NO. 83-230
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TIMOTHY E. DESS and RONALD X. HAAS,
Defendants and Appellants.
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 RECORD:
For Appellants:
John Keith, Great Falls (Dess)
Ralph T. Randono, Great Falls, Montana (Haas)
For Respondent :
Iion. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Submitted on Briefs: November 3, 1983
Decided: January 12, 1984
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendants Timothy E. Dess (Dess) and Ronald E. Haas
(Haas) appeal their convictions for felony theft by iury
trial in the Eighth Judicial District Court, Cascade County.
We affirm.
On September 7, 1982, a witness observed two ten-speed
bicycles parked on the sidewalk, leaning against the window
of a cafe. The bicycles had been left there earlier by two
teenage girls who were inside the cafe. The witness heard a
male voice ,yelling "steal the bikes." The voice came from
the direction of the alley where the Driftwood Bar was
located. The witness observed a young man, later identified
as Travis Owens, and another man, later identified as
defendant Haas, take the bikes and ride away. Both men rode
off in the same direction, north towards Great Falls. They
were followed by a white station wagon driven by a man later
identified as defendant Dess, accompanied by a young woman
later identified as Yvette Rambo. Yvette Rambo and Travis
Owens testified that they had been in the Driftwood Bar with
Dess and Haas. Susan Pettit, the owner of the bikes,
reported the theft and described the bikes to the Cascade
Marshal.
A local rancher, Chester Brown, was in the cafe with two
other gentlemen when they heard about the theft and the
involvement of a white station wagon. The three men drove
northwest on their way out of town and noticed a white
station wagon parked near the stockyards. As they approached
the station wagon, it began to drive off. The men observed a
red bicycle in the back of the car. Mr. Brown drove around
the vehicle to stop it, and a conversation ensued between him
and the three occupants of the car.
The driver, defendant Dess, seemed to be speaking on
behalf of the occupants of the station wagon. When Mr. Brown
asked about the bicycle, he was told that a hitchhiker left
his bike in the car and then ran away. Defendant Dess said
for the men to "take the bike and leave us alone."
Eventually, the bike was put in Mr. Brown's truck and the two
vehicles headed back into town.
About 200 yards down the road, another bike was lying in
the ditch. Defendant Haas was near this bicycle. The second
bicvcle and Haas were picked up on the wav back to town. The
two vehicles were then taken into town to the city hall where
the marshal was attending a meeting. Susan Pettit identified
the bicycles as hers.
Susan Pettit stated that both of the bikes were used
when she received them from her brothers. One bicycle was a
red Schwinn Traveler, approximately two to three years old.
The other bicycle was a purple or maroon Gamble's model,
approximately four or five years old. The red Schwinn model
would have cost $195.95 at the time it was purchased. The
value of the bicycles is at issue on appeal.
Sherry Yeagley, part owner of the Isler's Keys and
Cyclery, had two years of experience in buying and selling
new and used bicycles. Based upon her examination of the
bicycles, Ms. Yeagley considered the current market value of
the red Schwinn to be $120-$125, and the current market value
of the Gamble's bike to be $40-$60, if the person sold them,
as is, independently of a dealer. She further stated she had
sold two bikes similar to the Gamble's bike for $75.
Reed Jorgenson, manager of Coast-to-Coast Hardware in
Great Falls, also testified as to the value of the bikes
after he had examined them for the defense. Mr. Jorgenson
had eleven years of experience at the hardware store and five
years nonprofessional experience repairing bicycles. His
Coast-to-Coast store buys and sells used bikes. Mr.
Jorgenson said that the Schwinn Traveler was in very
marketable shape and needed a new seat, costing about $7,
plus some basic adjustments in the cables. The Gamble's
bicycle was not as marketable in his opinion, and it needed a
little more adjustment than the Schwinn, plus a shift cable
and handle bar tape.
After doing the repairs, he stated he could sell the
Schwinn for $125 and the Gamble's for $60. If a person were
to sell the bikes independentlv, he thought a "fair asking
price" for the Schwinn was $75-$90, and for the Gamble's
about $40, as is. When asked what value he would report if
the bicycles were repaired and stolen from his store, he
stated he would report $125 for the Schwinn and $60 for the
Gamble's. He then testified:
"But if they were sitting in our back room and they
had not been fixed yet, I feel that I would still
have to report what I would sell them for, because,
you know, that's definitely what they are worth."
The jury was instructed according to the accountability
statute, section 45-2-302, MCA with respect to defendant
Dess.
The District Court denied a pre-trial motion for
separate trials after hearing and filing of briefs. The jury
was instructed that each defendant is entitled to have his
guilt or innocence determined as if he were being tried
separately.
Following a jury trial, the defendants Ronald Haas and
Timothy Dess were convicted of the offense of felony theft
under section 45-6-301 (1)(a), MCA. This appeal follows.
The following issues are raised on appeal.
(1) Whether the jury could rationally find that there
was no reasonable doubt that the value of the stolen property
exceeded $150?
(2) Whether there was sufficient evidence upon which
the jury could infer that Defendant Dess aided in the
commission of the theft of the two bicycles?
(3) Whether the trial court erred in denying Defendant
Dess' motion for a separate trial?
(4) Whether the prosecutor improperly commented on
defendant's failure to testify during closing arguments?
At the time of the offense, Montana law distinguished
felony theft from misdemeanor theft by the standard of a $150
valuation for the stolen property. Section 45-6-301 (5), MCA
(1981). Valuation for this purpose is the market value of
the property. State v. McComas (1931), 89 Mont. 187, 295
P . X 1011.
Dkfendants argue that the evidence does not support a
valuation in excess of $150 beyond a reasonable doubt. We
disagree.
This Court must determine whether there is substantial
evidence supporting the conviction when the evidence is
viewed in the light most favorable to the State. State v.
Austad (Mont. 1982), 641 P.2d 1373, 1389, 39 St.Rep. 356,
376; State v. Wilson (Mont. 1981), 631 P.2d 1273, 1278, 38
St.Rep. 1040, 1047.
In this case the jury was confronted with several values
for the bicycles. It is solely within the province of the
jury to weigh these figures and consider the weight to be
given to the testimony of each of the experts. It is not
unreasonable, given a well supported range of values of $115
to $185, that the jury should find the value to be in excess
of $150.
Nor can we assume the jury failed to find that value
beyond a reasonable doubt. The jury was separately
instructed that, in addition to all the other elements of the
crime, it must find "beyond a reasonable doubt that the bikes
were of a value of more than $150.00" in order to convict
defendants of felony theft.
Defendant Dess challenges the sufficiency of the
evidence to support his conviction for aiding and abetting or
joining with another in a common design or purpose. We find
the following facts to be sufficient evidence, when viewed in
a light most favorable to the State, to support an inference
of both aiding and abetting, and joining in common design or
purpose to commit the offense:
1. Dess was in the company of Haas and Owens
immediately before the theft.
2. Dess was in his white station wagon at the time of
the theft from where one could see the stealing of the
bicycles.
3. A white station wagon was seen following the stolen
bicycles.
4. Dess was found driving his white station wagon, with
one of the bicycles in the back, stopped only 200 yards past
the other bicycle.
There may be insufficient evidence to demonstrate that
Dess exerted physical control over the bikes personally.
Nevertheless, the jury would be warranted in inferring from
these facts that Dess was actively participating in flight
from the scene and/or promoting or participating in the
entire plan or scheme.
Defendant Dess also complains that he was prejudiced by
the District Court's failure to separate his trial from
defendant Haas'. Dess claims that Haas' testimony was
"essential" to his defense.
In order to demonstrate prejudice by the failure to
separate trials, a defendant must show that the
co-defendant's testimony is exculpatory. Byrd v. Wainwright
(5th Cir. 1970), 428 F.2d 1017. At the hearing on the motion
for separate trials, no testimony was presented regarding
what Haas might say that would be exculpatory. There was no
showing that Haas' testimony would be any different from that
of witness Owens.
On the other hand the expedition of the administration
of iustice, the conservation of judicial time, and the
minimization of burdens for jurors and witnesses is well
served by the joinder of the two defendants. State v. Strain
(Mont. 1980), 618 P.2d 331, 337-338, 37 St.Rep. 1763, 1769.
Finally, defendant Dess a.rgues that the prosecutor
improperly commented on defendant's failure to testify by
making the following statement during closing argument:
"Now if this then is the theory, what evidence has
been introduced for you to support this line of
defense? And here is where the questions start to
come. If you are to accept the defendant's theory
of the case, you must accept naturally the
defendant's testimony. In this case, that is the
witnesses who testified for the defendants. That's
the only way you can accept the defendants' theory,
the only way is to buy what they said on the
stand. "
The test of the propriety of the prosecutor's comments
is "whether the languaqe used was manifestly intended or was
of such a character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify." State v. Anderson (1970), 156 Mont.
122, 125, 476 P. 2d 780, 782; State v. Armstrong (1976), 170
Mont. 256, 261, 552 P.2d 616, 619.
When read in the context of the prosecutor's argument,
it is clear that the statement refers to the credibility of
the defense witnesses. Even if the jury were to draw the
remote inference regarding defendant's failure to testify,
any prejudice would be well overcome by the following jury
instruction:
"You are instructed that a Defendant in a criminal
proceeding need not testify and the jury is not
permitted to draw any inference from his failure to
do so. A juror would violate his oath of office if
he would permit his judgment to be influenced by
any inference he may draw from a Defendant's
failure to testify."
The judgment of the District Court is affirmed.
We concur:
Chief Justice