No. 82-02 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSROBIN LAUBACH, 

Defendant and Appellant. 

Appeal from: District Court 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 

:VUk L 3 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 accomplice was 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 $3,250 was 

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, Lee met 

with the defendant and another youth named Aaron Brower. 

This meeting took place at the Stockman's motorcycle shop, 

and resulted in the three men 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 motorcycle 
were located. The men returned to the Stockman's Supply; 

there the defendant test drove another motorcycle, and left 

his name and address with Lee. On the Monday morning following 

this meeting, Lee discovered the motorcycle and parts were 

missing from the high school. 

The accomplice, Aaron Brower and the defendant were 

roommates in their sophomore year at Northern Montana College 

in February 1981. Brower testified as to how the burglary 

took place. On the Friday before the burglary, the two of 

them traveled from Mavre to Roundup (Brewer's hometown) on 

their way to a basketball game in Billings. After the 

basketball game, the two men returned to Roundup and discussed 

stealing the motorcycle they had seen at the high school 

that day. Brower overheard a telephone call between defendant 

and his father, in which the defendant became very upset 

because his father would not loan him the money to buy the 

motorcycle. On returning to Roundup from Billings, the 

defendant parked his truck about two blocks from the high 

school and entered the high school after opening a locked 

door with a wire. Once inside, defendant opened another 

door with the wire and then entered the mechanics shop where 

the cycle and parts were stored. Brower and the defendant 

lifted the cycle into defendant's pickup truck and drove 

back to Havre. 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 in the Havre area, and then defendant took the cycle 

to Fort Benton where a friend kept it for him. 

The friend, Steve Witt, of Fort Benton, testified that 

the defendant brought the cycle to the Witt Ranch on approximately 

March 20, 1981. Defendant asked Witt if he would keep the 
cycle at the ranch for a short time. Defendant told Witt 

that he purchased the cycle from an Indian for $500 and that 

he was bringing the cycle to the Witt ranch for storage. On 

several occasions, Witt asked the defendant to remove the 

cycle, but defendant did not remove it. Finally, Witt told 

his (Witts') parents of the presence of the cycle at the 

ranch. 

The defendant and Brower were suspects from the beginning. 

Shortly after the motorcycle had been stolen, the officials 

in Roundup notified the Hill County Sheriff's Department 

that the defendant and Rrower were suspects in the burglary. 

Within a few weeks, the Choteau County Sheriff's Department 

received an anonymous tip from a woman concerning the presence 

of the cycle at the Witt ranch. The sheriff went to the 

Witt ranch, and met Mrs. Witt. Mrs. Witt had anticipated 

the purpose 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 identified it as the motorcycle stolen from the high school shop in Roundup. 

The Musselshell County Attorney's office later charged 

Brower and the defendant with burglary. Brower pleaded 

guilty to the charges and agreed to testify as an accomplice 

in the burglary. The jury convicted defendant of burglary 

and defendant was sentenced to five years in prison with 

four years suspended. Brower was given a deferred imposition 

of sentence. 

We hold first that the testimony of the accomplice, 

Aaron Brower, was sufficiently corroborated and therefore 

that the trial court properly denied defendant's motion for 

a directed verdict. Evidence of defendant's possession of 

the stolen cycle connected him with the crime. To corroborate 
accomplice testimony the evidence must: (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 

consistent with innocent behavior. See State v. 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 evidence was 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 support of his assertion. Further, as the State 

points out, the court did instruct the jury on corroborating 

evidence by giving the following instruction: 

"A conviction cannot be 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 it merely 

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 instruction by 

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 is mandatory, and we find 

reversible error in the trial court's failure to comply with 

the statute. See also State v. Forsyth (1982), - Mont . 

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

failing to give this mandatory 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 trial while 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: