STATE v CAIN

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No. 85-548 I N THE SUPREME COURT OF THE STATE OF MONTANA 1986 STATE OF MONTANA, P l a i n t i f f and R e s p o n d e n t , -vsPATRICK C A I N , 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 C o u r t of t h e S e v e n t h 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 C o u n t y of D a w s o n , T h e H o n o r a b l e R. C . M c D o n o u g h , J u d g e p r e s i d i n g . COUNSEL OF RECORD: For Appellant: L a r r y Mansch, Missoula, Montana F o r Respondent: Hon. M i k e 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 , M o n t a n a Dorothy McCarter, Asst. Atty. General, Helena R i c h a r d A. S i m o n t o n , C o u n t y A t t o r n e y , G l e n d i v e , Montana; M a r v i n L. Howe, D e p u t y C o u n t y A t t o r n e y S u b m i t t e d on B r i e f s : Decided: F i l e d ..MAY I t 1386 March 21, May 1 5 , 1986 1986 J u s t i c e Frank B. t h e Court. Morrison, Mr. Defendant, P a t r i c k Cain, J r . d e l i v e r e d t h e Opinion o f appeals h i s conviction of t h e o f f e n s e of t h e f t following a jury t r i a l i n t h e Seventh Judicial District Court, County of Dawson. W e affirm the conviction. O November n were arrested $19,000 1984, d e f e n d a n t and B u r l K e i t h Hunter and c h a r g e d w i t h worth the theft of drilling bits from Montana. Glendive, guilty, 15, Hunter pled of guilty. claiming that he was approximately Security unaware Cain of any of Bits pled not criminal wrongdoing. Hunter was t h e s t a t e ' s key w i t n e s s a t C a i n ' s t r i a l . testified years. that he had known defendant three He came t o M i l e s C i t y i n November of w i t h d e f e n d a n t and t o " p a r t y " . drove for a three-quarter Eastman Whipstock, ton an o i l or He four 1984 t o v i s i t While i n M i l e s C i t y , Hunter Ford pickup truck belonging to f i e l d company l o c a t e d i n C a s p e r , Wyoming. Hunter f u r t h e r t e s t i f i e d t h a t on November 7 , 1984, a f t e r d r i n k i n g h e a v i l y , he and Cain a t t e m p t e d t o s t e a l some d r i l l i n g b i t s from v a r i o u s d r i l l i n g r i g s . The p l a n f a i l e d . The n e x t day t h e two went t o G l e n d i v e , Montana, c a l l e d S e c u r i t y B i t s and a r r a n g e d t o meet i t s r e p r e s e n t a t i v e a t t h e shop i n o r d e r t o p r o c u r e some b i t s . A l l a n Swenson, s a l e s manager f o r S e c u r i t y B i t s , was o u t of town f o r t h e weekend. Melvin McDanold had a g r e e d t o b e "on c a l l " f o r Swenson i n t h e e v e n t someone wished t o make a purchase from the shop. McDanold and a G r i g s b y , met Hunter and d e f e n d a n t a t t h e shop. f i e d t h a t he t h e n " t o o k c h a r g e " . name was Wayne out-of-state Harther, he friend, Danny Hunter t e s t i - H e t o l d McDanold t h a t h i s worked for an oil company and h e needed t o p u r c h a s e c e r t a i n d r i l l b i t s . E i g h t b i t s were t h e n s e l e c t e d and loaded i n t o H u n t e r ' s t r u c k . Hunter s i g n e d an i n v o i c e f o r t h e b i t s u s i n g h i s assumed name, Wayne Harther. Thereafter, according d e f e n d a n t went t o G e t t y s b u r g , to Hunter, he and South Dakota, where t h e y s o l d t h e e i g h t d r i l l b i t s f o r $1900. The money was d i v i d e d e q u a l - l y between t h e two and t h e y r e t u r n e d t o M i l e s C i t y . Other Hunter's witnesses for State McDanold testimony. Harther" the substantiated testified that most a of "Wayne (Hunter) had c a l l e d November 8 , 1984, and s t a t e d he worked a t C o a s t a l O i l and Gas and needed some d r i l l i n g b i t s . Hunter and a second i n d i v i d u a l ( d e f e n d a n t ) m e t McDanold a t the himself shop. Hunter introduced as Wayne Harther. McDanold was u n s u r e whether d e f e n d a n t was p r e s e n t a t t h e t i m e of the have i n t r o d u c t i o n b u t was f a i r l y c e r t a i n d e f e n d a n t c o u l d heard the introduction. charge. Defendant was located, Hunter l1 signed just the Hunter there". invoice was definitely in A f t e r t h e b i t s were as Wayne Harther and departed. Grigsby, shop, McDanoldls f r i e n d who accompanied him t o t h e testified that he and d e f e n d a n t had primarily stood around and t a l k e d w h i l e Hunter and McDanold s e a r c h e d f o r t h e bits. Hunter a p p e a r e d t o be i n c h a r g e . Grigsby a l s o s t a t e d t h a t he was u n s u r e whether d e f e n d a n t had h e a r d Hunter i n t r o duce h i m s e l f a s H a r t h e r a s d e f e n d a n t might have s t i l l been i n the truck. inquired A f t e r Hunter s t a t e d h e was from C a s p e r , G r i g s b y of defendant f r i e n d s i n Casper. whether he knew some of Grigsby's Defendant s t a t e d t h a t h e had j u s t moved from Oklahoma. and d i d n o t know anyone. The remainder o f t h e r e l e v a n t t e s t i m o n y came from a law officer. Highway Patrolman Warren S c h i f f e r t e s t i f i e d t h a t a f t e r s t o p p i n g Hunter on November 1 0 , 1984, f o r a s p e e d i n g v i o l a t i o n , he d i s c o v e r e d t h e t r u c k had been r e p o r t e d s t o l e n by Eastman Whipstock. Hunter and defendant were both arrested. Defendant was subsequently released. At the time of arrest, Hunter had six $100 bills on his person and defendant had large bills totaling at least $250. At the close of the State's case-in-chief, defendant's attorney moved for a directed verdict on two grounds: 1) the State failed to prove its case beyond a reasonable doubt; and insufficient corroboration of the accomplice, Hunter testimony. The motion was denied and the trial continued. Defendant was convicted of theft and received an eight-year suspended sentence. On appeal, defendant raises the following issue: Whether the trial judge erred, pursuant to § 46-16-213, MCA, in denying defendant's motion for a directed verdict at the close of the State's case? Section 46-16-213, MCA, states: Testimony of person legally accountable. 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. Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must show more than the fact that a crime was committed. must raise more than a involvement in the crime. It suspicion concerning defendant's However, it need not be suffi- cient, on its face, to support a prima facie case against defendant. 597 P.2d State v. Kemp (19791, 182 Mont. 383, 386 96, 99. - 3871 The evidence need only "tend to connect" defendant with the crime. State v. Mitchell (Mont. 1981), the evidence may be circumstantial and it may come from the defendant or his witnesses. Kemp, 182 Mont. at 387, 597 P.2d at 99. Hunter's testimony implicating defendant was corroborated by testimony indicating that defendant knew Hunter was using an alias and testimony suggesting that defendant told Grigsby he was residing in Casper, Wyoming. Further, it is undisputed that defendant was at Security Bits at the time the bits were stolen. Finally, defendant was arrested with over $200 cash in his pocket on the road between South Dakota and Miles City two days after the theft. This is consistent with Hunter's testimony that he and defendant sold the drill bits in South Dakota for $1900 cash. The testimony against defendant is circumstantial. But, as a matter of law, it is not insufficient to corroborate the accomplice's testimony. The testimony might also be, as defendant contends, consistent with innocent conduct on the part of defendant. Defendant ' s mother might have provided him with money for a job-hunting expedition to South Dakota. Defendant might not have heard Hunter introduce himself as Wayne Harther. However, these are factual questions, proper- ly resolved by the jury. State v. Anderson (1982), 197 Mont. 374, 378, 643 P.2d 564, 566. The trial judge did not err when he refused to grant defendant's motion for a directed verdict. Affirmed. We concur: /y'j - /u w . , ghief Justice L

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