NO. 94-083
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PETE GEORGE JOHNSTON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jennifer Wendt Bordy, Attorney at Law,
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg W. Coughlin, Assistant Attorney
General, Helena, Montana
Mike Salvagni, Gallatin County Attorney,
Marty Lambert, Deputy County Attorney,
Bozeman, Montana
Submitted on Briefs: August 11, 1994
Decided: October 27, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Pete George Johnston was charged and convicted in
the Eighteenth Judicial District Court, Gallatin County, of
accountability for burglary, in violation of 55 45-Z-302 and
45-6-204, MCA. Johnston was sentenced to ten years in prison with
all time suspended, based on certain conditions. Johnston appeals
from the conviction. We reverse.
The issues on appeal are:
1. Did the District Court err when it admitted evidence of
a prior misdemeanor forgery conviction?
2. Is the evidence sufficient to support defendant's
conviction of accountability for burglary?
FACTUAL BACKGROUND
On May 29, 1993, at approximately 1:20 a.m., an individual
heard glass breaking at the First Lutheran Church in Bozeman and
notified the Bozeman Police Department. Police officers surrounded
the church and ordered anyone inside the church to come out.
Daniel Maggard emerged and was arrested for burglary at 2:02 a.m.
The officers sea:rched the church but did not find anyone else.
While searching Haggard, the officers found a vehicle key.
One and one-half hours after the burglary was reported and
forty minutes after Maggard's arrest, while continuing their search
for possible suspects, police officers heard a car horn and saw a
flash of light. Two police officers approached the car and
discovered Johnston sitting in the passenger seat with the lights
and motor off. Johnston would not emerge when asked to do so by
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the officers, and they had to open the car door and physically
remove him. The officers stated that Johnston smelled strongly of
alcohol and emerged from the car in his socks. The vehicle key
which Maqqard had been carrying fit this car's ignition. Johnston
was arrested at 2~48 a.m.
Officers later discovered that Maqqard had stolen some blank
checks from the First Lutheran Church, and charged him with
burglary. Johnston was charged by information on June 11, 1993,
with accountability for burglary in violation of 5s 45-2-302 and
45-6-204, MCA.
At trial, Johnston testified that he passed out in the car
when Maqqard was driving and was awakened by the police officers.
Johnston stated that he became cold in the car and attempted to
turn on the dome light to search for the key to turn the car on and
must have accidently sounded the horn.
On September 21, 1993, just nine days before trial, the State
provided notice pursuant to stateV.JUSt (1979), 184 Mont. 262, 602
P.2d 957, and Statev.Matt (1991), 249 Mont. 136, 814 P.2d 52, that it
would offer evidence of a prior conviction for misdemeanor forgery.
The State's ht notice stated that it would offer the
conviction for misdemeanor forgery for the following purposes:
1. Plan.
----A The evidence is offered to show that
defendant has, in the past, planned to pass checks stolen
from Bozeman area churches with Maqqard. It was
defendant's plan to serve as a lookout for Maqqard when
he committed the burglary of the First Lutheran Church on
May 29, 1993.
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2. Knowledse: The evidence is offered to prove
that defendant was aware Maggard was committing a
burglary of the First Lutheran Church on May 29, 1993
when defendant was first discovered in Maggard's car
parked near the church.
Johnston objects to the Just notice, for the following reasons:
1. The State asserts in its Just notice that the evidence of
prior crimes is offered to show a plan that defendant had, in the
past, planned to pass stolen checks. It does not establish that he
planned to actually commit the burglaries with Maggard, nor that he
planned to act as a lookout for Maggard while Maggard committed the
burglaries.
2. The State offers the evidence to prove defendant knew
that Maggard was burglarizing the First Lutheran Church. However,
"[t]he mere knowledge that a crime is about to be committed does
not make one an accomplice." State% Nordahl (1984), 208 Mont. 513,
517, 679 P.2d 241, 243 (citing Statev.Harvey (1979), 184 Mont. 423,
431, 603 P.2d 661, 666). Furthermore, "[m]ere presence at the
scene of the theft, or even failure to interfere with a theft which
someone is aware is taking place, is insufficient to hold one
accountable as a principal to the crime." State v. Hart (1981), 191
Mont. 375, 390, 625 P.2d 21, 29 (citing PeopIev.Durham (Cal. 1969),
449 P.2d 198). Thus, Johnston argues that even if he knew of the
crime, which he claims he did not, failure to prevent the crime is
insufficient to hold him accountable.
3. Johnston states that the evidence does not meet the
modified Just reguirement that the other crimes or acts must be
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similar to the crime charged. He previously pled guilty to
misdemeanor forgery as a matter of convenience, and that offense is
not similar to felony burglary.
4. Johnston asserts that the probative value of the evidence
is substantially outweighed by its prejudice. He pled guilty to
misdemeanor forgery because he was living in North Dakota at the
time and, for convenience, decided not to pursue the matter to
trial. The fact that he pled guilty, however, is extremely
prejudicial.
The State, on the other hand, argues that the District Court
did not abuse its discretion by admitting evidence of Johnston's
prior misdemeanor forgery conviction. The State argues that there
is a similarity between misdemeanor forgery and felony
accountability for burglary. The State claims that this Court has
held that a prior act need not be identical to the offense
committed, it must only be of sufficient similarity to warrant its
admission. State v. Ramstead (1990) , 243 Mont. 162, 167, 793 P.2d 802,
805; Statev.Randall (1989), 237 Mont. 271, 274, 772 P.2d 868, 870.
ISSUE 1
Did the District Court err when it admitted evidence of a
prior misdemeanor forgery conviction?
When we review whether a district court properly allowed
evidence of a prior conviction, we will uphold the district court
unless the district court abused its discretion. State v. Gollehon
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(1993) I 262 Mont. 293, 301, 864 P.2d 1257, 1263 (citing &?teV. &St
(1992) I 253 Mont. 442, 833 P.2d 1052).
To insure that prior crimes are not used to prove a bad
character, this Court has established a four-part test to determine
the admissibility of evidence of other crimes or acts in criminal
prosecutions. kfatt, 814 P.2d at 56. The four elements of that test
are: (1) the other crimes, wrongs, or acts must be similar: (2) the
other crimes, wrongs, or acts must not be remote in time: (3) the
evidence 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 with such character: but may be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident; (4) although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusing the issues, misleading of the jury,
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. kktt. 814 P.2d at 56. This
rule modified the Just rule, which originally set forth the basis
for admission of other crimes, wrongs, or acts.
The following procedural protections apply as part of the
modified kit rule::
1. Evidence of other crimes, wrongs, or acts may not be
received unless there has been written notice to the defendant that
such evidence is to be introduced. The notice to the defendant
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shall specify the other crimes, wrongs, or acts to be admitted, and
the specific rule 404(b) purpose or purposes for which it is to be
admitted.
2. At the time of the introduction of such evidence, the
trial court shall explain to the jury the purpose of the evidence
and shall admonish it to consider the evidence for only such
purposes.
3. In its final charge, the court shall instruct the jury in
unequivocal terms that such evidence was received only for the
limited purposes earlier stated and that the defendant is not being
tried and may not be convicted for any offense except that charged.
Mutt, 814 P.2d at 56.
This case involves the prior crime of misdemeanor forgery.
According to § 45-6-325(l), MCA, a person commits the offense of
forgery when, with the purpose to defraud, the person knowingly:
(4 without authority makes or alters any document
or other object apparently capable of being used to
defraud another in a manner that it purports to have been
made by another or at another time or with different
provisions or of different composition;
(b) issues or delivers the document or other object
knowing it to have been thus made or altered;
(c) possesses with the purpose of issuing or
delivering any such document or other object knowing it
to have been thus made or altered . . . .
On the other hand, § 45-6-204, MCA, provides that a person commits
the offense of burglary if he knowingly enters or remains
unlawfully in an occupied structure with the purpose to commit an
offense therein. The crimes of burglary and forgery are distinct
and are quite different in their respective elements. We held in
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Matt, 814 P.2d at 57, that "[t]he linchpin for determining whether
a single instance of prior conduct is sufficient . . . is relevancy
based on similarity." We held in Statev.Keys (1993), 258 Mont. 311,
316, 852 P.2d 621, 624, that "[t]he determination of similarity
depends on whether the conduct has some relevance to place an issue
in dispute." Here, misdemeanor forgery and felony accountability
for burglary are not similar, and as such, the prior crime was not
relevant. We conclude that the prior misdemeanor forgery is not
sufficiently similar to the charge of accountability for burglary
to satisfy the first element of the modified Just rule and that the
District Court erred by admitting the evidence of a prior crime.
ISSUE 2
Was the evidence sufficient to support defendant's conviction
of accountability for burglary?
When we review a conviction challenged on sufficiency of the
evidence, we will uphold the district court if, after reviewing the
evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Statev.Bower (1992), 254 Mont. 1, 6, 833
P.2d 1106, 1110 (citing Statev.Ri&y (1992), 252 Mont. 469, 830 P.2d
549). In this case, we consider the record without evidence of
Johnston's prior :forgery conviction, which we have held should have
been excluded.
Johnston contends that the evidence was not sufficient to
support his conviction of accountability for burglary because a
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rational trier of fact could not have found the essential elements
of the crime beyond a reasonable doubt.
Under g 45-2-302(3), MCA, a person is legally accountable for
the conduct of another when
either before or during the commission of an offense with
the purpose to promote or facilitate such commission, he
solicits, aids, abets, agrees, or attempts to aid such
other person in the planning or commission of the
offense.
There is no evidence that Johnston aided Maggard before,
during, or after the burglary. The driver's seat of the car was
positioned to suggest that Maggard had driven to the scene. Maggard
possessed the key, and Johnston was found on the passenger side of
the car. Johnston did not abet Maggard during the burglary. He
briefly honked the horn and flashed the lights after Maggard was
already in custody. The State fails to establish how this, in any
way, aided or abetted Maggard in the commission of tt.e crime.
The only thing that linked Johnston to the crime was the fact
that he was found near the scene of the crime. The police
discovered Johnston across the street from the burglzrized church
sitting in a parked car. The State argues that the evidence was
sufficient to convict Johnston of accountability for burglary and
that any rational trier of fact could have found the essential
elements of accountability for burglary beyond a reasonable doubt.
We have held that mere presence at the crime iscene is not
enough to establ.ish criminal responsibility. "[WE: have] long
adhered to the principle that more than mere presence at the scene
of a crime is necessary to establish criminal responsibility." State
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exrel.Murphyv.McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909.
SeeakoStatev.Bradford (1984), 210 Mont. 130, 683 P.2d 924: State% Hart
(1981) t 191 Mont. 375, 625 P.2d 21. Furthermore, mere knowledge
that a crime is about to be committed does not make one an
accomplice or accountable for that crime. We held in Nordahl that
a true accomplice is
'one who knowingly, voluntarily and with common intent
with the principal offender unites in the commission of
a crime . . . . One may become an accomplice by being
present and joining in the criminal act, by aiding and
abetting another in its commission, or not being present,
by advising and encouraging its commission: but knowledge
and voluntary actions are essential in order to impute
guilt.'
Nordahl, 679 P.2d at 243 (quoting Statev.Harmon (1959), 135 Mont. 227,
236, 340 P.2d 128, 132).
We conclude that the evidence was not sufficient to support
the conviction of felony accountability for burglary.
The judgment of the District Court is reversed and this case
is remanded for further proceedings consistent with this opinion.
us ice
We concur:
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October 27, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Jennifer Bordy
Attorney at Law
1822 West Lincoln, Suite B
Bozeman, MT 59715
Marty Lambert
Deputy County Attorney
615 So. 16th Avenue, Room 100
Bozeman, MT 59715
Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant
Justice Building
Helena. MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE IOF MONTANA