State v. Blackcrow

No

No. 98-003

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 44

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ALOYSIUS BLACKCROW,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Benjamin R. Anciaux, Polson, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; Kim
Christopher, Lake County Attorney, Mitch Young, Deputy Lake County Attorney, Polson, Montana

Submitted on Briefs: August 6, 1998

Decided: March 16, 1999

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

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¶1. In the Twentieth Judicial District Court, Lake County, Aloysius Blackcrow
(Blackcrow) was tried before a jury and convicted of the offenses of robbery and
aggravated burglary. Blackcrow appeals the jury's verdict and the District Court's
denial of his motion for directed verdict. We affirm.

ISSUES

¶2. 1. Did the District Court err in denying Blackcrow's motion for directed verdict
pursuant to § 46-16-403, MCA?

¶3. 2. Was there sufficient evidence presented at trial to support Blackcrow's
conviction of robbery and aggravated burglary?

BACKGROUND

¶4. Sometime shortly after midnight on February 22, 1996, Bruce Stinger (Bruce)
and Stacey Worley (Stacey) were attacked by three unknown assailants inside their
home in the Donna Jones Trailer Park in Pablo, Montana. The incident began when
Bruce, who had fallen asleep in the living room, responded to a knock at the front
door. Bruce opened the door to discover a young man standing on his porch. The
man asked Bruce if a certain person was in the home. Bruce could not understand
what was being asked and the man repeated this inquiry twice before pulling out a
gun and pointing it at Bruce.

¶5. Bruce pushed the gun out of his face and attempted to push the man off the
porch. Bruce then turned and fled into the house, leaving the door open. Inside the
house, Bruce began running down the hall. When he realized he had not shut the
front door, Bruce returned down the hallway and found the young man standing in
the kitchen with the gun once again pointed at Bruce. Bruce grabbed the gun and
attempted to get it away from the intruder.

¶6. At this point, two more men entered the trailer home. The second man entering
the trailer also carried a gun. The third man did not carry a gun, but was instead
armed with a large knife. The second man ordered Bruce to release the gun held by

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the first man and get down on the floor. Bruce complied and lay down on the floor of
the living room.

¶7. While he was on the floor, Bruce was pistol-whipped on the head by one of the
men and asked repeatedly where the drugs and money were. Bruce answered that he
did not have any.

¶8. This interrogation awakened Stacey, who had been sleeping in a bedroom down
the hallway. Stacey turned on the light in the bedroom and began getting dressed
when one of the men entered the bedroom and pushed her onto the bed. He was
followed by another of the assailants, who jumped on top of Stacey, accosted her with
a gun and a knife at either side of her head, and began asking her repeatedly where
the guns and money were. Stacey responded that if he would let her up, she would get
him some money.

¶9. The man released Stacey and she moved to the end of the bed, but an argument
ensued between them when Stacey requested that she be allowed to finish dressing.
The man then hit Stacey in the head with the gun. She grew angry at this and
grabbed for the man's hand holding the gun. The gun fired, and both assailants fled
the room. The shot missed Stacey, leaving her uninjured, and she followed the men
as they fled down the hallway.

¶10. During the altercation between Stacey and the two assailants in the bedroom,
the third man had remained behind in the living room with Bruce. This assailant
continuously threatened Bruce with a large knife, ordering Bruce not to look at him
or he would stab him. The assailant did in fact stab Bruce twice, once in the front
and once in the back of one of Bruce's thighs. The assailant also cut a piece of hair
and scalp out of the back of Bruce's head.

¶11. When the men from the bedroom rejoined the third man in the living room, all
three exited the house through the front door. Stacey shut the door behind them and
called 911. Lake County law enforcement officers and members of the Flathead
Tribal Police arrived on scene shortly thereafter. Bruce was taken by ambulance to
the hospital and treated for stab wounds.

¶12. Stacey and Bruce provided the officers with a physical description of each of the
assailants but could not identity their attackers. The only other evidence taken from

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the crime scene was the 9 mm bullet and shell casing from the shot fired inside the
bedroom.

¶13. Blackcrow was eventually charged in connection with this case after an
anonymous telephone caller informed investigators of the names of two women
believed to have been involved in the attack on Bruce and Stacey. The women were
identified as Blackcrow's wife, Sandra Boe (Sandra), and a friend of Blackcrow's
named Denise Shields (Denise). Sandra and Denise were subsequently located and
interviewed by law enforcement officers. In separate interviews conducted in
different cities, both women identified Blackcrow, his brother, Gerrard Blackcrow
(Gerrard), and Timothy Konefes (Timothy) as the assailants who entered the home
of Bruce and Stacey on February 22, 1996.

¶14. Blackcrow was charged with robbery and aggravated burglary for his
participation in the events of that evening. Denise and Timothy both testified in
person at Blackcrow's trial, and Sandra appeared by deposition testimony, parts of
which were read to the jury.

¶15. According to Timothy's testimony and the physical description of the assailants
given by Bruce and Stacey, it was Timothy who knocked on the door and first
entered the trailer. He was also the man who first entered Stacey's bedroom and
pushed her back on the bed. Blackcrow was the second man to enter the trailer. He
was the one who pistol-whipped and interrogated Bruce and also the one who
assaulted Stacey on the bed and fired the shot in the bedroom. Gerrard was the third
man to enter the trailer. It was he who remained in the living room with Bruce
during the assault on Stacey.

¶16. At the close of the State's case, Blackcrow moved for directed verdict on the
issue of whether the accomplice testimony of Sandra, Denise and Timothy had been
sufficiently corroborated to support a conviction. The District Court denied
Blackcrow's motion without making any findings on the issue of accomplice
testimony. The jury convicted Blackcrow on the charges of robbery and aggravated
burglary. Blackcrow appeals.

DISCUSSION

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¶17. Did the District Court err in denying Blackcrow's motion for directed verdict
pursuant to § 46-16-403, MCA?

¶18. Section 46-16-403, MCA, permits the trial court in a criminal case to direct a
verdict of acquittal where there is insufficient evidence, as a matter of law, to support
a conviction. The denial of a motion for a directed verdict is within the sound
discretion of the trial court. State v. Hayworth, 1998 MT 158, ¶ 50, 964 P.2d 1, ¶ 50,
55 St.Rep. 631, ¶ 50. We review the denial of such a motion to determine whether, in
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. Hayworth, ¶ 50.

¶19. Blackcrow contends that the District Court erred in denying his motion for a
directed verdict on the grounds that the only evidence presented at trial which
connected Blackcrow to the charged offenses was the uncorroborated accomplice
testimony of Sandra, Denise and Timothy, and that under Montana's "accomplice
testimony corroboration rule," this testimony was insufficient, as a matter of law, to
support his conviction.

¶20. The "accomplice testimony corroboration rule" is codified at § 46-16-213, MCA,
which reads:

A person may not be found guilty of an offense on the testimony of one responsible or
legally accountable for the same offense, as defined in 45-2-301, unless the testimony is
corroborated by other evidence that in itself and without the aid of the testimony of the
one responsible or legally accountable for the same offense tends to connect the defendant
with the commission of the offense.

There are two requirements that must be met in order for the application of § 46-16-213,
MCA, to justify a directed verdict of acquittal: the witness whose testimony is being
offered must be an accomplice, that is, legally accountable for the conduct of the
defendant; and the accomplice testimony must be uncorroborated by additional evidence.

¶21. The circumstances under which a person may be held legally accountable for
the conduct of another are set forth in § 45-2-302, MCA, which states in pertinent

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part:

A person is legally accountable for the conduct of another when:

...

(3) 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.

Whether a person may be held legally accountable for the conduct of the defendant, and so
qualify as an accomplice for purposes of the "accomplice testimony corroboration rule,"
is, unless undisputed by the parties, a matter of fact to be determined by the jury. State v.
Gonyea (1987), 225 Mont. 56, 57, 730 P.2d 424, 425 (citing State v. Slothower (1919), 56
Mont. 230, 232, 182 P. 270, 271).

¶22. The State does not contest the fact that both Denise and Timothy qualify as
accomplices under § 45-2-302, MCA, and that their testimony alone would be
insufficient to support Blackcrow's conviction absent corroboration. However, the
State does contest Blackcrow's contention that Sandra was an accomplice and argues
that there was therefore no need to corroborate her testimony connecting Blackcrow
to the events of February 22, 1996. In the alternative, the State argues that if Sandra
was an accomplice, sufficient corroborating evidence was produced at trial to
support Blackcrow's conviction.

¶23. For purposes of addressing whether the District Court erred in denying
Blackcrow's motion for directed verdict, it is not necessary for this Court to
determine whether Sandra was, in fact, an accomplice in the crimes perpetrated
against Bruce and Stacey. Rather, our review is limited to whether any rational trier
of fact, in viewing the evidence in the record in the light most favorable to the
prosecution, could have found that Sandra was not implicated in the commission of
those crimes, and that therefore her testimony required no further corroboration.
We find sufficient evidence in the record tending to show that Sandra was not an
accomplice to make the question one for the jury.

¶24. Although Sandra did not appear at the trial to testify in person, portions of her
deposition testimony were entered into evidence and read before the jury. In her

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deposition, Sandra testified that she and Blackcrow were married in Coeur d'Alene,
Idaho, on February 20, 1996, in the company of a small group of friends and family
who had accompanied them on the trip from Havre, Montana, to attend the wedding.
The party spent the night in Coeur d'Alene and departed the next day to return to
Havre.

¶25. On the way home, they made a detour to visit a friend named J.J. Shields (J.J.)
in the Polson/Pablo area. The group contacted J.J. and his sister, Denise, rented a
motel room in Polson, and spent most of the evening drinking at the motel room or in
various bars in the Polson/Pablo area.

¶26. At some point in the evening, Sandra, Blackcrow, Denise, Gerrard and Timothy
left the motel room and drove to the Donna Jones Trailer Park in Pablo. Sandra
testified that her primary reason for driving to the trailer park was to take Denise
home because Sandra believed Denise was getting too intimate with Sandra's
husband. Sandra further testified that an additional purpose for visiting the trailer
court was to buy marijuana for Timothy from some dealers Denise knew.

¶27. At the trailer park, Sandra and Denise waited in the truck while the other
members of the group disappeared for several minutes. Sandra testified that she
believed the men had gone to buy Timothy's marijuana and that she was waiting for
Denise to exit the vehicle and go home. Sandra denied any knowledge of the plan to
rob the residents of the trailer park.

¶28. Blackcrow argues that the testimony of the other accomplices demonstrates that
Sandra knew when the group left the motel that they had a plan to rob some drug
dealers and that therefore Sandra's testimony denying her participation in the
robbery is not creditable. We note that the record contains widely differing
descriptions of the events of February 22, 1996, in the testimony of Sandra, Denise,
and Timothy with regard to whether Sandra was made aware of the plan to rob the
tenants of the trailer home either prior to leaving the motel or while she was waiting
in the truck during the commission of the robbery. However, the fact that there is
conflicting testimony on the issue of Sandra's legal accountability only serves to
bolster our conclusion that this issue was properly left for determination by the jury.
"[W]here the evidence is conflicting or doubtful, either as to [whether the witness for
the State is an accomplice] or as to corroboration, the court should not invade the
province of the jury." Gonyea, 225 Mont. at 59, 730 P.2d at 426 (quoting State v.

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Smith (1925), 75 Mont. 22, 27, 241 P. 522, 523).

¶29. We therefore affirm the decision of the District Court in denying Blackcrow's
motion for a directed verdict.

¶30. Was there sufficient evidence presented at trial to support Blackcrow's
conviction of robbery and aggravated burglary?

¶31. In the opening of his appellate brief, Blackcrow presents the question of whether
there was sufficient evidence to support his conviction by the jury. However, the only
arguments formulated in Blackcrow's appellate brief relate to the accomplice status
of the State's witnesses and whether the accomplice testimony was sufficiently
corroborated. From this it would appear that Blackcrow is arguing there was
insufficient evidence to support the jury's findings that either the State's witnesses
were not accomplices or that the testimony of the accomplice witnesses was
sufficiently corroborated.

¶32. However, as the State points out, the jury in this case was never instructed on
the issue of accomplice testimony. The record contains no indication that the
question of accomplice testimony was ever presented to, deliberated upon, or
(1)
ultimately determined by the jury as part of its findings. We are therefore
presented with the impractical task of reviewing the sufficiency of the evidence to
support a finding that was never made. Neither can we, based upon the contents of
Blackcrow's appellate brief, determine any alternate basis upon which he is
challenging the jury's verdict in this instance.

¶33. This failure is fatal and, without more, is sufficient cause for us to decline to
address the issue. It is not this Court's obligation to formulate arguments or locate
authorities for the parties in support of their positions on appeal. See Johansen v.
State, Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653,
¶ 24; Small v. Good (1997), 284 Mont. 159, 163, 943 P.2d 1258, 1260; State v. Sol
(1997), 282 Mont. 69, 76, 936 P.2d 307, 311; Rieman v. Anderson (1997), 282 Mont.
139, 147, 935 P.2d 1122, 1127.

¶34. Affirmed.

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/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

1
1. Blackcrow did not submit any proposed jury instructions and did not request any instruction on the issue of
accomplice testimony. Blackcrow does not appeal the failure of the District Court to instruct the jury on this
issue.

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