No. 89-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSKURT McCOLLEY, 

Defendant an Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial Dks 

In and for the County of Yellowstone, z ox The Honorable Russell Fillner, Judge presidpg. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Elizabeth S. Baker, Asst. Atty. General, Helena 

Harold Hanser, County Attorney; Teresa M. OIConnor, 

Deputy County Attorney, 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 dangerous drugs 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 conviction may 

stand when only one of the two sales charged as one offense 

has been proved by sufficient evidence? 

Tim Martin, an undercover detective of the Yellowstone 

County Sheriff's Office, made arrangements with 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's home. Later that same day, Martin returned to Andre'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, 
that upon his arrest, Andre said that he 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, defendant moved for directed verdict on the ground that 

there was insufficient evidence connecting the defendant to 

the April 1st sale. Defendant argued that since Andre was an 

accomplice in the drug transaction, as a matter of law, 

defendant could not be convicted solely upon the evidence 

gained from the police. The motion was denied. 

Defendant testified that although Andre did visit him at 

his home on April 28, he did not sell any cocaine to Andre 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 sale of dangerous drugs, committed on two 

separate occasions, the State must prove his connection with 

both sales. He contends that there is not sufficient evidence to support his conviction due to the State's failure to 

prove his connection with the cocaine sale of 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 is no evidence to corroborate Andre's statements upon arrest that he received the 

cocaine from defendant. Furthermore, he contends that Andre 

was an accomplice to the 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 defendant was involved in both sales, citing the steadfast rule that "superfluity in an Information does not vitiate." State v. Board (1959), 135 Mont. 139, 143, 337 P.2d 

924, 927. They argue that the conviction must stand because 

the April 28th sale is supported by substantial evidence. 

The State relies on United States v. Bruno (5th Cir. 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 this holding. 

We hold it is unnecessary to prove independently defendant's involvement in both sales when proof 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 Court was correct in denying defendant's Motions for 

Directed Verdict and his Motion for Judgment N.O.V. or a New 

Trial. 

Affirmed. 
We concur: