NO. 88-577
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
S T A T E O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-VS-
DUANE ROBERT LARSON,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: ~ i s t r i c t o u r t of t h e N i n t h ~ u d i c i a l i s t r i c t ,
C ~
I n and f o r t h e C o . u n t y of T e t o n ,
T h e H o n o r a b l e R . D. M c P h i l l i p s , J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
C h a r l e s M. Joslyn, C h o u t e a u , M o n t a n a
For R e s p o n d e n t :
Hon. M a r c R a c i c o t , 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
James Yellowtail, Asst. Atty. General, Helena
R u s s e l l R. A n d r e w s , T e t o n C o u n t y A t t o r n e y , C h o u t e a . ~ ,
Montana
S u b m i t t e d on ~ r i e f s : O c t . 25, 1989
Decided: D e c e m b e r 8, 1989
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Duane Robert Larson appeals from his conviction of burglary
and theft (misdemeanor) in a jury trial in the District Court for
the Ninth Judicial District, Teton County. We affirm.
The issues are:
1. Did the District Court err by converting Count I1 from a
charge of felony theft to a charge of misdemeanor theft?
2. Was sufficient proof of ownership of the property
presented?
3 . Was the jury properly instructed on the offense of theft?
4. Was the jury properly instructed on accomplice testimony?
In October 1985 a quonset shed on the Luinstra farm was broken
into and a Craftsman tool chest, battery charger, and various tools
were stolen. The crime remained unsolved until, two years later,
Larson's wife and teenage stepson reported to a county deputy
sheriff that Larson and the stepson had stolen a tool chest out of
the Luinstrals shed. Larson was charged with the offense in
February 1988.
At trial, the stepson recanted his statement to the deputy
sheriff. He said he had lied because he was angry with Larson.
However, Larson's wife's uncle testified that sometime in 1986,
Larson had sold him a Craftsman tool chest, some tools, and a
battery charger. These items were placed into evidence. The uncle
testified that Larson had told him that he got the tool chest from
his father, that he had found the tools in various places, and that
he bought the battery charger from a pawnshop. Mike Luinstra
identified the tool chest as the farm's. Sam Luinstra identified
several of the tools and the battery charger as identical to those
which had been stolen.
At the end of trial, the judge reduced the theft charge from
felony to misdemeanor, based on the evidence concerning the value
of the items stolen. The jury returned a verdict of guilty on both
counts. Larson was sentenced to a term of ten years, based in part
upon his previous criminal record.
I
Did the District Court err by converting Count I1 from a
charge of felony theft to a charge of misdemeanor theft?
As stated above, the court reduced this charge after receiving
evidence of the value of the items taken. Larson argues that after
it reduced the theft charge to a misdemeanor, the court was no
longer within its jurisdiction because the statute of limitations
for a misdemeanor is one year under 9 45-1-205 (2)(b), MCA. The
crime occurred in October 1985 and the information was filed
against Larson on February 17, 1988.
As a general rule, a defendant may not be convicted of a
lesser included offense when the statute of limitations has run on
that offense but not on the larger offense charged. a, Criminal
Law Commission Comments, 9 45-1-205, MCA. However, in this case,
no objection was made in the lower court to reduction of the theft
charge to a misdemeanor, nor was objection made to the instruction
on misdemeanor theft. The question then becomes whether it is too
late for Larson to bring this claim. The State points out that
this Court has categorized statutes of limitation as a defense
which is waived if not raised before conviction. State v. Atlas
(1926), 75 Mont. 547, 244 P. 477. But, this Court has more
recently held that the statute of limitations is a jurisdictional
issue. Milarovich v. Milarovich (1982), 201 Mont. 332, 334, 655
P.2d 963, 964, affld after remand, 215 Mont. 367, 697 P.2d 927.
Therefore, 5 46-20-701(2), MCA, governs.
(2) Any error, defect, irregularity, or vari-
ance which does not affect substantial rights
shall be disregarded. No claim alleging an
error affecting jurisdictional or constitu-
tional rights may be noticed on appeal, if the
alleged error was not objected to as provided
in 46-20-104, unless the defendant establishes
that the error was prejudicial as to his guilt
or punishment and that:
(a) the right asserted in the claim did not
exist at the time of the trial and has been
determined to be retroactive in its applica-
tion;
(b) the prosecutor, the judge, or a law en-
forcement agency suppressed evidence from the
defendant or his attorney that prevented the
claim from being raised and disposed of; or
(c) material and controlling facts upon which
the claim is predicated were not known to the
defendant or his attorney and could not have
been ascertained by the exercise of reasonable
diligence.
The statute requires both that the error was prejudicial to
defendant s guilt or punishment and that condition (a), (b), or (c)
was met. Larson has not presented any argument that his claim
qualifies under (a), (b), or (c) as one not required to have been
raised at trial. We conclude that this claim is precluded because
it is raised for the first time on appeal.
I1
Was sufficient proof of ownership of the property presented?
Larson contends that ownership was not sufficiently proven
because of the sloppiness of the State's proof on whether the
stolen items belonged to Mike Luinstra, Sam Luinstra (Mike's
father), or the corporation, Sam Luinstra & Sons, Inc. The State
argues that proof of possession was sufficient.
In Montana, proof of possession suffices to
prove ownership for purposes of theft. [Cita-
tions omitted.] This is true whether an
individual or a corporation is the owner of
the property.
State v. Johnson (1982), 199 Mont. 211, 217, 646 P.2d 507, 511.
We hold that sufficient proof of ownership of the stolen property
was made in the testimony of Sam and Mike Luinstra that the stolen
property was possessed by them at their farm.
I11
Was the jury properly instructed on the offense of theft?
Larson objects to Instruction No. 15:
To convict the defendant of the charge of
theft, the State must prove the following
elements:
First: That Sam Luinstra and Mike Luinstra
were the owner or owners of the Craftsman 10-
drawer toolbox, with numerous tools, 6 gal-
lons Tru-Value antifreeze, one (1) Hi-Lift
Jack, and one (1) Black and Decker 1/2" drill
in questions [sic]; and
Second: That the defendant purposely or
knowingly obtained or exerted unauthorized
control over the property just described; and
Third: That the defendant had the purpose of
depriving Sam Luinstra and Mike Luinstra of
the property;
If you find from your consideration of all the
evidence that each of these elements has been
proved beyond a reasonable doubt, then you
should find the defendant guilty of misde-
meanor theft.
If, on the other hand, you find from your
consideration of all the evidence that any of
these elements has not been proved beyond a
reasonable doubt, then you should find the
defendant not guilty.
Larson's objection is that the instruction is a comment on the
evidence in that it assumes Sam and Mike Luinstra were the owners
of the property and that the State proved that specific property
had been taken.
Larsonls argument is without merit. The sentence after
llFirstll Instruction No. 15 gave the jury the task of deter-
in
mining whether the State had proven that Sam and Mike Luinstra were
the owners of the property. The sentence after llSecondll gave the
jury the task of determining whether the State had proven that the
specific property had been taken. The next-to-last sentence set
forth the requirement that the State must prove each element of its
case beyond a reasonable doubt. We hold that the court did not err
in giving Instruction No. 15.
IV
Was the jury properly instructed on accomplice testimony?
Larson argues that the jury was not adequately instructed on
what corroboration is and what is required for corroboration of an
accomplicelstestimony. The jury was given the following instruc-
tion regarding the testimony of the accomplice, Larson's stepson:
Testimony has been presented that witness,
Travis McLaughlin, may be an accomplice in
this case. In this respect, you are to be
guided by the following rules of law:
1) An accomplice is one who knowingly and
voluntarily, with common intent with the
principal offender, unites in the commission
of a crime. One may become an accomplice by
being present and joining the criminal act, by
aiding and abetting, with criminal intent,
another in its commission or in being present
by advising and encouraging its commission,
but knowledge and voluntary action are essen-
tial in order to impute guilt.
2) It is a question of fact for the jury to
determine from the evidence and from the law
as given you by the Court, whether or not, in
this particular case, witness, Travis
McLaughlin, was or was not an accomplice
within the meaning of the law.
3 ) The testimony of an accomplice ought to be
viewed with distrust.
4) A conviction cannot be had on the testi-
mony of an accomplice unless he is corrobor-
ated by other evidence which in itself, and
without the aid of the testimony of the accom-
plice, tends to connect the Defendant with the
commission of the offense, and the corrobora-
tion is not sufficient if it merely shows the
commission of the offense or the circumstances
thereof.
This instruction is virtually identical to Instruction NO. 1-012,
Montana Criminal Jury Instructions. Paragraph 4 addresses the
definition of corroboration. It accurately reflects the law as
summarized in State v. Case (1980), 190 Mont. 450, 455-56, 621 p . 2 d
1066, 1070. We hold that the jury was adequately instructed on
accomplice testimony.
We concur: