State v. Smith

NO. 95-181
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Patrick D. Sherlock; Sherlock & Nardi,
Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Ass't Attorney General,
Helena, Montana
Thomas Esch, Flathead County Attorney,
Ed Corrigan, Deputy Flathead County Attorney,
Kalispell, Montana

Submitted on Briefs: February 15, 1996
Decided: May 14, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court

Michael Daron Smith (Smith) appeals from the judgment and
sentence entered by the Eleventh Judicial District Court, Flathead
County, on a jury verdict finding him guilty of the offense of
felony theft of stolen property. We affirm.
We address the following dispositive issues:
1. Did the District Court abuse its discretion in admitting
David Ferree's testimony regarding his discussions with Smith?
2. Did the District Court abuse its discretion in excluding
Ricky Burke's testimony regarding Smith's statements to him?
3. Did the District Court err in refusing Smith's proposed
jury instructions on theft of lost or mislaid property?
4. Did Smith's sentence violate his constitutional right to
due process?
On May 22, 1994, David Ferree (Ferree) observed two juveniles
riding a motorcycle and a "four-wheeler" all terrain vehicle
(collectively, the bikes) in a mountainous area near Bowser Lake,
northwest of Kalispell, Montana. Later that day, Ferree observed
the juveniles drive away from the area in a pickup truck without
the bikes. Ferree suspected the bikes had been stolen and then
hidden in the area.
Ferree told Smith about the bikes and where he thought they
were hidden. The men discussed whether the bikes might be stolen
property. They decided to retrieve the bikes and Smith borrowed
money from his friend Ricky Burke to buy gasoline for that purpose.
After retrieving the bikes, Smith and Ferree took them to Smith's
residence, cleaned them and placed them in Smith's garage.

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 Smith and Ferree were certain that the bikes did not belong to
the juveniles Ferree had seen riding them. They discussed whether
to try to collect a reward for returning the bikes or sell them out
of Montana. They checked Crimestoppers listings and the lost and
found advertisements in the local newspaper and listened to the
radio for any information regarding the bikes. Smith told Ferree
that he had contacted the police, presumably to determine if the
bikes were reported stolen.
An acquaintance of Ferree's, Russell Geldrich, examined the
bikes with the supposed purpose of purchasing them. Smith and
Ferree quoted him a price and stated their preference that the
bikes be taken where they could not be seen.
The bikes had been reported stolen on May 11 and 15, 1994.
Acting on a tip about their location, a detective from the Flathead
County Sheriff's Department and a detective from the Kalispell
Police Department went to Smith's residence on June 2, 1994. After
gaining permission from Smith's wife to search the garage, the
detectives recovered the bikes.
The State of Montana (State) charged Smith by information with
two counts of felony theft in violation of § 45-6-301(l), MCA. The
information subsequently was amended to charge Smith with felony
theft of the bikes or, in the alternative, with felony theft of
stolen property under § 45-6-301(3), MCA. Smith rejected an
offered plea bargain and exercised his right to a jury trial.
Smith's trial was held on February 16, 1995. The jury found
Smith not guilty of felony theft of the bikes and guilty of felony

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theft of stolen property. The District court subsequently
sentenced Smith to the Montana Department of Corrections and Human
Services for placement in an appropriate correctional institution
or program for ten years. Smith appeals.
1. Did the District Court abuse its discretion in admitting
David Ferree's testimony regarding his discussions with Smith?
In addition to charging Smith, the State also charged Ferree
with felony theft of the bikes. Ferree agreed to testify against
Smith and to plead guilty to any offense of which Smith ultimately
was convicted. In anticipation of Ferree's testimony on the
State's behalf, Smith filed a pretrial memorandum addressing
coconspirator testimony.
During the State's direct examination of Ferree, the State
questioned him regarding his statements to Smith and their
discussions about the bikes. Based on the arguments in his
pretrial memorandum, Smith objected to Ferree's testimony
concerning both his statements to Smith and the discussions between
himself and Smith. The District Court overruled the objection and
Ferree testified that he and Smith discussed the ownership of the
bikes and suspected the bikes were stolen; at one point, Ferree
affirmatively stated that he and Smith were sure the bikes did not
belong to the juveniles Ferree observed riding them. Ferree also
testified that he and Smith discussed attempting to either collect
a reward for the bikes or sell them and send them out of state.
Smith argues generally that Ferree's testimony was
inadmissible. More specifically, he argues that Ferree testified
as a coconspirator and that, because the State did not first
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establish the existence of a conspiracy between Smith and Ferree by
independent evidence, Ferree's testimony regarding his discussions
with Smith and anything Smith said to him was not admissible
pursuant to Rule 801(d) (2) (E), M.R.Evid. We review a trial court's
evidentiary rulings to determine whether the court abused its
discretion. State v. Stringer (1995), 271Mont. 367, 374, 897 P.2d
1063, 1067 (citation omitted).
"A statement is not hearsay if: . . [tlhe statement is
offered against a party and is . . a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy."
Rule 801(d)(2) (E), M.R.Evid. Before a coconspirator's statement
may be admitted under Rule 801(d) (2) (E), M.R.Evid., the State must
establish a proper foundation, by a preponderance of the
independent evidence, that a conspiracy exists. State v. Stever
(1987), 225 Mont. 336, 342, 732 P.2d 853, 857. The State must show
that a conspiracy exists, that the declarant coconspirator and the
defendant were members of the conspiracy and that the declaration
was made in furtherance of the conspiracy. Stever, 732 P.2d at 857
(citations omitted). Smith contends that the State failed to meet
the foundational requirements of Stever and, therefore, that the
District Court abused its discretion in admitting Ferree's
testimony. The State does not assert that it established the
requisite foundation for admission under Rule 801(d) (2) (E),
M.R.Evid. It argues that Ferree's testimony was admissible under
other provisions of the Montana Rules of Evidence and, therefore,

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that whether it met the foundational requirements for admission
under Rule 801(d) (2) (E) is not relevant.
We observe, at the outset, that if evidence is admissible
under one provision of the rules of evidence, it is admissible
regardless of inadmissibility under another rule. a, u, Smith
v. Updegraff (8th Cir. 1984), 744 F.2d 1354, 1364-65 n.5 (citing
United States v. Hewitt (5th Cir. 1981), 663 F.2d 1381). Thus, if
Ferree's testimony regarding his own statements to Smith and the
discussions between the two is otherwise admissible, we need not
address Smith's contention that it was inadmissible under Rule
801(d) (2) (E), M.R.Evid., because the Stever requirements were not
met.
We first address Smith's objection to the State's question to
Ferree regarding what Ferree told Smith. The record reflects that,
subsequent to the posing of the question and the District Court's
indication--in response to Smith's objection--that the question did
not appear to solicit hearsay, Ferree responded that he told Smith
about the bikes and his feelings about the ownership of the bikes.
A witness may testify to facts within that witness' personal
knowledge. Rule 602, M.R.Evid. Here, Ferree testified to facts
that were within his own personal knowledge, namely his own
statements.
Moreover, Ferree himself was the "declarant" under Rule

801(b), M.R.Evid., with regard to his own statements and he was
testifying at trial as to those statements. For these reasons,
Ferree's testimony about his own statements did not come within the
definition of hearsay contained in Rule 801(c), M.R.Evid.
We next address Smith's objection to Ferree's alleged
coconspirator testimony concerning his discussions with Smith and
Smith's statements during those conversations. The State argues
that Smith's statements in these conversations were admissions
under Rule 801(d) (2) (A), M.R.Evid., and, therefore, "not hearsay"
pursuant to the express language of Rule 801(d). We agree.
An "admission by party-opponent" under Rule 801(d) (2) (A),
M.R.Evid., is a statement which is "the party's own statement"
offered against the party. Here, Smith is the party defendant.
Smith's statements during discussions with Ferree obviously were
Smith's own statements. Moreover, those statements of Smith's were
offered against Smith, via Ferree's testimony, by the State. As
was the case in State v. Ottwell (1989), 239 Mont. 150, 158, 779
P.2d 500, 505, Smith's statements were made by the party defendant
in a criminal case and offered against the party, by the
prosecution, through the testimony of the person to whom they were
made. We conclude that Smith's statements to Ferree were "not
hearsay" under Rule 801(d) (2) (A), M.R.Evid.
Finally, it is clear that Ferree's testimony about his
statements to Smith and Smith's statements during their discussions
was relevant under Rule 401, M.R.Evid., in that it related to
Smith's knowledge and mental state both at the time he and Ferree
obtained control over the bikes and at later times. The mental
state element of the alternative offenses with which Smith was

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charged is "purposely or knowingly." See §§ 45-6-301(l) and (3),
MCA. Generally, "[al 11 relevant evidence is admissible." Rule
402, M.R.Evid.
We conclude that Ferree's testimony about his own statements
and Smith's statements to him was not hearsay and was relevant.
Therefore, we further conclude that it was admissible under Rule
402, M.R.Evid., without regard to the foundational requirements for
admissibility under Rule 801(d) (2) (E), M.R.Evid. See Smith, 744
F.2d at 1364-65. We hold, therefore, that the District Court did
not abuse its discretion in admitting Ferree's testimony concerning
his discussions with Smith or Smith's statements to him.
2. Did the District Court abuse its discretion in excluding
Ricky Burke's testimony regarding Smith's statements to him?
Ricky Burke (Burke), the friend from whom Smith borrowed money
for gas needed to retrieve the bikes, testified on Smith's behalf
at trial. The State objected, on hearsay grounds, to questions of
Burke about Smith's statements to him regarding Smith's purpose in
borrowing gas money. Smith's counsel responded that, because Smith
was a party to the case, his statements to Burke were declarations
by a party and, therefore, admissible. The District Court
expressed doubts, but overruled the State's objection.
Burke's testimony concerning Smith's statements to him
continued. The District Court subsequently reversed its earlier
ruling and determined that Smith's statements to Burke were not
admissions under Rule 801(d) (2) (A), M.R.Evid., presumably because
they were not offered against Smith. On that basis, the court

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precluded further testimony from Burke regarding Smith's statements
to him.
We observe at the outset that Smith does not contend on appeal
that the District Court abused its discretion in determining that
Smith's statements to Burke were not admissions under Rule
801(d) (2) (A), M.R.Evid. Instead, Smith argues that his statements
to Burke were admissible under the hearsay exception for then-
existing state of mind set forth in Rule 803(3), M.R.Evid.
However, Smith did not offer Burke's testimony to the District
Court pursuant to Rule 803(3), M.R.Evid.; as set forth above, the
basis on which the testimony was offered was Rule 801(d) (2) (A),
M.R.Evid.
"It is axiomatic that a party may not change the theory on
appeal from that advanced in the district court." State v.
Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016 (citation
omitted). Smith having failed to raise the admissibility of
Burke's testimony under Rule 803(3), M.R.Evid., in the District
Court, he may not raise it in this Court. See State v. Johnson

(1993) I 257 Mont. 157, 162, 848 P.2d 496, 499. We consider for
review only those questions raised in the trial court (Johnson, 848
P.2d at 499) and, therefore, we decline to address the
admissibility of Burke's testimony under Rule 803(3), M.R.Evid.
3. Did the District Court err in refusing Smith's proposed
jury instructions on theft of lost or mislaid property?
Faced with alternative charges of felony theft and felony
theft of stolen property, Smith filed a pretrial memorandum
addressing what he denominated as the § 45-6-302, MCA, "lesser
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included offensetl of theft of lost or mislaid property, a
misdemeanor. He also submitted a series of proposed jury
instructions on that offense, all of which were refused by the
District Court. Smith argues that he was entitled to the
instructions and that the court's refusal to give them constituted
error.
A criminal defendant is entitled to a requested lesser
included offense instruction where, based on the evidence, the jury
rationally could be warranted in convicting on the lesser offense
and acquitting on the greater offense. Section 46-16-607(2), MCA;
State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628.
Thus, we first must determine whether, as a matter of law, theft of
lost or mislaid property is a lesser included offense of theft of
stolen property. If so, we then must determine whether Smith's
proposed instructions were supported by the evidence.
Insofar as it is relevant here, an "included offense" is
statutorily defined as one which "is established by proof of the
same or less than all the facts required to establish the
commission of the offense chargedr .I I1 Section 46-l-202(8) (a), MCA.
The term "facts," as used in the statute, refers to the statutory
elements of the offense and not the individual facts of each case.
State v. Ritchson (1981), 193 Mont. 112, 116, 630 P.2d 234, 237.
Section 46-l-202(8) (a), MCA, does not, by its terms, define a
"lesser" included offense. The test we traditionally have applied
in determining whether an offense is a lesser included offense of
another offense was stated in Blockburger v. United States (1932),

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284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309. See
-I
u, State v. Arlington (19941, 265 Mont. 127, 163, 875 P.2d 307,
330; State v. Long (19861, 223 Mont. 502, 510, 726 P.2d 1364, 1369.
In the context of a defendant's entitlement to jury instructions on
an alleged lesser included offense, we have characterized the
Blockburser test as stating that "separate distinct offenses
require proof of additional facts, where lesser included offenses
do not." Lonq, 726 P.2d at 1369. Applying that test in Lonq, we
concluded that "the statutes defining misdemeanor assault and
sexual assault clearly indicate that misdemeanor assault is not a
lesser included offense of sexual assault" because misdemeanor
assault requires proof that the physical contact be of an insulting
or provoking nature and no such proof is required for sexual
assault. Lonq, 726 P.2d at 1369.
The offense of theft of stolen property is committed when a
person purposely or knowingly obtains control over stolen property,
knowing the property to have been stolen by another, and has the
purpose of depriving the owner of the property. Section 45-6-

301(3) (a), MCA. Thus, to establish the offense of theft of stolen

property, the State must prove--among other things--that the
property was stolen and that the defendant knew the property was
stolen by another person.
The offense of theft of lost or mislaid property is committed
when a person obtains control over lost or mislaid property and:
(a) knows or learns the identity of the owner or
knows, is aware of, or learns of a reasonable method of
identifying the owner;

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 (b) fails to take reasonable measures to restore the
property to the owner; and
Cc) has the purpose of depriving the owner
permanently of the use or benefit of the property.
Section 45-6-302, MCA. To establish the offense of theft of lost
or mislaid property, the State must prove--among other things--that
the property was lost or mislaid; that the defendant knew or
learned the owner's identity or learned of a reasonable method of
identifying the owner; and that the defendant failed to take
reasonable measures to return the property.
It is clear from this limited comparison of the elements of
the offenses of theft of stolen property and theft of lost or
mislaid property that these are distinct offenses, each of which
requires proof of at least one "fact" that the other does not.
While both offenses are premised on a person obtaining control over
property belonging to another, the very nature of the property at
the time control is obtained is markedly different in the two
offenses: for one offense, the State must prove that the property
was stolen property while, for the other offense, the State must
prove that the property was lost or mislaid property. Nor does the
existence of a substantially similar element in the two offenses--
"has the purpose of depriving the owner of the property" in the
offense of theft of stolen property and "has the purpose of
depriving the owner permanently of the use or benefit of the
property" in theft of lost or mislaid property (see §§ 45-G
301(3) (a) and 45-6-302(c), MCA)--render the latter a lesser
included offense of the former. Substantial overlap in the proof
which would be offered to establish both offenses does not make one
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offense a lesser included offense of another where each requires
proof of different facts. Arlinqton, 875 P.Zd at 330. Thus, we
conclude that theft of lost or mislaid property is not a lesser

included offense of theft of stolen property.
As we observed at the outset of our discussion of this issue,
we need only reach the secondary question of whether evidence
supported Smith's proposed instructions regarding theft of lost or
mislaid property if we determine that that offense is a lesser
included offense of theft of stolen property. Having concluded
otherwise, no amount of evidence could have entitled Smith to
instructions on the offense of theft of lost or mislaid property.
We hold, therefore, that the District Court did not err in refusing
Smith's instructions.
4. Did Smith's sentence violate his constitutional right to
due process?
Prior to trial, the State offered Smith a plea agreement under
which it would recommend a probationary sentence, deferred or
suspended depending on his prior record, in exchange for a guilty
plea to the theft charge. Smith rejected the offer and exercised
his right to a jury trial. After the jury found Smith guilty of
the offense of felony theft of stolen property, the District Court
sentenced Smith to the Department of Corrections and Human Services
for placement in an appropriate institution or program for ten
years. Smith contends that the sentence penalized him for
exercising his right to a jury trial in violation of his right to
due process.

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 District courts have broad discretion in sentencing defendants
convicted of criminal offenses. State v. Lloyd (1984), 208 Mont.
195, 199, 676 P.2d 229, 231. We generally review a criminal
sentence only for legality--that is, to determine whether it is
within the statutory parameters established by the legislature;
where a sentence is within those parameters, we generally will
affirm it. See State v. Almanza (1987), 229 Mont. 383, 386, 746
P.2d 1089, 1091. There are, however, exceptions to these general
rules.
Punishing a person for exercising a constitutional right is a
basic due process violation. State v. Baldwin (1981), 192 Mont.
521, 525, 629 P.2d 222, 225 (citations omitted). Indeed, in
Baldwin, we vacated and remanded for resentencing because we were
unable to determine from the record whether the defendant was
punished for exercising his right to a jury trial after rejecting
a plea agreement. Baldwin, 629 P.2d at 226.
In Baldwin, the trial court was directly involved in the
unsuccessful plea negotiation process. The defendant chose not to
plead guilty and the case proceeded to trial. After the
defendant's conviction, the trial court imposed a much harsher
sentence than it originally had offered in exchange for a guilty
plea. Baldwin, 629 P.2d at 224. We held that a trial court which
involves itself in an unsuccessful plea bargaining process and,
thereafter, imposes a harsher sentence than was offered in exchange
for a guilty plea, must expressly point out the factors which
justify the increased sentence. Baldwin, 629 P.2d at 226. Because

14
the trial court had not done so, there was no assurance that the
sentence was not increased in retaliation for the defendant's
insistence on a jury trial; on that basis, we remanded for
resentencing. Baldwin, 629 P.2d at 226. We followed Baldwin and

remanded for resentencing on substantially similar facts in State
v. Tate (1982), 196 Mont. 248, 639 P.2d 1149.
Here, Smith concedes that the District Court was not involved
in any way in the unsuccessful plea negotiations between himself
and the State. Thus, Baldwin has no application here.
Smith also concedes that the District Court specified the
bases for the sentence it imposed, and he does not challenge any of

those bases. Simply put, nothing on the record before us supports
Smith's claim that his sentence was improperly increased because he
exercised his right to a jury trial. We hold, therefore, that

Smith's sentence did not violate his constitutional right to due
process.
Affirmed.

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