No. 82-02
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1982
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-VS-
ROBIN LAUBACH,
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 Court of t h e Fourteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f M u s s e l s h e l l , The H o n o r a b l e
Nat A l l e n , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Church, H a r r i s , Johnson & W i l l i a m s ; Michael B.
A n d e r s o n , Great F a l l s , M ~ n t a n a
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , i l e l e n a , Montana
John P r a t t , County A t t o r n e y , Roundup, Montana
Submitted on B r i e f s : J u n e 1 7 , 1982
Decided: November 1 0 , 1982
:VUk L 3 iY8L
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The defendant appeals a Musselshell County conviction
of burglary arising from a jury trial in June 1981.
Defendant presents three issues on the question of
corroborating evidence, and one issue on sentencing. First,
he contends the testimony of an accomplice was not sufficiently
corroborated and therefore the trial court should have
granted his motion for a directed verdict. Second, he
contends the trial court failed to properly instruct the
jury on defining corroborating evidence. Third, he contends
the trial court failed to instruct the jury that the testimony
of an accomplice should be viewed with distrust. Fourth,
he contends that the trial court, imposed a more harsh
sentence on him than it did the accomplice because he chose
to go to trial rather than plead guilty. We reverse and
remand for a new trial on the ground that the trial court
failed to instruct the jury that the testimony of an accomplice
must be viewed with distrust.
At some time between Saturday, February 28, 1981, and
Monday, March 2, 1981, a motorcycle valued at $3,250 was
stolen from the auto mechanics shop at the Roundup High
School. Barry Lee, a shop teacher in Roundup and a part-
time employee of the Stockman's Supply Company, was the
owner of the motorcycle. On Saturday afternoon, Lee met
with the defendant and another youth named Aaron Brower.
This meeting took place at the Stockman's motorcycle shop,
and resulted in the three men going to the high school
to look at the motorcycle. At this time, the bike was only
partially assembled but Lee showed Brower and defendant
where in the shop the rest of the parts for the motorcycle
w e r e located. The men r e t u r n e d t o t h e Stockman's Supply;
t h e r e t h e d e f e n d a n t t e s t d r o v e a n o t h e r m o t o r c y c l e , and l e f t
h i s name and a d d r e s s w i t h Lee. On t h e Monday morning f o l l o w i n g
t h i s m e e t i n g , L e e d i s c o v e r e d t h e m o t o r c y c l e and p a r t s w e r e
m i s s i n g from t h e h i g h s c h o o l .
The a c c o m p l i c e , Aaron Brower and t h e d e f e n d a n t were
roommates i n t h e i r sophomore y e a r a t N o r t h e r n Montana C o l l e g e
i n F e b r u a r y 1981. Brower t e s t i f i e d a s t o how t h e b u r g l a r y
took place. O t h e F r i d a y b e f o r e t h e b u r g l a r y , t h e two o f
n
them t r a v e l e d from Mavre t o Roundup (Brewer's hometown) on
t h e i r way t o a b a s k e t b a l l game i n B i l l i n g s . After the
b a s k e t b a l l game, t h e two men r e t u r n e d t o Roundup and d i s c u s s e d
s t e a l i n g t h e m o t o r c y c l e t h e y had s e e n a t t h e h i g h s c h o o l
t h a t day. Brower o v e r h e a r d a t e l e p h o n e c a l l between d e f e n d a n t
and h i s f a t h e r , i n which t h e d e f e n d a n t became v e r y u p s e t
b e c a u s e h i s f a t h e r would n o t l o a n him t h e money t o buy t h e
motorcycle. O r e t u r n i n g t o Roundup from B i l l i n g s , t h e
n
d e f e n d a n t parked h i s t r u c k a b o u t two b l o c k s from t h e h i g h
s c h o o l and e n t e r e d t h e h i g h s c h o o l a f t e r opening a l o c k e d
door w i t h a w i r e . Once i n s i d e , d e f e n d a n t opened a n o t h e r
door w i t h t h e w i r e and t h e n e n t e r e d t h e mechanics shop where
t h e c y c l e and p a r t s were s t o r e d . Brower and t h e d e f e n d a n t
l i f t e d t h e c y c l e i n t o d e f e n d a n t ' s p i c k u p t r u c k and d r o v e
back t o Havre. A f t e r r e a c h i n g Havre, Brower t o o k a nap, and
on awakening found t h e d e f e n d a n t o p e r a t i n g t h e assembled
cycle. Both men used t h e c y c l e f o r a p p r o x i m a t e l y t h r e e
weeks i n t h e Havre a r e a , and t h e n d e f e n d a n t took t h e c y c l e
t o F o r t Benton where a f r i e n d k e p t it f o r him.
The f r i e n d , S t e v e W i t t , of F o r t Benton, t e s t i f i e d t h a t
t h e d e f e n d a n t b r o u g h t t h e c y c l e t o t h e W i t t Ranch on a p p r o x i m a t e l y
March 2 0 , 1981. Defendant asked W i t t i f h e would keep t h e
c y c l e a t t h e ranch f o r a s h o r t t i m e . Defendant t o l d W i t t
t h a t h e purchased t h e c y c l e from an I n d i a n f o r $ 5 0 0 and t h a t
h e was b r i n g i n g t h e c y c l e t o t h e W i t t r a n c h f o r s t o r a g e . On
s e v e r a l o c c a s i o n s , W i t t a s k e d t h e d e f e n d a n t t o remove t h e
c y c l e , b u t d e f e n d a n t d i d n o t remove i t . Finally, W i t t told
his ( W i t t s ' ) p a r e n t s o f t h e p r e s e n c e of t h e c y c l e a t t h e
ranch.
The d e f e n d a n t and Brower w e r e s u s p e c t s from t h e b e g i n n i n g .
S h o r t l y a f t e r t h e m o t o r c y c l e had been s t o l e n , t h e o f f i c i a l s
i n Roundup n o t i f i e d t h e H i l l County S h e r i f f ' s Department
t h a t t h e d e f e n d a n t and Rrower w e r e s u s p e c t s i n t h e b u r g l a r y .
W i t h i n a few weeks, t h e Choteau County S h e r i f f ' s Department
r e c e i v e d an anonymous t i p from a woman c o n c e r n i n g t h e p r e s e n c e
of t h e c y c l e a t t h e W i t t ranch. The s h e r i f f went t o t h e
W i t t r a n c h , and m e t M r s . Witt. Mrs. W i t t had a n t i c i p a t e d
t h e p u r p o s e of t h e s h e r i f f ' s v i s i t , and on h i s r e q u e s t
signed a consent-to-search form. She t h e n showed t h e s h e r i f f
t h e l o c a t i o n of t h e c y c l e and h e i d e n t i f i e d i t a s t h e motor-
c y c l e s t o l e n from t h e h i g h s c h o o l shop i n Roundup.
The M u s s e l s h e l l County A t t o r n e y ' s o f f i c e l a t e r c h a r g e d
Brower and t h e d e f e n d a n t w i t h b u r g l a r y . Brower p l e a d e d
g u i l t y t o t h e c h a r g e s and a g r e e d t o t e s t i f y a s a n a c c o m p l i c e
i n t h e burglary. The j u r y c o n v i c t e d d e f e n d a n t of b u r g l a r y
and d e f e n d a n t w a s s e n t e n c e d t o f i v e y e a r s i n p r i s o n w i t h
f o u r y e a r s suspended. Brower w a s g i v e n a d e f e r r e d i m p o s i t i o n
of s e n t e n c e .
W e h o l d f i r s t t h a t t h e t e s t i m o n y of t h e a c c o m p l i c e ,
Aaron Brower, was s u f f i c i e n t l y c o r r o b o r a t e d and t h e r e f o r e
t h a t t h e t r i a l c o u r t p r o p e r l y d e n i e d d e f e n d a n t ' s motion f o r
a directed verdict. Evidence of d e f e n d a n t ' s p o s s e s s i o n of
t h e s t o l e n c y c l e c o n n e c t e d him w i t h t h e c r i m e . To c o r r o b o r a t e
accomplice testimony the evidence must: (a) tend to connect
the defendant to the crime, ( b ) provide more than an opportunity
for the defendant to commit the crime, and (c) not be equally
consistent with innocent behavior. See State v. Anderson
(1982), Mont . -, 643 P.2d 564, 39 St.Rep. 629; State
,
v. Forsyth (1982), - Mont. - 642 P.2d 1035, 39 St-Rep.
540; State v. Manthie (1982), - Mont . -, 641 P.2d 454,
39 St.Rep. 350.
All of these criteria are met in this case. The
strongest corroborating evidence was the defendant's possession
of the stolen cycle, and the fact that he had hidden the
cycle at the Witt ranch after the burglary. Possession of
the stolen cycle certainly connected defendant to the crime.
The accomplice not only testified to defendant's possession of
the cycle, but Steve Witt, who let defendant store the cycle
at the family ranch, also testified to defendant's possession
of it. Possession of the stolen property is at least circumstantial
evidence which the jury had a right to consider in determining
whether defendant had stolen the cycle.
Defendant's second contention is that the trial court
refused to give his offered instructions defining corroborating
evidence. Without these instructions, defendant contends
the jury had no idea of how to determine whether the evidence
was corroborating. Defendant fails to provide any law or
analysis in support of his assertion. Further, as the State
points out, the court did instruct the jury on corroborating
evidence by giving the following instruction:
"A conviction cannot be had on the testimony
of one responsible or legally accountable for
the same offense, 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."
This instruction gives adequate guidance to a jury on
how to view corroborating evidence in the light of accomplice
testimony. Failure to embellish on this instruction by
additional instructions would not have prejudiced the defendant.
We are compelled nonetheless to reverse defendant's
conviction because the trial court failed to instruct the
jury that accomplice testimony must be viewed with distrust.
The controlling statute is section 26-1-303(4), MCA, which
states:
"26-1-303. Instructions to jury on how to
evaluate evidence. The jury is to be instructed
by the court . .
.
" (4) that the testimony of an accomplice
ought to be viewed with distrust, and the
evidence of the oral admissions of a party
with caution;"
The language of the statute is mandatory, and we find
reversible error in the trial court's failure to comply with
the statute. See also State v. Forsyth (1982), - Mont .
,
- 642 P.2d 1035, 39 St.Rep. 540. In fact, the error in
failing to give this mandatory instruction is so obvious,
the State should have confessed the error and agreed to a
retrial even if the defendant did not prevail on the question
of the sufficiency of the corroborating evidence.
In his last issue defendant contends he received a
more severe sentence than his accomplice solely because he
chose to go to trial while the accomplice chose to plead
guilty and turn state's evidence. While our decision to
reverse and order a new trial means that this issue need not
be discussed, we nonetheless hold that the record does not
contain any evidence to support the defendant's assertion.
The judgment is reversed and the case remanded for a
new trial.
We Concur: