No. 83-144
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILLIAM JOHN GLADUE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.
COUNSEL OF -CORD:
For Appellant:
Michael S. Smartt, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Submitted on Briefs: January 26, 1984
Decided: April 19, 1984
Filed: ,\PR :- 1984
J
-
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
PROCEDURE :
Defendant William John Gladue appeals from judgment of
conviction on counts of criminal mischief and attempted
burglary entered by the District Court of the Eighth Judicial
District. Gladue was sentenced to two concurrent ten (10)
year terms for the felony convictions and received an
additional five-year sentence for his status as a persistent
felony offender.
FACTS :
The Great Falls Police Department received a call
shortly after 4:00 a.m., May 23, 1982, reporting a burglary
was in progress at the Sports Room Bar. The responding
officer parked his patrol car and walked to a vantage point
where he could observe the bar. He heard loud banging noises
coming from the vicinity of the Sports Room Bar and witnessed
two individuals on the roof of the business establishment,
neither of whom he could identify. It appeared that one
acted as a "lookout", while the other man was banging on the
air conditioning vents. Likewise, the second responding
officer observed two individuals on the roof of the subject
building, but was unable to specifically identify either of
them other than both were male.
The suspects made an attempted escape from the scene
shortly after the second officer arrived. Both officers
followed in pursuit and ordered the suspects to halt. One
suspect (later identified as David Alan Lapier) stopped in
response to this command and was arrested.
The chase and apprehension of the other suspect
eventually resulted in the arrest of the defendant, William
Gladue. Ignoring the policemen's order to halt, the second
suspect, who was carrying a crowbar, ran west from the Sports
Room and out of sight around the corner of the neighboring
Darigold building. The record reveals that when the pursuing
officer rounded the corner seconds after the suspect had, the
suspect was nowhere to be seen. The officer immediately
determined the probable path of escape to be toward an area
where numerous large, wooden shipping crates were stored.
Two policemen attempted to contain the area around the crates
and began searching the moving containers. Within fifteen
minutes a Deputy County Sheriff arrived with his tracking
dog. The dog searched the crates and discovered the
defendant hiding in one of the shipping containers. Five to
ten feet from where the defendant was discovered a tire iron
was found on top of a crate.
Another Great Falls officer was dispatched to the scene
for followup investigation, documentary photographing and
analysis of evidence. While fingerprints and footprints were
found at the scene of the crime, none were positively matched
to the defendant.
At trial two witnesses testified for the defense: the
defendant and Brooke Trainor, the defendant's girlfriend.
Both defense witnesses agreed that the evening of May 22,
1982 sta.rted at the Gaslight Bar where the defendant and
Brooke met friends including David Lapier, the first suspect
arrested at the scene of the crime. Subsequently, the
defendant and Trainor, along with David Lapier, attended an
after-hours party in the home of another friend. Gladue and
Trainor began to argue and then left the party bound for a
Circle K store to purchase cigarettes. As a result of their
continuing argument Gladue and Trainor parted company;
consequently, Trainor's testimony does not corroborate the
defendant's explanation of his activities prior to being
found in the moving crates. While waiting outside the store
for Gladue, Trainor started talking with another man and
ultimately left the Circle K with him in his car. The
defendant claims he followed Trainor and her new companion on
his motorcycle. He stated that he parked outside an
apartment building he suspected they entered and waited.
Gladue then saw a police cruiser. Thinking he would be
arrested for either his intoxication or a delinquent traffic
violation, the defendant ran across the street and hid in the
moving crates where he was later detected by the police dog
and arrested.
The appellant presents two issues:
ISSUE NO. I:
Is the evidence sufficient to sustain a conviction of
the defendant for the crimes of attempt (burglary), a felony,
and of criminal mischief, a felony?
ISSUE NO. 11:
Does a prior, unrevoked deferred imposition of sentence
for a felony constitute a previous "conviction" for purposes
of Montana's persistent felony offender statutes; and, if
not, was Gladue improperly determined to be a persistent
felony offender and thus improperly sentenced as such?
The defendant contends that the State's evidence at
trial was insufficient to sustain a finding of guilt.
Defendant's position is: that police officers at the scene
were unable to identify their suspects until after they were
in custody; that, while fingerprints and shoe/boot/footprints
were found at the scene of the crime, none of such prints
were determined to belong to Gladue; that the record is
devoid of evidence that Gladue was with the co-defendant
Lapier at the time Lapier (admittedly) committed the crimes;
that the evidence is uncontroverted that Gladue was
physically inca.pable of making an escape in the fashion that
the police officers described; that it is pure speculation
that the tire iron, found in the vicinity where Gladue was
discovered, was the instrument used by the suspects in the
perpetration of their crime; and, that the record does not
show "purpose" in the attempted burglary. Consequently, the
verdicts of guilty must be reversed and the charges against
Gladue must be dismissed.
A recent synopsis of the case law concerning the issue
of the sufficiency of evidence to sustain a conviction was
enunciated in State - Graham (Mont. 1983), 40 St.Rep. 1499,
vs.
1503, P.2d , as follows:
"The test for the sufficiency of the evidence to
support the judgment of conviction is whether there
is substantial evidence to support the conviction,
viewed in a light most favorable to the State.
State v. Lamb (Mont. 1982), 646 P.2d 516, 39
St.Rep. 1021. The resolution of factual matters is
for the jury, and if there is substantial evidence
to support the judgment, this Court must affirm the
decision of the jury. State v. Hardy (Mont. 1980),
604 P.2d 792, 37 St.Rep. 1. Disputed questions of
fact and the credibility of witnesses will not be
considered on appeal. State v. DeGeorge (1977),
173 Mont. 35, 566 P.2d 59."
Furthermore, the rule has long been established in
Montana that use of circumstantial evidence is an acceptable
and often convincing method of proving criminal intent. As
we restated in Sta.te v. Pascgo (1977), I73 Mont. 121, 126,
566 P.2d 802 citing State v. Farnes, 171 Mont. 368, 558 P.2d
"The element of felonious intent in every contested
criminal case must necessarily be determined from
the facts and circumstances of the particular case,
this for the reason that criminal intent, being a
state of mind, is rarely susceptible of direct or
positive proof and therefore must usually be
inferred from the facts testified to by witnesses
and the circumstances as developed by the
evidence."
The jury considered the testimony and evidence presented
along with the defendant's version of the incident and
concluded that the defendant committed the crimes. There
was substantial evidence to support the jury's conclusion.
The defendant claims that his prior deferred imposition
of sentence was erroneously considered a "conviction" and he
was improperly classified as a persistent felony offender
pursuant to section 46-18-501, MCA. In 1978 Gladue was
adjudged guilty of two felony counts, burglary and theft.
The district court judge gave Gladue a three-year deferred
imposition of sentence. While the record reflects Gladue's
successful completion and final termination of the deferred
imposition of sentence, there is no evidence of record to
indicate whether or not the defendant's guilty plea was
withdrawn or the verdict of guilty removed, or the criminal
charges dismissed from Gladue's record pursuant to section
46-18-204, MCA.
On appeal, the defendant maintains that even though this
prior unrevoked, expired deferred imposition of sentence was
not subjected to the dismissal provisions of section
46-18-204, this administrative oversite should not prevent
him from the benefits afforded him if the charges against him
had been dismissed upon proper motion.
This Court addressed the intent of the legislature in
regard to deferred imposition of a sentence in the context of
section 46-18-204, MCA:
" . . . At the termination of the time of deferment
or stayed imposition, section 95-2207, R.C.M. 1947,
authorizes the court to accept a plea withdrawal or
to strike the verdict of guilty and order the
charge dismissed.
"The passage of section 95-2207, R.C.M. 1947,
demonstrates the intent of the legislature in
regard to deferred imposition of sentence. If
sentence were imposed or executed in any part, then
the end advantage to the entire concept of the
deferred sentence could not be attained and section
95-2207 would become inoperative." State v. Drew
(1971), 158 Mont. 214, 217, 490 P.2d 230.
Accordingly, the sentencing issue is remanded to the
district court for a hearing to determine whether defendant
Gladue's prior, expired and unrevoked deferred sentence
should be dismissed pursuant to 46-18-204, MCA. If the trial
court determines that the charges should not be removed from
his record then the persistent felony offender designation
remains intact and the sentence unchanged. However, if the
lower court allows the dismissal of charges for the previous
1978 felonies, then the defendant has no "conviction" as
contemplated by the persistent felony offender statute and he
shall be resentenced accordingly.
The conviction for defendant's commission of attempted
burglary and criminal mischief is affirmed. The sentence
based on designation of persistent felony offender is
remanded for hearing.
We concur:
Chief Justice, - \