INTHE SUPREME COTJRT OF THE STATF OF MONTANA

STATE OF MONTANA, Plajntiff and Respondent,

VERN TRAVIS BAKER,
Defendant and Appellant.

APPEAL FROM: DistrictCourt of theFourth JudicialDistrict, In and forthe 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 BettyWing, Deputy County Attorney Karen Townsend, Deputy County Attorney

Submitted on Briefs: February 16, 1989
Decided: April 25, 1989Mr. JusticeFred J. Weber delivered theOpinion of theCourt.

Defenclant was convicted on a jury verdict before the DistrictCourt, FcurthJudicialDistrict, 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 to50 years at Pontana StatePrison for felony theft, and 50 years for tampering with a witness. He was also sentenced to 6 months injail formisdemeanor theft. These sentences areto

run concurrently. Defendant appeals those convictions. We affirm. The issuesare: 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 ingiving an instruction

on accountabilityduringjury deliberations? On February 5, 1987, thePissoula County Attorney filed

an information chargingMr. Baker withrobbery, a felony. On March 6, 1987, Mr. Baker was charged with felony theft-. The second information was ame~declto include a charge of burglary. On Pay 4, 1987, defendant was tried on the robbery counthutthejury didnot reach a verdict. Latertheinformation chargingrobberywas amended toinclude theoffenseof tampering with a witness. After the trial on Kay 4, 1987, the county attorney fileda thirdinformation charging defendantwithmisdemeanor theft. Thereafter, the county moved toconsolidate allthe 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 

### wit-ness, and misdemeanor theft. Defendantmoved the court to set aside theverdicts ofguilty to robbery and felony theft. The court subsequently set asifiethe 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.hBuckhouse 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 shehaZ accompaniedhim to the Buckhous~ Bridge whereNr. 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 forMr. Sprout toborrow 

### a car from

a friend. The carMr. Sproutborrowed was ablue 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 inMissoula. Mr. Sprout testified thathe 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 avehicle description and license plate identification. Later that night the car was stopped by a Missou1.a deputy who observed it near theMissoula 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-otgunscabbard in her car,also belonging toMr. 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 thephone at 8:00 

### p.m. on the night of the robbery. She testified that he later sent 

### a letter to her inwhich 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 Itwith anyone else "untilwe have itdown to a 'T'." This letter, 

### which was admitted into eviderc~at 

### trSal, implied that an alibi should be formulated. I 

### Did the DistrlctCourt 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~ridecin 

### pertinent part:
(1) 

### An indictment, information, or complaint may charge two ormore different offensesconnected together 

### in their commission, different statements of 

### the same offense, or 

### two or more differentoffenses 

### 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 courtmay 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.echarge or by joinder of separate charges or defendants for tria,, the courtmay order separate trials, grant a severance of defendants, or provide any other relief as justicemay require. Joinder is proper where the offenses are logically linkec?. hymotive and where overlappingproofmust 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-enfrom Mr. Willumsen was used in the robbery. Additicnally, other items stolen from the Will-umsenresidence 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 connectedby motive and there was a large area of overlapping proof among 

### the separate charges. We thereforehold that the District Court's joincler OF these charges was not clearly

erroneous. Having concluded that joinderwas not clearly erroneous, the second inquiry iswhether 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 whichmay 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-antwishes to testify on his own behalf on one charge

### but.nct on another. (Citationomitted.)
615P.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.tsjusgment for that of t-hetrial court,absent a showing of abuse of discretion. Zudicial economy weighs heavily in the balancing process, and theburden 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.atev. Slice (19881,753 P.2d 1309, 1311, 

### 45 St.Rep. 752, 754, this Court stated that the cumulative effect ofmultiple charges is "rarelya 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, 615P.2d at.199, (where the district court.refused to sever ahabitual 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 themultiple 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, "Ican't answer. I don't understand."

Two jurors responded, "Idcn't know." It isnot at all clear that these jurorswere indicating that theymay 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 asposed. 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-antprove 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 toprevent a fair trial." Campbell, 615P.2d at 198

(citingUnited Statesv. Dohm (5thCir. 1979), 597 F.2d 535, 530;Vnited Statesv. Martinez (1stCir. 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 ofprejudice 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 ata separate trialor the second count. As we stated inCam~hell:

Nc prejudice of thisnature willbe found when the evidence presented at a joint trial is simple an? distinct. This rule isbased on therationale that when the charges are few and the evidence straight forward, there is no reason toassume thejury was confused and could not keep the relevant evidence separate. (Citationsomitted.)

Inthepresent casethecharges were not complicated and the evidence was not complex. Defendant has failed tostat^ 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 thateach count charges a distinct offenseen6 thateach 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>nfusionwas "rampant" in the trial, defendant notes that theprosecutormade an incorrect statement about theevidence incl.osingargument. However, thejurors were alsopoll-edon t-he speci5j.c question of whether themultiple 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. PTetherefore cnnc1ud.e that: the (JeFe~dant has

### demonstratedno prejudice sufficienttodeny 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 PistrictCourt err in admitt-ingcertain 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 amessage to Lance Sprout, who wa.s aLse lncarcerated at Kontana State Prison. In themessage 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 thathe will send generous amounts ifhis innocence is proven. This letter was introduced by the State on 

### cross examination ofMr. Baker. The State firstasked Mr. Raker if itwould have been tc his advantage if Lance Sprouthad not testified at Mr. Baker's trial,and if itwould have been tohis 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 questionswere 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? preju?icja! 

## .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. Itmalr, 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.oprove 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. Statev. Shaw (1982),199 Mont. 248, 648 P.2d 287, 289. In Shaw, evidence of intimidation of a witness was an act whichwas 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 

### aswell 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 evidencewere 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. Thedefendant 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 thedefendant is charged. Shaw, 648 

### P.2d at 290. We hold that the District Court's rulingwhich admitted the letterwas not clearly erroneous.

Did the District Court err i.ngiving an accountabil-ity instructionduring 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-Yto Instructi-on11 

### regarding accomplLce?" The court and counsel for both parties considered this question in chambers hut were unsure what the jurors actuallywanted toknow. 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 returnedverdicts of not guilty toburglary of the Willumsen residence, but guilty of theft of the items taken in thatburglary. Defendantargues that this is an inconsistency 

### caused 

### by the giving of the accountability instruction.Defendantalso contends that the accountability instructicn was 

### amaterial variation of the crimes charged and that it was error to give this instruction after closing argument becausehe wasprecluded 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 addresswhether the court erred in giving this instruction during jury deliberations because we conclude that the jury's determination thatMr. Baker was guilty of felony theft need 

### not be premised on an accountability theory in this case. There was sufficient evidencepresented for the jury to find Mr. Baker guilty of theft without the accountahj! j-ty instruct:iorl,ar,d without findinghim guilty of burglary. We hold that the Cistrict Court properly refused to set aside the convj.ct.i.on. for theft.