NO. 82-372
I N TFIE SUPREME COURT O THE STATE OF FO T N
F l NA A
1983
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
ANTHONY MARTIN LAMERE,
Defendant 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 Eighth 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 County o f Cascade, The Honorable
H. W i l l i a m Coder, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
Marcia B i r k e n b u e l , G r e a t F a l l s , Montana
F o r Respondent:
Bon. 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
J . F r e d Bourdeau, County A t t y . , G r e a t F a l l s ,
Montana
S u b m i t t e d on B r i e f s : December 1 6 , 1982
Decided: F e b r u a r y 3 , 1983
Filed:
FEB 3 - 1983
Nr. C h i e i J u s t i c e F r a n k I . H a s w e l l d e l i v e r e d t h e O p i n i o n of
the Court.
Anthony Martin LaMere was convicted by a jury in
Cascade County, Montana, of b u r g l a r y and f e l o n y t h e f t . He
now a p p e a i s t h e c o n v i c t i o n . W affirm.
e
On November 29, 1981, at approximately 5:30 a.m.,
S c h e e l ' s Hardware s t o r e i n G r e a t F a l l s was b u r g l a r i z e d a n d
twenty-one handguns were s t o l e n . E n t r y was e f f e c t u a t e d by a
c a r w h i c h was d r i v e n t h r o u g h a l a r g e window of the store.
l n v e s t i g a t i n g p o l i c e o f f i c e r s found t h e following evidence
near t h e p o i n t of e n t r y : t i r e m a r k s on t h e s i d e w a l k c a u s e d
by v e h i c l e a c c e l e r a t i o n , a p i e c e o f b r o k e n t u r n s i g n a l l e n s ,
rubbe r molding i n the brick of the building, and a y e l l o w
safety pole standing outside the building which had been
scraped. From this evidence, police located a suspect
vehicle. By ma.tching t h e damage d o n e t o t h e s t o r e t o t h a t
of the car, they determined that the suspect vehicle was
actually used to commit t h e crime. The c a r was owned by
L e o n a r d D a l e Champagne.
On December 4, 1981, Great Falls Police Detective
L a r r y Kenman went t o Champagne's residence and s p o k e w i t h
T i n a A r g u e l l o who was l i v i n g t h e r e a t t h e t i m e . She s t a t e d
t h a t on t h e e v e n i n g i n q u e s t i o n Champagne had g i v e n t h e k e y s
t o t h e c a r t o a p p e l l a n t w h i l e t h e two were a t a p a r t y . She
f u r t h e r s a i d a p p e l l a n t l e f t t h e p a r t y w i t h W i l l i a m Thumm.
A l s o o n December 4 , 1 9 8 l , Thumm was a r r e s t e d a n d q u e s -
tioned about the crimes. O r i g i n a l l y d e n y i n g a n y knowledge
of t h e o f f e n s e s , h e l a t e r s t a t e d t h a t h e r o d e a s a p a s s e n g e r
i n t h e c a r while a p p e l l a n t d r o v e i t t h r o u g h t h e window o f
the store. At that point, he s a i d , appellant entered the
s t o r e and r e t u r n e d w i t h a p i l l o w c a s e f u l l of guns. Thumm
was c n d r g e d w i t h b u r g l a r y and t e l o n y t h e r t .
On December 7, 1981, Champagne came to the police
s t a t l o r 1 and g a v e a s t a t e m e n t t o D e t e c t i v e Renman. He said
t h a t h e h a 3 g i v e n h i s c a r k e y s t o t h e a p p e l l a n t b u t had no
now ledge o f a p p e l l a n t ' s intentions. He further stated that
on t h e n e x t d a y h e r e c e i v e d two h a n d g u n s f r o m a p p e l l a n t i n
l i e u of damage t o t h e v e h i c l e o c c a s i o n e d by t h e a p p e l l a n t ' s
a c t i o n s and he had a "good i d e a " t h e g u n s w e r e s t o l e n .
A p p e l l a n t was a r r e s t e d and c h a r g e d w i t h b u r g l a r y and
felony theft. He plead not g u i l t y t o t h e charges, and a
j u r y t r i a l was schedules f o r A p r i l 1 9 , 1982.
On A p r i l 16, 1982, i n the presence of the appellant
ana hls attorney, the State took Champagne's statement.
Champagne s a i d t h a t h e l o a n e d t h e c a r t o a p p e l l a n t b u t d i d
n o t r e c e i v e any g u n s . He t h e n c h a n g e d h i s s t o r y a n d s t a t e d
t h a t h e d i d r e c e i v e two h a n d g u n s a s payment f o r damage t o
h l s car. Champagne was n o t c h a r g e d w i t h a n y o f f e n s e r e l a t e d
t o the crimes or perjury.
At trial the State presented testimony of Evelyn
Komeotis who was l i v i n g w i t h Champagne a t t h e t i m e of the
burglary. She t e s t i f l e d t h a t i n t h e e a r l y morning h o u r s of
t h e d a y of t h e crimes t h e a p p e l l a n t c a l l e d f o r Champagne and
a s k e d h e r i f Champagne " w a n t e d t o make some money." Further,
she s t a t e d t h a t a f t e r Champagne hung up t h e phone i t r a n g
a g a i n , h e s p o k e t o t h e c a l l e r and t h e n l e f t t h e r e s i d e n c e .
Komeotis also testified that on the afternoon after the
burglary, w h l l e s h e was i n b e d , she thought she heard the
a p p e l l a n t w i t h Champagne i n a n o u t e r room a n d t h a t Champagne
had two handguns with him. For some unknown reason,
Champagne entered Komeotis's bedroom a n d held one of the
p i s t o l s t o her head.
T i n a A r g u e l l o t e s t l f l e d t h a t on t h e e v e n l n g b e f o r e t h e
b u r g l a r y s h e had been v e r y i n t o x i c a t e d . She s t a t e d t h a t s h e
l l e d when s h e t o l d D e t e c t i v e Kenman s h e saw Champagne g i v e
his car keys t o a p p e l l a n t and t h a t s h e i n f a c t could not
remember w h a t had happened t h a t e v e n i n g . She i n d i c a t e d t h a t
Champagne had a s k e d h e r t o g i v e a f a l s e s t a t e m e n t t o keep
hlrn o u t o f t r o u b l e .
W i l l i a m Thumm a l s o t e s t i f i e d o n b e h a l f of the State.
I n e s s e n c e h i s t e s t i m o n y was c o n s i s t e n t w i t h t h e s t a t e m e n t
he gave p o l i c e .
A p p e l l a n t was c o n v i c t e d of b u r g l a r y a n d f e l o n y t h e f t .
F u r t h e r , d u e t o a p r i o r f e l o n y c o n v i c t i o n and i n a c c o r d a n c e
with s e c t i o n 46-18-501(2), MCA, the S t a t e moved that the
a p p e l l a n t be c l a s s i f i e d a s a p e r s i s t e n t f e l o n y o f f e n d e r . A
hearing was held on J u n e 11, 1982. The State presented
t e s t i m o n y of C a s c a d e County Deputy S h e r i f f Laurie C a r r e t t e
who testrfied that two f i n g e r p r i n t c a r d s were located in
appellant's f i l e i n h e r o f f i c e and e a c h c a r d r e p r e s e n t e d a
s e p a r a t e a r r e s t of the appellant. Further, she indicated
that such records are kept in the ordinary course of
business. Detective Kenman also testified for the State
that the two cards represented separate arrests of the
appellant and that the appellant was the individual
identified on b o t h cards. P a t r i c k Ryan t e s t i f i e d t h a t he
was a probation a n d p a r o l e o f f i c e r f o r t h e S t a t e o f Montana
and he s u p e r v i s e d t h e a p p e l l a n t when h e s e r v e d a s u s p e n d e d
s e n t e n c e f o r f e l o n y t h e f t on p r o b a t i o n from 1977 t o 1980.
The court also took judicial notice of the fact that
appellant signed and filed the following petition in the
court:
"Now comes a document for the defendant,
TONY M. LAMERE, from the Montana State
Parole to summons patroi officer Pat Ryan
to uphold his duty and to witness at the
defendant's, TONY 114. LAMERE hearing that
his last felony due to his own guilty
plea was a suspended sentence and was
completed on November 10, 1980."
'The court granted the motion to classify the appellant as a
persistent felony offender.
The appellant was sentenced to ten years confinement
in the Montana State Prison for the burglary and ten years
for the felony theft. He was sentenced to an additional
twenty-five years pursuant to the persistent felony offender
designation. The sentences are to be served consecutiveiy.
On appeal, appellant presents three issues:
1. Was Leonard Champagne an accomplice of appellant,
thus requiring the State to corroborate his testimony?
2. If Champagne was accountable for appellant's
offenses, was his testimony and that of Thumm sufficiently
corroborated?
3. Did the trial court err in its designation of the
appellant as a persistent felony offender where the evidence
of the prior conviction consisted of hearsay testimony
presented by appellant's probation officer?
Appellant first contends that Champagne was legally
accountable for the offenses he committed. Section 4 5 - 2 -
302, MCA, defines when accountability exists. It reads in
part:
"A person is legally accountable for the
conduct of another when:
"(I) having a mental state described by
the statute defining the offense, he
causes another to perform the conduct,
regardless of the legal capacity or
m e n t a l s t a t e of t h e o t h e r p e r s o n ;
" ( 3 ) e i t h e r b e f o r e o r d u r i n g t h e commis-
s i o n of an o f f e n s e w i t h t h e purpose t o
promote o r f a c i l i t a t e s u c h c o m n ~i s s i o n , he
s o l i c i t s , aids, abets, agrees, or a t -
tempts t o a i d such o t h e r person i n t h e
p l a n n i n g o r commission o f t h e o f f e n s e .
... 11
Here there is no evidence that Champagne had any
knowledge or involvement with the appellant's actions.
I n d e e d , Champagne a d m i t t e d h e a t l e a s t had a "good i u e a " t h e
g u n s he r e c e i v e d w e r e s t o l e n , b u t h e d i d n o t know what t h e
a p p e l l a n t was p l a n n i n g t o do w i t h his c a r when h e relin-
quished it. T h u s , he d i d n o t c a u s e t h e a p p e l l a n t t o commit
the crimes nor did he aid or abet the appellant to
f a c i l i t a t e commission of t h e c r i m e s .
W r e c o g n i z e t h e r e was some t e s t i m o n y p r e s e n t e d
e that
may i n d i c a t e Champagne had prior knowledge of the crimes.
However, there is substantial evidence upon which to
c o n c l u d e t h a t Champagne was n o t r e s p o n s i b l e f o r t h e a c t s o f
the appellant.
It also appears that the appellant is asserting
Champagne is l e g a l l y a c c o u n t a b l e f o r h i s crimes u n d e r the
definition of "obtains or exerts control," required by
the theft statute. Section 45-2-101(39), MCA, defines
" o b t a i n s " and " e x e r t s c o n t r o l " and i n c l u d e s p o s s e s s i o n a s a
method by which t h i s r e q u i r e m e n t c a n be m e t . Consequently,
since a p p e l l a n t was charged and convicted of theft under
section 45-6-301(1)(a), MCA, which i n e s s e n c e is k n o w i n g l y
o b t a i n i n g or e x e r t i n g unauthorized c o n t r o l over p r o p e r t y of
t h e owner t o d e p r i v e s a i d owner of h i s p r o p e r t y , Champagne's
mere p o s s e s s i o n o f t h e s t o l e n p r o p e r t y f a l l s w i t h i n t h e same
statutory subsection of theft.
This is not a correct reading of the statute. The
tneft statute defines four ways the crime can be committed.
Appellant was convicted of theft under section 45-6-
301(l)(a), MCA, which contemplates actual taking. Champagne,
on the other hand, could only be convicted of theft under
section 45-6-301(3)(c), MCA, which is essentially possession
of stolen property. This subsection states:
"(3) A person commits the offense of
theft when he purposely or knowingly
obtains control over stolen property
knowing the property to have been stolen
by another and:
"(c) uses, conceals, or abandons the
property knowing such use, concealment,
or abandonment probably will deprive the
owner of the property."
These are statutorily distinct crimes. Possession of stolen
property under section 45-6-301, MCA, supplants the old pos-
sessory statute, section 94-2721, R.C.M. 1947. All theft-
related offenses are described in section 45-6-301, MCA.
However, commission of one of the offenses does not make one
responsible for all other crimes outlined in the statute.
In support of his contention that Champagne's posses-
sion of stolen property makes him accountable, appellant
cites State v. Standley (1978), 179 Mont. 153, 586 P.2d
1075. The cases are clearly distinguishable. In Standley
we held that one of the State's witnesses was an accomplice
whose testimony must be corroborated. However, the defendant
was charged with possession of stolen property, - theft.
not
The State's witness could have been charged with the same
crime since he was knowingly holding stolen property, which
he eventually appropriated for his own use.
Pinaliy, in State v . Wirtanen (1965), 146 Mont. 268,
406 P.2d 376, this Court specifically held that a thief
could not be an accomplice of a receiver of stolen property.
State v. Mercer (1943), 114 Mont. 142, 133 P.2d 358; State
v. Keays (19341, 97 Mont. 404, 34 P.2d 855. In coming to
this conclusion, we determined that the rule was predicated
on the separate offense theory which states that larceny and
receiving stolen property are separate and distinct crimes.
Secondly, appellant contends that the testimony of
Champagne and Thumm, who he asserts are accomplices, was not
corroborated. Section 46-16-213, MCA, reads:
"A conviction cannot be had on the testi-
mony 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 corrobora-
tion is not sufficient if it merely shows
the commission of the offense or the
circumstances thereof."
In addition, there is a wealth of case law which
enunciates principles best summarized in State v. Kemp
(1979)I Mon t . , 597 P.2d 96, 99, 36 St.Rep. 1215,
1218, and recently recited in State v. Forsyth (1982),
Mont. , 642 P.2d 1035, 1038-1039, 39 St.Kep. 540, 544:
". . . First of all, the sufficiency of
such evidence is a question of law. [Kemp
citation omitted.] To be sufficient, it
must show more than that a crime was in
fact committed or the circumstances of
its commission. It must raise more than
the suspicion of the defendant's involve-
ment or opportunity to commit the crime
charged. But the evidence need not be
sufficient by itself to support the
defendant's conviction or even to make
out a prima facie case against him. It
may be circumstantial and can come from
the defendant or his witnesses. [Kemp
c i t a t i o n omitted.] Under s e c t i o n 46-16-
213, MCA, i t m u s t be e v i d e n c e which i n
i t s e l f and w i t h o u t t h e a i d of t h e t e s t i -
mony o f t h e o n e r e s p o n s i b l e o r l e g a l l y
a c c o u n t a b l e f o r t h e same o f f e n s e t e n d s t o
c o n n e c t t h e d e f e n d a n t w i t h t h e commission
of t h e o f f e n s e . "
S i n c e we h a v e d e t e r m i n e d t h a t Champagne i s n o t r e s p o n -
sible for appellant's crimes, his testimony need not be
corroborated. Furthermore, we believe the testimony of
Thumm, who was clearly an accomplice, was sufficiently
corroborated.
Essentially, 'I'hurnm testified that (1) h e was at a
party with the appellant prior t o t h e b u r g l a r y and t h e f t ;
( 2 ) h e l e f t w i t h a p p e l l a n t i n Champagne's c a r and a p p e l l a n t
was d r i v i n g ; ( 3 ) t h e y b o t h went t o S c h e e l ' s Hardware; (4)
a p p e l l a n t d r o v e t h e c a r t h r o u g h a window o f the store; (5)
a p p e l l a n t l e f t t h e c a r and e n t e r e d t h e s t o r e ; (6) appellant
returned with a bagful1 of handguns; and (7) they both
returned t o the party.
The f o l l o w i n g e v i d e n c e t e n d s t o c o n n e c t t h e a p p e l l a n t
with the crime, thus providing adequate corroboration of
Thumm' s t e s t l m o n y . Champagne t e s t i f i e d t h a t b o t h a p p e l l a n t
and Thumm w e r e a t t h e p a r t y . Carmen K o m e o t i s t e s t i f i e d t h a t
a p p e l l a n t was a t t h e p a r t y . Champagne a l s o s t a t e d t h a t h e
l e n t h i s car t o appellant. F u r t h e r m o r e , t h e damage d o n e t o
t h e c a r matched t h e damage d o n e t o t n e s t o r e a n d p h y s i c a l
e v l d e n c e found a t t h e s c e n e of t h e c r i m e was s u f f i c i e n t l y
connected t o t h e v e h i c l e . T h i s was s u p p o r t e d by t h e t e s t i -
mony of Detective Larry Renman. Detective Renman also
testified that he believed the car was rammed into the
window s o a p p e l l a n t c o u l d g a i n e n t r y t o t h e s t o r e . Evelyn
Komeotis t e s t i f i e d t h a t s h e h e a r d a p p e l l a n t i n h e r home t h e
d a y a i t e r t i l e c r i m e s w e r e coininitted, and Champagne had two
h a n d g u n s which h e i n d i c a t e d were f r u i t s o f t h e c r i m e , g i v e n
i n payment f o r damage t o h i s v e h i c l e . Finally, Champagne
t e s t i f i e d t h a t h e had a "good i d e a " t h e g u n s w e r e s t o l e n and
f r o m where t h e y w e r e s t o l e n .
Thirdly, t h e a p p e l l a n t a s s e r t s t h a t t h e testimony of
P a t r i c k L. Ryan, p r o b a t i o n and p a r o l e o f f i c e r f o r t h e S t a t e
of Montana, regarding appellant's prior c o n v i c t i o n was
h e a r s a y and t h u s n o t c o m p e t e n t p r o o f o f s u c h c o n v i c t i o n s .
I n S t a t e v. Cooper ( 1 9 7 1 ) , 1 5 8 Mont. 1 0 2 , 4 8 9 P.2d 99,
t h i s Court held t h a t i n order t o p r e s e n t evidence of a p r i o r
c o n v i c t i o n i n a s e n t e n c i n g p r o c e e d i n g t h e r e must be compe-
t e n t proof that the defendant in fact suffered the prior
conviction. M o r e o v e r , t h e Montana R u l e s of E v i d e n c e exempt
sentencing proceedings from e v i d e n t i a r y constraints. Rule
1 0 1 ( c ) ( 3 ) , Mont.R.Evid. P e r s i s t e n t felony offender hearings
a r e p a r t of the sentencing proceeding. P o l i c y f o r t h i s is
sound, as the court wants to examine complete historical
data and potential of the defendant before it pronounces
sentence.
The t e s t i m o n y o f Ryan, a l . t h o u g h a r g u a b l y h e a r s a y , was
properly admitted during the persistent felony offender
h e a r i n g p u r s u a n t t o R u l e 1 0 1 ( c ) ( 3 ) of t h e Montana R u l e s o f
Evidence. Furthermore, it was competent proof that the
a p p e l l a n t was t h e same i n d i v i d u a l who was c o n v i c t e d o f the
prior felony. Ryan t e s t i f i e d t h a t h e s u p e r v i s e d o n e Anthony
M a r t i n LaMere when h e s e r v e d a s u s p e n d e d s e n t e n c e on p r o b a -
tion for a felony theft committed in 1977. He further
testified t h a t t h e same p e r s o n i s t h e individual convicted
of t h e S c h e e l ' s b u r g l a r y and t h e f t .
Aff irrned.
spc~y$?@~(
Chief J u s t i c e
,
Z
W concur:
e
I U
i / Justices 4