No. 14820 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

CHARLES W. DOLAN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert Ernrnons argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Sarah Power, Legal Intern, Attorney General's Office, 

argued, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Mark Barer argued, Deputy County Attorney, Great Falls, 

Montana 

Filed: 

Submitted: September 9, 1980 

/q Decided: J i - 4uJ 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Defendant Charles W. Dolan appeals from the judgment of 

the Eighth Judicial District Court, Cascade County. The 

defendant was accused by information of robbery and theft. 

Following a jury trial, the defendant was found guilty of theft 

but not guilty of robbery. The District Court entered its 

sentence and judgment and denied defendant's post-trial motions. 

In this appeal, defendant claims that a number of errors 

were committed during his trial: 

1. The evidence presented by the prosecution at trial 

was insufficient to prove a charge of theft. 

2. The District Court erred in allowing the jury to 

consider the testimony of John Grissom, an accomplice in the 

the£ t. 

3. The District Court erred in its instructions given 

to the jury. 

4. The prosecution's closing remarks to the jury 

contained impermissible comments on the defendant's decision to 

present no evidence to rebut the prosecution's case. 

We find no merit in defendant's argument that reversible 

error was committed at trial. We affirm the judgment of the 

District Court. 

At approximately 1:00 a.m. on September 22, 1978, a 

"holdup" occurred at the Crossroads Truck Stop in Great Falls, 

Montana. A man brandishing a handgun, entered the truck stop and 

demanded that the cashier give him the truck-stop's money. The 

cashier described the gunman as wearing black tennis shoes, blue 

denim jeans, a green jacket, gloves, a red helmet and a white 

cloth over his face. The truck stop cashier gave the gunman 

approximately $5,000 in United States and Canadian currency from 
the cash register and the truck stop operator's office. The 

gunman took the money and fled. 

The cashier reported the holdup to the Great Falls 

police. Detective David War r ington, assigned to investigate the 

holdup, apprehended John Grissom, a suspect in the holdup. 

Grissom admitted his involvement in the holdup to Detective 

Warrington, stating that he had driven the "getaway car" for 

the defendant. Following his confession to Warrington, Grissom 

agreed to testify against defendant in exchange for immunity. 

The prosecution presented six witnesses to prove its 

charges against defendant including the truck stop cashier, the 

truck stop operator, two Great Falls detectives including 

Warrington, William Steele, a friend of the defendant, and John 

Grissom. Grissomls testimony, however, provided the key evidence 

linking defendant to the truck stop holdup. Grissom testified 

defendant "held-up" the truck stop wearing the same garb as 

described by the cashier, that defendant showed him the money 

taken from the truck stop, and that the defendant described to 

him in detail the holdup sequence of events. 

Key corroborating evidence of Grissomls theft account 

was given by the testimony of William Steele. At the time of the 

holdup, Steele was a bartender at a local bar. Steele testified 

that he visited with defendant a few days after the holdup while 

at work in the bar, and that defendant ordered several rounds of 

drinks at the bar and paid for each round with Canadian money. 

When Steele asked defendant where he got the Canadian money, 

Steele testified defendant first replied that the money was left 

over from a trip to Canada. Later that evening, however, 

defendant admitted to Steele that the Canadian money was part of 

the truck stop holdup money. 

During the trial, Steele could not remember whether 

defendant said, "I got the money from the Crossroads" or "I robbed 
the Crossroads". Detective Warrington testified that his police 

report of an interview with Steele made following the holdup 

indicated Steele told the detective that the defendant said, "I 

held-up the Crossroads." 

Defendant presented no evidence following the presentation 

of the prosecution's case. Counsel for defendant made a motion 

to the court for a directed verdict, claiming insufficient 

evidence was presented to prove the prosecution's case. Defense 

counsel argued that legally insufficient corroborating evidence 

was offered to substantiate Grissom's testimony. The District 

Court acknowledged the corroborating evidence presented was not 

strong, but the court held the corroborating evidence was 

legally sufficient to support Grissom's testimony. The District 

Court denied the motion and allowed the case to be submitted to 

the jury following its instructions on the law of the case. The 

jury found defendant guilty of theft and not guilty of robbery. 

Issue No. 1: Sufficiency of the Evidence 

Count I1 of the information charges ". . . defendant did 

purposely or knowingly obtain or exert unauthorized control over 

property, cash in U.S. and Canadian currency, of a value of more 

than $150.00, owned by Crossroads Truck Stop, with the purpose 

of depriving the owner of the property." Count I, the robbery 

count, charged defendant committed this theft while placing the 

truck stop cashier in fear of immediate bodily injury. In order 

to prove the robbery charge, the prosecution offered the 

cashier's testimony of fear of injury. While testifying, the 

cashier further provided important testimony regarding the 

amount of money taken by the gunman during the holdup. 

Defense counsel argues that the jury must have distrusted 

the cashier's testimony because the jury found defendant 

not guilty of robbery. Defense counsel asserts that 
the cashier's testimony is critical to prove that a theft was 

committed. If the jury disbelieved the cashier, the defendant 

claims the evidence then is insufficient to prove the theft as 

charged. 

We reject this argument. The defendant erroneously 

argues that all of the cashier's testimony must be disregarded. 

The court instructed the jury specifically about its right to 

believe or disbelieve any portion of a witness' testimony. In 

State v. DeGeorge (1977), 173 Mont. 35, 566 P.2d 59, we held that 

"[tlhis Court has frequently observed that disputed questions of 

fact and the credibility of witnesses will not be considered on 

appeal but that determination of such matters is within the 

province of the jury. As long as there is substantial evidence 

to support the verdict, it will not be disturbed on appeal. 

(Citations omitted.)" A review of the record indicates 

sufficient evidence supports the jury verdict in this case. 

The defendant argues further that the evidence does not 

show the Crossroads Truck Stop legally owned the stolen money. 

This argument fails. The prosecution proved through the 

cashier's and operator's testimony that the truck stop possessed 

the money stolen. Proof of possession suffices here to prove 

ownership. See, section 45-2-101(40), MCA. In this case, the 

defendant proposed and the court accepted a jury instruction 

providing that "owner" should be defined by the jury in terms of 

possession of property. 

Issue No. 2: Testimony of John Grissom 

Defendant asserts three errors were made by the District 

Court with regard to the prosecution's use of John Grissom as a 

witness against defendant. 

The first alleged error concerns the court's refusal of 

defendant's motion for discovery of Grissom's "rap sheet". This 

information, defendant contends, could validly be used to damage 
Grissom's credibility. In support of this motion, counsel for 

defendant cited the opinion of the United States Supreme Court in 

Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 

347. The court considered Davis, but rejected defendant's 

motion. On appeal, defendant cites Davis and contends the court 

denied defendant due process. 

We disagree. In Davis, the Supreme Court assured a criminal 

defendant of his right under the Confrontation Clause of the 

Sixth Amendment to explore through cross-examination the 

partiality and motivation of a prosecution witness. The Court 

held that cross-examination should be permitted ". . . to expose 

to the jury the facts from which jurors, as the sole triers of 

fact and credibility, could appropriately draw inferences 

relating to the reliability of the witness." A comparison of the 

facts of the Davis case with the facts presented in this case, 

indicates defendant's reliance on Davis in this case is 

misplaced. 

The Davis court prohibited defense counsel from exposing 

to the jury the witness' criminal record. The Davis defendant 

therefore was unable to make a record from which to argue at 

trial the witness' bias or lack of impartiality expected of a 

witness. Defense counsel in this case was permitted to fully 

present evidence of Grissom's criminal character and bias. The 

jury here was aware of the immunity bargain made between the 

prosecution and Grissom, and of Grissom's complicity in the truck 

stop theft. The court's denial of defendant's motion was well 

within its discretion to control cross-examination. 

The second and third alleged errors presented by defendant 

are direct attacks on the admissibility of Grissom's testimony. 

Defendant contends insufficient evidence was presented to 

substantiate Grissom's testimony. Defendant further 

contends the evidence used to corroborate this testimony is 

-6- 
inadmissible hearsay evidence. 

Section 46-16-213, MCA, provides the test for sufficient 

corroborating evidence of accomplice testimony: 

"A conviction cannot be had on the testimony 

of one responsible or legally accountable 

for the same offense, as defined in 

45-2-301, 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." 

In State v. Kemp (1979), Mont . , 597 P.2d 

96, 36 St.Rep. 1215, we summarized Montana case law of 

corroboration of accomplice testimony as follows: 

"The sufficiency of evidence necessary to 

corroborate accomplice testimony is a question 

of law. (Citations omitted.) In defining the 

quantum and character of proof required to 

corroborate accomplice testimony, a substantial 

body of case law has evolved. 

"To be sufficient, corroborating evidence must 

show more than that a crime was in fact committed 

or the circumstances of its commission. (Citation 

omitted.) It must raise more than a suspicion of 

the defendant's involvement in, or opportunity to 

commit, the crime charged. (Citation omitted.) 

But corroborative evidence need not be sufficient, 

by itself, to support a defendant's conviction 

or even to make out a prima facie case against 

him. (Citations omitted.). . . 

". . . each case must be examined on its particular 

facts to determine if the evidence tends, in and of 

itself, to prove defendant's connection with the crime 

charged. " 

The key evidence corroborating Grissom's testimony was included 

in the testimonies of Steele and Warrington. The evidence 

indicates defendant admitted to Steele that the defendant 

"robbed" or "held-up" the truck stop, and that Steele reported to 

Warrington defendant's admitted involvement in the holdup. This 

evidence is sufficient corroborating evidence for the admissions 

of Grissom's testimony. 

We disagree with defendant's contention that this 

evidence is inadmissible hearsay. This evidence is not hearsay. 
Rule 801(d)(l)(A), Mont.R.Evid., provides: "(d) Statements 

which are not hearsay. A statement is not hearsay if1'-- (1) 

Prior statement by witness. The declarant testifies at the trial 

or hearing and is subject to cross-examination concerning the 

statement, and the statement is (A) inconsistent with his 

testimony . . ." Rule 801(d)(2)(A) Mont.R.Evid. provides: "(d) 

Statements which are not hearsay. A statement is not hearsay if: 

. . . (2) Admission by a party-opponent. The statement is 

offered against a party and is (A) his own statement . . ." The 

statement made by defendant to Steele is an admission by a party 

opponent to the action. The statement made by Steele to 

Warrington is a prior statement of the witness Steele. 

Issue No. 3: Jury Instructions 

Defendant contends the court committed reversible error 

by rejecting defendant's proposed jury instructions regarding 

accomplice testimony and oral admissions, and further erred by 

giving the "Sandstrom" jury instruction. 

Grissom's testimony was accomplice testimony. Steele's 

testimony included the admission by the defendant of his 

participation in the holdup. Defendant proposed a number of jury 

instructions regarding the weight the jury should assign to 

testimony. Each of the instructions was rejected by the court. 

We agree with defendant that cautionary instructions regarding 

accomplice testimony and oral admissions should have been 

included in the court's jury instructions. We disagree with 

defendant's contention that the court's failure to give these 

instructions amounts to reversible error. 

Section 26-1-303(4), MCA, provides the following: 

"The jury is to be instructed by the court on all 

proper occasions: 

"(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 cautionary instructions proffered by defendant were 

elaborate and misleading. These instructions did not employ the 

simple statutory language of section 26-1-303(4), MCA. The 

proposed accomplice testimony instructions placed unneeded 

emphasis on the unreliability and involuntary nature of Grissom's 

testimony. The proposed oral admissions instruction erroneously 

included "custodial interrogation" language. 

The error created by the court's omission in its 

instructions regarding this evidence was minimized by other 

instructions. These instructions were directed to the testimony 

of prosecution witnesses because the defendant did not present 

any witnesses. These instructions provided: 

"You are instructed that you may also consider any 

demonstrated bias, prejudice or hostility of a witness toward the defendant in determining the weight 

to be accorded to his testimony. 

"In weighing the testimony of any witness, you 

should take into account his interest or want of 

interest in the result of this case . . . 

"Every witness is presumed to speak the truth. This 

presumption, however, may be repelled by the manner 

in which he testified, by the character of his 

testimony, or by evidence affecting his reputation 

for truth, honesty, integrity or his motives . . ." 

Defendant claims the court committed reversible error by 

giving the "Sandstrom" instruction to the jury. Instruction No. 

17 provided: "You are instructed that the law presumes that a 

person intends the ordinary consequences of his voluntary acts." 

This jury instruction is identical to the instruction 

held to be unconstitutional in Sandstrom v. Montana (1979), 442 

U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. In a number of recent 

cases we have considered the effect of the Sandstrom decision. 

See, State v. Hamilton (1980), Mont. , 605 P.2d 1121, 37 

St.Rep. 70; State v. McKenzie (1980), Mont. , 608 P.2d 

428, 37 St.Rep. 325; State v. Wogamon (1980), Mont. , 

610 P.2d 1161, 37 St.Rep. 840: and State v. Martinez (1980), 

Mont. , P. 2d , 37 St.Rep. 982. 
In Hamilton, we held the Sandstrom-type instructions to 

be harmless error since the evidence of intent in that case was 

overwhelming given the facts presented in the case. In this 

case, the Sandstrom instruction constitutes harmless error. The 

evidence of intent is overwhelming. The essential issue in this 

case is the identity of the masked gunman, not the gunman's 

intent. Indeed, the defendant proposed, and the court accepted a 

specific jury instruction regarding identity: 

"You are instructed that the evidence in this case 

raises the question of whether the defendant was in 

fact the criminal actor, and necessitates your resolving any conflict or uncertainty in testimony on 

that issue. 

"The burden of proof is on the prosecution with 

reference to every element of the crimes charged, 

and this burden includes the burden of proving 

beyond a reasonable doubt the identity of the defendant as the perpetrator of the crimes charged." 

Issue No. 4 Impermissible Remarks in the Prosecution's Closing 

Argument 

The defendant claims a portion of the prosecution's 

closing argument to the jury denied defendant a fair trial. 

Defendant attacks the remarks in closing argument as an 

impermissible comment on the fact that defense presented no 

evidence following the close of the prosecution case-in-chief. 

The alleged prejudicial remarks are as follows: 

"(By Mr. Vermillion:) NOW, where does Mr. Dolan say 

he got the Canadian money--well, first, he tells 

young Bill Steele that he went on a trip to Canada, 

now, there has been no evidence brought before you 

to show that Charles Dolan was ever in Canada, or 

that he had made a trip up there, and if he had 

actually been up in Canada, where was the proof? 

Canada is not a totally barren land, with nobody up 

there, and if he had made a trip up to Canada to bring 

back sums of Canadian money, why surely there would 

have been somebody, and certainly he would have been 

up there somewhere, you know, where somebody would 

have seen him . . . 

"(after a review of prosecution witness testimony, 

Vermillion continues) NOW, ladies and gentlemen, we 

had in this case no witnesses called by the defense, 

to contradict that evidence. Surely there must be 

someone, some acquaintance of Mr. Dolan's who could 

testify as to his voice characteristics, and if he 

did not have such a speech impediment, that person 
could have testified, but none was called. 

"(following defense counsel's closing argument suggesting a reason for the defendant to be driving 

near the truck stop) The same remark might be made 

of the fact that the defense called no witnesses, to 

say that Chuck Dolan wasn't there that night--" 

Counsel for defendant objected contending the remarks of 

the prosecution prejudiced defendant. Following this objection, 

the court reminded the jury to follow only its instructions on 

the law. 

These remarks do not constitute reversible error under 

the test of prosecutorial comment we employed in State v. 

Anderson (1970), 156 Mont. 122, 476 P.2d 780: 

"The test is whether the language used was manifestly 

intended or was of such character that the jury 

would naturally and necessarily take it to be a 

comment on the failure of the accused to testify." 

The remarks made here are similar to the remarks used in 

State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 616. In 

Armstronq, this Court acknowledged the prosecution's right to 

stress the strength of its own evidence: 

"While it is true that the county attorney often 

asked rhetorical questions which amounted to 

comments that there was 'no evidence' or 'no 

testimony' to rebut the inferences raised by the 

state's evidence, nowhere does it appear that 

these comments would necessarily imply that defendant was the only source which could negate 

state's evidence. The most that can be said of the 

county attorney's comments is that they referred to 

the fact that the defense presented no case at all. 

Certainly the prosecution, as an adversary for the 

state, cannot be prohibited from arguing the 

strength of its case to the jury. The manifest 

fact that the defense presented no testimony of its 

own may be detrimental to the defendant, but such 

fact cannot deny the prosecution its right to stress 

the strength of its own evidence. (Citation 

omitted. ) " 

For the reasons included above, we affirm the judgment 

of the District Court. 

Affirmed. 
We Concur: 

Chief Justice C 

w Justice 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.