STATE v LAMERE

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NO. 82-372 I N TFIE SUPREME COURT O THE STATE OF FO T N F l NA A 1983 THE STATE O MONTANA, F P l a i n t i f f and Respondent, -vsANTHONY MARTIN LAMERE, Defendant 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 Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade, The Honorable H. W i l l i a m Coder, Judge p r e s i d i n g . Counsel o f Record: For Appellant: Marcia B i r k e n b u e l , G r e a t F a l l s , Montana F o r Respondent: Bon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J . F r e d Bourdeau, County A t t y . , G r e a t F a l l s , Montana S u b m i t t e d on B r i e f s : Decided: Filed: FEB 3 - 1983 December 1 6 , 1982 F e b r u a r y 3 , 1983 Nr. C h i e i J u s t i c e F r a n k I . H a s w e l l d e l i v e r e d t h e O p i n i o n of the Court. Anthony Martin Cascade County, LaMere Montana, of now a p p e a i s t h e c o n v i c t i o n . On November 29, was convicted by a jury in b u r g l a r y and f e l o n y t h e f t . He W affirm. e 1981, at approximately a.m., 5:30 S c h e e l ' s Hardware s t o r e i n G r e a t F a l l s was b u r g l a r i z e d a n d twenty-one handguns were s t o l e n . E n t r y was e f f e c t u a t e d by a c a r w h i c h was d r i v e n t h r o u g h a l a r g e window of the store. l n v e s t i g a t i n g p o l i c e o f f i c e r s found t h e following evidence near t h e p o i n t of e n t r y : t i r e m a r k s on t h e s i d e w a l k c a u s e d by v e h i c l e a c c e l e r a t i o n , a p i e c e o f b r o k e n t u r n s i g n a l l e n s , rubbe r molding safety pole scraped. the of standing outside From vehicle. of i n the brick this the building, the evidence, building police and a y e l l o w which located had a been suspect By ma.tching t h e damage d o n e t o t h e s t o r e t o t h a t car, actually they determined used to commit that the t h e crime. suspect vehicle was The c a r was owned by L e o n a r d D a l e Champagne. On December L a r r y Kenman went 4, 1981, Great t o Champagne's Falls Police residence Detective and s p o k e w i t h T i n a A r g u e l l o who was l i v i n g t h e r e a t t h e t i m e . She s t a t e d t h a t on t h e e v e n i n g i n q u e s t i o n Champagne had g i v e n t h e k e y s t o t h e c a r t o a p p e l l a n t w h i l e t h e two were a t a p a r t y . She f u r t h e r s a i d a p p e l l a n t l e f t t h e p a r t y w i t h W i l l i a m Thumm. A l s o o n December 4 , 1 9 8 l , Thumm was a r r e s t e d a n d q u e s tioned about the crimes. O r i g i n a l l y d e n y i n g a n y knowledge of t h e o f f e n s e s , h e l a t e r s t a t e d t h a t h e r o d e a s a p a s s e n g e r i n t h e c a r while the store. s t o r e and At a p p e l l a n t d r o v e i t t h r o u g h t h e window o f that point, he s a i d , appellant entered the r e t u r n e d w i t h a p i l l o w c a s e f u l l of guns. Thumm was c n d r g e d w i t h b u r g l a r y and t e l o n y t h e r t . On December 1981, 7, Champagne came to the s t a t l o r 1 and g a v e a s t a t e m e n t t o D e t e c t i v e Renman. police He said t h a t h e h a 3 g i v e n h i s c a r k e y s t o t h e a p p e l l a n t b u t had no now ledge o f a p p e l l a n t ' s intentions. He further stated that on t h e n e x t d a y h e r e c e i v e d two h a n d g u n s f r o m a p p e l l a n t i n l i e u of damage t o t h e v e h i c l e o c c a s i o n e d by t h e a p p e l l a n t ' s a c t i o n s and he had a "good i d e a " t h e g u n s w e r e s t o l e n . A p p e l l a n t was a r r e s t e d and c h a r g e d w i t h b u r g l a r y and felony theft. He plead not g u i l t y t o t h e charges, and a j u r y t r i a l was schedules f o r A p r i l 1 9 , 1982. On A p r i l ana hls 16, i n the presence of 1982, attorney, the State took the appellant Champagne's statement. Champagne s a i d t h a t h e l o a n e d t h e c a r t o a p p e l l a n t b u t d i d n o t r e c e i v e any g u n s . He t h e n c h a n g e d h i s s t o r y a n d s t a t e d t h a t h e d i d r e c e i v e two h a n d g u n s a s payment f o r damage t o h l s car. Champagne was n o t c h a r g e d w i t h a n y o f f e n s e r e l a t e d t o the crimes or perjury. At trial the State presented testimony of Evelyn Komeotis who was l i v i n g w i t h Champagne a t t h e t i m e of the She t e s t i f l e d t h a t i n t h e e a r l y morning h o u r s of burglary. t h e d a y of t h e crimes t h e a p p e l l a n t c a l l e d f o r Champagne and a s k e d h e r i f Champagne " w a n t e d t o make some money." she s t a t e d t h a t a f t e r Champagne hung Further, up t h e phone i t r a n g a g a i n , h e s p o k e t o t h e c a l l e r and t h e n l e f t t h e r e s i d e n c e . Komeotis also testified that on burglary, w h l l e s h e was i n b e d , the afternoon after the she thought she heard the a p p e l l a n t w i t h Champagne i n a n o u t e r room a n d t h a t Champagne had two Champagne handguns entered with him. Komeotis's For some bedroom a n d unknown held reason, one of the p i s t o l s t o her head. T i n a A r g u e l l o t e s t l f l e d t h a t on t h e e v e n l n g b e f o r e t h e b u r g l a r y s h e had been v e r y i n t o x i c a t e d . She s t a t e d t h a t s h e l l e d when s h e t o l d D e t e c t i v e Kenman s h e saw Champagne g i v e his car keys t o a p p e l l a n t and t h a t s h e remember w h a t had happened t h a t e v e n i n g . Champagne had a s k e d h e r i n f a c t could not She i n d i c a t e d t h a t t o g i v e a f a l s e s t a t e m e n t t o keep hlrn o u t o f t r o u b l e . W i l l i a m Thumm a l s o t e s t i f i e d o n b e h a l f of the State. I n e s s e n c e h i s t e s t i m o n y was c o n s i s t e n t w i t h t h e s t a t e m e n t he gave p o l i c e . A p p e l l a n t was c o n v i c t e d of b u r g l a r y a n d f e l o n y t h e f t . F u r t h e r , d u e t o a p r i o r f e l o n y c o n v i c t i o n and i n a c c o r d a n c e with s e c t i o n 46-18-501(2), the MCA, S t a t e moved that the a p p e l l a n t be c l a s s i f i e d a s a p e r s i s t e n t f e l o n y o f f e n d e r . hearing was held who The State presented C a s c a d e County Deputy S h e r i f f t e s t i m o n y of Laurie C a r r e t t e testrfied appellant's on J u n e that such business. that the f i n g e r p r i n t c a r d s were located in f i l e i n h e r o f f i c e and e a c h c a r d r e p r e s e n t e d a s e p a r a t e a r r e s t of that two 11, 1982. A the appellant. records are Detective two cards appellant and that identified on b o t h kept Kenman in the cards. the also represented Further, ordinary testified separate appellant she was for indicated course the arrests the of State of the individual P a t r i c k Ryan t e s t i f i e d t h a t he was a probation a n d p a r o l e o f f i c e r f o r t h e S t a t e o f Montana and he s u p e r v i s e d t h e a p p e l l a n t when h e s e r v e d a s u s p e n d e d s e n t e n c e f o r f e l o n y t h e f t on p r o b a t i o n from 1977 t o The of court appellant also took signed and judicial filed the notice following the 1980. fact petition in that the court: "Now comes a document for the defendant, TONY M. LAMERE, from the Montana State Parole to summons patroi officer Pat Ryan to uphold his duty and to witness at the defendant's, TONY 114. LAMERE hearing that his last felony due to his own guilty plea was a suspended sentence and was completed on November 10, 1980." 'The court granted the motion to classify the appellant as a persistent felony offender. The appellant was sentenced to ten years confinement in the Montana State Prison for the burglary and ten years for the felony theft. He was sentenced to an additional twenty-five years pursuant to the persistent felony offender designation. The sentences are to be served consecutiveiy. On appeal, appellant presents three issues: 1. Was Leonard Champagne an accomplice of appellant, thus requiring the State to corroborate his testimony? 2. If Champagne was accountable for appellant's offenses, was his testimony and that of Thumm sufficiently corroborated? 3. Did the trial court err in its designation of the appellant as a persistent felony offender where the evidence of the prior conviction consisted of hearsay testimony presented by appellant's probation officer? Appellant first contends that Champagne was legally accountable for the offenses he committed. 302, MCA, defines when accountability exists. Section 4 5 - 2 It reads in part: "A person is legally accountable for the conduct of another when: "(I) having a mental state the statute defining the causes another to perform regardless of the legal described by offense, he the conduct, capacity or m e n t a l s t a t e of t h e o t h e r p e r s o n ; " ( 3 ) e i t h e r b e f o r e o r d u r i n g t h e commiss i o n of an o f f e n s e w i t h t h e purpose t o promote o r f a c i l i t a t e s u c h c o m n ~i s s i o n , he s o l i c i t s , aids, abets, agrees, or a t tempts t o a i d such o t h e r person i n t h e p l a n n i n g o r commission o f t h e o f f e n s e . ... Here 11 there knowledge or is no evidence involvement with that the Champagne appellant's had any actions. I n d e e d , Champagne a d m i t t e d h e a t l e a s t had a "good i u e a " t h e g u n s he r e c e i v e d w e r e s t o l e n , b u t h e d i d n o t know what t h e a p p e l l a n t was p l a n n i n g t o do w i t h his c a r when h e relin- quished it. T h u s , he d i d n o t c a u s e t h e a p p e l l a n t t o commit the nor crimes did he aid or abet the appellant to f a c i l i t a t e commission of t h e c r i m e s . W r e c o g n i z e t h e r e was some t e s t i m o n y p r e s e n t e d e may i n d i c a t e Champagne had However, there is prior substantial knowledge of evidence that the crimes. upon which to c o n c l u d e t h a t Champagne was n o t r e s p o n s i b l e f o r t h e a c t s o f the appellant. It also Champagne appears the is l e g a l l y a c c o u n t a b l e definition of the statute. theft that "obtains or asserting f o r h i s crimes u n d e r exerts Section is appellant control," 45-2-101(39), required MCA, the by defines " o b t a i n s " and " e x e r t s c o n t r o l " and i n c l u d e s p o s s e s s i o n a s a method by which t h i s r e q u i r e m e n t c a n be m e t . since a p p e l l a n t was charged section 45-6-301(1)(a), MCA, and convicted Consequently, of theft under which i n e s s e n c e is k n o w i n g l y o b t a i n i n g or e x e r t i n g unauthorized c o n t r o l over p r o p e r t y of t h e owner t o d e p r i v e s a i d owner of h i s p r o p e r t y , Champagne's mere p o s s e s s i o n o f t h e s t o l e n p r o p e r t y f a l l s w i t h i n t h e same statutory subsection of theft. This is not a correct reading of the statute. The tneft statute defines four ways the crime can be committed. Appellant was convicted of theft under section 45-6- 301(l)(a), MCA, which contemplates actual taking. Champagne, on the other hand, could only be convicted of theft under section 45-6-301(3)(c), MCA, which is essentially possession of stolen property. This subsection states: "(3) A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and: "(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property." These are statutorily distinct crimes. Possession of stolen property under section 45-6-301, MCA, supplants the old possessory statute, section 94-2721, R.C.M. related offenses are described 1947. All theft- in section 45-6-301, MCA. However, commission of one of the offenses does not make one responsible for all other crimes outlined in the statute. In support of his contention that Champagne's possession of stolen property makes him accountable, appellant cites State v. 1075. Standley (1978), 179 Mont. 153, 586 P.2d The cases are clearly distinguishable. In Standley we held that one of the State's witnesses was an accomplice whose testimony must be corroborated. However, the defendant was charged with possession of stolen property, - theft. not The State's witness could have been charged with the same crime since he was knowingly holding stolen property, which he eventually appropriated for his own use. Pinaliy, in State v . 406 P.2d Wirtanen (1965), 146 Mont. 268, 376, this Court specifically held that a thief could not be an accomplice of a receiver of stolen property. State v. Mercer (1943), 114 Mont. 142, 133 P.2d 358; State v. Keays (19341, 97 Mont. 404, 34 P.2d 855. In coming to this conclusion, we determined that the rule was predicated on the separate offense theory which states that larceny and receiving stolen property are separate and distinct crimes. Secondly, appellant contends that the testimony of Champagne and Thumm, who he asserts are accomplices, was not corroborated. Section 46-16-213, MCA, reads: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, 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." In addition, there enunciates principles (1979)I Mon t . is a wealth best , summarized of case law which in State v. Kemp 597 P.2d 96, 99, 36 St.Rep. 1215, 1218, and recently recited in State v. Forsyth (1982), Mont. , 642 P.2d 1035, 1038-1039, 39 St.Kep. 540, 544: ". . . First of all, the sufficiency of such evidence is a question of law. [Kemp citation omitted.] To be sufficient, it must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than the suspicion of the defendant's involvement or opportunity to commit the crime charged. But the evidence need not be sufficient by itself to support the defendant's conviction or even to make It out a prima facie case against him. may be circumstantial and can come from the defendant or his witnesses. [Kemp c i t a t i o n omitted.] Under s e c t i o n 46-16213, MCA, i t m u s t be e v i d e n c e which i n i t s e l f and w i t h o u t t h e a i d of t h e t e s t i mony o f t h e o n e r e s p o n s i b l e o r l e g a l l y a c c o u n t a b l e f o r t h e same o f f e n s e t e n d s t o c o n n e c t t h e d e f e n d a n t w i t h t h e commission of t h e o f f e n s e . " S i n c e we h a v e d e t e r m i n e d t h a t Champagne i s n o t r e s p o n sible for appellant's corroborated. Thumm, who crimes, Furthermore, was clearly an his we testimony believe accomplice, was not be testimony the need of sufficiently corroborated. 'I'hurnm Essentially, testified party with the appellant prior that (1) h e was at a t o t h e b u r g l a r y and t h e f t ; ( 2 ) h e l e f t w i t h a p p e l l a n t i n Champagne's c a r and a p p e l l a n t was d r i v i n g ; ( 3 ) t h e y b o t h went t o S c h e e l ' s Hardware; a p p e l l a n t d r o v e t h e c a r t h r o u g h a window o f the store; a p p e l l a n t l e f t t h e c a r and e n t e r e d t h e s t o r e ; returned with a bagful1 of handguns; and (4) (5) (6) appellant (7) they both returned t o the party. The f o l l o w i n g e v i d e n c e t e n d s t o c o n n e c t t h e a p p e l l a n t with the crime, thus Thumm' s t e s t l m o n y . providing adequate corroboration of Champagne t e s t i f i e d t h a t b o t h a p p e l l a n t and Thumm w e r e a t t h e p a r t y . Carmen K o m e o t i s t e s t i f i e d t h a t a p p e l l a n t was a t t h e p a r t y . Champagne a l s o s t a t e d t h a t h e l e n t h i s car t o appellant. t h e c a r matched F u r t h e r m o r e , t h e damage d o n e t o t h e damage d o n e t o t n e s t o r e a n d p h y s i c a l e v l d e n c e found a t t h e s c e n e of t h e c r i m e was s u f f i c i e n t l y connected t o t h e v e h i c l e . T h i s was s u p p o r t e d by t h e t e s t i - mony Renman. of testified Detective that he Larry believed the Detective car was Renman rammed window s o a p p e l l a n t c o u l d g a i n e n t r y t o t h e s t o r e . into also the Evelyn Komeotis t e s t i f i e d t h a t s h e h e a r d a p p e l l a n t i n h e r home t h e d a y a i t e r t i l e c r i m e s w e r e coininitted, and Champagne had two h a n d g u n s which h e i n d i c a t e d were f r u i t s o f t h e c r i m e , g i v e n i n payment f o r damage t o h i s v e h i c l e . Finally, Champagne t e s t i f i e d t h a t h e had a "good i d e a " t h e g u n s w e r e s t o l e n and f r o m where t h e y w e r e s t o l e n . Thirdly, Ryan, p r o b a t i o n and p a r o l e o f f i c e r f o r t h e S t a t e P a t r i c k L. of t h e a p p e l l a n t a s s e r t s t h a t t h e testimony of Montana, regarding appellant's prior c o n v i c t i o n was h e a r s a y and t h u s n o t c o m p e t e n t p r o o f o f s u c h c o n v i c t i o n s . I n S t a t e v. Cooper ( 1 9 7 1 ) , 1 5 8 Mont. 1 0 2 , 4 8 9 P.2d 99, t h i s Court held t h a t i n order t o p r e s e n t evidence of a p r i o r c o n v i c t i o n i n a s e n t e n c i n g p r o c e e d i n g t h e r e must be compet e n t proof that conviction. the defendant from e v i d e n t i a r y 1 0 1 ( c ) ( 3 ) , Mont.R.Evid. a r e p a r t of data as and fact suffered the prior M o r e o v e r , t h e Montana R u l e s of E v i d e n c e exempt sentencing proceedings sound, in court potential Rule P e r s i s t e n t felony offender hearings P o l i c y f o r t h i s is the sentencing proceeding. the constraints. wants of to the examine defendant complete before historical it pronounces sentence. The t e s t i m o n y o f Ryan, properly admitted during a l . t h o u g h a r g u a b l y h e a r s a y , was the persistent h e a r i n g p u r s u a n t t o R u l e 1 0 1 ( c ) ( 3 ) of Evidence. Furthermore, offender t h e Montana R u l e s o f that the a p p e l l a n t was t h e same i n d i v i d u a l who was c o n v i c t e d o f the prior felony. it was felony competent proof Ryan t e s t i f i e d t h a t h e s u p e r v i s e d o n e Anthony M a r t i n LaMere when h e s e r v e d a s u s p e n d e d s e n t e n c e on p r o b a tion for testified a felony theft committed in t h a t t h e same p e r s o n i s t h e of t h e S c h e e l ' s b u r g l a r y and t h e f t . 1977. He further individual convicted Aff irrned. spc~y$?@~( Chief J u s t i c e Z , W concur: e I i / U Justices 4

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