No. 14992
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1980
I N THE MATTER O D.
F W. L., a Youth.
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and F o r t h e County o f C a s c a d e .
H o n o r a b l e J o e l G. Roth, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Lawrence A. Anderson, P u b l i c D e f e n d e r , a r g u e d ,
Great F a l l s , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Richard Larson argued, A s s i s t a n t A t t o r n e y General,
H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , Great F a l l s , Montana
D a n i e l L. F a l c o n a r g u e d , Deputy County A t t o r n e y ,
G r e a t F a l l s , Montana
Submitted: A p r i l 1 5 , 1980
Decided : A u G 1 4 19@
Filed: AUG 1 1380
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
DWL appeals from the judgment of the Cascade County
Youth Court declaring him to be a delinquent youth.
On May 18, 1979, while on routine patrol, Officer
Robert Dull observed a blue Mercury car run a red light at
the intersection of Central Avenue and Sixth Street in Great
Falls, Montana. Officer Dull stopped the car, and when the
driver told him he did not have a driver's license, Officer
Dull asked the driver to join him in the patrol car. Officer
Dull informed the driver that he was being cited for driving
without a driver's license and for failure to stop at a red
light. When Officer Dull asked the driver what his name
was, the driver replied "Caincade" and spelled it accordingly.
Officer Dull ran a registration check on the blue Mercury
car and learned that it was registered to Tennison B.
Kinkaid.
Officer Dull then brought the driver to the police
station where he was identified as DWL, a minor youth.
Officer Dull later returned the car to its owner, Tennison
Kinkaid, at the owner's residence in Great Falls. Officer
Dull testified that Kinkaid signed a stolen property report
at that time. Subsequently, Officer Edward Sinnott was
dispatched to Kinkaid's residence to pick up the stolen
property report.
On May 29, 1979, the Cascade County Attorney initiated
proceedings under Montana's Youth Court Act, section 41-5-
101, et seq., MCA, to have DWL declared a delinquent youth.
The petition alleged that DWL had taken a 1966 Mercury car
without the owner's consent, in violation of section 45-6-
301(l) (a), MCA. On June 8, 1979, DWL appeared before the
Cascade County Youth Court and denied the offense alleged in
the petitios DWL was released to his mother's custody.
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The trial, denominated an adjudicatory hearing, was
held on June 29, 1979. The evidence established that DWL
had not been alone in the car. Greg Jarvey, Carmello
Cozino, Caroline Jeffrey and Mary Brogden were in the car
with DWL when stopped by Officer Dull. At trial the two
girls described going for a ride in the car at the boys'
invitation. However, neither girl had anything to do with
the theft of the car.
Cozino testified that when he and Jarvey had met DWL
earlier that day, DWL told them he had taken the keys to
Kinkaid's car. Cozino related how he, Jarvey, and DWL later
rode around in Kinkaid's car. He further testified that DWL
started the car with the ignition key and was the first
person to drive the car, but that he had also driven it.
Jarvey also testified that DWL told him he had stolen the
keys to Kinkaid's car. DWL did not testify at trial.
Tennison Kinkaid, owner of the car, died prior to trial.
At the close of the State's case, DWL moved to dismiss
the petition on the grounds of insufficient evidence. The
Youth Court denied the motion on August 1, 1979. On August
28, 1979, the Youth Court entered findings and declared DWL
to be a delinquent youth. In essence, the Youth Court found
that the evidence adduced at trial established that DWL
committed the charged offense, felony theft of the car.
This appeal followed.
Two issues have been raised on appeal:
(1) Whether the testimony given by Officer ~ u l land
Officer Sinnott concerning a stolen property report con-
stitutes inadmissible hearsay evidence.
(2) Whether DWL's conviction was improperly based upon
t e testimony of other individuals who were legally accountable
h
for the alleged offense.
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DWL's first specification of error is that the testimony
given by Officer Dull and Officer Sinnott concerning a
stolen property report constituted inadmissible hearsay
evidence. DWL contends that the Youth Court's ruling, which
allowed both officers' testimony, constitutes reversible
error.
Officer Dull testified, over DWL's objection, that he
observed Kinkaid sign a stolen property report concerning
the blue Mercury car. The State contends that Officer
Dull's testimony was offered only to show that Kinkaid did
sign the stolen property report, and that viewed in this
light, Officer Dull's testimony is not inadmissible hearsay.
Rule 8Ol(a), M.R.Evid., provides that nonverbal conduct
of a person, if it is intended by him as an assertion, is a
statement. Rule 801 (b), M. R. Evid., defines a declarant as a
person who makes a statement. Rule 8Ol(c), M.R.Evid.,
defines hearsay as a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. See
State v. Newman (1973), 162 Mont. 450, 457, 513 P.2d 258,
262.
Officer Dull testified at trial that he observed inka aid
sign a stolen property report. Kinkaid's signing of the
report was nonverbal, assertive conduct. Kinkaid signed the
report at his residence, and therefore it was an extrajudicial
statement. The record clearly shows that the State offered
the testimony of Officer Dull concerning Kinkaid's signing
of the stolen property report to prove the fact that DWL
exerted unauthorized control over Kinkaid's car. In other
words, the State offered the testimony of Officer Dull to
prove the truth of the matter asserted. Officer Dull's
testimony constituted hearsay evidence.
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Under Rule 802, M.R.Evid., hearsay is not admissible
unless an exception to the hearsay rule exists. However, in
the instant case we find no applicable exception to the
hearsay rule. Therefore, we find that Officer Dull's testi-
mony that he observed Kinkaid sign a stolen property report
constitutes inadmissible hearsay evidence under Rule 802,
M.R.Evid.
Officer Sinnott testified over D m ' s objection, that he
was dispatched to pick up a stolen property report on a car
at Kinkaid's residence. DWL contends that Officer Sinnott's
testimony also constitutes inadmissible hearsay evidence.
The State contends that Officer Sinnott was asked only about
his purpose in going to Kinkaid's residence and that such
testimony does not constitute hearsay evidence. We disagree.
Clearly the report is hearsay, and again, the State was
attempting to show D m ' s unauthorized control of Kinkaid's
car by introducing Officer Sinnott's testimony about the
report. He, like Officer Dull, was testifying to an out-of-
court statement by Tennison Kinkaid, and the testimony was
offered to prove the truth of the matter asserted. Despite
the State's contention otherwise, we can see no other purpose
for the State introducing this evidence. Unless the testimony
was to show that a theft had been committed, the mere fact
that Officer Sinnott went to Kinkaid's home was not relevant
to the case. Such evidence did not have "any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable. . ."
Rule 401, M.R.Evid. See also, State v. Sanders (1971), 158
Mont. 113, 117-118, 489 P.2d 371, 373. Therefore, we find
the testimony concerning picking up "a signed stolen report"
was introduced only to prove the truth of the matter asserted,
and was inadmissible hearsay.
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DWL's second specification of error is that his con-
viction was improperly based upon the testimony of Greg
Jarvey and Carmello Cozino, and that they were legally
accountable for the theft of Kinkaid's car under the provisions
of section 45-2-302, MCA. DWL contends that the State must
first establish the corpus delecti of the theft with evidence
independent of the extrajudicial admission of DWL and independent
of evidence offered by those legally accountable. The State
contends that there was independent evidence which tends to
connect DWL with the theft of Kinkaid's car, and that
Jarvey and Cozino were not legally accountable for the theft
of Kinkaid's car.
DWL was charged with, and found guilty of, the
theft of Kinkaid's car, section 45-6-301(1)(a), MCA. The
only element of the offense of theft disputed in the instant
case is that of unauthorized control. Jarvey and Cozino
both testified that DWL admitted to them that he stole the
keys to Kinkaid's car. DWL told Jarvey and Cozino that he
had stolen the keys to Kinkaid's car after he had actually
taken the keys.
Section 46-16-213, MCA, provides that:
"A conviction cannot be had 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
which in itself and without the aid of the testi-
mony of the one responsible or legally accountable
for the same offense tends to connect the
defendant with the commission of the offense.
The corroboration is not sufficient if it merely
shows the commission of the offense or the cir-
cumstances thereof."
In order to establish the crime of theft under section
45-6-301(1)(a), MCA, the State was required to prove that
DWL purposely or knowingly obtained or exerted unauthorized
control over Kinkaid's car. All that section 46-16-213,
MCA, requires is that other, independent evidence tends to
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connect the defendant with the commission of the offense;
this requirement was satisfied in the instant case.
Officer Dull testified that when he stopped the vehicle
DWL was driving, DWL gave a false name, and misspelled
Kinkaid when questioned. This testimony was uncontradicted
and it tends to directly connect DWL with the commission of
the offense. Testimony of the two girls who rode with DWL
also tends to connect DWL with the commission of the offense.
The two girls testified that when they left a Great Falls
establishment called The Fuse, DWL had the car parked in the
parking lot. DWL was behind the wheel, started the car with
the ignition key, and proceeded to drive the car.
In accordance with section 46-16-213, MCA, the State
did introduce evidence on the element of unauthorized
control, independent of DWL's extrajudicial admissions,
which tended to connect DWL with the commission of the
offense of the theft of Kinkaid's car. The testimony of
Jarvey and Cozino concerning Dm's admissions was properly
admissible.
The record contains sufficient independent evidence to
support the district judge's ruling that Cozino's and Jarvey's
testimony was admissible. That testimony, in conjunction
with the independent corroborating evidence, could support a
conviction in some cases. However, because of our determination
that the testimony of Officer Dull and Officer Sinnott was
inadmissible hearsay, we reverse DWL's conviction. The
record does not show that the same result would have been
reached by the court in this instance without the inadmissible
hearsay. We find that the judge's ruling, allowing the
testimony, so affected the substantial rights of DWL, Rule
14, M.R.App.Civ. P., that it cannot be viewed as harmless
error.
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Reversed.
Chief Justice
We Concur:
Justices