No. 13709
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1978
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
LESLIE CAMPBELL,
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 o f t h e Second J u d i c i a l D i s t r i c t ,
H o n o r a b l e James D . F r e e b o u r n , J u d q e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
J. B r i a n T i e r n e y a r g u e d , B u t t e , Montana
F o r Respondent :
Hon. 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
A l l e n B. C h r o n i s t e r a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
J o h n G. W i n s t o n , County A t t o r n e y , B u t t e , Montana
C r a i g P h i l l i p s a r g u e d , Deputy County A t t o r n e y , B u t t e ,
Montana
Submitted: May1 , 1978
Decided : JUL 26 1Y/e
Mr. Justice Daniel J. Shea delivered the Opinion of
the Court.
The defendant was tried for the crime of theft by a
jury in Silver Bow County, Judge Freebourn presiding. From
a verdict of guilty and the court's admission of certain
hearsay evidence, he appeals.
On February 2, 1976, Butte police officers entered a
residence at 1112 South Main Street in Butte pursuant to a
search warrant based on information supplied by Dale Nix.
Nix, an informant for the police, was the lessee of the
residence at the address named in the search warrant. No
one was at home at the time the police entered the residence,
but the defendant's wife, Cindy and sister, Barbara Campbell
Nix arrived and were present during the search. The police
seized numerous items of property traced to a series of
burglaries in the Butte area during the preceding October and
November.
Later, the police arrested the defendant on February 20,
1976 and charged him with felony theft under section 94-6-302
(1)(a), R.C.M. 1947.
During the trial, Nix did not testify as a witness, but
statements made by him to police officers were admitted
through testimony of police officers. These statements
included alleged participation of the defendant in the bur-
glaries. Also produced at trial was evidence showing that
Nix had been paying rent and residing at the searched residence
from August 1975 through January 1976. Around January 26,
1976, Nix was severely burned in an accident and hospitalized.
During Nix's hospitalization, the landlord of the premises went
to the house to collect rent and received one month's payment
from defendant who was there at the time.
Three city officers testified concerning the defendant's
occupancy of the searched residence. Officer James Lunney
stated he had seen "all the Campbell's" at the residence at
various times along with numerous other individuals, but he
could not say exactly when and how long prior to the search
he had seen the defendant there. He stated he "knew basically
who was there just from stopping and talking" with the indivi-
duals who allegedly resided at the house. The officer admitted,
however, defendant "could have been" living next door in the
large home of his mother. Another officer, Pat Burns, also
stated he "had seen (the defendant) there." This officer
pointed out that the driving records of the defendant indicated
that both in November, 1975 and February, 1976, defendant had
used the address of the residence in connection with a traffic
violation and an application to renew his drivers license.
Finally, Officer Dan Hollis testified he had spoken with the
defendant at the residence around October 29, 1975.
We find two of the issues raised to be dispositive:
(1) Whether the evidence was legally sufficient to
support the verdict, and
(2) Whether the Court erred in allowing the jury to
consider certain hearsay evidence.
Since we agree with defendant's contentions both as to
the legal insufficiency of the evidence and the inadmissibility
of the hearsay evidence considered, the other issues cited on
appeal will not be addressed.
The crime with which defendant was charged is defined
in section 94-6-302 (1)(a), R.C.M. 1947 :
"Theft. (1) A person commits the offense
of theft when he purposely or knowingly
obtains or exerts unauthorized control
over property of the owner and:
(a) has the purpose of depriving the
owner of the property;
* * *." (Emphasis added)
-3-
thereto as well as the accused, it cannot
be said that the property was in the
accused's exclusive possession and the
circumstance would not be evidence of
his guilt." (Emphasis added). People v.
Davis (1966), 69 Ill.App.2d 120, 216
While it is true that exclusive possession may be
shared with others, possession must still be proved. As
stated in Davis, supra:
" * * * Mere association with a stolen article is
not necessarily the possession of that
article, and before any inference of guilt
can arise from the circumstance it must be
shown that the accused was in possession."
(Emphasis added). 216 N.E.2d at 493.
Clearly, the State showed no more than "mere association"
of the defendant with the stolen goods; thus it failed to
prove the essential element of control over the stolen property
required for conviction of the crime.
The only evidence linking the defendant to the stolen
goods was certain statements allegedly made by the informer
Nix to the police officers. The officers testified that Nix
told them defendant participated in the burglaries. Had Nix
testified, his testimony would have to be corroborated to
establish an element of the crime. Section 94-2-107(3), R.C.M.
1947. But Nix did not testify. The testimony of the officers
as to what Nix told them was hearsay. It was an out-of-court
statement introduced for the truth of the matter stated, with
neither inherent guarantee of trustworthiness nor a satis-
factory showing of declarant's unavailability. The exclusionary
hearsay rule is intended to protect against the infirmities
of statements made without the safeguards of an oath, confronta-
tion, and cross-examination to test the credibility of the
out-of-court declarant. None of these safeguards are present
here.
We find unconvincing the State's argument that by questioning
the officers as to the informant's name and involvement in the
Control over the property of another is an essential
element of the offense and is generally defined in section
94-2-101 (33), R.C.M. 1947:
"'Obtains or exerts control' includes but
is not limited to the taking, carrying
away, or sale, conveyance, transfer of
title to, interest in, or possession of
property." (Emphasis added)
The State contends that control over the stolen goods
was established by showing defendant's regular occupancy of
the residence in which the stolen property was seized. The
evidence offered on the point however, was inconclusive.
The fact of defendant's continuing occupancy of the
residence searched rests on circumstantial evidence, the
testimony of the three police officers and the fact that the
defendant once paid rent for the premises. While the testimony
shows defendant may have been present at the house on certain
occasions, it does not conclusively prove his regular
occupancy of or his control over the premises and its contents
during the period in which the burglaries occurred or prior
to the search. Likewise, the fact that the defendant at one
time paid rent for the premises while Nix, the lessee, was
hospitalized does not justify the conclusion that defendant
actually resided at or had control over the house and its
contents.
Montana's theft statute is derived from and is substantially
the same as Ill. Crim. Code Chptr. 38, section 16-1. In con-
struing that provision their Courts hold:
" * * * possession of stolen goods may be
proved by circumstantial evidence. (Citation
omitted). However, in order that recent
possession be evidence of guilt it must be
exclusive in the accused. The possession
must be such as to indicate that the accused
and not someone else took the property. If
the place where the property is found is such
that another person could have had access
burglaries, defense counsel "opened the door" to testimony
regarding defendant's participation in the burglaries. The
issues are separate. The so-called "completeness doctrine"
relied on by the State in this regard is a rule of evidence
distinct from the hearsay rule. The rule is contained in
section 93-401-11, R.C.M. 1947 (and is substantially the
same in Rule 106 of M.R.Evid.).
The doctrine stems from elementary principles restricting
the scope of cross-examination. Generally, cross-examination
of a witness must be limited to matters testified to on
direct examination. The doctrine of completeness is an
offshoot of this rudimentary principle. It permits examination
of the balance or portions of the same document, correspondence,
or conversation only where such portions on balance "are
relevant and throw light upon parts already admitted;" U.S.
v. Littwin (6 Cir. 1964), 338 F.2d 141, 146; or bear "on the
same subject;" State v. Collett (1946), 118 Mont. 473, 479,
167 P.2d 584, 587. To say that here, defendant's line of
inquiry "opened the door" to all hearsay communications between
the officers and the informer under the completeness doctrine
is to misapply the doctrine. The testimony of the officers
regarding what Nix told them was a classic example of inad-
missible hearsay. The prejudice is patent.
The conviction is reversed and the case ordered dismissed.
We Concur:
Chief Justice
L'
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Justices