No. 87-124
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOSEPH EUGENE OLIVER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Stephen C. Moses, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe Roberts, Asst. Atty. General, Helena, Montana
Peter LaPanne, County Attorney, Roundup, Montana
Submitted on Briefs: June 11, 1987
Decided: September 11, 1987
Filed: SEP 11 887
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Joseph Eugene Oliver appeals his conviction
for burglary from the Fourteenth Judicial ~istrict,
Musselshell County. Oliver was sentenced to eight years in
the Montana State Prison with three years suspended.
We affirm.
Three issues are presented for our review:
1. Did the District Court abuse its discretion when it
denied defendant's motion in limine to prohibit testimony of
events which occurred in Helena?
2. Did the District Court abuse its discretion when it
allowed Officer John Hitchcock to testify as an expert?
3. Was there substantial credible evidence to support
the jury's verdict?
On August 20, 1986, defendant and appellant Joseph
Eugene Oliver visited the residence of Robert Smith between
1:00 and 2:00 p.m. The Smith residence is located approxi-
mately five miles from Roundup in Musselshell County. Oliver
was accompanied by his stepfather, Everett Handvold, and both
were friends and acquaintances of Robert Smith and his wife,
LaDonna.
Robert and LaDonna Smith were preparing to leave on a
fishing trip, so the conversation took place in the driveway
and on the front porch. The conversation ended in ten or
fifteen minutes because Smith had loaded his car and was
ready to leave on the fishing trip.
Smith testified at trial the defendant was driving a
green colored older model Ford LTD with a black vinyl top.
Smith also stated, "[Joseph Oliver] is the only friend I have
that comes to visit me and wears tennis shoes."
Robert Smith owned several rifles which were displayed
on a rack in his house. They were: a 1917 Winchester
Enfield; a 7-mm Mauser (WWI German infantry rifle); a
12-gauge Mossberg shotgun; a .22 semi-automatic Marlin; and a
22.250 Remmington Model 788.
Robert and LaDonna Smith testified that both doors to
their residence were locked when they left to go fishing.
They also testified that the doors were locked upon their
return at approximately 10:OO p.m. At 11:30 p.m. the Smiths
discovered that the rifles had been stolen. Since the doors
were locked upon their return, it was apparent that someone
had gained entry to the house by opening and climbing through
a window.
John Hitchcock, deputy sheriff of Musselshell County,
arrived at the crime scene at approximately 11:45 p.m.
Robert Smith and Deputy Hitchcock inspected all possible
entrances into the home. They found an open window in the
rear of the residence with a tennis shoe tread print on the
ground below. Deputy Hitchcock photographed the tennis shoe
tread print. He later matched the photograph to tennis shoes
worn by the defendant.
Sergeant Troy McGee of the Helena police department
testified that he was contacted on August 21, 1986, by Chuck
Lidman, manager of a Helena pawnshop called Alias Smith and
Jones. Lidman reported that a man had been in the pawnshop
trying to pawn some guns. Lidman described the man as ner-
vous, fidgety and stated that the man refused to bring the
guns into the store for inspection. The description of the
guns given by the man matched the general description of the
guns stolen from the Smith residence.
Lidman described the man in the pawnshop as being over
six feet tall, weighing approximately 225 pounds with red
hair, arm tatoos and wearing a Harley Davidson tee-shirt with
"takes guts" on it. Lidman testified the man in the pawn-
shop, whom he later identified as defendant, was driving an
older model green Ford automobile with Illinois license plate
number 505466. Pawnshop employee, Todd Stoos, also identi-
fied defendant as the man in Alias Smith & Jones Pawnshop on
August 21, 1986. Stoos's testimony corroborated testimony of
Chuck Lidman.
On September 5, 1986, defendant was arrested. After
defendant was "booked" into jail, Deputy Hitchcock obtained
one of the tennis shoes he was wearing at the time of his
arrest. Officer Hitchcock performed a detailed comparison of
defendant's tennis shoe and the photograph of the tread print
found outside the bedroom window of the Smith residence. He
concluded the tread pattern of the print and defendant's
tennis shoe were "similar, if not identical."
George Eppers of the Montana Highway Patrol testified
that on July 30, 1986, three weeks prior to the alleged
burglary, he issued a speeding ticket to defendant Joe Oli-
ver. Patrolman Eppers testified that defendant was driving
an older model Ford, green in color, with a black vinyl top.
Patrolman Eppers stated that defendant's license plate number
was Illinois plate number 505606. However, cross-examination
established that the actual number of defendant's license
plate was Illinois license plate number 505466.
Defendant did not testify at trial and called one
witness. Debbie Ritterodt, a dispatcher at the sheriff's
office, testified that when Robert Smith reported the bur-
glary, he stated the defendant had lived with him for the two
or three weeks prior to the crime. Robert Smith denied
making this statement. Smith stated that defendant had
parked his trailer for three or four days at the Smith resi-
dence when defendant first moved to Roundup.
Issue 1
Did the District Court abuse its discretion when it
denied defendant's motion in limine to prohibit testimony of
events which occurred in Helena?
Defendant Oliver contends that evidence of his activi-
ties in Helena following the alleged burglary of the Smith
residence are not relevant to the elements of the crime as
charged. Defendant argues the evidence must be excluded
because it does not conclusively prove that he committed the
burglary.
Relevancy is defined in Rule 401, M.R.Evid., which
provides in pertinent part:
Relevant evidence means evidence having
any tendency to make the existence of
any fact that is of consequence to the
determination of the action more proba-
ble or less probable than it would be
without the evidence.
In State v. Fitzpatrick (19801, 186 Mont. 187, 207, 606
P.2d 1343, 1354, we adopted the Criminal Code Commission
comments:
The test of relevance is whether an item
of evidence will have value, as deter-
mined by logic and experience, in prov-
ing the proposition for which it is
offered. The standard used to measure
this acceptable probative value is "any
tendency to make the existence of any
fact ... more or less probable than it
would be without the evidence." This
standard rejects more stringent ones
which call for evidence to make the fact
or proposition for which it is offered
more probable than any other. It is
meant to allow wide admissibility of
circumstantial evidence limited only by
Rule 403 or other special relevancy
rules in Article IV.
Defendant does not raise Rule 403, M.R.Evid., or any other
relevancy limitation.
At trial, the State introduced undisputed evidence the
defendant had the opportunity to commit the offense. He was
at the Smith residence on the afternoon the guns were stolen
and was aware the Smiths were leaving their residence for a
fishing trip. Secondly, the State presented evidence that
entrance to the Smith residence was gained through a rear
bedroom window. Underneath the window, a tennis shoe print
was found which matched defendant's tennis shoe prints.
Defendant was wearing tennis shoes on the day of the burglary
and was the only person known to the Smiths who had done so
in the area of their house.
The State then produced the evidence at issue: (1)
that a person matching defendant's description and (2) driv-
ing an automobile which matched the description of defen-
dant's automobile (3) attempted to sell guns of the same
general description as those stolen from the Smiths to a
Helena pawnshop. The above-mentioned testimony details
motive, opportunity and evidence that defendant committed the
crime as charged. The evidence in issue is circumstantial.
Circumstantial evidence tends to establish a fact by proving
another which, though true, does not of itself conclusively
establish that fact but affords an inference or presumption
of its existence, 5 26-1-102, MCA. We have approved the use
of circumstantial evidence in criminal convictions. See
State v. Shurtliff (1981), 195 Mont. 213, 218, 635 P.2d 1294,
1297.
Evidence is relevant when it naturally or logically
tends to establish a fact in issue. State v. Fitzpatrick,
186 Mont. at 207, 606 P.2d at 1354. The question of admissi-
bility of evidence must be left to the sound discretion of
the trial court, subject to review only in case of manifest
abuse. Cech v. State (1979), 183 Mont. 75, 89, 604 P.2d 97,
102.
The evidence of defendant ' s activities in Helena natu-
rally or logically establishes an additional fact which
implicates defendant's guilt of the crime as charged. The
trial court properly admitted the evidence.
Issue 2
Did the District Court abuse its discretion when it
permitted Officer John Hitchcock to testify as an expert on
footprints?
Rule 702, M.R.Evid., provides:
If scientific, technical or other spe-
cialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge,
skill, experience, training or education
may testify thereto in the form of an
opinion or otherwise.
Previously, we recognized the need for expert testimony
when identifying characteristics of shoe prints. See, State
v. Smith (1986), 715 P.2d 1301, 1308, 43 St.Rep. 449, 457.
In the issue at hand, Officer John Hitchcock testified
that on August 20, 1986, he photographed the tread print of a
tennis shoe found below an open window located in the rear of
the Smith residence. Officer Hitchcock testified that the
photograph of the tread print found below the Smith's open
window was "similar if not identical" to the tread print of
defendant's tennis shoes. Hitchcock's photographs were
admitted into evidence at trial.
After defendant objected to Officer Hitchcock's opinion
testimony, the State laid a foundation to qualify Hitchcock
as an expert witness. Hitchcock testified he was a
seven-year veteran of the Musselshell County sheriff's
department; that he had received special training in foot-
prints and latent prints and that he attended both the Mon-
tana Law Enforcement Academy's basic and intermediate
training sessions. Officer Hitchcock also stated he had
received training in identifying and securing footprints and
in the observation of individual characteristics of foot-
prints. Finally, Hitchcock testified that he had participat-
ed in several criminal investigations "where the only
physical evidence that was left at a crime scene was foot-
prints" and that the evidence had supported arrests and
convictions.
We have long held the standard for determination of the
qualification of an expert witness is "a matter largely
within the discretion of the trial judge and in the absence
of a showing of abuse, ordinarily will not be disturbed."
Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364,
369, citing Graham v. Richardson (1967), 150 Mont. 270, 285,
435 P.2d 263, 271. The degree of a witness qualification
affects the weight rather than the admissibility of the
testimony. State v. Berg (Mont. 1985), 697 P.2d 1365, 1367,
42 St.Rep. 518, 520.
The State offered a witness with specialized training
in footprints and with practical experience to apply his
education. The District Court found Officer Hitchcock quali-
fied to testify as an expert witness. We hold that the court
did not abuse its discretion when it found Hitchcock quali-
fied to testify as an expert.
Issue 3
Was there substantial credible evidence to support the
jury's verdict?
Defendant argues his conviction is not supported by
substantial evidence because the State did not prove beyond a
reasonable doubt that defendant knowingly entered an occupied
structure with the purpose to commit an offense therein.
Section 46-6-204(l), MCA. Defendant contends the State's
presentation of circumstantial evidence merely shows that
defendant had the opportunity to commit the burglary but
fails to connect defendant to the crime.
The standard for review of the sufficiency of the
evidence is: "Whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. " Jackson v. Virginia (1979), 443
U. S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573. We
defined substantial evidence as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclu-
sion." State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41
St.Rep. 1277, 1289,
After reviewing the record, we hold that substantial
credible evidence was presented to the jury. A summary of
the evidence establishes that defendant was aware that Robert
and LaDonna Smith would be away from their home on the after-
noon of August 20, 1986. Earlier, defendant had expressed
interest in a number of Robert Smith's rifles. Defendant had
also indicated to Smith that he wanted to move from the
Roundup area and needed money to do so.
When the Smiths left to go fishing, the doors to their
residence were locked. The doors were still locked when they
returned. However, a window was ajar and a tennis shoe tread
print was found below the opened window. The tread print
matched that of defendant's tennis shoe.
On the morning following the burglary, the manager of a
Helena pawnshop, Chuck Lidman, and an employee, Todd Stoos,
witnessed the defendant trying to sell guns which matched the
general description of those stolen from the Smith residence.
Stoos and Lidman identified defendant out of a photo lineup.
They described defendant as nervous and fidgety and testified
that defendant refused to bring the guns into the shop for
inspection. Lidman described defendant's automobile as a
green colored older model Ford with a black vinyl top and
Illinois license plate number 505466.
Finally, the State presented evidence that defendant
had been issued a speeding citation three weeks prior to the
burglary. Montana Highway Patrolman George Eppers testified
that defendant was driving a green colored, older model Ford
Galaxy with a black vinyl top and Illinois license plate
number 505606. Although Patrolman Eppers incorrectly record-
ed defendant's license plate number, it is apparent the jury
determined that both Chuck Lidman and Patrolman Eppers ob-
served the same automobile.
In conclusion, the evidence was primarily circumstan-
tial, there being no witnesses to the actual burglary.
However, when the evidence is viewed in a light most favor-
able to the State, it is clear that substantial credible
evidence supports defendant's conviction for burglary. State
v. Atlas (Mont. 1986), 728 P.2d 421, 423, 43 St.Rep. 2042,
2044.
Affirmed.
We concur: