STATE v HOLMES

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No. 83-485 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, -vsJAMES D. HOLMES , Defendant and Appellant. APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Valley, The Honorable Nat Allen, Judge presiding. COUNSEL OF RECORD: For Appellant: Moses Law Firm; Charles F. Moses argued, Billings, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Judy Browning argued, Asst. Atty. General, Helena David L. Nielsen, County Attorney, Glasgow, Montana Submitted: April 13, 1984 Decided: Filed: August 14, 1984 4 ~ 1 - 384 5 Lz Clerk --- Mr. J u s t i c e J o h n Conway H a r r i s o n the Court. delivered t h e Opinion of T h i s c a s e i n v o l v e s t h e t h e f t o f a l m o s t $200,000 worth of jet fuel f r o m t h e o l d Glasgow A i r Valley Industrial Park. Appellant theft, sentenced to years ordered to pay ten $160,000 in Force Rase, was with now t h e convicted the suspended five of and restitution. This appeal follows. The G l a s g o w A i r seventeen miles north U.S. Force closed Air m a i n t e n a n c e work is l o c a t e d Force Base of Glasgow, Montana. base let the and 1972 it when Defendant operated Valley lost then on County Industrial its base general AVCO C o r p o r a t i o n Force D e f e n d a n t came t o G l a s g o w contract also, purchased Park the AVCO d i d t h e m a i n t e n a n c e work u n t i l incorporated the for and c o n t r a c t e d w i t h t h e A i r t o be t h e c a r e t a k e r of t h e b a s e . a s a m a n a g e r w i t h AVCO. I n 1969, bids t o b e d o n e on t h e b a s e . was t h e s u c e s s f u l b i d d e r approximately (VIP). the to Tumpane Montana for Manufacturing, several base and Appellant Corporation. years. In incorporated helped which 1976, Valley negotiate this p u r c h a s e a n d i n November of 1976 was e l e c t e d p r e s i d e n t and g e n e r a l manager o f VIP. The C o u n t y C o m m i s s i o n e r s o f V a l l e y C o u n t y s e r v e a s t h e B o a r d o f D i r e c t o r s o f VIP. Several large underground fuel tanks are located on The t a n k s w h i c h t h i s a c t i o n c o n c e r n s were l o c a t e d the base. b e l o w b u i l d i n g 669. The pumping s t a t i o n f o r t h o s e t a n k s was l o c a t e d i n s i d e b u i l d i n g 669. When t h e A i r F o r c e v a c a t e d t h e b a s e i n 1 9 6 9 an i n v e n t o r y o f t h e f u e l t a n k s was d o n e a n d t h e six tanks Pickling under building 669 were labeled "pickled." i s a p r o c e s s by w h i c h t h e f u e l t a n k s a r e e m p t i e d , cleaned and filled with a mixture of caustic soda and water to prevent rusting. However in the spring of 1979, a VIP maintenance man discovered that four of the six tanks under building 669 had fuel in them. It is conceded that the fuel had been there since 1969, had been left there by the Air Force and existed to the ignorance of all concerned. Appellant extracted ordered from the that tanks. samples of the fuel be VIP maintenance employees extracted samples from the four tanks and gave the samples to appellant. Appellant and another VIP employee took the samples to Wolf Point to be tested, and it was found that the fuel was usable JP-4 jet fuel. Appellant then ordered the fuel to be transferred to the tanks under building 649. The tanks and pump station under building 649 had been depickled earlier in the year and were being used to store fuel for Boeing. stop for building Boeing was using the base as a refueling their training 669 had been flights. Since stripped of most of the pumps in their parts, appellant ordered a new portable pump for this purpose which was purchased approximately at VIP's 200,000 expense. gallons of In early fuel were 1980, the pumped from building 669 to building 649 by VIP maintenance employees. At approximately the same time, appellant informed the board of directors of VIP about the existence of the fuel. He told them Boeing was interested in purchasing the fuel but also said it would be very difficult to obtain insurance for the fuel. It is standard practice in the aircraft industry to obtain liability insurance in case bad fuel is sold and personal injuries or property damage result. The chairman of the board testified that he still told appellant to market the fuel for VIP. The board pursued the possibility of obtaining insurance to sell the fuel, but when appellant was told insurance could be purchased for VIP he told the board that Boeing was no longer interested in buying the fuel. Later in 1980 appellant informed the board that he had sold the fuel and credited VIP's accounts with approximately $100,000, but because of the liability problem, it would not appear in their books. Prior to this, while the pumping was being done, appellant tried to start his own fueling corporation. first approached three maintenance employees of VIP He and asked if they would be interested in forming a corporation to sell the discovered fuel. The employees testified that appellant told them the fuel belonged to VIP. They were also told to bank out of town and not make any purchases which would draw attention to themselves. The three men testified they declined the offer because they were uneasy about ownership of the fuel. Holmes then approached Leonard Lane, comptroller for VIP, who agreed to incorporate with Holmes to sell the fuel. The two incorporated Aero Fuels, Inc. Appellant informed Boeing that he and some Glasgow businessmen had bought 200,000 gallons of JP-4 speculation and were willing to sell it. to Boeing. fuel on The fuel was sold The crew supervisor from Boeing telephoned Lane when he received the bill from Aero Fuels and asked Lane who Aero Fuels was. Lane informed him it was a group of Glasgow businessmen who had purchased the fuel. Aero Fuels over $194,000 for In all Boeing paid the fuel. The money was deposited in Aero Fuels' accounts in Billings, Great Falls and Williston, North Dakota. Appellant was charged by information on November 5, 1982 with the theft of $194,098.88. The the JP-4 fuel having a value of information stated that Valley County through VIP was the owner of the fuel, and the affidavit supporting the information stated ownership had been gained by virtue of Administration. a deed from the General Services Appellant pled not guilty and a trial date was set. Prior to the trial, appellant moved to suppress evidence which was obtained by the prosecution prior to the information being filed. The prosecution had obtained appellant's bank records by means of investigative subpoenas and an order of seizure issued by Judge M. James Sorte. The motion to suppress was made on the basis that Judge Sorte did not have jurisdiction to issue the subpoenas because he presided over the District Court of the Fifteenth Judicial District and the crimes occurred in the Seventeenth Judicial District. The motion to suppress was denied. A jury trial was held from May 16 to May 20, 1983, and appellant was found guilty. years with five The court sentenced him to ten suspended, and ordered restitution in the amount of $160,000. Appellant raises the following that he make This appeal follows. six issues for our consideration: (1) Did the District Court lack jurisdiction to hear the case and issue final orders as the presiding judge was retired Judge Nat Allen? (2) Did the District Court err in denying appellant's motion to suppress? ( 3 ) Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g a p p e l l a n t ' s motion to dismiss on the grounds that t h e r e was fatal a v a r i a n c e b e t w e e n t h e c h a r g e s p r e s e n t e d and t h e c a s e p r o v e n at trial? (4) Did the evidence establish that the fuel was a b a n d o n e d and t h a t a p p e l l a n t , a s f i n d e r , t o o k p o s s e s s i o n ? (5) Did the State prove the necessary intent to sustain a t h e f t conviction? ( 6 ) Did t h e D i s t r i c t C o u r t e r r i n i t s r e f u s a l t o g i v e c e r t a i n of a p p e l l a n t ' s p r o p o s e d i n s t r u c t i o n s ? The f i r s t i s s u e h a s a l r e a d y b e e n d i s p o s e d of decision in State ex. rel. Wilcox and Bradley by o u r v. D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t . 1 9 8 4 ) , 678 P.2d 209, 41 S t . R e p . in under supra. the constitutional 397. The (Mont. J u d g e A l l e n was c a l l e d power recognized in Wilcox, T h u s h e p r o p e r l y assumed f u l l j u r i s d i c t i o n o v e r t h e c a s e , i n c l u d i n g t h e power t o i s s u e f i n a l o r d e r s . Appellant denying his next contends t h e District Court e r r e d motion to suppress the fruits of in the i n v e s t i g a t i v e s u b p o e n a s and o r d e r o f s e i z u r e i s s u e d p r i o r t o t h e f i l i n g of t h e information i n t h i s case. subpoenas were issued presiding over charge the District in District. the appellant's Judge trial Court of Judicial District, on the a Sorte, previous who was criminal Seventeenth J u d i c i a l was called in Langen who i s t h e e l e c t e d D i s t r i c t J u d g e Seventeenth J u d i c i a l District. S o r t e d i d n o t have j u r i s d i c t i o n o r d e r of James J u d g e S o r t e , who i s t h e e l e c t e d D i s t r i c t J u d g e o f Fifteenth Leonard by The o r d e r and seizure, by Judge for the Appellant argues t h a t Judge t o issue t h e subpoenas o r s i n c e he sits i n t h e F i f t e e n t h J u d i c i a l D i s t r i c t and t h e c r i m e o c c u r r e d i n t h e S e v e n t e e n t h J u d i c i a l District. Appellant's 45-4-301, MCA, is contention not well taken. Section states: "Whenever t h e a t t o r n e y g e n e r a l o r c o u n t y attorney has a duty t o investigate a l l e g e d u n l a w f u l a c t i v i t y , any j u s t i c e of t h e supreme c o u r t o r d i s t r i c t c o u r t judge o f t h i s s t a t e mav c a u s e s u b ~ o e n a s t o be i s s u e d commandi& t h e p e r i o n s t o whom they a r e d i r e c t e d t o appear before t h e attorney general or the county attorney and g i v e t e s t i m o n y and p r o d u c e s u c h books, r e c o r d s , p a p e r s , documents, and o t h e r o b j e c t s a s may be n e c e s s a r y and proper t o t h e i n v e s t i g a t i o n . " (Emphasis supplied ) . The plain language d i s t r i c t c o u r t judge of this w i t h t h e power s u b p o e n a s w i t h no j u r i s d i c t i o n a l statute vests every to issue investigative limitation. There simply is no r e q u i r e m e n t , e x p l i c i t o r i m p l i c i t , t h a t t h e s u b p o e n a b e i s s u e d by t h e s i t t i n g j u d g e o f t h e d i s t r i c t where t h e crime allegedly occurred. A p p e l l a n t h a s r e a d t h e venue s t a t u t e s i n t o s e c t i o n 46-4-301, which b a s i c a l l y p r o v i d e t h a t a MCA, c r i m i n a l t r i a l s h a l l be h e l d i n t h e c o u n t y where t h e o f f e n s e was c o m m i t t e d . S e e s e c t i o n 46-3-101, concludes t h a t if t h e s u b p o e n a was than the d i s t r i c t court the offense without allegedly between jurisdiction of the S t a t e of Montana. of the State of a judges . . there and of He thus t h e c o u n t y where issued is a by a judge considerable jurisdiction. the district courts "The of the [ i s ] coextensive with the boundaries Montana. (Emphasis s u p p l i e d ) . .and d e t e r m i n e venue in i t was However seq. i s s u e d by a n y o n e o t h e r sitting occurred, jurisdiction. difference judge MCA e t . . ." Section 3-5-312, MCA, " J u r i s d i c t i o n is t h e a u t h o r i t y t o hear cause. Venue is the place of trial." S t a n t o n T r u s t and S a v i n g s Bank v . J o h n s o n ( 1 9 3 7 ) , 1 0 4 Mont. 235 a t 238, 65 P.2d 1188 a t 1189. Jurisdictional authority i s g r a n t e d by law. State ex rel. J o h n s o n v. D i s t r i c t C o u r t (1966), 1 4 7 Mont. 263, 410 P.2d 933. problem h e r e b e c a u s e t h e subpoenas were information was even filed. The is no v e n u e There issued before jurisdictional the power or a u t h o r i t y t o i s s u e i n v e s t i g a t i v e s u b p o e n a s i s g r a n t e d by law through s e c t i o n 46-4-301, is c o e x t e n s i v e w i t h each d i s t r i c t c o u r t the s t a t e , Since the jurisdiction MCA. of t h e boundaries of s o is t h e power of e a c h d i s t r i c t c o u r t t o i s s u e i n v e s t i g a t i v e subpoenas c o e x t e n s i v e w i t h t h e b o u n d a r i e s of the s t a t e . Appellant variance next between contends the that there i n f o r m a t i o n and was the State's t r i a l , which r e q u i r e s t h e c h a r g e s be d i s m i s s e d . a fatal proof at The b a s i s of t h i s c o n t e n t i o n is t h a t w h i l e t h e a f f i d a v i t i n s u p p o r t o f t h e i n f o r m a t i o n a l l e g e d t h a t VIP owned t h e f u e l by v i r t u e of a d e e d from t h e U.S. Government, a t t r i a l t h e y a t t e m p t e d t o p r o v e o w n e r s h i p by p o s s e s s i o n . Generally, the c s i m e must s t a t e , information charging a intended." contained person of common in such understanding Section 4 6 - 1 - 4 O l ( l ) ( c ) ( i i i ) . therein and the proof must d e f e n d a n t t o be p r o p e r l y c o n v i c t e d . 146 Mont. 64, party with a "[Tlhe f a c t s c o n s t i t u t i n g the offense i n o r d i n a r y and c o n c i s e l a n g u a g e and enable a 404 P.2d 327. This a manner to as to know what is The a l l e g a t i o n s correspond for the S t a t e v. R i n d a l ( 1 9 6 5 ) , r u l e was d e v e l o p e d to p r o t e c t t h e d e f e n d a n t f r o m b e i n g m i s l e d a t t r i a l and twice prosecuted variance for t h e same c r i m e . between the Rindal, allegations and supra. proof Unless t h e prejudice a s u b s t a n t i a l r i g h t of t h e d e f e n d a n t , t h e c h a r g e s h o u l d n o t be S e c t i o n 46-11-403(3), dismissed. Appellant claims reliance on p r o o f proof o w n e r s h i p by of of he was did not as title title is not required under Montana. alleged a l l o w him argument is by the in State's rather the than affidavit H e a r g u e s t h i s was a s h i f t i n This charge. prejudiced o w n e r s h i p by p o s s e s s i o n supporting the information. t h e o r y which MCA. not The d e f i n i t i o n o f to adequately defend persuasive. the O w n e r s h i p by criminal owner w h i c h t h i s c a s e i s c o n t a i n e d i n s e c t i o n 45-2-101, the statutes of is a p p l i c a b l e i n MCA: " ( 4 6 ) ' o w n e r ' means a p e r s o n o t h e r t h a n t h e o f f e n d e r who h a s p o s s e s s i o n o f o r a n y other i n t e r e s t i n the property involved, even though such i n t e r e s t o r p o s s e s s i o n is u n l a w f u l , and w i t h o u t whose c o n s e n t t h e o f f e n d e r h a s no a u t h o r i t y t o e x e r t c o n t r o l over t h e property." Under t h i s d e f i n i t i o n , t h e S t a t e was r e q u i r e d o n l y t o prove t h a t VIP had above, the exercised fuel p o s s e s s i o n of was found c o n t r o l over in the fuel. VIP-owned As tanks, it t h r o u g h i t s e m p l o y e e s , discussed and VIP including the appellant. The p r o o f i s c l e a r l y s u f f i c i e n t t o e s t a b l i s h that possession VIP consent, had the appellant over t h e f u e l . of had the no fuel and authority to without VIP's exert control That meets the d e f i n i t i o n a l requirements o f s e c t i o n 45-2-101 ( 46 ) , MCA. A s noted above, t h e purpose of r e q u i r i n g t h e proof t o c o r r e s p o n d w i t h t h e a l l e g a t i o n s is t o p r o t e c t t h e d e f e n d a n t f r o m b e i n g m i s l e d a t t r i a l and f r o m b e i n g p r o s e c u t e d twice for t h e same o f f e n s e . the State mislead here him. did At not trial, Rindal, supra. prejudice Any c h a n g e made b y appellant's defense a p p e l l a n t contended t h e or f u e l was a b a n d o n e d by t h e f e d e r a l g o v e r n m e n t , and r i g h t f u l l y f o u n d by him. T h i s d e f e n s e t h e o r y was b a s e d on t h e a c t s of a p p e l l a n t h i m s e l f and d e p e n d e d i n no way upon t h e method VIP o b t a i n e d o w n e r s h i p of t h e f u e l . fuel or how i t was it. obtained The f o c u s was on abandonment o f t h e disposed Likewise, the of, rather than possibility of on a how VIP subsequent p r o s e c u t i o n f o r t h e f t of t h e same f u e l is n o t p r e s e n t h e r e . O w n e r s h i p of t h e f u e l h a s been s u f f i c i e n t l y e s t a b l i s h e d i n V I P t o a l l e v i a t e t h i s danger. I n sum, any v a r i a t i o n b e t w e e n and t h e i n f o r m a t i o n i s minor and d o e s n o t r e q u i r e t h e proof d i s m i s s a l of t h e c h a r g e s . No s u b s t a n t i a l r i g h t o f a p p e l l a n t h a s been p r e j u d i c e d . A p p e l l a n t n e x t c o n t e n d s t h a t t h e f u e l was a b a n d o n e d by t h e U.S. sell Government which a p p e l l a n t was e n t i t l e d t o f i n d and for his own profit. In its best light, this i n t e r p r e t a t i o n of t h e f a c t s is s p e c i o u s . I n its worst l i g h t i t c o u l d be termed b l a t a n t l y m i s l e a d i n g . Appellant contends t h a t the U.S. no intention nust be of Government abandoned t h e f u e l b e c a u s e i t had of a going known Mont. 20, 209 P.2d back right. 895. for it. However, Hilyard v. abandonment Engel ( 1 9 4 9 ) , 123 A p p e l l a n t ' s own w i t n e s s e s e s t a b l i s h t h a t t h e A i r F o r c e d i d n o t know t h e f u e l e x i s t e d , n o t a known r i g h t t h e y r e l i n q u i s h e d . s o i t was Also, even i f t h e f u e l was a b a n d o n e d , t h e VIP e m p l o y e e s f o u n d t h e f u e l i n VIP owned t a n k s and e x e r c i s e d c o n t r o l o v e r i t , n o t a p p e l l a n t h i m s e l f . The VIP maintenance men found the fuel. s a m p l e s , and a p p e l l a n t a l o n g w i t h a co-worker t o be tested at a cost of almost They withdrew took t h e f u e l $800 t o VIP. The pump which was p u r c h a s e d t o move t h e f u e l was b o u g h t by VIP a t a cost of over $600. VIP employees moved the fuel to d i f f e r e n t tanks. civil action misses the employees, A p p e l l a n t ' s a s s e r t i o n t h a t V I P may h a v e a against him point. for The including the point appellant is cost of that acting VIP as Appellant's took c o n t r o l over t h e f u e l . these a services its through VIP employee, abandonment t h e o r y i s n o t b o r n e o u t by t h e u n c o n t r a d i c t e d f a c t s o f t h e c a s e . The n e x t i s s u e c o n c e r n s a p p e l l a n t ' s i n t e n t ; two e r r o r s are alleged here. F i r s t , appellant argues t h a t the D i s t r i c t C o u r t e r r e d by n o t i n s t r u c t i n g t h e j u r y t h a t t h e y m u s t f i n d a bad o r e v i l i n t e n t on h i s p a r t t o c o n v i c t him. Second, h e a s s e r t s t h a t t h e f a c t s w i l l not bear o u t such a f i n d i n g . This Court has o f t e n held t h a t g i v i n g i n s t r u c t i o n s on intent using "purpose" the eliminates instructions. P.2d 75, P.2d the S t a t e v. need of for "knowledge" further intent and Mlein ( 1 9 7 6 ) , 1 6 9 Mont. 350, 547 Jackson ( 1 9 7 9 ) , 1 8 0 Mont. 195, 589 and S t a t e v. c o r r e c t l y refused appellant's offered i n s t r u c t i o n s on e v i l Whether t h e e v i d e n c e would h a v e b e e n s u f f i c i e n t t o f i n d a n e v i l i n t e n t o r n o t is i n c o n s e q u e n t i a l . properly and Here t h e D i s t r i c t C o u r t d i d e x a c t l y t h a t , 1009. intent. statutory definitions instructed and resolved this The j u r y was question of fact T h e r e is c l e a r l y s u f f i c i e n t e v i d e n c e t o against appellant. support t h i s finding. F i n a l l y , a p p e l l a n t p o i n t s t o twenty one proposed j u r y i n s t r u c t i o n s he contends were improperly r e f u s e d . W e have by appellant reviewed the proposed instructions submitted and compared them w i t h t h o s e g i v e n by t h e t r i a l c o u r t . i n s t r u c t i o n s given the law, Court. which a s a whole, The a c c u r a t e 1 . y and f a i r l y s t a t e is c o n s i s t e n t w i t h t h e r e q u i r e m e n t s of t h i s S t a t e v. Anderson ( 1 9 7 6 ) , 1 7 1 Mont. 188, 557 P.2d 795. Appellant has failed to show how n o t i n s t r u c t i o n s p r e j u d i c e d him i n a n y way. giving these The D i s t r i c t C o u r t p r o p e r l y r e f u s e d them a s r e p e t i t i o u s and a s comments on t h e evidence. A £ f irmed. W e concur: 34d&ca/!&' Chief J u s t i c e Justices

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