Xo. 85-355 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff arid Respondent, 

-vsROBERT WILLIAM GONYEA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. O'Rrien, Missoula, Montana 

For Respondent : 

Mike Greely, Attorney General-, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula 

Robert Terrazas, Deputy County Attorney, Missoula, 

Montana 

Submitted on Briefs: Aug. 21, 1986 

Decided: January 6, 1987 

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Filed :'-" 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

A jury found the defendant/appellant guilty of four 

counts of burglary. He was sentenced by the court of the 

Fourth Judicial District in Missoula County, Montana, to 

twenty-five years in the Montana State Prison. A ten year 

sentence was imposed in each of the burgl-ary counts, three 

counts to run concurrently, but consecutive to the sentence 

in Count I. Five years were added to the sentence because 

the defendant is a persistent felony offender. He is 

designated a non-dangerous offender for purposes of parole. 

Defendant appeals. We affirm. 

Appell-ant (Gonyea) presents two issues on appeal: 

(1) whether there was sufficient corroborating 

evidence to uphold his conviction; and 

(2) whether comments by the prosecution on voir dire 

and opening statement violated his constitutional right 

against self-incrimination. 

Gonyea first argues insufficient corroborating evidence 

to uphold his conviction. The statutes set forth the 

requirements for corroborated testimony and legal 

accountabi lity : 

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 . . . tends to 

connect the defendant with the commission 

of the offense . . . 

Section 46-16-213, MCA. 

A person is legally accountable for the 

cond.uct of another when: 

13) either before or during the 

commission of an offense with the purpose 
to promote or facilitate such cormission, 

he solicits, aids, abets, agrees, or 

attempts to aid such other person in the 

planning or commission of the 

offense . . . 

Section 45-2-302, MCA. 

The question as to whether a witness for the State is 

an accomplice is--unless such fact is undisputed--for the 

jury, under proper instruction by the court. State v. 

Slothower (1919), 56 Mont. 230, 232, 182 P. 270, 271. he 

District Court instructed the jury: 

It is a question of fact for the jury to 

determine from the evidence and from the 

law as given you by the court whether or 

not any witness other than. Neil Vanderpan 

was or was not an accomplice within the 

meaning of the law. 

This is a proper instruction. The jury also was instructed 

as to what an accomplice is and when legal accountability 

exists. 

At the close of the State's case-in-chief, Gonyea moved 

for a directed verdict, alleging insufficient evidence to 

sustain a conviction for the burglaries. He argued the three 

key witnesses against him were accomplices as a matter of law 

and there was insufficient independent corroborative evidence 

tending to connect him with the commission of the crime. The 

State admitted Neil Vanderpan was an a-ccomplice as a matter 

of law, but contested Gonyea's claim that Neil's mother, 

Selah Vanderpan, and Kris Davis were accomplices as a matter 

of law. 

The concept of legal. accountability has been the subject of 

much attention in case law. 

An accomplice is . . . "one who 

knowingly, voluntarily and with common 

intent with the principal offender unites 

in the commission of a crime . . . One 

may become an accomplice by being present 

and ioining in the criminal act, by 
aiding and abetting another in its 

commission, or, not being present, by 

advising and encouraging its commission; 

but knowledge and voluntary actions are 

essential in order to impute guilt." 

State v. Harmon (1959), 135 Mont. 227, 236, 340 P.2d 128, 

132, quoting State ex rel. Webb v. District Court (1908), 37 

Mont. 191, 200-201, 95 P. 593, 597. 

Neil Vanderpan testified he left work with Gonyea the 

night of the burglaries and they went to Annette Cleary's 

trailer. Cleary, her son, and Kris Davis were at the 

trailer. Thereafter Vanderpan and Gonyea left, spent about 

two hours at a Seely Lake bar, then returned to the Cleary's 

trailer. About half an hour later, Gonyea and Vanderpan 

again left the trailer. Outside the trailer Gonyea told 

Vanderpan they were going to the Rustics to break in. 

They broke a lock off the door to the saw shop and took 

money from drawers. Then they broke the lock on the door to 

the warm-up trailer and took money from the pop machines. 

They proceeded to the Swan Valley Center store, and pried 

open the back door. They took a safe, a black box, and a 

bank hag behind a nearby building, stuffed their pockets with 

money and hid what they did not take. They re-entered the 

store and took coffee cans containing coins. Then they went 

back toward Cleary's trailer, hid the cans by the side of 

Clearyls garage, and went inside the trailer. 

There is no evidence that Kris Davis was involved in 

the commission of the burglaries. She was present when 

Gonyea and Neil Vanderpan returned to Cleary's trailer after 

allegedly committing the burglaries. She saw them remove 

money from their pockets and saw Gonyea hide some of it in a 

closet in the trail-er. Gonyea told her about the burglaries, 
and that she should tell anyone who asked that he was with 

her all that evening and night. 

About a week after the burglary, Davis went with Gonyea 

and Neil Vanderpan to Kalispell. Vanderpan drove and Gonyea 

and Davis rolled coins. Davis made two trips into Rosauer's 

with fifty dollars in coins, which she exchanged for paper 

money 

This trio made two more trips to Kalispell during the 

next few days. Selah Vanderpan drcve them both times. She 

testified she did not know before the first trip that Gonyea 

had committed the burglaries. There is no evidence to the 

contrary or to support the contention that she helped plan or 

commit the burglaries. 

Tire find sufficient evidence in the record tending to 

show neither Selah nor Kris were accomplices to make the 

question one for the jury. State v. Searle (1952), 125 Mont. 

467, 474, 239 P.2d 995, 999. It is within the sound 

discretion of the District Court to decide whether a motion 

for directed verdict should be granted. Section 46-16-403, 

MCA; State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079; 

State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; 

State v. White Water (Mont. 1981), 634 P.2d 636, 38 St-Rep. 

1664. The motion was properly denied. 

Thereafter, Gonyea introduced evidence to sustain his 

position. All evidence was considered by the jury, after 

proper instruction. "[Wlhere the evidence is conflicting or 

doubtful, either as to [whether the witness for the State is 

an accomplice] or as to corroboration, the court should not 

invade the province of the jury. " State v. Smith (1925) , 75 

Mont. 22, 27, 241 P. 522, 523. 
To constitute rone] an accomplice, he 

must have entertained a criminal intent 

common with that which moved the 

defendants . . . and since [they were] 

not personally present joining in the 

[burglary, they] must also have advised 

and encouraged its commission. Whether 

[they] entertained the criminal intent, 

and whether [they] advised and encouraged 

the defendants, were questions properly 

for the determination of the jury under 

appropriate instructions. 

State v. Slothower, supra, 56 Mont. at 232, 182 P. at 271. 

The jury did not determine that Selah Vanderpan or Kris 

Davis had the requisite criminal intent (mental state) to 

commit burglary, or that they aided in any way the planning 

of the burglary. Therefore it determined they were not 

accomplices. We will not overturn a jury's decision when it 

was reached after proper instruction. Because neither Selah 

nor Kris was an accomplice their corroborative testimony is 

admissible. " [TI he corroboration is sufficient if, 'unaided 

the testimony of an accomplice, tends to connect the 

defendant with the commission of the offense. I" (Citations 

omitted.) State v. Smith, supra, 75 Mont. at 27, 241 P. at 

523. 

Gonyea did not testify in his own behalf. He argues 

the prosecutor's comments on voir dire and opening statement 

were highly improper and prejudicial. His motion for 

mistrial was denied. Gonyea also claims certain statements 

made by the prosecutor on opening statement were prejudicial. 

He argues these two incidents entitle him to a reversal of 

h.is conviction. We disagree. 

The right of an accused to remain silent is, of course, 

fundamental. It is well settled in this state that a comment 

so stating is not the same as a comment on the failure to 

exercise that right. Sta.te v. Gladue (~ont. 19841, 677 P.2d 
1028, 1032, 41 St.Rep. 249, 254. A comment on the 

defendant's failure to testify violates the self 

incrimination clause of the Fifth Amendment, applicable to 

the various states by way of the Fourteenth Amendment. 

Griffin v. California (1965), 380 U.S. 609, 611, n. 3, 85 

S.Ct. 1229, 1231, n. 3, 14 L.Ed.2d 106, 108, n. 3. The 

prosecutor or judge who makes such a comment "solemnizes the 

silence of the accused into evidence aga-inst himself." 

Griffin, supra, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d 

at 110. Such a comment results in reversible error. 

After careful consideration of the entire transcript, 

however, we are persuaded neither the prosecutor's comments 

on voir dire, nor opening statement can be held to have been 

such comments. We find them to be harmless beyond a 

reasonable doubt. State v. Gladue, supra, 677 P.2d at 1031, 

41 St.Rep. at 253; Chapman v. California (1976), 386 U.S. 18, 

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. We do not find: 

[Tlhe language used was manifestly 

intended or was of such a character that 

the jury would naturally and necessarily 

take it to be a comment on the failure of 

the accused to testify. 

State v. Anderson (1976), 156 Mont. 122, 125, 476 ~.2d 780, 

782, citing Knowles v. U.S. (10th Cir. 1955), 224 F.2d 168, 

Defendant's right not to testify is clearly protected. 

The prosecution should not refer to the right directly or 

indirectly at any stage of the trial. Failure to follow this 

rule of conduct is inviting a mistrial or reversal on appeal. 

We affirm. 
Pf //i \ 

Justices