No. 82-02 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

-VSROBIN LAUBACH,Defendant and Appellant.

Appeal from: DistrictCourt of the Fourteenth Judicial District, In and for the County of Musselshell, The Honorable Nat Allen, Judge presiding.

Counsel of Record: For Appellant: Church, Harris, Johnson & Williams; Michael B. Anderson, Great Falls, M~ntana

For Respondent: Hon. Mike Greely, Attorney General, ilelena, Montana John Pratt, County Attorney, Roundup, Montana

Submitted on Briefs: June 17, 1982 Decided: November 10, 1982 

### :VUkL3

## iY8L Filed:Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

The defendant appeals a Musselshell County conviction of burglary arising from a jury trial in June 1981. Defendant presents three issues on the question of corroborating evidence, and one issue on sentencing. First, he contends the testimony of an accomplicewas not sufficiently corroborated and therefore the trial court should have granted his motion for a directed verdict. Second, he contends the trial court failed to properly instruct the jury on defining corroborating evidence. Third, he contends the trial court failed to instruct the jury that the testimony of an accomplice should be viewed with distrust. Fourth, he contends that the trial court, imposed a more harsh sentence on him than it did the accomplice because he chose to go to trial rather than plead guilty. We reverse and remand for a new trial on the ground that the trial court failed to instruct the jury that the testimony of an accomplice must be viewed with distrust. At some time between Saturday,February 28, 1981, and Monday, March 2, 1981, a motorcycle valued at $3,250was stolen from the auto mechanics shop at the Roundup High School. Barry Lee, a shop teacher in Roundup and a parttime employee of the Stockman's Supply Company,was the

owner of the motorcycle. On Saturday afternoon, Leemet with the defendant and another youth named Aaron Brower. Thismeeting took place at the Stockman's motorcycle shop, and resulted in the threemen going to the high school to look at the motorcycle. At this time, the bike was only partially assembled but Lee showed Brower and defendant where in the shop the rest of the parts for the motorcyclewere located. The men returned tothe Stockman's Supply; there the defendant test drove another motorcycle, and left his name and address with Lee. On theMonday morning following thismeeting, Lee discovered themotorcycle and parts were missing from the high school. The accomplice, Aaron Brower and the defendant were roommates intheir sophomore year atNorthern Montana College inFebruary 1981. Brower testified astohow the burglary took place. On the Friday before theburglary, the two of them traveled from Mavre toRoundup (Brewer's hometown) on theirway toa basketball game inBillings. After the basketball game, the two men returned toRoundup and discussed stealingthemotorcycle they had seen atthe high school that day. Brower overheard a telephone callbetween defendant and his father, inwhich the defendant became very upset because his fatherwould not loan him themoney tobuy the motorcycle. On returning toRoundup from Billings, the defendant parked his truck about two blocks from the high school and entered thehigh school afteropening a locked door with a wire. Once inside, defendant opened another door with thewireand then entered themechanics shop where the cycle and parts were stored. Brower and the defendant liftedthe cycle intodefendant's pickup truck and drove back toHavre. After reaching Havre, Brower took a nap, and

on awakening found the defendant operating the assembled cycle. Both men used the cycle for approximately three weeks inthe Havre area, and then defendant took the cycle toFort Benton where a friendkept it forhim. The friend, Steve Witt, of Fort Benton, testified that the defendant brought the cycle tothe WittRanch on approximately March 20, 1981. Defendant asked Wittif he would keep thecycle atthe ranch for a shorttime. Defendant told Witt that he purchased the cycle from an Indian for $500 and that he was bringing the cycle tothe Wittranch for storage. On severaloccasions, Wittasked the defendant toremove the cycle, but defendant didnot remove it. Finally, Witttold his (Witts') parents of thepresence of the cycle atthe ranch. The defendant and Brower were suspects from thebeginning. Shortly afterthemotorcycle had been stolen, the officials inRoundup notified the HillCounty Sheriff's Department that the defendant and Rrower were suspects inthe burglary. Within a few weeks, the Choteau County Sheriff's Department received an anonymous tipfrom a woman concerning thepresence of the cycle attheWittranch. The sheriff went tothe Wittranch, and metMrs. Witt. Mrs. Witthad anticipated thepurpose of the sheriff's visit, and on his request signed a consent-to-search form. She then showed the sheriff the location of the cycle and he identifiedit as themotorcycle stolen from the high school shop inRoundup. The Musselshell County Attorney's office later charged Brower and the defendant with burglary. Brower pleaded guilty tothe charges and agreed totestify as an accomplice intheburglary. The jury convicted defendant of burglary and defendant was sentenced to fiveyears inprison with four years suspended. Brower 

### was given a deferred imposition of sentence. Wehold firstthat the testimony of the accomplice, Aaron Brower, was sufficientlycorroborated and therefore that the trialcourtproperly denied defendant's motion for

a directed verdict. Evidence of defendant's possession of the stolen cycle connected him with the crime. To corroborateaccomplice testimony the evidencemust: (a)tend to connect the defendant to the crime, (b)provide more than an opportunity for the defendant to commit the crime, and (c)not be equally consistentwith innocent behavior. See Statev. Anderson

(1982), Mont

# . - , 643 P.2d 564, 39 St.Rep. 629; State 

### v. Forsyth (1982), 

### -Mont. 

### , 642 P.2d 1035, 39 St-Rep. 

### - 540; State v. Manthie (1982), Mont

# . , 641 P.2d 454, 

### - - 39 St.Rep. 350. All of these criteria are met in this case. The strongest corroborating evidencewas the defendant's possession of the stolen cycle, and the fact that he had hidden the cycle at the Witt ranch after the burglary. Possession of the stolen cycle certainly connected defendant to the crime. The accomplice not only testified to defendant's possession of the cycle,but Steve Witt, who let defendant store the cycle at the family ranch, also testified to defendant's possession of it. Possession of the stolen property is at least circumstantial evidence which the jury had a right to consider in determining whether defendant had stolen the cycle. Defendant's second contention is that the trial court refused to give his offered instructions defining corroborating evidence. Without these instructions, defendant contends the jury had no idea of how to determine whether the evidence

was corroborating. Defendant fails to provide any law or analysis in supportof his assertion. Further, as the State points out, the court did instruct the jury on corroborating evidence by giving the following instruction: "A conviction cannotbe had on the testimony of one responsible or legally accountable for the same offense, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony 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 itmerely shows the commission of the offense or the circumstances thereof." This instruction gives adequate guidance to a jury on how to view corroborating evidence in the light of accomplice testimony. Failure to embellish on this instructionby additional instructions would not have prejudiced the defendant. We are compelled nonetheless to reverse defendant's conviction because the trial court failed to instruct the jury that accomplice testimony must be viewed with distrust. The controlling statute is section 26-1-303(4), MCA, 

### which states: "26-1-303. Instructions to jury on how to evaluate evidence. The jury is to be instructed by the court 

# .

# . .

" (4) 

### that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution;" The language of the statute ismandatory, and we find reversible error in the trial court's failure to complywith the statute. See also Statev. Forsyth (1982), Mont

# . -



### , 642 P.2d 1035, 39 St.Rep. 540. In fact, the error in - 

### failing to give thismandatory instruction is so obvious, the State should have confessed the error and agreed to a retrial even if the defendant did not prevail on the question 

### of the sufficiency of the corroborating evidence. In his last issue defendant contends he received a more severe sentence than his accomplice solely because he chose to go to trialwhile the accomplice chose to plead guilty and turn state's evidence. While our decision to

reverse and order a new trial means that this issue need not be discussed,we nonetheless hold that the record does not

### contain any evidence to support the defendant's assertion. 

### The judgment is reversed and the case remanded for a
new trial.

We Concur: