No. 84-148
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986,
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
STEVEN J. FOX,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl Knuchel, Public Defender, Livingston, Nontana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Wm. Nels Swandal, County Attorney, Livingston,
Montana
Submitted on Briefs: July 26, 1934
Decided: October 11, 1984
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Appellant, Steven J. Fox, was convicted by a jury in
the Sixth Judicial District, Park County, of felony theft.
The Honorable Byron L. Robb sentenced appellant to four
years at the Montana State Prison in Deer Lodge with
dangerous offender status. From that conviction he now
appeals. We affirm.
Issues
(1) Whether the District Court abused its discretion
by admitting into evidence State's exhibits four through
nine.
(2) Whether there was substantial evidence
presented upon which the jury could determine the value of
the items taken by appellant exceeded $150.
Facts
Appellant Fox and victim Barnhart were cellmates in
the Park County jail. When Barnhart began asking questions
about making bail, Fox quizzed him about his personal
property. Fox was subsequently released but Barnhart
remained incarcerated. Fox went to Barnhart's apartment
building and talked the landlady into giving him the key to
Barnhart's apartment. Fox testified he merely opened the
door to Barnhart's apartment while his accomplice went
inside to steal Barnhart's property. Another witness
testified Fox actually entered the apartment and helped
carry away the stolen items. This discrepancy is not at
issue on appeal however; in either case Fox was properly
charged with felony theft.
Fox sold some of the seven items taken from Barnhart's
apartment t o h i s a c c o m p l i c e ' s mother. When a h o u s e g u e s t
c a u t i o n e d h e r t h e items s h e had b o u g h t m i g h t be s t o l e n , s h e
d e l i v e r e d them t o L i v i n g s t o n P o l i c e D e p a r t m e n t O f f i c e r C u r t
Logan.
O f f i c e r Logan marked s i x i t e m s w i t h e v i d e n c e t a g s : (1)
a Commodor V i c 20 c o m p u t e r ; ( 2 ) a power t r a n s f o r m e r f o r t h e
computer; ( 3 ) a Wico command c o n t r o l o r "joy s t i c k ; " (4) a
M a t t e 1 I n t e l l i V o i c e s y n t h e s i z e r module; ( 5 ) an I n t e l l i v i s i o n
e l e c t r o n i c game; and ( 6 ) a Commodore V i c 20 1540 d i s c d r i v e .
Items 4, 5 and 6 were returned to Barnhart by another
o f f i c e r before t r i a l . Barnhart signed a r e c e i p t but not t h e
evidence tags. H e loaned t h e d i s k d r i v e t o a r e l a t i v e and
was u n a b l e t o p r o d u c e i t a t t r i a l . Barnhart i d e n t i f i e d a l l
of the computer related items admitted into evidence as
State's exhibits one through five and nine. S t a t e 1s
exhibits s i x t h r o u g h e i g h t were the evidence t a g s Officer
Logan had a f f i x e d t o t h e t h r e e items t h a t had b e e n r e t u r n e d
t o Barnhart. The t a g s i d e n t i f i e d t h e d i s c d r i v e , e l e c t r o n i c
game and IntelliVoice by name and serial number. The
seventh item, a p p a r e n t l y n o t marked w i t h a n e v i d e n c e t a g ,
was a n e l e c t r i c g u i t a r .
Barnhart testifed as to the purchase price and
condition of his property. Without objection, Nancy
Growney, t h e o p e r a t o r o f a r e t a i l c o m p u t e r s t o r e , testified
a s t o t h e v a l u e o f t h e u s e d c o m p u t e r items.
I
Appellant first asserts as error the admission of
S t a t e ' s e x h i b i t s four through nine. Appellant contends t h e
c h a i n o f p o s s e s s i o n was b r o k e n b e t w e e n t h e t i m e t h e p o l i c e
first took possession of the items and the time of trial.
Because there was no proof of absolute physical control of
the evidence at every moment in time from the time the
police first took possession of the evidence until the time
of trial, appellant claims chain of possession was
incomplete and therefore the District Court erred by
admitting it into evidence over the objection of counsel for
appellant.
It is well settled law in Montana that the
determination whether a proper foundation has been laid for
the introduction of exhibits into evidence rests with the
trial court and its determination will not be overturned on
appeal unless there is a clear abuse of discretion. State
v. McKenzie (1980), 186 Mont. 481, 608 P.2d 428, certiorari
denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507.
Furthermore, "If an exhibit has been shown to be connected
with the crime and identified as such, it is sufficient."
McGuinn v. State (1978), 177 Mont. 215, 221, 581 P.2d 417,
421. In the instant case, each exhibit was identified by
the victim as belonging to him. The objected-to pieces of
evidence were of such a nature as to be readily and easily
identifiable by their owner.
There are essentially two recognized methods of
identifying physical evidence: ready identification and
chain of custody. The former method is used when the
article has a unique characteristic that makes it readily
identifiable. The exhibits in the instant case lend
themselves to ready identifiability; the computer components
had Canadian stock stickers attached to them and one
component had even had its sticker realigned in a unique
manner by Barnhart. The guitar too, was very unique and
easily identifiable.
In his book on evidentiary foundations, Imwinkelried
assures us that when introducing a readily identifiable
piece of evidence, "the foundation is complete so long as
the witness testifies that he or she previously observed the
characteristic and presently recalls the characteristic."
. Imwinkelried, Evidentiary Foundations (1980), at p . 81.
Only when the evidence is so commonplace as to be non-unique
or when the witness has failed to observe its uniqueness is
it necessary to lay a chain of custody foundation. Here,
the ready identifiability foundation was proper and was
correctly laid by respondent. Based on the foregoing, it is
our finding that substantial credible evidence was presented
to enable the trial court judge to exercise sound discretion
in deciding whether the proper foundation was laid.
I1
The appellant also presents for our review the issue
of whether there was substantial evidence before the jury to
enable them to convict him of felony theft rather than
misdemeanor the£t.
Appellant argues the value of the evidence did not
exceed $150 and thus he is guilty only of misdemeanor theft.
We disagree.
Nancy Growney, who operates a computer store in
Livingston, testified for the State as to the minimum worth
of several of the items in question. It was her expert
opinion that the computer was worth at least $82, the disc
drive worth at least $150 and the joy stick worth at least
$10. Added together the value of those three items equals
$242. That amount is clearly sufficient to sustain a
conviction of felony theft. No substantial counter evidence
was offered by appellant to dispute Growney's testimony.
We hold there was sufficient evidence before the jury to
convict appellant of felony theft.
Affirmed.
We concur:
,/,-\: