IN THE SUPREME COTJRT OF THE STATF OF MONTANA 

STATE OF MONTANA, 

Plajntiff and Respondent, 

VERN TRAVIS BAKER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morgan Modine & Douglas Anderson; Missoula, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General; Helena, Montana 

Robert J. Deschamps 111, County Attorney; Missoula, MT 

Betty Wing, Deputy County Attorney 

Karen Townsend, Deputy County Attorney 

Submitted on Briefs: February 16, 1989 

Decided: April 25, 1989 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defenclant was convicted on a jury verdict before the 

District Court, Fcurth Judicial District, Missoula County, of 

robbery, a felony; theft, a felony; tamperinq with a witness, 

a felony; and theft, a misdemeanor. The District Court set 

aside the robbery conviction. Defendant was sentenced to 50 

years at Pontana State Prison for felony theft, and 50 years 

for tampering with a witness. He was also sentenced to 6 

months in jail for misdemeanor theft. These sentences are to 

run concurrently. Defendant appeals those convictions. We 

affirm. 

The issues are: 

1. Did the District Court err in consolidating the 

charges? 

2. Did the District Court err in admitting certair, 

evidence? 

3. Did the District Court err in giving an instruction 

on accountability during jury deliberations? 

On February 5, 1987, the Pissoula County Attorney filed 

an information charging Mr. Baker with robbery, a felony. On 

March 6, 1987, Mr. Baker was charged with felony theft-. The 

second information was ame~decl to include a charge of burglary. On Pay 4, 1987, defendant was tried on the robbery 

count hut the jury did not reach a verdict. Later the information charging robbery was amended to include the offense of 

tampering with a witness. 

After the trial on Kay 4, 1987, the county attorney 

filed a third information charging defendant with misdemeanor 

theft. Thereafter, the county moved to consolidate all the 

charges and that motion was granted on October 28, 1987. 

The consolidated causes were tried by jury on November 

33, 1987. Defendant was found guilty of robbery, felony 
theft., tampering with a wi t-ness, and misdemeanor theft. 

Defendant moved the court to set aside the verdicts of guilty 

to robbery and felony theft. The court subsequently set 

asifie the verdict of guilty of robbery. 

The relevant facts in this case began on December 13, 

1986, when Gary Deschene reported to the Missoula County 

Sheriff's office that a gun was missing from his home. 

Following a Crimestopper's tip, detectives searched the home 

of Mr. Baker for this gun, but did not find it. On July 14, 

1987, a skindiver found a gun underneat.h Buckhouse Bridge in 

the Bitterroot River. He turned the gun over to the sheriff 

and Mr. Deschene isentified it as the one missing from his 

home. 

At trial, Mr. Raker's girlfriend, Katherine Lamb, testi-- 

fied that Mr. Baker had told her he had a gun he had to 

dispose of, and that she haZ accompanied him to the Buckhous~ 

Bridge where Nr. Baker threw the gun into the river. 

A friend of Mr. Raker, Lance Sprout, testified at trial 

that on January 17, 1987, he and Mr. Faker entered the home 

of Lloyd Killumsen and took two rifles and a box of pistols. 

Mr. Sprout stated that Mr. Baker later went hack to that 

residence and took a shotgun, binoculars, and several other 

items. 

Mr. Sprout also testified that five days later, on 

January 22, 1987, he approached his cousin about borrowing a 

car. The cousin arranged for Mr. Sprout to borrow a car from 

a friend. The car Mr. Sprout borrowed was a blue Honda Civic 

with personalized license plates which said, "MARSBAR." Mr. 

Sprout stated that he picked up Mr. Baker in the borrcwec? 

czr, and after a couple of st-ops, they decided to rob Paylesc 

Shoe Store in Missoula. Mr. Sprout testified that he and Mr. 

Baker robbed the store, using the sawed-off shotgun taken 

fron the Willumsen residence. 
A citizen driving by observed the two men leavinq 

Payless Shoe Store with stockings over their heads. The 

citizen followed them as they drove a-way, obtaining a vehicle 

description and license plate identification. Later that 

night the car was stopped by a Missou1.a deputy who observed 

it near the Missoula County Courthouse. 

b?hen the car was searched, detectives found items used 

in the robbery and items taken from the store. They also 

found rifles and other items taken from the Willumsen home. 

When detectives searched defendant's grandmother's house, 

where Mr. Baker lived, they found a sh-otgun scabbard in her 

car, also belonging to Mr. Willumsen. 

At trial Mr. Raker' s girlfriend, Katherine Lamb, testified that Mr. Raker called her while he was awaiting trial-, 

and asked her to testify that he had called her on the phone 

at 8:00 p.m. on the night of the robbery. She testified that 

he later sent a letter to her in which he suggested that she 

get together with his mother and grandmother, decide on how 

they would answer questions, and "rehearse, rehearse, rehearse." Be said they all needed to stick together and not 

discuss It with anyone else "until we have it down to a 'T'." 

This letter, which was admitted into eviderc~ at trSal, 

implied that an alibi should be formulated. 

I 

Did the Distrlct Court err in consolidating the charges? 

The first issue cn appeal is whether the District Court 

properly joined the various charges against Mr. Baker. The 

relevant statute on joinder, 5 46-11-404, MCA, pro~ridec in 

pertinent part: 

(1) An indictment, information, or complaint 

may charge two or more different offenses connected 

together in their commission, different statements 

of the same offense, or two or more different 
offenses of the same class under separate counts. 

If two or more indicl:ments, informati.ons, or complaints are filed in such cases in the same court, 

the court may order them to be consolizated. . . . (4) Tf it appears that a defendant or the 

state is prejudiced by a joinder of related prosecutions or defendants in a sin.cf1.e charge or by 

joinder of separate charges or defendants for 

tria,, the court may order separate trials, grant a 

severance of defendants, or provide any other 

relief as justice may require. 

Joinder is proper where the offenses are logically 

linkec?. hy motive and where overlapping proof must be offered. 

United States v. Hoelker (9th Cir. 1985), 765 F.2d 1422, 

1425. In this case the burglary and felony theft charges 

stemmed from the same incident, which was the burglary of the 

Willumsen residence. These charges were connected to the 

robbery charge in that the gun stol-en from Mr. Willumsen was 

used in the robbery. Additicnally, other items stolen from 

the Will-umsen residence were found in the car which was used 

in the robbery. Separate trials would have required overlapping evidence, and many of the same witnesses. The robbery 

supplied the motive for the witness tampering charge which 

was therefore properly joined. State v. Bingman (198?), 745 

P.2d 342, 44 St.Rep. 1813. There was evidence indicatinq 

that the misdemeanor theft of the Deschene gun, committed a 

month prior to the other crimes, was done in furtherance of a 

plan to commit an armed rohhery. The crimes were logically 

connected by motive and there was a large area of overlapping 

proof among the separate charges. We therefore hold that the 

District Court's joincler OF these charges was not clearly 

erroneous. 

Having concluded that joinder was not clearly erroneous, 

the second inquiry is whether the motion to sever should have 

been granted due to prejudice to the c?efe~dant. Fle have 

previously enumerate6 three basic types of prejudice which 
may occur on consolidation. State v. Campbell (1980), 189 

Mont. 107, 120, 615 P.2d 190, 198. State v. Orsborn (1976), 

170 Mont. 480, 489, 555 P.2d 509, 514-515. In Campbell, we 

stated: 

The first kind of prejudice results when the jury 

consi6ers a person facing multiple charges to be a 

bad man and tends to accumulate evidence against 

him until it finds him guilty of something. The 

second type o? prejudice manifests itself when 

proof of guilt on the first count in an information 

is used to convict the defendant of a second count 

even though the proof would be inadmissible at a 

separate trial on the second count. The third kind 

of prejudice occurs when the defend-ant wishes to 

testify on his own behalf on one charge but. nct on 

another. (Citation omitted.) 

615 P.2d at 198. 

Prejudice to defendant is balanced against judicial 

economy. This balancing is left to the sound discretion of 

the trial judge and the appellate court will not substitute 

i.ts jusgment for that of t-he trial court, absent a showing of 

abuse of discretion. Zudicial economy weighs heavily in the 

balancing process, and the burden is on the defendant to show 

t.hat prejudice outweighs this. Campbell, 615 P.2d at 198. 

In the present case defendant contends that consolidation of the charges was prejudj-cj-a1 because the number of 

charges against him allowed the jury to regard him as a "had 

man." In the recent case of St.ate v. Slice (19881, 753 P.2d 

1309, 1311, 45 St.Rep. 752, 754, this Court stated that the 

cumulative effect of multiple charges is "rarely a sufficient 

reason to justify severance." In Slice, the defendant faced 

16 criminal counts at trial, yet the court found insufficient 

prejudice to require severance. See also, Campbell, 615 P.2d 

at. 199, (where the district court. refused to sever a habitual 

traffic offender charge); -- Orshorn, 555 P.2d at 515. 
In support of his contention that the first type of 

prejudice occurred, Mr. Baker cites answers given by two 

jurors when the jurors were polled after trial. In polling 

the jurors, the court asked if the multiple charges made them 

think that the defendant was more likely to be guilty. The 

court and defense counsel framed this question several different ways in attempts to clarify precisely what was being 

asked of the jurors. The court. fina.l.l?- directed the jurors 

as follows: 

THE COURT: Well, see if you can answer that. If 

you can't understand, just say, "I can't answer. I 

don't understand." 

Two jurors responded, "I dcn't know." It is not at all clear 

that these jurors were indicating that they may have convicted Mr. Raker due to multiple charges. The jurors may have 

been responding to the court's direction to not answer if 

they did not understand the question as posed. 

Fle conclude that neither the cumulative effect of the 

multj-ple charges nor the jurors' answers to the polling 

demonstrates prejudice to the defendant sufficient to deny 

him a fair trial. "In showing prejudice, it is not sufficient that the defend-ant prove some prejudice or that a 

better chance of acquittal. exists if separate trials are 

held. Rather, the defendant must show the prejudice was so 

great as to prevent a fair trial." Campbell, 615 P.2d at 198 

(citing United States v. Dohm (5th Cir. 1979), 597 F.2d 535, 

530; Vnited States v. Martinez (1st Cir. 1973), 479 F.2d 824, 

828.) F7e affirm the holding of the District Court that 

defendant faLLed to demonstrate prejudice which would require 

severance. 

Mr. Raker also contends that the second type of prejudice from joinder occurred at his trjal. This type of 
prejudice exists when the jury uses proof of guilt on one 

count in the information to convict a defendant on another 

count in the information even though proof would have been 

inadmissib1.e at a separate trial or the second count. As we 

stated in Cam~hell: 

Nc prejudice of this nature will be found when the 

evidence presented at a joint trial is simple an? 

distinct. This rule is based on the rationale that 

when the charges are few and the evidence straight 

forward, there is no reason to assume the jury was 

confused and could not keep the relevant evidence 

separate. (Citations omitted. ) 

In the present case the charges were not complicated and 

the evidence was not complex. Defendant has failed to stat^ 

what evidence was used to find him guilty on one count whj-ch 

would have been inadmissible in a separate trial. The jurj, 

was instructed that each count charges a distinct offense en6 

that each count must be decided separately. 

Defendant contends, however, that t.his second type of 

prejudice occurred because the jurors were confused. In 

suppcrt of this contention he notes that upon polling the 

jurors after trial, three jurors said they did not belielTe 

defendant was in the Payless Store when it was robbed. PF' 

argues that this shows the jurors were confused because no 

evidence was presented which portrayed defendant in a light 

other tha~ as perpetrator. As additional evidence that 

cc>nfusion was "rampant" in the trial, defendant notes that 

the prosecutor made an incorrect statement about the evidence 

in cl.osing argument. However, the jurors were also poll-ed on 

t-he speci5j.c question of whether the multiple charges caused 

confusion in their minds, and each juror answered, "No. I' 

Defendant has nct met his burden of showing the second type 

nF prej~ldice. PTe therefore cnnc1ud.e that: the (JeFe~dant has 
demonstrated no prejudice sufficient to deny him a fair trial 

or to require severance under S 46-11-404 (4) , MCA. We hold 

that the District Court's refusal to sever the charges was 

not clearly erroneous. We affirm the holding of the District 

Court on the motion to sever. 

II 

Did the Pistrict Court err in admitt-ing certain impeachment evidence? 

Mr. Baker objects to the admission of a letter written 

by him to Randy Clark, an inmate at Montana State Prison. 

The letter contained a message to Lance Sprout, who wa.s aLse 

lncarcerated at Kontana State Prison. In the message to Mr. 

Sprout, r. Baker suggests that "if someone accj.dentaIly 

somehow bumped his head and he got amnesia, they could not 

hold that egainst him," and "possibly the next statement in 

court will be so mixed up that it will he thrown out." At 

the end of the letter, Mr. Raker offers to send money, indi-. 

cating that he will send generous amounts if his innocence is 

proven. This letter was introduced by the State on cross 

examination of Mr. Baker. 

The State first asked Mr. Raker if it would have been tc 

his advantage if Lance Sprout had not testified at Mr. Baker's trial, and if it would have been to his advantage if Mr. 

Sprout had gotten amnesia while he was at the prison. The 

State next asked Mr. Baker if he had ever written a letter 

making those suggestions. Mr. Raker's answers to the State's 

questions were evasive. Also, by his answers he attempted to 

suggest that the possibility of amnesia was Mr. Sprout's 

idea. Mr. Faker was then asked to read the letter to the 

jury. Defense ccunsel objected on grounds of relevancy an2 

foundation. On appeal, the 6.efense argnes that the letter 

was irrelevant an? pre ju?icj a! . 
The letter was relevant to show consciousness of guilt 

ancl is admissible under Rule 404(b) M.R.Evid., which 

provides: 

Other crimes, wrongs, acts. Evidence of other 

crimes, wrongs, or acts is not admissible to prove 

the character of a person in crzer to show that he 

acted in conformity therewith. It malr, however, be 

admissible for other purposes, such. as proof of 

motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or 

accident. 

The second sentence of this subpart provides a list of exceptions to the general rule that other crimes, wrongs or acts 

are inadmissible to prove a person's character. Evidence of 

act may be admissible t.o prove any of the enumerated 

reasons; however, this list is not exclusive and has been 

held to include evidence which tends to prove consciousness 

of gullt. State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287, 

289. In Shaw, evidence of intimidation of a witness was an 

act which was admissible to show consciousness of guilt. See 

also State 77. Clark (1984), 209 Mont. 473, 682 P.2d 1339, 

1350. 

in Shaw this Court stated that "[iln a criminal prosecution any attempted intimidation of a witness is properly 

attributable to a consciousness of guilt and testimony relating thereto is relevant and admissible in evidence." -- Shaw, 

648 P.2d at 389-290, quoting People v. Smith (1972), 3 

I1l.App.3d 958, 279 N.E.2d 512, 513. In Clark we noted that 

this rationale applies to documentary as well as testimonial 

evidence. Clark, 682 P.26 at 1350. In the present case we 

believe that the letter in which Mr. Baker attempted to 

influence Mr. Sprout ' s testimony evidences defendant ' s consciousness of guilt. As such, we conclude that the letter 
was relevant and admissible pursuant to Rule 404(b), 

M.R.Evid. 

Defendant argues that even if this evidence were admissible as "other acts" pursuant to 404(b), the four element 

test of admissibility and procedural requirements established 

in State 17. Just (1973) , 184 Mont. 262, 602 P.2d 957, were 

not met. However, the Just requirements do not apply in the 

present case. The defendant in Shaw raised the same argument 

but this Court disagreed, stating: 

Both the admissibility test. and the procedural 

requirements found in Just pertain to evidence of 

other prior crimes but do not apply to evidence 

establishing consciousness of guilt regarding the 

crime with which the defendant is charged. 

Shaw, 648 P.2d at 290. 

We hold that the District Court's ruling which admitted 

the letter was not clearly erroneous. 

Did the District Court err i.n giving an accountabil-ity 

instruction during jury deliberations? 

During deliberations, the jury submitted a question to 

the court which stated, "The charge of robbery, Instructior. 

No. 8, how does it appl-Y to Instructi-on 11 regarding accomplLce?" The court and counsel for both parties considered 

this question in chambers hut were unsure what the jurors 

actually wanted to know. After the court asked the jurors to 

clarify their question, and after discussion with counsel, 

the court decided to instruct the jury on the offense of 

accountability as defined by 55 45-2-301 and 302, KCA. The 

jury later returned verdicts of not guilty to burglary of the 

Willumsen residence, but guilty of theft of the items taken 

in that burglary. Defendant argues that this is an inconsistency caused by the giving of the accountability instruction. 
Defendant also contends that the accountability instructicn was a material variation of the crimes charged and that 

it was error to give this instruction after closing argument 

because he was precluded from discussing this theory with the 

jury, citing State v. Bretz 19 , 180 Mont. 307, 590 P.2d 

614. Defenclant's ultimate contention on this issue is that 

the District Court erred in not setting aside the verdict. of 

guilty to theft. 

We decline to address whether the court erred in giving 

this instruction during jury deliberations because we conclude that the jury's determination that Mr. Baker was guilty 

of felony theft need not be premised on an accountability 

theory in this case. There was sufficient evidence presented 

for the jury to find Mr. Baker guilty of theft without the 

accountahj ! j-ty instruct:iorl, ar,d without finding him guilty of 

burglary. 

We hold that the Cistrict Court properly refused to set 

aside the convj.ct.i.on. for theft.