96-135

No. 96-135

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

THE STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHRISTOPHER GREYWATER,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowston,

The Honorable Maurice R. Colberg, Jr.,

Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender,

Helena, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Jennifer Anders, Assistant Attorney General,

Helena, Montana

Dennis Paxinos, County Attorney; John Kennedy,

Deputy County Attorney, Billings, Montana

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Submitted on Briefs: November 14, 1996

Decided: January 2, 1997

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

 A jury in the Thirteenth Judicial District, Yellowstone

County, found Christopher Greywater guilty of robbery. Greywater

appeals. We affirm. 

 Greywater raises two issues on appeal.

 1. Did the District Court err when it refused Greywaterþs

proposed instruction that theft is a lesser included offense of

robbery?

 2. Did the District Court err when it refused to consider a

motion in limine to exclude an eyewitness identification of

Greywater?

 FACTS

 On April 3, 1995, at about midnight, Darrell Senner was parked

in downtown Billings, Montana. He was in town on business and had

$250 in his billfold, including two $100 bills. As Senner sat in

his van, a male wearing a black and gray sweater approached and

asked for a smoke. Senner responded that he did not smoke. 

 The man, later identified by Senner at trial as Christopher

Greywater, opened the van door and hit Senner in the head. 

Greywater jumped on top of Senner and struck him on the head and

face. He then spit on Senner and yelled, "You know what the f---

I want." Senner handed Greywater his billfold. Greywater removed

the money and ran. Senner followed Greywater and two other men

down an alley. After emerging from the alley, Senner saw a police

car and approached the officer sitting inside. 

 Senner spoke with Billings Police Officer Sandra Leonard. He

described his assailant as a male Native American wearing a black

and gray sweater, accompanied by two other Native Americans. 

Officer Leonard radioed dispatch with the description. After

Officer Leonard verified that Senner was staying at the War Bonnet

Inn, she left. 

 Billings Police Officer James Garten was dispatched to the

downtown area. There, he observed three men walking down the

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street near where the robbery had occurred. One was wearing a

black and gray sweater. Billings Police Officer Jeff Chartier also

noticed the same three men, one of whom was wearing a sweater

similar to that described by dispatch. The two officers stopped

their vehicles behind the three men, exited, drew their weapons,

and ordered the men to the ground. Christopher Greywater was later

identified as one of the three suspects. He was wearing a black

and gray sweater. 

 As Senner was driving to his motel, he observed several

handcuffed individuals lying facedown on the sidewalk. He

recognized one as wearing the sweater worn by the individual who

had robbed him. 

 The police conducted a pat-down search of Greywater. Inside

his pocket they found a large amount of cash, including a $100

bill. Two twelve packs of beer and a bag containing a bottle of

alcohol were lying next to him. Because the alcohol was unopened,

Officer Leonard suspected that it had been recently purchased. He

entered a nearby bar and spoke with James Steinmetz. 

 Steinmetz bartended at the Empire Bar on April 2 and 3, 1995. 

He testified that at about closing time, Greywater entered the bar

and purchased a case of beer and a bottle of whiskey. Greywater

paid for the alcohol with a $100 bill, the only $100 bill Steinmetz

had seen that evening. 

 Steinmetz had seen Greywater inside the Empire Bar earlier

that evening. When Greywater entered after 1 a.m., Steinmetz

testified that Greywater was excited and in a much better mood than

he had been previously. After purchasing the alcohol, Greywater

and two other individuals left the bar in a hurry. Steinmetz

testified that the black and gray sweater, which the police seized

after Greywaterþs arrest, was of a similar color and design as the

one Greywater had been wearing when he entered the bar. 

 Greywater and the two other suspects were taken into custody,

placed in separate police cars, and driven to the War Bonnet Inn. 

There, under a lighted canopy near the motel entrance, Officer

Gartner asked Senner if he recognized any of them. Senner looked

into the cars containing the other two suspects but made no

identification. He then looked into the third police car and

positively identified Greywater as the individual who had robbed

him. 

 Greywater was charged by information with robbery in violation

of 45-5-401(1)(a), MCA. He pleaded not guilty. Following a jury

trial, he was found guilty of robbery and sentenced to fifteen

years at the Montana State Prison. Greywater appeals.

DISCUSSION

 1. Did the District Court err when it refused Greywaterþs

proposed instruction that theft is a lesser included offense of

robbery?

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 During settlement of jury instructions, Greywater offered a

proposed instruction that misdemeanor theft is a lesser included

offense of robbery, citing 46-16-602, MCA (1989), as authority. 

The State objected, citing State v. Kills On Top (1990), 243 Mont.

56, 793 P.2d 1273, and State v. Albrecht (1990), 242 Mont. 403, 791

P.2d 760. The District Court refused Greywaterþs proposed

instruction by applying the "same elements" test in Blockburger v.

United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. 

The court then gave the following instructions, offered by the

State and accepted without objection by Greywater, regarding the

offense of robbery:

Instruction No. 6

A person commits the offense of robbery (felony) if, in

the course of committing a theft he inflicts bodily

injury upon another.

Instruction No. 7

To convict the defendant of the charge of robbery

(felony), the State must prove the following elements:

 1. That the defendant committed theft; and

 2. That the defendant while so doing inflicted

bodily injury upon Douglas Senner; and

 3. That the defendant acted purposely or knowingly. 

. . .

Instruction No. 10

A person commits the offense of theft if he purposely or

knowingly obtains or exerts unauthorized control over

property of the owner, and has the purpose of depriving

the owner of the property. 

Greywater asserts that the court erred as a matter of law when it

refused to instruct the jury that theft is a lesser included

offense of robbery. 

 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. Smith (1996), 276 Mont. 434, 443, 916 P.2d 773, 778. 

Therefore, we must first determine whether, as a matter of law,

theft is a lesser included offense of robbery. If so, we must then

determine whether Greywaterþs proposed jury instruction was

supported by the evidence. Smith, 916 P.2d at 778.

 This Court has long employed the Blockburger test to determine

what constitutes a lesser included offense. The test provides: 

[W]here the same act or transaction constitutes a

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violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses

or only one, is whether each provision requires proof of

a fact which the other does not . . . ."

Blockburger, 284 U.S. at 304. Iannelli v. United States (1975),

420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616,

627 n. 17, further explained the Blockburger test, stating:

If each requires proof of a fact that the other does not,

the Blockburger test is satisfied, notwithstanding a

substantial overlap in the proof offered to establish the

crimes.

 Greywater argues that although this Court used the Blockburger

test in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, upon

which Albrecht and Kills On Top were decided, to determine that

theft is not a lesser included offense of robbery, that Madera

applies to double jeopardy issues, not to jury instructions. He

suggests that in the context of lesser included offense jury

instructions, the focus of the Blockburger test should not be

limited to a comparison of the statutory elements, but instead

should include an inquiry into the facts adduced at trial. We

disagree. 

 In Madera, the defendants were charged and convicted of both

felony theft and robbery. We held that prosecution for both

offenses did not violate double jeopardy, concluding that felony

theft was not a lesser included offense within the charge of

robbery under Blockburger because felony theft required proof that

the value of the property taken exceeded a certain dollar amount,

an element not required for robbery. Madera, 670 P.2d at 557-58. 

 In Albrecht, the defendant argued that the trial court erred

by refusing to instruct the jury that theft is a lesser included

offense of robbery. We recognized that Madera involved a double

jeopardy issue, not a jury instruction. Albrecht, 791 P.2d at 762. 

However, we refused to deviate from the Blockburger test to

determine whether theft is a lesser included offense of robbery in

the context of jury instructions.

We have ruled that theft is not a lesser-included offense

of robbery, Madera, 670 P.2d at 558, albeit for different

reasoning . . . . Not only does theft require an

additional element of proof regarding value, our statutes

specify that commission of theft is not required for

commission of a robbery. Section 45-5-401, MCA, requires

only that the actor "be in the course of committing the

theft." Under the statute, in order for a robbery charge

to adhere, a person does not actually have to complete

the theft but only be in the course of committing the

theft.

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Albrecht, 791 P.2d at 763.

 We also noted that the Criminal Law Commission Comments to 

45-5-401, MCA, illustrate that theft is not a lesser included

offense of robbery:

Common-law robbery was theft of property from the person

or in the presence of the victim by force or by putting

him in fear either of immediate bodily injury or of

certain other grievous harms. [Section 45-5-401, MCA]

does not explicitly include the traditional basis for

classifying robbery as taking property from the person or

in the presence of a person, but approaches the crime as

one of immediate danger to the person and relies on the

condition of violence or threatened violence to distinguish the crime from ordinary theft. The gist of the

offense is taking by force or threat of force.

[Section 45-5-401, MCA] would apply where property was

not taken from the person or from his presence. For

example, an offender might threaten to shoot the victim

in order to compel him to telephone directions for the

disposition of property elsewhere. Further, it is

immaterial whether property is or is not obtained. This

seems compatible with the theory of treating robbery as

an offense against the person rather than against

property. Hence, a completed robbery may occur even

though the crime is interrupted before the accused

obtained the goods, or if the victim had no property to

hand over[.]

Albrecht, 791 P.2d at 763, citing Criminal Law Commission Comments, 

 45-5-401, MCA.

 In Kills On Top, the defendant similarly claimed that theft

was a lesser included offense of robbery for purposes of jury

instructions. We disagreed and reiterated the holding of Albrecht. 

Kills On Top, 793 P.2d at 1297. 

 Albrecht is consistent with numerous cases in which this Court

has employed the Blockburger test to determine whether one offense

is a lesser included offense of another in the context of jury

instructions. See State v. Steffes (1994), 269 Mont. 214, 887 P.2d

1196 (endangering the welfare of children and deviate sexual

conduct); State v. Fisch (1994), 266 Mont. 520, 881 P.2d 626

(negligent endangerment and aggravated assault); State v. Arlington

(1994), 265 Mont. 127, 875 P.2d 307 (felony assault and aggravated

assault); State v. Long (1986), 223 Mont. 502, 726 P.2d 1364 

(misdemeanor assault and sexual assault); State v. Gray (1983), 207

Mont. 261, 673 P.2d 1262 (unsworn falsification and criminal

mischief); and State v. Ritchson (1981), 193 Mont. 112, 630 P.2d

234 (aggravated assault and robbery).

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 This Court has previously focused on the statutory elements,

not the facts of a given case, to decide what constitutes a lesser

included offense for purposes of jury instructions. Steffes, 887

P.2d at 1207. We look to the statutory elements of the respective

crimes to determine if each offense requires proof of a fact which

the other does not to determine if there is a lesser included

offense. Madera, 670 P.2d at 558. 

 The offense of robbery is defined by 45-5-401(1)(a), MCA,

as follows: "(1) A person commits the offense of robbery if in the

course of committing a theft he: (a) inflicts bodily injury upon

another." The applicable elements of theft are: (1) purposely or

knowingly; (2) obtaining or exerting unauthorized control; (3) over

the property of the owner; (4) with the purpose of depriving the

owner of the property. Section 45-6-301(1)(a), MCA.

 Robbery and theft each require proof of an additional fact

that the other does not. A conviction of robbery under 45-5-

401(1)(a), MCA, requires the infliction of bodily injury upon

another, but does not require the completed act of theft as an

element. Robbery requires that the person "be in the course of

committing the theft." Section 45-5-401, MCA. The offense of

theft requires proof of an additional fact--that the theft was

completed. Because robbery requires proof of at least one element

that is not needed to establish the offense of theft, theft is not

a lesser included offense of robbery. See Albrecht, 791 P.2d at

762-3. 

 Montana statutes, Criminal Law Commission Comments, and case

law support the District Courtþs conclusion that theft is not a

lesser included offense of robbery. We hold that the District

Court correctly instructed the jury on the law applicable to

Greywaterþs case and properly refused his proposed jury instruction

that theft is a lesser included offense of robbery. Because we so

hold, we do not address whether there was sufficient evidence for

a jury to convict Greywater of theft.

 Greywater also argues that the Blockburger test used by the

District Court is inconsistent with the statutory definition of

"included offense" contained at 46-1-202(8), MCA. He claims that

the statutory definition of included offense is broader than the

Blockburger test.

 When Greywater submitted his proposed jury instruction that

misdemeanor theft is a lesser included offense of robbery, he did

so under the purported authority of 46-16-602, MCA (1989). He

now argues that the District Court refused his proposed instruction

contrary to the statutory definition of "included offense"

contained at 46-1-202(8), MCA. Greywater did not offer his

proposed instruction pursuant to 46-1-202(8), MCA, at the

district court level. A party may not change his theory on appeal

from that advanced in the district court. Fisch, 881 P.2d at 629. 

We decline to address the merits of this argument. 

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 2. Did the District Court err when it refused to consider a

motion in limine to exclude an eyewitness identification of

Greywater?

 Five days before trial, the defense moved in limine to prevent

"introduction into evidence any testimony concerning eye witness

identification of the defendant," on the ground that such testimony

violated Greywaterþs Fifth Amendment due process rights. The

defense argued that Sennerþs identification was suggestive and

subject to possible misidentification. 

 On the day of trial, counsel discussed Greywaterþs motion in

limine. The State opposed the motion, arguing that it was

untimely. Greywaterþs public defender agreed, but asked the court

to excuse the delay for "good cause" because of his overwhelming

caseload and because Greywaterþs constitutional rights were at

stake. The court declined to consider the motion in limine because

it was untimely, citing State v. Hart (1982), 200 Mont. 185, 650

P.2d 768. The court also determined that the motion was covered

under 46-13-101, MCA, and found no good cause for it to be

raised.

 In Hart, the defendant waited until the day of trial to orally

move to suppress police testimony concerning his pre-Miranda

statements. Section 46-13-301, MCA, required ten daysþ notice and

a written motion to suppress. The trial court denied the motion as

untimely. We affirmed, noting that the defendant was aware from

the time of his arrest that he had made damaging statements, but

did not move to suppress them until the day of trial after the jury

had been seated. Hart, 650 P.2d at 772. 

 Section 46-13-101, MCA, provides:

(1) Except for good cause shown, any defense, objection,

or request that is capable of determination without trial

of the general issue must be raised at or before the

omnibus hearing unless provided by Title 46.

(2) Failure of a party to raise defenses or objections

or to make requests that must be made prior to trial, at

the time set by the court, constitutes a waiver of the

defense, objection, or request.

(3) The court, for cause shown, may grant relief from

any waiver provided by this section[.]

 The State argues that 46-13-101, MCA, required Greywaterþs

motion in limine to be raised at or before his omnibus hearing and

that the courtþs decision not to consider the untimely motion is

supported by Hart, 650 P.2d at 768. Greywater suggests that his

counselþs crowded trial calendar provided good cause for the court

to consider his otherwise untimely motion in limine. He argues

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that the courtþs refusal to consider his motion was an abuse of

discretion and limited his ability to pursue the identification

issue, his only available defense. 

 The standard of review for a denial of a motion to suppress is

whether the courtþs findings of fact are clearly erroneous, and

whether those findings were correctly applied as a matter of law. 

State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021. 

In this case, the District Court dismissed Greywaterþs motion in

limine as untimely and as lacking good cause. Therefore, we

determine whether the courtþs conclusions of law were correct as a

matter of law. Williams, 904 P.2d at 1021.

 A motion in limine to prevent an in-court identification is

essentially a motion to suppress and must be filed within the time

limits imposed by 46-13-301, MCA (1989). See Hart, 650 P.2d at

771-72. We have consistently upheld a district court's denial of

a defendantþs untimely motion to suppress. State v. Hall (1979),

183 Mont. 511, 514, 600 P.2d 1180, 1182; State v. Briner (1977),

173 Mont. 185, 189-90, 567 P.2d 35, 37-38. 

 Hart, Hall, and Briner were decided under the previous version

of 46-13-301, MCA (1989) and 95-1806, RCM (1947), which

required notice of a motion to suppress to be given at least ten

days before trial, unless good cause was shown. In 1991, 46-13-

301, MCA, was amended to require a motion to suppress to be raised

at or before the omnibus hearing. See 1991 Mont. Laws, Ch. 800, 

168, 173. The purpose of the omnibus hearing is to encourage

parties to "expedite the procedures leading up to the trial." 

Section 46-13-110(2), MCA. The holdings of Hart, Hall, and Briner,

as applied to the good cause exception of 46-13-301, MCA (1989)

and 95-1806, RCM (1947), are equally applicable to the good cause

exception contained at 46-13-101, MCA. 

 Greywaterþs omnibus hearing occurred over three months prior

to trial. At the omnibus hearing, neither party indicated that

identification would be a trial issue. Greywaterþs omnibus form is

marked "n/a" (not applicable) in response to "Motions Requiring

Separate Hearing." On the day of trial, the judge explained to

both parties that he had tried to contact them the week before to

determine if there were "any significant issues related to this

case." When the judge called the public defenderþs office, he was

informed by one of the attorneys who had worked on the case in part

that "it would be a short trial and there are no major issues that

I know about." We conclude that the trial judge properly refused

to consider the public defenderþs busy caseload as good cause. 

 Greywater was aware from the time of his arrest that the

Stateþs case relied in part on Sennerþs identification of him in

the motel parking lot. Nevertheless, he did not submit his motion

in limine until October 5, 1995, nearly six months after he was

charged with robbery, and five days before trial. 

 Greywater did not comply with 46-13-101, MCA, and cannot

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demonstrate good cause for his untimely motion. Given the

requirements of 46-13-101, MCA, the case law interpreting its

predecessor statutes, and the overall purpose of the omnibus

hearing, the District Court correctly determined as a matter of law

that Greywaterþs motion in limine was untimely and was not subject

to a good cause exception. We hold that the District Court

properly refused to consider Greywaterþs motion in limine. 

 Affirmed. 

 /S/ J. A. TURNAGE

We concur:

/S/ CHARLES E. ERDMANN 

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

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