NO. 89-275
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RODNEY ALLEN WEST,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry D. Mansch and David E. Stenerson,
Public Defender's Office, Missoula, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, and
Patricia Schaeffer Jordan, Assistant Attorney
General, Helena, Montana
Robert L. Deschamps 111, County Attorney, and
Fred Van Valkenburg, Deputy County Attorney,
Missoula, Montana
Submitted on Briefs: October 11, 1990
~ecided: November 15, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Rodney Allen West was convicted of felony theft and mis-
demeanor failure to return rented or leased personal property, in
a jury trial in the District Court for the Fourth Judicial
District, Missoula County. He appeals. We affirm.
The issues are:
1. Did the District Court err by allowing evidence of other
crimes in violation of Rule 404(b), M.R.Evid.?
2. Did the court err in ruling West's letter exhibit inadmis-
sible?
3. Did the court err in instructing the jury on accomplice
testimony?
On December 5, 1987, a 1986 red Ford pickup truck was reported
stolen from the lot of Karl Tyler Chevrolet in Missoula, Montana.
Two salesmen thought they had seen the truck on the lot about two
weeks earlier, but the last verifiable date it was on the lot was
September 24, 1987. The pickup was valued at $9,000.
On March 26, 1988, the chief of police at St. Ignatius,
Montana, discovered a red Ford pickup cab dumped near a road. The
vehicle identification number had been torn off, but part of the
number was identified from indentations in the dashboard. That
partial number matched that of the truck missing from Missoula.
Missoula law enforcement officers began an investigation into
purchases by area automobile salvage yards of other parts which
could have been from the missing truck. They discovered that on
2
November 16, 1987, Ace Auto Salvage bought a Ford transfer case and
transmission from a woman, Leslie Galarneau, and two men. On
November 25, 1987, Ace bought a Ford engine and axles from a Bill
Harris. On November 30, 1987, AC Auto Recycling bought two red
truck doors from a Bill Harris. On December 18, 1987, Ace bought
a red tailgate from Kent Hite, one of the two men and a woman who
had come in with the engine. The vehicle identification number of
the stolen truck was found on the engine and on the transfer case.
St. Ignatius police officers knew that West had a history of
vehicle thefts and that he lived on the road where the Ford cab had
been found. They also discovered that Leslie Galarneau lived with
West. A red pickup box had been seen next to West's garage. In
August 1988, a detective with the Missoula police department
obtained a search warrant for West's residence. He found red paint
fragments and pieces of red plastic and foam in the garage which
matched pieces missing from the pickup cab. He also found a
videotape, "The Outlaw Josey Wales,'' which, along with a VCR, had
been stolen from a Missoula video rental store in October 1987.
The movie and VCR had been rented to !'Bill Harris," who had given
a fictitious address.
West was charged with felony theft of the truck and with
felony failure to return the rented videotape and VCR. At trial,
the State produced an I.D. card from the Idaho Transportation
Department. It was issued to I1Bill Harris" but bore a photograph
of West. The card had the same Social Security number and address
3
that had been given to the automobile salvage yards. A handwriting
analyst testified that it was probable that West had signed the
Harris I.D. card, the checks from the salvage yards to "Bill
HarrisIf1
and the video rental agreement.
West presented alibi witnesses as to his whereabouts on the
day the Idaho I.D. was issued, the day the videotape and VCR were
rented, and during the time in which the truck was stolen. Kent
Hite testified that he had not received the tailgate he sold from
West. The jury found West guilty as charged on the truck theft
and, as to the videotape and VCR, guilty of the lesser included
offense of misdemeanor failure to return rented or leased property.
Did the District Court err by allowing evidence of other
crimes in violation of Rule 404(b), M.R.Evid.?
Rule 404(b), M.R.Evid., provides that
[elvidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
In Montana, formal notice must be given before evidence of other
crimes may be introduced at trial. State v. Just (1979), 184 Mont.
In this case, the court issued an order in limine that no
reference was to be made at trial to West's criminal record.
Before trial, however, the court and counsel also discussed the
State's intent to use the testimony of West's probation officer and
certain documents she possessed containing West's handwriting as
evidence that he was the person who had signed "Bill Harris1'on the
Idaho I.D. card and on the checks from the salvage yards.
The testimony of the probation officer, Cheryl Thornton, and
the documents introduced in connection with her testimony were
sanitized at trial. Her occupation was not identified, she stated
only that West was her and all references to probation
were deleted from the documents. Her testimony and those documents
are not raised as grounds for appeal. Rather, the basis for this
issue on appeal is the prosecution's reference to her in closing
argument as ''Cheryl Thornton, [West s] probation officer.If No
objection was made at that time. West now argues that the refer-
ence violated the order in limine, the Just requirements, and Rule
404 (b), M.R.Evid.
Several witnesses for the defense let it slip that West had
been in prison before. In answer to a question about how long her
daughter and West had been married, Leslie Galarneaulsmother said,
"God, when he got out of prison, he come home. I don't remember
how long.'' Kent Hite testified that he was able to recall the date
he went to Missoula with West to hock a rifle (the same day the
videotape and VCR were rented) because "They tried to violate Rod
West for hocking that rifle on October 5th."
Section 46-20-701, MCA, provides that no cause shall be
reversed by reason of trial error against a criminal defendant
unless the record shows that the error was prejudicial to the
defendant. By the time the State's closing argument was made,
several references had been made by West's witnesses to his
criminal record. While we do not approve of it, we hold that the
identification in the State's closing argument of witness Cheryl
Thornton as West's probation officer did not prejudice the defense
and is not reversible error.
I1
Did the court err in ruling West's letter exhibit inadmis-
sible?
The defense attempted to introduce into evidence a letter to
Leslie Galarneau dated December 1987 and signed by Rod West, and
an envelope postmarked December 22, 1987, at Redding, California.
The letter indicated that West had been in California for ap-
proximately a month. Leslie Galarneaulsmother testified that she
picked up the mail including the envelope just before Christmas in
December 1987. However, she could not testify that the letter
arrived inside the envelope because, as she said, she does not read
her daughter's mail. Leslie Galarneau did not testify at trial.
The District Court ruled that in the absence of proof that
the letter arrived inside the envelope, the evidence was irrelevant
and inadmissible. West claims that this was error.
A threshold requirement for admission of a document into
evidence is authentication or identification. Rule 901(a),
M.R.Evid., provides:
The requirement of authentication or iden-
tification as a condition precedent to admis-
sibility is satisfied by evidence sufficient
to support a finding that the matter in ques-
tion is what its proponent claims.
Without any testimony that the letter arrived inside the envelope,
there is no proof that the letter was mailed by West from Redding,
California, on December 22, 1987. We agree with the District Court
that, absent such testimony, the letter and envelope were inadmis-
sible because there was no evidence that they were what their
proponent, West, claimed. We hold that the court did not err in
ruling the letter exhibit inadmissible.
I11
Did the court err in instructing the jury on accomplice
testimony?
This issue relates not to the form of the instruction on ac-
complice testimony but to the fact that such an instruction was
given at all. West argues that because the State did not connect
any of Kent Hitels acts with acts of West, it was error to instruct
the jury that it should view the testimony of Kent Hite with
distrust if they believed he was an accomplice in the theft of the
truck.
In support of his argument, West cites State v. Rodriguez
(1987), 228 Mont. 522, 744 P.2d 875. In that case, the defendant
was convicted of the theft of a Camcorder. At trial, an alleged
accomplice, Art Walker, testified on behalf of the State that he
had sold the stolen camera to a pawn shop and had split the
proceeds with the defendant. He testified that he did not know the
camera was stolen until he went to pick it up from the defendant
prior to the sale. This Court held that Walker was not an ac-
complice with defendant because there was nothing in the record to
connect him with the theft of the camera. Rodriquez, 744 P.2d at
877.
In the present case, the alleged accomplice testified for the
defense rather than for the State. There were no witnesses to the
theft of the truck and there is no direct evidence that Hite was
an accomplice in the theft. However, the evidence showed that he
was with West when parts from the stolen truck were sold. Hite
admitted that he helped West remove a cab from a red truck. The
defense presented testimony at trial that at the time the pickup
cab was dumped, West was in jail (apparently on other charges).
Someone else must have dumped the cab. Also, Hite testified that
he was with West on October 5, 1987, the day the videotape and VCR
were rented in Missoula.
The jury was instructed that
~estimonyhas been presented that the witness
Kent Hite may be an accomplice in this case.
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 the witness Kent Hite was
or was not an accomplice within the meaning of
the law.
The instruction did not require the jury to find that Hite was
West's accomplice. It did require that, if the jury found that
Hite was an accomplice, his testimony must be corroborated by other
evidence.
Because the trial testimony indicated that West had an
accomplice and because Hite is, according to the trial testimony,
a likely candidate for that honor, we conclude that the record
connects Hite's actions with those of West. We hold that the court
did not err in giving the instruction on accomplice testimony.
Affirmed.
dkL
!~+ Chief Justice
We concur: