State v. Holmes

No. 83-485
IN THE SUPREME COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES D. HOLMES ,
Defendant and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable Nat Allen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Moses Law Firm; Charles F. Moses argued, Billings,
Montana

For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning argued, Asst. Atty. General, Helena
David L. Nielsen, County Attorney, Glasgow, Montana

Submitted: April 13, 1984
Decided: August 14, 1984

Filed: 4 ~ 1 - 384
5
Lz

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Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n delivered t h e Opinion of
the Court.

T h i s c a s e i n v o l v e s t h e t h e f t o f a l m o s t $200,000 worth

of jet fuel f r o m t h e o l d Glasgow A i r Force Rase, now t h e

Valley Industrial Park. Appellant was convicted of the

theft, sentenced to ten years with five suspended and

ordered to pay $160,000 in restitution. This appeal

follows.

The G l a s g o w A i r Force Base is l o c a t e d approximately

seventeen miles north of Glasgow, Montana. I n 1969, the

U.S. Air Force closed the base and let bids for general

m a i n t e n a n c e work t o b e d o n e on t h e b a s e . AVCO C o r p o r a t i o n

was t h e s u c e s s f u l b i d d e r and c o n t r a c t e d w i t h t h e A i r Force

t o be t h e c a r e t a k e r of t h e b a s e . D e f e n d a n t came t o G l a s g o w

a s a m a n a g e r w i t h AVCO. AVCO d i d t h e m a i n t e n a n c e work u n t i l

1972 when it lost its contract to Tumpane Corporation.

Defendant then incorporated Montana Manufacturing, which

operated on the base also, for several years. In 1976,

Valley County purchased the base and incorporated Valley

Industrial Park (VIP). Appellant helped negotiate this

p u r c h a s e a n d i n November of 1976 was e l e c t e d p r e s i d e n t and

g e n e r a l manager o f VIP. The C o u n t y C o m m i s s i o n e r s o f V a l l e y

C o u n t y s e r v e a s t h e B o a r d o f D i r e c t o r s o f VIP.

Several large underground fuel tanks are located on
the base. The t a n k s w h i c h t h i s a c t i o n c o n c e r n s were l o c a t e d

b e l o w b u i l d i n g 669. The pumping s t a t i o n f o r t h o s e t a n k s was

l o c a t e d i n s i d e b u i l d i n g 669. When t h e A i r F o r c e v a c a t e d t h e

b a s e i n 1 9 6 9 an i n v e n t o r y o f t h e f u e l t a n k s was d o n e a n d t h e

six tanks under building 669 were labeled "pickled."

Pickling i s a p r o c e s s by w h i c h t h e f u e l t a n k s a r e e m p t i e d ,
cleaned and filled with a mixture of caustic soda and water
to prevent rusting. However in the spring of 1979, a VIP
maintenance man discovered that four of the six tanks under
building 669 had fuel in them. It is conceded that the fuel
had been there since 1969, had been left there by the Air
Force and existed to the ignorance of all concerned.
Appellant ordered that samples of the fuel be
extracted from the tanks. VIP maintenance employees
extracted samples from the four tanks and gave the samples
to appellant. Appellant and another VIP employee took the
samples to Wolf Point to be tested, and it was found that
the fuel was usable JP-4 jet fuel. Appellant then ordered
the fuel to be transferred to the tanks under building 649.
The tanks and pump station under building 649 had been
depickled earlier in the year and were being used to store
fuel for Boeing. Boeing was using the base as a refueling
stop for their training flights. Since the pumps in
building 669 had been stripped of most of their parts,
appellant ordered a new portable pump for this purpose which
was purchased at VIP's expense. In early 1980, the
approximately 200,000 gallons of fuel were pumped from
building 669 to building 649 by VIP maintenance employees.
At approximately the same time, appellant informed the
board of directors of VIP about the existence of the fuel.
He told them Boeing was interested in purchasing the fuel
but also said it would be very difficult to obtain insurance
for the fuel. It is standard practice in the aircraft
industry to obtain liability insurance in case bad fuel is
sold and personal injuries or property damage result. The
chairman of the board testified that he still told appellant
to market the fuel for VIP. The board pursued the
possibility of obtaining insurance to sell the fuel, but
when appellant was told insurance could be purchased for VIP
he told the board that Boeing was no longer interested in
buying the fuel. Later in 1980 appellant informed the board
that he had sold the fuel and credited VIP's accounts with
approximately $100,000, but because of the liability
problem, it would not appear in their books.
Prior to this, while the pumping was being done,
appellant tried to start his own fueling corporation. He
first approached three maintenance employees of VIP and
asked if they would be interested in forming a corporation
to sell the discovered fuel. The employees testified that
appellant told them the fuel belonged to VIP. They were
also told to bank out of town and not make any purchases
which would draw attention to themselves. The three men
testified they declined the offer because they were uneasy
about ownership of the fuel. Holmes then approached Leonard
Lane, comptroller for VIP, who agreed to incorporate with
Holmes to sell the fuel. The two incorporated Aero Fuels,
Inc.
Appellant informed Boeing that he and some Glasgow
businessmen had bought 200,000 gallons of JP-4 fuel on
speculation and were willing to sell it. The fuel was sold
to Boeing. The crew supervisor from Boeing telephoned Lane
when he received the bill from Aero Fuels and asked Lane who
Aero Fuels was. Lane informed him it was a group of Glasgow
businessmen who had purchased the fuel. In all Boeing paid
Aero Fuels over $194,000 for the fuel. The money was
deposited in Aero Fuels' accounts in Billings, Great Falls
and Williston, North Dakota.

Appellant was charged by information on November 5,
1982 with the theft of the JP-4 fuel having a value of
$194,098.88. The information stated that Valley County
through VIP was the owner of the fuel, and the affidavit
supporting the information stated ownership had been gained
by virtue of a deed from the General Services
Administration. Appellant pled not guilty and a trial date
was set.
Prior to the trial, appellant moved to suppress
evidence which was obtained by the prosecution prior to the
information being filed. The prosecution had obtained

appellant's bank records by means of investigative subpoenas
and an order of seizure issued by Judge M. James Sorte. The
motion to suppress was made on the basis that Judge Sorte
did not have jurisdiction to issue the subpoenas because he
presided over the District Court of the Fifteenth Judicial
District and the crimes occurred in the Seventeenth Judicial

District. The motion to suppress was denied.
A jury trial was held from May 16 to May 20, 1983, and
appellant was found guilty. The court sentenced him to ten
years with five suspended, and ordered that he make
restitution in the amount of $160,000. This appeal follows.
Appellant raises the following six issues for our

consideration:
(1) Did the District Court lack jurisdiction to hear

the case and issue final orders as the presiding judge was
retired Judge Nat Allen?
(2) Did the District Court err in denying appellant's
motion to suppress?
 ( 3 ) Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g a p p e l l a n t ' s

motion to dismiss on the grounds that t h e r e was a fatal
v a r i a n c e b e t w e e n t h e c h a r g e s p r e s e n t e d and t h e c a s e p r o v e n

at trial?
(4) Did the evidence establish that the fuel was
a b a n d o n e d and t h a t a p p e l l a n t , a s f i n d e r , t o o k p o s s e s s i o n ?
(5) Did the State prove the necessary intent to

sustain a t h e f t conviction?
( 6 ) Did t h e D i s t r i c t C o u r t e r r i n i t s r e f u s a l t o g i v e

c e r t a i n of a p p e l l a n t ' s p r o p o s e d i n s t r u c t i o n s ?
The f i r s t i s s u e h a s a l r e a d y b e e n d i s p o s e d of by o u r

decision in State ex. rel. Wilcox and Bradley v. The
D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t . (Mont.
1 9 8 4 ) , 678 P.2d 209, 41 S t . R e p . 397. J u d g e A l l e n was c a l l e d
in under the constitutional power recognized in Wilcox,
supra. T h u s h e p r o p e r l y assumed f u l l j u r i s d i c t i o n o v e r t h e
c a s e , i n c l u d i n g t h e power t o i s s u e f i n a l o r d e r s .

Appellant next contends t h e District Court e r r e d in
denying his motion to suppress the fruits of the

i n v e s t i g a t i v e s u b p o e n a s and o r d e r o f s e i z u r e i s s u e d p r i o r t o
t h e f i l i n g of t h e information i n t h i s case. The o r d e r and

subpoenas were issued by Judge James Sorte, who was
presiding over appellant's trial on a previous criminal
charge in the District Court of the Seventeenth J u d i c i a l

District. J u d g e S o r t e , who i s t h e e l e c t e d D i s t r i c t J u d g e o f
the Fifteenth Judicial District, was called in by Judge
Leonard Langen who i s t h e e l e c t e d D i s t r i c t J u d g e for the
Seventeenth J u d i c i a l District. Appellant argues t h a t Judge
S o r t e d i d n o t have j u r i s d i c t i o n t o issue t h e subpoenas o r
o r d e r of seizure, s i n c e he sits i n t h e F i f t e e n t h J u d i c i a l
D i s t r i c t and t h e c r i m e o c c u r r e d i n t h e S e v e n t e e n t h J u d i c i a l

District.

Appellant's contention is not well taken. Section

45-4-301, MCA, states:

"Whenever t h e a t t o r n e y g e n e r a l o r c o u n t y
attorney has a duty t o investigate
a l l e g e d u n l a w f u l a c t i v i t y , any j u s t i c e of
t h e supreme c o u r t o r d i s t r i c t c o u r t judge
o f t h i s s t a t e mav c a u s e s u b ~ o e n a s t o be
i s s u e d commandi& t h e p e r i o n s t o whom
they a r e d i r e c t e d t o appear before t h e
attorney general or the county attorney
and g i v e t e s t i m o n y and p r o d u c e s u c h
books, r e c o r d s , p a p e r s , documents, and
o t h e r o b j e c t s a s may be n e c e s s a r y and
proper t o t h e i n v e s t i g a t i o n . " (Emphasis
supplied ) .
The plain language of this statute vests every

d i s t r i c t c o u r t judge w i t h t h e power to issue investigative

s u b p o e n a s w i t h no j u r i s d i c t i o n a l limitation. There simply

is no r e q u i r e m e n t , e x p l i c i t o r i m p l i c i t , t h a t t h e s u b p o e n a b e

i s s u e d by t h e s i t t i n g j u d g e o f t h e d i s t r i c t where t h e crime

allegedly occurred. A p p e l l a n t h a s r e a d t h e venue s t a t u t e s

i n t o s e c t i o n 46-4-301, MCA, which b a s i c a l l y p r o v i d e t h a t a

c r i m i n a l t r i a l s h a l l be h e l d i n t h e c o u n t y where t h e o f f e n s e

was c o m m i t t e d . S e e s e c t i o n 46-3-101, MCA e t . seq. He thus

concludes t h a t if t h e s u b p o e n a was i s s u e d by a n y o n e o t h e r

than the d i s t r i c t court judge sitting in t h e c o u n t y where

the offense allegedly occurred, i t was issued by a judge

without jurisdiction. However there is a considerable

difference between venue and jurisdiction. "The

jurisdiction of the judges of the district courts of the

S t a t e of Montana. . . [ i s ] coextensive with the boundaries

of the State of Montana. . ." Section 3-5-312, MCA,

(Emphasis s u p p l i e d ) . " J u r i s d i c t i o n is t h e a u t h o r i t y t o hear

.and d e t e r m i n e a cause. Venue is the place of trial."
S t a n t o n T r u s t and S a v i n g s Bank v . J o h n s o n ( 1 9 3 7 ) , 1 0 4 Mont.

235 a t 238, 65 P.2d 1188 a t 1189. Jurisdictional authority

i s g r a n t e d by law. State ex rel. J o h n s o n v. D i s t r i c t C o u r t

(1966), 1 4 7 Mont. 263, 410 P.2d 933. There is no v e n u e

problem h e r e b e c a u s e t h e subpoenas were issued before the

information was even filed. The jurisdictional power or

a u t h o r i t y t o i s s u e i n v e s t i g a t i v e s u b p o e n a s i s g r a n t e d by law

through s e c t i o n 46-4-301, MCA. Since the jurisdiction of

each d i s t r i c t c o u r t is c o e x t e n s i v e w i t h t h e boundaries of

the s t a t e , s o is t h e power of e a c h d i s t r i c t c o u r t t o i s s u e

i n v e s t i g a t i v e subpoenas c o e x t e n s i v e w i t h t h e b o u n d a r i e s of

the s t a t e .

Appellant next contends that there was a fatal

variance between the i n f o r m a t i o n and the State's proof at

t r i a l , which r e q u i r e s t h e c h a r g e s be d i s m i s s e d . The b a s i s

of t h i s c o n t e n t i o n is t h a t w h i l e t h e a f f i d a v i t i n s u p p o r t o f

t h e i n f o r m a t i o n a l l e g e d t h a t VIP owned t h e f u e l by v i r t u e of

a d e e d from t h e U.S. Government, a t t r i a l t h e y a t t e m p t e d t o

p r o v e o w n e r s h i p by p o s s e s s i o n .

Generally, the information charging a party with a

c s i m e must s t a t e , "[Tlhe f a c t s c o n s t i t u t i n g the offense i n

o r d i n a r y and c o n c i s e l a n g u a g e and in such a manner as to

enable a person of common understanding to know what is

intended." Section 4 6 - 1 - 4 O l ( l ) ( c ) ( i i i ) . The a l l e g a t i o n s

contained therein and the proof must correspond for the

d e f e n d a n t t o be p r o p e r l y c o n v i c t e d . S t a t e v. R i n d a l ( 1 9 6 5 ) ,

146 Mont. 64, 404 P.2d 327. This r u l e was d e v e l o p e d to

p r o t e c t t h e d e f e n d a n t f r o m b e i n g m i s l e d a t t r i a l and twice

prosecuted for t h e same c r i m e . Rindal, supra. Unless t h e

variance between the allegations and proof prejudice a
s u b s t a n t i a l r i g h t of t h e d e f e n d a n t , t h e c h a r g e s h o u l d n o t be

dismissed. S e c t i o n 46-11-403(3), MCA.

Appellant claims he was prejudiced by the State's

reliance on p r o o f of o w n e r s h i p by p o s s e s s i o n rather than
proof of o w n e r s h i p by title as alleged in the affidavit
supporting the information. H e a r g u e s t h i s was a s h i f t i n

t h e o r y which did not a l l o w him to adequately defend the

charge. This argument is not persuasive. O w n e r s h i p by
title is not required under the criminal statutes of

Montana. The d e f i n i t i o n o f owner w h i c h is a p p l i c a b l e i n
t h i s c a s e i s c o n t a i n e d i n s e c t i o n 45-2-101, MCA:

" ( 4 6 ) ' o w n e r ' means a p e r s o n o t h e r t h a n
t h e o f f e n d e r who h a s p o s s e s s i o n o f o r a n y
other i n t e r e s t i n the property involved,
even though such i n t e r e s t o r p o s s e s s i o n
is u n l a w f u l , and w i t h o u t whose c o n s e n t
t h e o f f e n d e r h a s no a u t h o r i t y t o e x e r t
c o n t r o l over t h e property."
Under t h i s d e f i n i t i o n , t h e S t a t e was r e q u i r e d o n l y t o

prove t h a t VIP had p o s s e s s i o n of the fuel. As discussed

above, the fuel was found in VIP-owned tanks, and VIP
exercised c o n t r o l over it t h r o u g h i t s e m p l o y e e s , including
the appellant. The p r o o f i s c l e a r l y s u f f i c i e n t t o e s t a b l i s h
that VIP had possession of the fuel and without VIP's
consent, the appellant had no authority to exert control

over t h e f u e l . That meets the d e f i n i t i o n a l requirements o f
s e c t i o n 45-2-101 ( 46 ) , MCA.
A s noted above, t h e purpose of r e q u i r i n g t h e proof t o

c o r r e s p o n d w i t h t h e a l l e g a t i o n s is t o p r o t e c t t h e d e f e n d a n t
f r o m b e i n g m i s l e d a t t r i a l and f r o m b e i n g p r o s e c u t e d twice
for t h e same o f f e n s e . Rindal, supra. Any c h a n g e made b y
the State here did not prejudice appellant's defense or
mislead him. At trial, a p p e l l a n t contended t h e f u e l was
a b a n d o n e d by t h e f e d e r a l g o v e r n m e n t , and r i g h t f u l l y f o u n d by

him. T h i s d e f e n s e t h e o r y was b a s e d on t h e a c t s of a p p e l l a n t

h i m s e l f and d e p e n d e d i n no way upon t h e method VIP o b t a i n e d

o w n e r s h i p of t h e f u e l . The f o c u s was on abandonment o f t h e

fuel or how i t was disposed of, rather than on how VIP

obtained it. Likewise, the possibility of a subsequent

p r o s e c u t i o n f o r t h e f t of t h e same f u e l is n o t p r e s e n t h e r e .

O w n e r s h i p of t h e f u e l h a s been s u f f i c i e n t l y e s t a b l i s h e d i n

V I P t o a l l e v i a t e t h i s danger. I n sum, any v a r i a t i o n b e t w e e n

t h e proof and t h e i n f o r m a t i o n i s minor and d o e s n o t r e q u i r e

d i s m i s s a l of t h e c h a r g e s . No s u b s t a n t i a l r i g h t o f a p p e l l a n t

h a s been p r e j u d i c e d .

A p p e l l a n t n e x t c o n t e n d s t h a t t h e f u e l was a b a n d o n e d by

t h e U.S. Government which a p p e l l a n t was e n t i t l e d t o f i n d and

sell for his own profit. In its best light, this

i n t e r p r e t a t i o n of t h e f a c t s is s p e c i o u s . I n its worst l i g h t

i t c o u l d be termed b l a t a n t l y m i s l e a d i n g . Appellant contends

t h a t the U.S. Government abandoned t h e f u e l b e c a u s e i t had

no intention of going back for it. However, abandonment

nust be of a known right. Hilyard v. Engel ( 1 9 4 9 ) , 123

Mont. 20, 209 P.2d 895. A p p e l l a n t ' s own w i t n e s s e s e s t a b l i s h

t h a t t h e A i r F o r c e d i d n o t know t h e f u e l e x i s t e d , s o i t was

n o t a known r i g h t t h e y r e l i n q u i s h e d . Also, even i f t h e f u e l

was a b a n d o n e d , t h e VIP e m p l o y e e s f o u n d t h e f u e l i n VIP owned

t a n k s and e x e r c i s e d c o n t r o l o v e r i t , n o t a p p e l l a n t h i m s e l f .

The VIP maintenance men found the fuel. They withdrew

s a m p l e s , and a p p e l l a n t a l o n g w i t h a co-worker took t h e f u e l

t o be tested at a cost of almost $800 t o VIP. The pump

which was p u r c h a s e d t o move t h e f u e l was b o u g h t by VIP a t a

cost of over $600. VIP employees moved the fuel to
d i f f e r e n t tanks. A p p e l l a n t ' s a s s e r t i o n t h a t V I P may h a v e a

civil action against him for the cost of these services

misses the point. The point is that VIP through its

employees, including appellant acting as a VIP employee,

took c o n t r o l over t h e f u e l . Appellant's abandonment t h e o r y

i s n o t b o r n e o u t by t h e u n c o n t r a d i c t e d f a c t s o f t h e c a s e .
The n e x t i s s u e c o n c e r n s a p p e l l a n t ' s i n t e n t ; two e r r o r s

are alleged here. F i r s t , appellant argues t h a t the D i s t r i c t

C o u r t e r r e d by n o t i n s t r u c t i n g t h e j u r y t h a t t h e y m u s t f i n d

a bad o r e v i l i n t e n t on h i s p a r t t o c o n v i c t him. Second, h e

a s s e r t s t h a t t h e f a c t s w i l l not bear o u t such a f i n d i n g .

This Court has o f t e n held t h a t g i v i n g i n s t r u c t i o n s on

intent using the statutory definitions of "knowledge" and

"purpose" eliminates the need for further intent

instructions. S t a t e v. Mlein ( 1 9 7 6 ) , 1 6 9 Mont. 350, 547

P.2d 75, and S t a t e v. Jackson ( 1 9 7 9 ) , 1 8 0 Mont. 195, 589

P.2d 1009. Here t h e D i s t r i c t C o u r t d i d e x a c t l y t h a t , and

c o r r e c t l y refused appellant's offered i n s t r u c t i o n s on e v i l

intent. Whether t h e e v i d e n c e would h a v e b e e n s u f f i c i e n t t o

f i n d a n e v i l i n t e n t o r n o t is i n c o n s e q u e n t i a l . The j u r y was

properly instructed and resolved this question of fact

against appellant. T h e r e is c l e a r l y s u f f i c i e n t e v i d e n c e t o

support t h i s finding.

F i n a l l y , a p p e l l a n t p o i n t s t o twenty one proposed j u r y

i n s t r u c t i o n s he contends were improperly r e f u s e d . W e have

reviewed the proposed instructions submitted by appellant

and compared them w i t h t h o s e g i v e n by t h e t r i a l c o u r t . The

i n s t r u c t i o n s given a s a whole, a c c u r a t e 1 . y and f a i r l y s t a t e

the law, which is c o n s i s t e n t w i t h t h e r e q u i r e m e n t s of t h i s
Court. S t a t e v. Anderson ( 1 9 7 6 ) , 1 7 1 Mont. 188, 557 P.2d
795. Appellant has failed to show how n o t giving these

i n s t r u c t i o n s p r e j u d i c e d him i n a n y way. The D i s t r i c t C o u r t

p r o p e r l y r e f u s e d them a s r e p e t i t i o u s and a s comments on t h e

evidence.

A £ f irmed.

W e concur:

34d&ca/!&'
Chief J u s t i c e

Justices