No. 85-548
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
PATRICK C A I N ,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e S e v e n t h 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 C o u n t y of D a w s o n ,
T h e H o n o r a b l e R. C . M c D o n o u g h , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
L a r r y Mansch, Missoula, Montana
F o r Respondent:
Hon. M i k e 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 , M o n t a n a
Dorothy McCarter, Asst. Atty. General, Helena
R i c h a r d A. S i m o n t o n , C o u n t y A t t o r n e y , G l e n d i v e ,
Montana; M a r v i n L. Howe, D e p u t y C o u n t y A t t o r n e y
S u b m i t t e d on B r i e f s : March 21, 1986
Decided: May 1 5 , 1986
F i l e d ..MAY I t 1386
Mr. J u s t i c e Frank B. Morrison, J r . d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant, P a t r i c k Cain, appeals h i s conviction of t h e
o f f e n s e of t h e f t following a jury t r i a l i n t h e Seventh Judi-
cial District Court, County of Dawson. We affirm the
conviction.
O November
n 15, 1984, d e f e n d a n t and B u r l K e i t h Hunter
were arrested and c h a r g e d w i t h the theft of approximately
$19,000 worth of drilling bits from Security Bits of
Glendive, Montana. Hunter pled guilty. Cain pled not
guilty, claiming that he was unaware of any criminal
wrongdoing.
Hunter was t h e s t a t e ' s key w i t n e s s a t C a i n ' s t r i a l . He
testified that he had known defendant for three or four
years. He came t o M i l e s C i t y i n November of 1984 t o v i s i t
w i t h d e f e n d a n t and t o " p a r t y " . While i n M i l e s C i t y , Hunter
drove a three-quarter ton Ford pickup truck belonging to
Eastman Whipstock, an o i l f i e l d company l o c a t e d i n C a s p e r ,
Wyoming.
Hunter f u r t h e r t e s t i f i e d t h a t on November 7 , 1984, a f t e r
d r i n k i n g h e a v i l y , he and Cain a t t e m p t e d t o s t e a l some d r i l l -
i n g b i t s from v a r i o u s d r i l l i n g r i g s . The p l a n f a i l e d . The
n e x t day t h e two went t o G l e n d i v e , Montana, c a l l e d S e c u r i t y
B i t s and a r r a n g e d t o meet i t s r e p r e s e n t a t i v e a t t h e shop i n
o r d e r t o p r o c u r e some b i t s .
A l l a n Swenson, s a l e s manager f o r S e c u r i t y B i t s , was o u t
of town f o r t h e weekend. Melvin McDanold had a g r e e d t o b e
"on c a l l " f o r Swenson i n t h e e v e n t someone wished t o make a
purchase from the shop. McDanold and a friend, Danny
G r i g s b y , met Hunter and d e f e n d a n t a t t h e shop. Hunter t e s t i -
f i e d t h a t he t h e n " t o o k c h a r g e " . H e t o l d McDanold t h a t h i s
name was Wayne Harther, he worked for an oil company
out-of-state and h e needed t o p u r c h a s e c e r t a i n d r i l l b i t s .
E i g h t b i t s were t h e n s e l e c t e d and loaded i n t o H u n t e r ' s t r u c k .
Hunter s i g n e d an i n v o i c e f o r t h e b i t s u s i n g h i s assumed name,
Wayne Harther. Thereafter, according to Hunter, he and
d e f e n d a n t went t o G e t t y s b u r g , South Dakota, where t h e y s o l d
t h e e i g h t d r i l l b i t s f o r $1900. The money was d i v i d e d e q u a l -
l y between t h e two and t h e y r e t u r n e d t o M i l e s C i t y .
Other witnesses for the State substantiated most of
Hunter's testimony. McDanold testified that a "Wayne
Harther" (Hunter) had c a l l e d November 8 , 1984, and s t a t e d he
worked a t C o a s t a l O i l and Gas and needed some d r i l l i n g b i t s .
Hunter and a second i n d i v i d u a l ( d e f e n d a n t ) m e t McDanold a t
the shop. Hunter introduced himself as Wayne Harther.
McDanold was u n s u r e whether d e f e n d a n t was p r e s e n t a t t h e t i m e
of the i n t r o d u c t i o n b u t was f a i r l y c e r t a i n d e f e n d a n t c o u l d
have heard the introduction. Hunter was definitely in
charge. Defendant was l1 just there". A f t e r t h e b i t s were
located, Hunter signed the invoice as Wayne Harther and
departed.
Grigsby, McDanoldls f r i e n d who accompanied him t o t h e
shop, testified that he and d e f e n d a n t had primarily stood
around and t a l k e d w h i l e Hunter and McDanold s e a r c h e d f o r t h e
bits. Hunter a p p e a r e d t o be i n c h a r g e . Grigsby a l s o s t a t e d
t h a t he was u n s u r e whether d e f e n d a n t had h e a r d Hunter i n t r o -
duce h i m s e l f a s H a r t h e r a s d e f e n d a n t might have s t i l l been i n
the truck. A f t e r Hunter s t a t e d h e was from C a s p e r , G r i g s b y
inquired of defendant whether he knew some of Grigsby's
f r i e n d s i n Casper. Defendant s t a t e d t h a t h e had j u s t moved
from Oklahoma. and d i d n o t know anyone.
The remainder o f t h e r e l e v a n t t e s t i m o n y came from a law
officer. Highway Patrolman Warren S c h i f f e r t e s t i f i e d t h a t
a f t e r s t o p p i n g Hunter on November 1 0 , 1984, f o r a s p e e d i n g
v i o l a t i o n , he d i s c o v e r e d t h e t r u c k had been r e p o r t e d s t o l e n
by Eastman Whipstock. Hunter and defendant were both
arrested. Defendant was subsequently released. At the time
of arrest, Hunter had six $100 bills on his person and defen-
dant had large bills totaling at least $250.
At the close of the State's case-in-chief, defendant's
attorney moved for a directed verdict on two grounds: 1) the
State failed to prove its case beyond a reasonable doubt; and
insufficient corroboration of the accomplice, Hunter
testimony. The motion was denied and the trial continued.
Defendant was convicted of theft and received an eight-year
suspended sentence.
On appeal, defendant raises the following issue:
Whether the trial judge erred, pursuant to § 46-16-213,
MCA, in denying defendant's motion for a directed verdict at
the close of the State's case?
Section 46-16-213, MCA, states:
Testimony of person legally accountable. A convic-
tion cannot be had on the testimony of one respon-
sible 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 respon-
sible or legally accountable for the same offense
tends to connect the defendant with the commission
of the offense. The corroboration is not suffi-
cient if it merely shows the commission of the
offense or the circumstances thereof.
Whether evidence is sufficient to corroborate the testi-
mony of an accomplice is a question of law. The evidence
must show more than the fact that a crime was committed. It
must raise more than a suspicion concerning defendant's
involvement in the crime. However, it need not be suffi-
cient, on its face, to support a prima facie case against
defendant. State v. Kemp (19791, 182 Mont. 383, 386 - 3871
597 P.2d 96, 99. The evidence need only "tend to connect"
defendant with the crime. State v. Mitchell (Mont. 1981),
the evidence may be circumstantial and it may come from the
defendant or his witnesses. Kemp, 182 Mont. at 387, 597 P.2d
at 99.
Hunter's testimony implicating defendant was corroborat-
ed by testimony indicating that defendant knew Hunter was
using an alias and testimony suggesting that defendant told
Grigsby he was residing in Casper, Wyoming. Further, it is
undisputed that defendant was at Security Bits at the time
the bits were stolen. Finally, defendant was arrested with
over $200 cash in his pocket on the road between South Dakota
and Miles City two days after the theft. This is consistent
with Hunter's testimony that he and defendant sold the drill
bits in South Dakota for $1900 cash.
The testimony against defendant is circumstantial. But,
as a matter of law, it is not insufficient to corroborate the
accomplice's testimony. The testimony might also be, as
defendant contends, consistent with innocent conduct on the
part of defendant. Defendant ' s mother might have provided
him with money for a job-hunting expedition to South Dakota.
Defendant might not have heard Hunter introduce himself as
Wayne Harther. However, these are factual questions, proper-
ly resolved by the jury. State v. Anderson (1982), 197 Mont.
374, 378, 643 P.2d 564, 566. The trial judge did not err
when he refused to grant defendant's motion for a directed
verdict.
Affirmed.
We concur:
/y'j -
ghief Justice
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