No. 89-181
INTHE SUPREME COURT OF THE STATEOF MONTANA 1989

STATE OF MONTANA, Plaintiffand Respondent,-VSKURT McCOLLEY, Defendant an Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDks In and for the County ofYellowstone, z ox The Honorable Russell Fillner, Judgepresidpg.

COUNSEL OF RECORD:
ForAppellant: Arthur J. Thompson, Billings,Montana
For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana Elizabeth S. Baker,Asst. Atty. General, Helena Harold Hanser, CountyAttorney; TeresaM. OIConnor, Deputy CountyAttorney, Billings,Montana

Filed: Submitted on Briefs: Sept. 7, 1989 Decided: October 24, 1989

j Clerk

### Justice Fred J. Weber delivered the Opinion of the Court.

Defendant, Kurt McColley,was charged with one count of felony criminal sale of dangerousdrugs in the District Court for the Thirteenth Judicial District, Yellowstone County. The jury found defendant guilty as charged. He was sentenced to 20 years in the Montana State Prison,with 10 years suspended. Defendant appeals. We affirm. The sole issue on appeal is whether the convictionmay stand when only one of the two sales charged as one offense hasbeen proved by sufficientevidence? Tim Martin, an undercover detective of the Yellowstone County Sheriff'sOffice,made arrangementswith Matt Andre to purchase one-half gram of cocaine on April 1, 1988. Andre and Martin went to the residence of defendant in Billings, Montana. Andre entered the house alone, came out, and informed Martin that he had spoken with "Kurt," who said he would supply the cocaine. Martin and Andre then left defendant'shome. Later that sameday,Martin returned toAndre's house and picked up a bindle containing one-half gram of cocaine. Several weeks later, Martin arranged with Andre to purchase more cocaine. On April 28, the two men again went to the home of defendant. Surveillance of defendant's residence was conducted by other officers. Martin himself never entered defendant's residence, but during the course of the day Andre was observed entering defendant's house several times. Finally, later that afternoon,Andre returned to his
own residence and gave Martin a bindle of cocaine. The bindle was examined for fingerprints. Five fingerprints belonging to defendant were identified. Martin testified,thatupon hisarrest, Andre said thathe obtained the cocaine from defendant. At trial, Andre denied that the cocaine from either purchase came from defendant. At the close of the State's case, defendantmoved fordirectedverdict on the ground that there was insufficient evidence connecting the defendant to theApril 1st sale. Defendant argued that sinceAndre was an accomplice in the drug transaction, as a matter of law, defendant could not be convicted solely upon the evidence gained from thepolice. The motion was denied. Defendant testified that although Andre didvisithim at hishome on April 28, he did not sell any cocaine toAndre on that date or at any other time. The State called no other witnesses, and defendant was found guilty of the charged offense. He subsequently filed a Motion for Judgment Notwithstanding the Verdict (Judgment N.O.V. ) or for New Trial pursuant to 

### 5 46-16-702, MCA, based on the same grounds as the Motion for Directed Verdict. The motion was denied. Defendant maintains that since he was charged with one offense of criminal saleof dangerous drugs, committed on two separate occasions, the Statemust prove his connection with both sales. He contends that there is not sufficient evidence tosupport hisconviction due tothe State's failureto prove his connection with the cocaine saleof April 1, 1988. Defendant argues that because Andre only named him on arrest but denied his involvement at trial, the evidence is insufficient. He claims that there isno evidence tocorroborate Andre's statements upon arrest that he received the cocaine from defendant. Furthermore, he contends that Andre
was an accomplice tothe transaction, and under S 46-16-213, MCA, a conviction based on the testimony of an accomplice cannot stand unless corroborated. Defendant relies on the
case of State

### v. Warren (Mont. 1981), 628 P.2d 292, 38 St.Rep

### 773, in which this Court concluded that testimony of an accomplice must be supported by corroborating evidence or acquittal is the only remedy. The State contends it is immaterial to defendant's conviction whether or not there was sufficient evidence to prove defendantwas involved in both sales,citing the steadfast rule that "superfluity in an Information does notvitiate." State 

### v. Board (1959), 135 Mont. 139, 143, 337 P.2d 924, 927. They argue that the convictionmust stand because the April 28th sale is supported by substantial evidence. The State relies on United States v. Bruno (5thCir. 1987), 809 F.2d 1097, in which the Court held that "the government need not prove all the charges contained in the indictment, but only 

### a sufficient number of charges in each count so as to make out a violation of the statute relied upon." We agree and expressly adopt thisholding. We hold it is unnecessary to prove independently defendant's involvement inboth sales whenproof of either sale is sufficient to satisfy a prima facie case. Every charge in the information need not be proved to convict defendant of the offense for which he is charged. Corroboration of the April 1st sale is unnecessary when the April 28th sale was proven by sufficient independent evidence. We conclude the District Courtwas correct in denyingdefendant's Motions for Directed Verdict and his Motion for JudgmentN.O.V. or aNew Trial. Affirmed.We concur: