No. 89-412
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID E. RAMSTEAD,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Great Falls, Montana
For Respondent:
t -
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth S. Baker, Asst. Atty. General, Helena,
t : Montana
"-A
Patrick L. Paul, County Attorney, Great Falls,
(
: ) Montana
Submitted on Briefs: March 22, 1990
* Decided: May 25, 1990
Justice Diane G. Barz delivered the Opinion of the Court.
David Everrett Ramstead, defendant, was charged on November
2, 1988, with one count of felony theft and one count of
misdemeanor theft pursuant to 45-6-301(1) (a), MCA. The case
proceeded to trial on March 20, 1989. On March 21, 1989, the jury
returned a guilty verdict for each offense charged. Defendant was
sentenced to a term of three and one-half years' imprisonment, with
six months suspended on the condition that he pay restitution in
the amount of $32.43 and that he undergo alcohol and drug
counseling. Defendant appeals from his conviction and judgment.
We affirm.
The following issues were raised on appeal.
1. Whether the District Court erred in denying defendant's
motion to dismiss, in which the defendant asserted that the
information charging him with two counts of theft was not supported
by probable cause.
2. Whether the District Court properly admitted evidence of
defendant's prior criminal conduct.
3. Whether defendant's two theft convictions are supported
by sufficient evidence.
4. Whether defendant's felony conviction should be reversed
on the ground that the State failed to prove that the sundial's
value exceeded $300.
On October 11, 1988, upon returning home from a trip to
Wyoming, Charles Hill noticed that his sundial was missing from
the front yard of his home in Great Falls, Montana. Hill's
2
daughter, who had been checking on the house while her parents were
gone, testified that the sundial was in place in the yard on the
evening of October 10, 1988. Hill reported the theft on October
12, 1988.
The sundial was subsequently recovered by a Great Falls city
police officer at Carl Weissman and Sonsv recycling business in
Great Falls. It was then discovered that defendant had sold the
sundial to Weissmanvs at approximately 2:00 p.m. on October 11,
1988. The sundial was constructed of aluminum and had been cast
at the former Anaconda foundry in Great Falls in 1972. The
sundial, originally designed by Hill, was calibrated and built for
the longitude and latitude of Great Falls and kept accurate time.
Hill, who had evaluated aluminum items during his employment with
the Anaconda Company, estimated the value of the sundial to be
$2,000 at the time it was built. He further testified that the
sundial presently was worth over $1,000. Jim Rowe, an expert
witness on behalf of the State, further testified that he would
charge approximately $1,500 to reproduce the sundial today.
On the same day that defendant brought in the sundial to
Weissmanvs to sell--October 11, 1988--defendant also brought in a
piece of stainless steel and sold it at the same time as the
sundial. After defendant had left, Weissmanvs scrap yard manager
discovered that the stainless steel item had belonged to Weissmanvs
and had previously been sitting within the fenced yard. Defendant
had neither purchased nor been given permission to take the scrap
which he later sold back to Weissmanvs for approximately $8.00.
Defendant was subsequently convicted by a jury of Count One,
a felony charge arising out of theft of the sundial from Charles
Hill, and of Count Two, a misdemeanor charge arising out of theft
of the stainless steel item from Weissman and Sons. Defendant
appeals, raising four issues on appeal.
The first issue raised on appeal is whether the District Court
erred in denying defendant's motion to dismiss, in which the
defendant asserted that the information charging him with two
counts of theft was not supported by probable cause.
Defendant filed a motion to dismiss on March 6, 1989, premised
on the ground that the affidavit in support of the information
failed to show probable cause that the defendant had committed the
charged offenses of theft. Defense counsel asserted that the
affidavit was deficient on both counts because it alleged only that
defendant possessed the items, and that it did not demonstrate that
defendant had taken either item from the owners.
Leave to file an information will be granted if it appears
from the application that probable cause exists to indicate that
an offense has been committed by the defendant. Section 46-11-
201(1), MCA. In the affidavit, the State need only recite facts
sufficient to indicate a probability that the named defendant
committed an offense. Contrary to what defendant infers in his
argument, the State does not need to demonstrate a prima facie case
at this juncture. State v. Buckingham (Mont. 1989), 783 P.2d 1331,
1334, 46 St.Rep. 2102, 2105; State v. Bradford (1984), 210 Mont.
130, 139, 683 P.2d 924, 928-29.
In reviewing an affidavit for a determination of probable
cause, a district court may use common sense and draw permissible
inferences. State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d
1273, 1278. On appeal, this Court's role is merely to determine
whether a district court abused its discretion. Buckinqham, 783
P.2d at 1334, 46 St.Rep. at 2105; Bradford, 210 Mont. at 139, 683
P.2d at 929.
The affidavit presented to the District Court in this case
contained sufficient factual allegations to support a finding of
probable cause as to each charge. With respect to Count One, the
affidavit demonstrated that (1) a theft had occurred from the
property of Charles Hill; (2) the property taken had a value
exceeding $300; and (3) defendant had possession of the stolen
property and sold it on the same day that the theft was discovered.
With respect to Count Two, the affidavit described that (1)
defendant possessed a stainless steel item and obtained money for
its sale; (2) the item did not belong to defendant when he sold it;
and (3) the item was owned by Carl Weissman and Sons and had been
in Weissman's own scrap yard prior to its possession by defendant.
In light of the above, the District Court did not err in denying
defendant's motion to dismiss.
The second issue raised on appeal is whether the District
Court properly admitted evidence of defendant's prior criminal
conduct.
On December 23, 1988, the State filed notice that they
intended to introduce evidence during trial of a prior crime, a
misdemeanor theft, in which defendant had pled guilty. Defendant
filed a motion in limine on March 10, 1989 requesting that the
prior misdemeanor theft not be allowed into evidence. After a
hearing, the District Court denied defendant's motion and allowed
the State to introduce evidence of defendant's prior crime of
misdemeanor theft.
The evidence that the State introduced regarding the prior
misdemeanor theft was that on February 13, 1988, defendant and Tony
Lopez sold four aluminum gas tanks to Pacific Hide and Fur, a Great
Falls recycling business. The tanks were identified later the same
day as having been stolen from Vic Brewer's yard. A subsequent
investigation revealed that the tanks had been within the fenced
yard area of Brewer's property, and tennis shoe tracks were left
in the mud showing that someone had climbed the fence to get to the
tanks' location. As a result of the investigation, Tony Lopez and
defendant were arrested, and both admitted that they had gone over
the fence to get to the tanks. Defendant was charged with felony
theft and, pursuant to an agreement with the Cascade County
Attorney's office, entered a plea of guilty to a charge of
misdemeanor theft. Defendant argues that the admission of the
evidence outlined above was improper in light of State v. Just
(1979), 184 Mont. 262, 602 P.2d 957.
Evidence that a defendant has committed other crimes is not
admissible to prove character in order to show that a defendant
acted in conformity therewith. Such evidence is admissible only
if it is introduced ''as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." Rule 404(b), M.R.Evid.
The four substantive factors that the State must demonstrate
in order to introduce evidence of other crimes are that the other
crimes are (1) similar in nature; (2) not remote in time; (3) tend
to establish a common scheme, plan or system; and (4) that the
probative value of the other crimes is not substantially outweighed
by their prejudice to defendant. State v. Randall (Mont. 1989),
772 P.2d 868, 869-70, 46 St.Rep. 794, 796; Just, 184 Mont. at 269,
602 P.2d at 961. After applying the four factors to the facts of
this case, we hold that the District Court did not err in allowing
the admission of the February 13, 1988 crime.
In satisfying the similarity of crimes factor, the prior crime
does not need to be identical to the crime charged, so long as
"sufficient similarityI1 exists in a defendant's actions on both
occasions. Randall, 772 P.2d at 870, 46 St.Rep. at 797. In this
case, defendant's prior crime was strikingly similar to the crimes
with which he was charged in the present case. Each involved the
theft of recyclable metal' products from private property; each
resulted in the sale of stolen items by defendant to a Great Falls
recycling business for scrap value; each was committed while
defendant was in the company of Tony Lopez; and on each occasion
defendant claimed that he had llfoundll stolen property, although
the
he entered a guilty plea as a result of the first incident. The
prior crime introduced by the State in this case involved a very
specific instance of theft which was nearly identical to the theft
..
charged. In light of the facts in this case, the first factor,
that the crimes must be similar in nature, is satisfied.
The second factor that a court must consider is whether the
prior crime is remote in time. As a general rule, remoteness of
the prior crime affects the credibility of the evidence and not its
admissibility. State v. Eiler (Mont. 1988), 762 P.2d 210, 217, 45
St.Rep. 1710, 1718; State v. Doll (1985), 214 Mont. 390, 396, 692
P.2d 473, 476. In the present case, approximately eight months
elapsed from the time defendant committed the misdemeanor theft in
February and the two thefts that occurred in October of the same
year. In light of other cases before this Court, eight months
between the crimes is not too remote in time. State v. Hall
(Mont. 1988), 761 P.2d 1283, 1285, 45 St.Rep. 1726, 1729 (six
months); State v. Stroud (1984), 210 Mont. 58, 71, 683 P.2d 459,
466 (three and one-half years) ; Eiler, 762 P.2d at 216-17, 45
St.Rep. at 1718 (five years).
The third factor that the State must demonstrate is that the
prior crime has a "tendency1'to establish a common scheme, plan or
system. Eiler, 762 P.2d at 217, 45 St.Rep. at 1719. The prior
crime introduced in the present case presented a strong showing of
a common scheme, plan or system by defendant. In particular, both
incidents were thefts; the items taken on both occasions were
aluminum materials that were subsequently brought to a recycling
business for their scrap value; and the participants in both
incidents were identical. Defendant's prior theft of aluminum
materials tended to show a common scheme by defendant to procure
items of recyclable value on his salvaging trips even if it
required him to enter private property. The State successfully
demonstrated the third factor.
The final factor the State must demonstrate before a court
allows introduction of prior crimes into evidence is that the
probative value of the evidence is not substantially outweighed by
the prejudice flowing to the defendant. This Court has held that
satisfaction of the first three Just factors, as outlined above,
establishes the probative value of the prior crime evidence. State
v. Keefe (Mont. 1988), 759 P.2d 128, 135, 45 St.Rep. 1034, 1042.
This Court in Just then also established three procedural
requirements which, if satisfied, indicates that the prejudicial
effect the evidence may present for the defendant is less likely
to occur. Eiler, 762 P.2d at 218, 45 St.Rep. at 1720. Those
requirements are:
1. notice to the defendant prior to trial that
evidence of other crimes, wrongs or acts will
be introduced;
2. an admonition by the judge to the jury when
the evidence is introduced that it is admitted
solely for one or more of the accepted
purposes stated in Rule 404(b); and
3. a cautionary jury instruction to the same
effect, providing in unequivocal terms that
the evidence is admitted for the purpose
earlier stated and not to try and convict the
defendant for prior wrongful conduct.
Randall, 772 P.2d at 871, 46 St.Rep. at 789 (quoting Doll, 214
Mont. at 395, 692 P.2d at 475-76).
In accordance with these requirements, the State filed notice
on December 23, 1988, nearly three months prior to trial, that it
intended to offer evidence of the February 1988 theft and
defendant's subsequent plea of guilty. The District Court gave a
cautionary instruction to the jury at least three times during
trial--immediately prior to the introduction of any evidence
regarding the February 13, 1988 theft, and at two other times
during the course of the trial. At the end of the trial and in
conjunction with the other jury instructions, the court gave the
same cautionary instruction one last time. The jury was instructed
as follows:
The State has offered evidence that the
defendant at another time engaged in other
crimes. That evidence was not admitted to
prove the character of the defendant in order
to show he acted in conformity therewith. The
only purpose of admitting that evidence was to
show knowledge, identity, or absence of
mistake or accident. You may not use that
evidence for any other purpose.
The defendant is not being tried for that
other crime. He may not be convicted for any
other offense than that charged in this case.
For the jury to convict the defendant of any
other offense than that charged in this case
may result in unjust double punishment of the
defendant.
This instruction unequivocally apprised the jury that the evidence
was to be considered only for the purposes permitted by Rule
.
404 (b)
In addition, the February 13, 1988 crime tended to show,
contrary to defendant's assertions, that he "actively and knowingly
participated" in the crime with which he was charged. Defendant
testified that he found the sundial and that he would not have gone
onto private property to retrieve it. Thus, the critical element
in dispute was defendant's state of mind at the time he took the
property. Evidence that he had entered private property on another
occasion for the purpose of taking recyclable materials
contradicted defendant's testimony and tended to show that he acted
purposely and knowingly when he took the sundial and that it was
not by accident or as the result of a mistaken belief that the
sundial was abandoned.
Given the rigid adherence to the Just procedures and the
satisfaction of the first three Just factors in this case, we hold
that the probative value of the February 13, 1988 crime was not
substantially outweighed by its prejudicial effect. The admission
of the evidence was a proper exercise of the ~istrict Court's
discretion.
The third issue raised on appeal is whether defendant's two
theft convictions are supported by sufficient evidence.
Defendant argues that his conviction on both counts should be
reversed because insufficient evidence existed to support a guilty
verdict. Defendant argues that the circumstantial evidence was
inconsistent with the mental state required to commit the charged
offenses.
The direct evidence at trial showed that defendant obtained
the sundial from Hill's property and that he sold it a short time
later to Weissmanls. The sundial had been positioned in its
customary location the evening before defendant obtained it. The
evidence further showed that defendant obtained a stainless steel
item which had earlier been in the scrap yard at Weissmanls, and
sold that item back to Weissman's at the time he sold the sundial.
Both of the items were shown to have been taken from the owners
without permission. In addition to this direct evidence, the
circumstantial evidence, including defendant's prior acts, tended
to show that defendant acted with the requisite mental state when
he took the items. In particular, defendant testified that he had
llfoundll sundial and the stainless steel item, as well as the
the
gas tanks that belonged to Vic Brewer. The evidence, however,
demonstrated that the gas tanks were stolen. Defendant himself had
previously admitted climbing Brewer's fence to get to the tanks.
This evidence cast doubt on the credibility of defendant's story
as to the location of the sundial and the stainless steel item.
When combining both the direct and circumstantial evidence, the
evidence was sufficient for a trier of fact to find all elements
of the charged offenses beyond a reasonable doubt.
This Court has recognized that lvpossession stolen property,
of
accompanied by other incriminating circumstances, and false or
unreasonable explanation by the suspect is sufficient to sustain
a conviction ... 'I State v. Cox (1987), 226 Mont. 111, 114, 733
P.2d 1307, 1309. Applying these standards to the present case, and
in view of the evidence discussed above, we hold that sufficient
evidence exists to support the conclusion that defendant had the
purpose and knowledge to commit the two thefts with which he was
charged.
The last issue raised on appeal is whether defendant's felony
conviction should be reversed on the ground that the State failed
to prove that the sundial's value exceeded $300.
When conflicting evidence of value is presented, 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."
State v. Dess (1984), 207 Mont. 468, 473, 674 P.2d 501, 505.
Accord State v. Milhoan (1986), 224 Mont. 505, 510, 730 P.2d 1170,
1173. Ample evidence was before the jury from which it could find
that the value of the sundial exceeded $300. Hill, who had
designed the plans for the sundial and had experience in valuing
aluminum products, estimated the value of the sundial at $2,000
when made, and testified that the sundial presently was worth at
least $1,000. His testimony was corroborated by Jim Rowe, an
expert witness, who testified that the sundial was unique and that
he would charge approximately $1,500 to produce it today, although
it could be worth even more if sold on a retail basis. The bases
for Rowels conclusion were fully explained to the jury, including
the process for creating a similar sundial and the hours required
for production. This testimony was contradicted only by defense
witness Bill Rogne, who testified that the sundial was worth only
$250. Rogne's opinion was called into question during cross-
examination, and it appeared that he refused to place a value on
the sundial based upon what it would cost to replace it. In view
of the evidence presented, it was within the jury's province to
find that the value of the sundial exceeded $300.
This Court will not consider disputed questions of fact on
appeal, nor will it weigh the credibility of the witnesses or their
testimony. State v. Crumley (1986), 223 Mont. 224, 226, 725 P.2d
214, 216. Further, even if the evidence presented by defendant
was consistent with innocent conduct, this Court has held that such
factual discrepancies are matters properly resolved by the jury.
State v. Cain (1986), 221 Mont. 318, 321, 718 P.2d 654, 657.
Affirmed.
"A* -A
// Justice
We concur: A
Justices
Justice John C. Sheehy, dissenting:
I dissent on two grounds, 1) that the evidence of other crimes
in this case was improper, and 2) the value of the alleged stolen
items does not exceed the misdemeanor value of $300.
Defendant Ramstead apparently makes his living in Great Falls
by going up and down alleys and other places of refuse to salvage
articles which he later sells for junk or for recycling. He
testified in his defense that he had found a birdbath a couple of
feet from a garbage can in an alley and had picked it up, along
with a piece of steel which he was also charged with taking. There
is no direct evidence in the record that he went upon the property
of Hill, the owner of the birdbath in order to take it into
Ramstead1s unauthorized control.
Ramstead was charged with felony theft under § 45-6-301, MCA.
By another statute, 5 45-6-304, MCA, possession of stolen property
is not in itself proof of the commission of the offense of theft.
Such possession it places a burden on the possessor to remove the
effect of that possession as a circumstance to be considered with
all other evidence pointing to his guilt. Section 45-6-304, MCA.
The evidence the State presented in this case came from
witnesses who testified that the last time they saw the birdbath
it was in Hill's yard. No direct evidence places Ramstead in the
yard to take the birdbath, nor does any witness contravene
Ramstead1s own testimony that he found the birdbath in the alley
by the garbage can.
In that state of the record, the admission of evidence of
another misdemeanor theft some eight months earlier was extremely
prejudicial to Ramstead and its use outweighed any probative value
of the other crimes evidence. It cannot be denied that the State
used the other crimes evidence to have the jury infer that in this
case Ramstead did in fact go into Hill's yard to appropriate the
birdbath. While other crimes evidence may be admitted under Rule
404(b), Montana Rules of Evidence, for the purpose of showing a
common scheme, plan or system, it is strictly inadmissible for the
purpose of showing consummation of the particular offense which has
been charged and is the subject of the trial. State v. Randall
(1989)I - Mont. -, 772 P.2d 868, 869; State v. Just (1979), 184
Mont. 262, 268, 602 P.2d 957, 960; and State v. Taylor (1973), 163
Mont. 106, 120, 515 P.2d 695, 704.
Counsel for the defendant, before the trial, moved in limine
to reject the other crimes evidence, but the court denied the
motion. During the argument on that motion, the State argued that
it would show in the other crime, through a purported accomplice
of the defendant and others, that Ramstead did go on to the other
personls property in order to take metal objects and sell them.
However in the testimony during the trial, the purported accomplice
testified that they did not go over the fence or onto another
person's property to retrieve objects. In effect no witnesses
testified, either in the other crimes evidence or in the case at
bar, that Ramstead had gone onto private property to steal
something.
In this situation, the District Court should have excluded the
other crimes evidence, because its prejudicial effect outweighed
any probative effect.
Evidence of other crimes, wrongs, or acts Itmay,however,
be admissible where [it] is probative of any other fact
that is of consequence to the determination of the
[case], such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, modus operandi,
or absence of mistake or accident. l1 Haw. R.Evid. 404 (b).
But its acknowledged tendency to distract the trier of
fact compels the trial court to weigh the evidence and
to exclude it I1if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.I1
State v. Pinero (Haw. 1989), 778 P.2d 704, 710.
The other crimes evidence was the central focus of this case
when it was tried in the District Court. The State spent more than
half of its time in presenting the other crimes evidence. The pro
forma admission by the District Court of other crimes evidence
without any real consideration of whether the requirements of Rule
404 were met has resulted in the exception of Rule 404 swallowing
up what the Rule originally intended, that other crimes evidence
is inadmissible.
My other objection to the conviction is that the value of the
alleged stolen property is not sufficiently established in this
case. The birdbath, along with a number of other items, were sold
to a junk dealer for $44. Section 45-2-101(69)(a), MCA, provides
that llvaluell
means the market value of the property at the time and
place of the crime, or if such cannot be satisfactorily
ascertained, the cost of replacement of the property within a
reasonable time after the crime. It seems utterly ridiculous that
the replacement value of this aluminum birdbath was $1,500 or
$2,200 as the case may be. From the record I find nothing more
than a minor misdemeanor crime, if a theft was actually proved.
For that misdemeanor, defendant has been sentenced to serve 3 2
years in the Montana State Penitentiary. It is a small wonder we
have overcrowded jail conditions there.
I concur with Justice Hunt's dis
Justice
Justice William E. Hunt, Sr., dissenting:
I specially concur in the foregoing dissent of Justice Sheehy
and wish to add that, although the establishment of the three Just
factors may indicate that the introduction of other crimes evidence
may have some probative value, the use of that other crimes
evidence must still be ultimately balanced against its prejudicial
effect. The majority states that compliance with certain procedural
activities alleviates any prejudicial effect that may result from
the introduction of this other crimes evidence. It is with this
analysis that I disagree.
Just evidence, or other crimes evidence, may be used to
prove that the defendant had the intent to commit the crime
charged. Rule 404 (b), M.R. Evid. In other words, the Just evidence
is used primarily to support the requisite "state of mind" element
of the charged crime. In Just, the Court adopted a four-step
analysis in determining whether evidence of other crimes was
admissible. State v. Just, 184 Mont. 262, 602 P.2d 957 (1979).
In addition to these four steps, the Court also adopted certain
procedural safeguards to protect the defendant against the almost
certain prejudice that would occur to the defendant at any time
Just evidence is admitted. However, as the majority would believe,
these safeguards did not replace the requirement of balancing the
probative value of such evidence versus its prejudicial effect.
To determine the prejudicial effect that the introduction of
Just evidence may have on a defendant's case the Court must examine
each individual set of facts. If, in reviewing each set of facts,
the Court determines that "the jury might overestimate the
probative value of the evidence and assume that merely because the
defendant committed crimes before, he is likely to be guilty of the
crime chargedf1the introduction of the Just evidence is overly
prejudicial and must be excluded. State v. Hansen, 187 Mont. 91,
99, 608 P.2d 1083, 1088 (1980).
The facts of this case, as discussed in Justice Sheehyls
dissent, indicate that the only evidence used to prove the
defendant's "state of mindH in committing the charged offense was
the Just evidence. Without additional evidence to support this
necessary element, the prejudicial effect upon the defendant was
significant and must be scrutinized beyond the procedural
safeguards described by the majority. Although the jury was
properly instructed regarding the significance of the Just evidence
in their deliberations, it is obvious, in light of the lack of
evidence existing in the record to support the defendant's
commission of the charged theft, that the jury chose to convict the
defendant based upon the previous "bad act." Such an occurrence
totally contradicts the purpose of Just evidence. The conviction
should be reversed because the jury overestimated the probative
value of the evidence and concluded that, based upon the Just
evidence, the defendant was likely to be guilty of the crime
charged.
-
Justice