends that the trial court, imposed a more harsh sentence on him than it did the accomplice because he chose to go to trial rather than plead guilty. We reverse and remand for a new trial on the ground that the trial court failed to instruct the jury that the testimony of an accomplice must be viewed with distrust. At some time between Saturday, February 28, 1981, and Monday, March 2, 1981, a motorcycle valued at $3,250 was stolen from the auto mechanics shop at the Roundup High School. Barry Lee, a shop teacher in Roundup and a part- time employee of the Stockman's Supply Company, was the owner of the motorcycle. On Saturday afternoon, Lee met with the defendant and another youth named Aaron Brower. This meeting took place at the Stockman's motorcycle shop, and resulted in the three men going to the high school to look at the motorcycle. At this time, the bike was only partially assembled but Lee showed Brower and defendant where in the shop the rest of the parts for the motorcycle w e r e located. The men r e t u r n e d t o t h e Stockman's Supply; t h e r e t h e d e f e n d a n t t e s t d r o v e a n o t h e r m o t o r c y c l e , and l e f t h i s name and a d d r e s s w i t h Lee. On t h e Monday morning f o l l o w i n g t h i s m e e t i n g , L e e d i s c o v e r e d t h e m o t o r c y c l e and p a r t s w e r e m i s s i n g from t h e h i g h s c h o o l . The a c c o m p l i c e , Aaron Brower and t h e d e f e n d a n t were roommates i n t h e i r sophomore y e a r a t N o r t h e r n Montana C o l l e g e i n F e b r u a r y 1981. took place. Brower t e s t i f i e d a s t o how t h e b u r g l a r y O t h e F r i d a y b e f o r e t h e b u r g l a r y , t h e two o f n them t r a v e l e d from Mavre t o Roundup (Brewer's hometown) on t h e i r way t o a b a s k e t b a l l game i n B i l l i n g s . After the b a s k e t b a l l game, t h e two men r e t u r n e d t o Roundup and d i s c u s s e d s t e a l i n g t h e m o t o r c y c l e t h e y had s e e n a t t h e h i g h s c h o o l t h a t day. Brower o v e r h e a r d a t e l e p h o n e c a l l between d e f e n d a n t and h i s f a t h e r , i n which t h e d e f e n d a n t became v e r y u p s e t b e c a u s e h i s f a t h e r would n o t l o a n him t h e money t o buy t h e motorcycle. O r e t u r n i n g t o Roundup from B i l l i n g s , t h e n d e f e n d a n t parked h i s t r u c k a b o u t two b l o c k s from t h e h i g h s c h o o l and e n t e r e d t h e h i g h s c h o o l a f t e r opening a l o c k e d door w i t h a w i r e . Once i n s i d e , d e f e n d a n t opened a n o t h e r door w i t h t h e w i r e and t h e n e n t e r e d t h e mechanics shop where t h e c y c l e and p a r t s were s t o r e d . Brower and t h e d e f e n d a n t l i f t e d t h e c y c l e i n t o d e f e n d a n t ' s p i c k u p t r u c k and d r o v e back t o Havre. A f t e r r e a c h i n g Havre, Brower t o o k a nap, and on awakening found t h e d e f e n d a n t o p e r a t i n g t h e assembled cycle. Both men used t h e c y c l e f o r a p p r o x i m a t e l y t h r e e weeks i n t h e Havre a r e a , and t h e n d e f e n d a n t took t h e c y c l e t o F o r t Benton where a f r i e n d k e p t it f o r him. The f r i e n d , S t e v e W i t t , of F o r t Benton, t e s t i f i e d t h a t t h e d e f e n d a n t b r o u g h t t h e c y c l e t o t h e W i t t Ranch on a p p r o x i m a t e l y March 2 0 , 1981. Defendant asked W i t t i f h e would keep t h e c y c l e a t t h e ranch f o r a s h o r t t i m e . Defendant t o l d W i t t t h a t h e purchased t h e c y c l e from an I n d i a n f o r $ 5 0 0 and t h a t h e was b r i n g i n g t h e c y c l e t o t h e W i t t r a n c h f o r s t o r a g e . On s e v e r a l o c c a s i o n s , W i t t a s k e d t h e d e f e n d a n t t o remove t h e c y c l e , b u t d e f e n d a n t d i d n o t remove i t . his ( W i t t s ' ) Finally, W i t t told p a r e n t s o f t h e p r e s e n c e of t h e c y c l e a t t h e ranch. The d e f e n d a n t and Brower w e r e s u s p e c t s from t h e b e g i n n i n g . S h o r t l y a f t e r t h e m o t o r c y c l e had been s t o l e n , t h e o f f i c i a l s i n Roundup n o t i f i e d t h e H i l l County S h e r i f f ' s Department t h a t t h e d e f e n d a n t and Rrower w e r e s u s p e c t s i n t h e b u r g l a r y . W i t h i n a few weeks, t h e Choteau County S h e r i f f ' s Department r e c e i v e d an anonymous t i p from a woman c o n c e r n i n g t h e p r e s e n c e of t h e c y c l e a t t h e W i t t ranch. The s h e r i f f went t o t h e W i t t r a n c h , and m e t M r s . Mrs. Witt. W i t t had a n t i c i p a t e d t h e p u r p o s e of t h e s h e r i f f ' s v i s i t , and on h i s r e q u e s t signed a consent-to-search form. She t h e n showed t h e s h e r i f f t h e l o c a t i o n of t h e c y c l e and h e i d e n t i f i e d i t a s t h e motorc y c l e s t o l e n from t h e h i g h s c h o o l shop i n Roundup. The M u s s e l s h e l l County A t t o r n e y ' s o f f i c e l a t e r c h a r g e d Brower and t h e d e f e n d a n t w i t h b u r g l a r y . Brower p l e a d e d g u i l t y t o t h e c h a r g e s and a g r e e d t o t e s t i f y a s a n a c c o m p l i c e i n t h e burglary. The j u r y c o n v i c t e d d e f e n d a n t of b u r g l a r y and d e f e n d a n t w a s s e n t e n c e d t o f i v e y e a r s i n p r i s o n w i t h f o u r y e a r s suspended. Brower w a s g i v e n a d e f e r r e d i m p o s i t i o n of s e n t e n c e . W e h o l d f i r s t t h a t t h e t e s t i m o n y of t h e a c c o m p l i c e , Aaron Brower, was s u f f i c i e n t l y c o r r o b o r a t e d and t h e r e f o r e t h a t t h e t r i a l c o u r t p r o p e r l y d e n i e d d e f e n d a n t ' s motion f o r a directed verdict. Evidence of d e f e n d a n t ' s p o s s e s s i o n of t h e s t o l e n c y c l e c o n n e c t e d him w i t h t h e c r i m e . To c o r r o b o r a t e accomplice testimony the evidence must: (a) tend to connect the defendant to the crime, ( b ) provide more than an opportunity for the defendant to commit the crime, and (c) not be equally consistent with innocent behavior. Mont . (1982), -, See State v. Anderson 643 P.2d 564, 39 St.Rep. 629; State v. Forsyth (1982), - Mont. - 642 P.2d 1035, 39 St-Rep. , 540; State v. Manthie (1982), - Mont . -, 641 P.2d 454, 39 St.Rep. 350. All of these criteria are met in this case. The strongest corroborating evidence was the defendant's possession of the stolen cycle, and the fact that he had hidden the cycle at the Witt ranch after the burglary. Possession of the stolen cycle certainly connected defendant to the crime. The accomplice not only testified to defendant's possession of the cycle, but Steve Witt, who let defendant store the cycle at the family ranch, also testified to defendant's possession of it. Possession of the stolen property is at least circumstantial evidence which the jury had a right to consider in determining whether defendant had stolen the cycle. Defendant's second contention is that the trial court refused to give his offered instructions defining corroborating evidence. Without these instructions, defendant contends the jury had no idea of how to determine whether the evidence was corroborating. Defendant fails to provide any law or analysis in support of his assertion. Further, as the State points out, the court did instruct the jury on corroborating evidence by giving the following instruction: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." This instruction gives adequate guidance to a jury on how to view corroborating evidence in the light of accomplice testimony. Failure to embellish on this instruction by additional instructions would not have prejudiced the defendant. We are compelled nonetheless to reverse defendant's conviction because the trial court failed to instruct the jury that accomplice testimony must be viewed with distrust. The controlling statute is section 26-1-303(4), MCA, which states: "26-1-303. Instructions to jury on how to evaluate evidence. The jury is to be instructed by the court . . . " (4) that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution;" The language of the statute is mandatory, and we find reversible error in the trial court's failure to comply with the statute. See also State v. Forsyth (1982), - Mont , - 642 P.2d 1035, 39 St.Rep. 540. . In fact, the error in failing to give this mandatory instruction is so obvious, the State should have confessed the error and agreed to a retrial even if the defendant did not prevail on the question of the sufficiency of the corroborating evidence. In his last issue defendant contends he received a more severe sentence than his accomplice solely because he chose to go to trial while the accomplice chose to plead guilty and turn state's evidence. While our decision to reverse and order a new trial means that this issue need not be discussed, we nonetheless hold that the record does not contain any evidence to support the defendant's assertion. The judgment is reversed and the case remanded for a new trial. We Concur:
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