No. 14200
IN THE SUPRET4l3 CCUIir O THE STATE
F OF MONTANA
THE STATE O I"g>NTANA,
F
P l a i n t i f f ~ Respondent,
IK I
JACK G. S A D E ,
T N LX
Defendant and A p p l l a n t .
Appeal f r m : D i s t r i c t C o u r t of t h e Thirteenth J u d i c i a l D i s t r i c t ,
Honorable J o e l Roth, Judge presiding.
Counsel of Record:
For Appellant:
Gary Wilcox argued, Billings, Montana
Russell Shultz argued, Witchita, Kansas
For Respondent:
Harold Hanser, County Attorney, Billings, JWntana
Charles madley argued, Deputy County Attorney, Billings, plbntana
Mike Greely , Attorney General, Helena, Montana
Suhnitted: October 2 3 , 1978
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Decided: ,,, 5 370
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Filed : _- r
Nr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant appeals from his conviction of the theft follow-
ing a jury trial in the Yellowstone County District Court.
In the early morning hours of March 22, 1977, 106 new
R.C.A. color television sets were stolen from the Ramada Inn
warehouse in Billings, Montana. This warehouse is located
directly behind the motel.
The theft was discovered by the Ramada's maintenance
foreman when he unlocked the warehouse in the morning. He found
a place in back of the building where the sheet metal was torn.
He also noticed some tire tracks in the soft dirt behind the
building.
The Billings police during their investigation determined
that the vehicle which made the tire tracks had dual wheels in
back and a single axle in front. The police photographed the
tracks and made plaster casts of them.
On or about March 25, 1977, Stephen Haborstak, who operated
the T & J Electronics Company, received a phone call from Orie
Dosdall, a farmer near Pryor, Montana. Dodsdall wanted Haborstak
to come out to his home and fix his television set. It was Habor-
stak who had been employed by the Ramada to install the television
sets in the motel rooms. After Dosdall described the television
set and the difficulty he was having with it, Haborstak became
suspicious that this was one of the sets taken from the Ramada
Inn. He called the police and informed them of Dosdall's call
and then went out to Dosdall's farm to repair the television. In
repairing the set, he noticed that the serial njmber had been
removed from the outside of the set but found the serial number
on the inside of the set. This identified it as one of the stolen
television sets.
Because of the information Haborstak gave the police, they
obtained a search warrant for the Dosdall property. The police
searched the property on March 30, 1977. They found eight of
the R.C.A. television sets stolen from the Ramada, along with
some other stolen property.
The State filed an Information against defendant charg-
ing him with felony theft in violation of section 94-6-302(1),
R.C.M. 1947. Defendant pled not guilty to the charge. The case
came on for trial on October 25, 1977.
Dosdall was a witness for the State at defendant's trial.
Dosdall testified that defendant, whom he had known for 10 to 15
years, came to his farmhouse around 5:00 a.m. on March 22. He
testified that defendant wanted a logging chain to pull a truck.
A half hour after getting the logging chain, defendant returned
seeking Dosdall's help in pulling the truck. Dosdall helped
defendant and another man by pulling the van truck onto his
property with his tractor. Defendant and the other man then
left in defendant's car.
Dasdall further testified that later in the day he got
the van started after putting some gas in it. When he got the
engine going, Dosdall said he was then able to operate the hy-
draulic lift on the van and look inside. He testified that the
van was full of uncrated television sets. Dosdall testified that,
with the help of his hired hand, Phillip Dolichek, he removed
eight television sets from the van.
According to Dosdall, defendant and the other man returned
the next day or the day after and removed four tires from the van.
Dosdall said that the van had rear duals and two of them were
removed. He said that when they removed the tires defendant was
driving his Toyota pickup. At that time, Dosdall talked with
defendant and asked what was in the van. Defendant only smiled.
Dosdall testified that they returned the next night and put the
tires back on. Dosdall was not certain whether the van left
the night the tires were put back on or the next night.
Dosdall went on to testify that the day after the van
left, the driver of the van came to Dosdall's for help in
pulling the van out of a ditch. After Dosdall got dressed and
came outside, the van driver pulled a gun out and placed it
next to Dosdall's ear. Dosdall testified that defendant was
in his pickup in the yard. The van driver told Dosdall to keep
quiet about the television sets or they would kill him and his
family. At that point, defendant told the other man to cut it
out. The van driver then put his gun away. Dosdall then testi-
fied that defendant and this other man followed him back to his
house and eventually left.
Dolichek testified that the van arrived in the early
morning hours around March 21. He testified that he never saw
the men who were driving it. He said that it was full of tele-
vison sets and he helped defendant remove several of them. He
said that the van was on the property for about three days.
Ralph Havin, the manager of Gus and Jack's Tire Shop in
Billings, testified that defendant came to his shop on March 25
to have some tires fixed. He said that three of the tires were
good and one was flat. He said that two of the tires were on
Chevrolet wheels and two were on Ford or Dodge wheels. The van,
according to Dosdall, was a Dodge. Dosdall, however, testified
that none of the tires were flat.
Havin testified that when defendant came back he gave
him two tires on wheels, two empty wheels, and one loose tire.
He said he could not remember which of the wheels had the tires
on them. Havin was shown the pictures of the tire tracks from
behind the Ramada warehouse. He said the tires that made those
tracks were 8.25-20 or 9.00-20, which could have been the same
size that defendant had brought in to him. Havin also testi-
fied that when defendant came to his shop he was driving his
Toyota pickup.
At the close of the State's case, defendant moved for
a judgment of acquittal, which the District Court denied. De-
fendant then rested his case without presenting any evidence.
The jury returned a verdict of guilty. Following the denial
of his motion for new trial, the court sentenced defendant to
ten years in the State Prison. Defendant is now free on bail
pending this appeal.
Defendant raises three issues in his appeal:
(1) Was the testimony of Dosdall sufficiently corrobo-
rated?
(2) Did the District Court err in denying his motion
for acquittal?
(3) Was the prosecution's closing argument prejudicial?
The court instructed the jury that Orie Dosdall was an
accomplice of defendant and that his testimony had to be corrobo-
rated as required by section 95-3012, R.C.M. 1947. Defendant
did not object to these instructions and does not do so now.
Defendant's position is that Dosdall's testimony was not suffi-
ciently corroborated. We disagree.
Defendant was charged with violating section 94-6-302(1).
This theft statute encompasses possession of stolen property.
Although the state did not prove that defendant took the televi-
sion sets from the Ramada warehouse, it proved that defendant
was purposely and knowingly in possession of the stolen tele-
vision sets thereafter. With that in mind, we hold that Dosdall's
testimony about defendant's possession of the stolen television
sets was sufficiently corroborated.
This Court recently discussed the rules on corroboration,
saying :
"The rule on corroboration is stated in State
v. Cobb, (1926), 76 Mont. 89, 245 P. 265. In
that case, we held that the corroborating evidence
may be supplied by the defendant or his witnesses;
it may be circumstantial evidence; it need not be
sufficient to sustain a conviction or establish a
prima facie case of guilt; and it need not be
sufficient to connect the defendant with the crime
but must tend to connect him with the crime. In
State v. Keckonen, (1938), 107 Mont. 253, 84 P.2d
341, we held that where the alleged corrobative
evidence is equally consonant with a reasonable
explanation pointing toward innocent conduct on the
part of defendant, then such evidence does not tend
to connect him with the commission of the offense
and is in the realm of speculation, not corrobo-
ration. Where the claimed corroboration shows no
more than an opportunity to commit a crime and
simply proves suspicion, it is not sufficient
corroboration to justify a conviction upon the
testimony of an accomplice. State v. Jones, (1933),
95 Mont. 317, 26 P.2d 341." State v. Coleman (1978),
Mont . , 579 P.2d 732, 748, 35 St.Rep. 560.
The corroborating evidence here is sufficient to sustain
defendant's conviction: Dolichek's testimony that the van was
on the Dosdall property; his testimony that it was full of tele-
vision sets and it was from the van that Dosdall and he took
eight of the sets; Havin's testimony that defendant brought four
tires to him which were about the same size as the tracks photo-
graphed behind the warehouse; Havin's testimony that the defen-
dant came to his shop on March 25, which would be the day after
Dosdall saw defendant removing the tires; Havin's testimony that
defendant was transporting the tires in his Toyota pickup which
is the same truck Dosdall saw him use; and the direct evidence
that the eight sets found on Dosdall's property were eight of
the 106 television sets stolen from the Ramada.
This evidence tends to connect defendant with possession
of the stolen television sets. The evidence shows more than
suspicion. The defendant's culpability may be deduced from this
evidence. State v. Jones (1933), 95 Mont. 317, 26 P.2d 341. The
independent corroborative evidence does not establish any reason-
able explanation pointing toward innocent conduct.
Defendant next contends that the court erred in denying
his motion for acquittal. Defendant's arguments here again
are that Dosdall's testimony was not sufficiently corroborated
for the case to go to the jury.
We can find no error in the District Court's denial of
defendant's motion. In denying the motion, the District Court
determined that the corroboration of Dosdall's testimony was
sufficient.
"It is well established in Montana that the suf-
ficiency of the corroboration necessary to sustain
a conviction based on the testimony of an accom-
plice is a matter of law (Citations omitted.) When
the trial judge is satisfied that the evidence is
corroborative, he must submit the case to the jury
to determine what effect the corroboration has and
whether it is sufficient to warrant a conviction.
The weight given an accomplice's testimony is for
the jury to decide." State v. Perry (1973), 161
Mont. 155, 161, 505 P.2d 113.
The trial judge, having found that the evidence was corroborative
of Dosdall's testimony, submitted the case to the jury. We find
no error.
Defendant's final contention is that the prosecutor's
closing argument was prejudicial.
We do not know exactly what was said by the prosecution
in their closing argument as no transcript was ever made of it.
Counsel for both sides, after the jury was deliberating, attempted
to make a record of what was said and defendant's objections
thereto. However, this record is not sufficient for purposes of
appellate review. We cannot determine the effect, if any, of the
closing argument on the substantial rights of defendant. State v.
Black (1973), 163 Mont. 302, 516 P.2d 1163. Accordingly, this
specification of error must fail.
We have examined all arguments and authorities advanced
by defendant. None would change the result of this appeal. We
find it unnecessary to comment on each in this decision.
Judgment affirmed.
Chief Justice
We concur: