No. 80-449 

& 80-450 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsROBERT RENZ, 

Defendant and Respondent. 

Appeals from: District Court of the Fifth Judickal District, 

In and for the County of Jefferson, 

The Honorable Frank Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patrick Flaherty, County Attorney, Boulder, Montana 

For Respondent : 

Henningsen, Purcell & Genzberger, Butte, Montana 

Filed: 

Submitted on Briefs: April 2, 1981 

Decided : 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The State of Montana appeals from two orders of the 

Fifth Judicial District Court, Jefferson County. In both 

orders, the District Court set aside previous orders granting 

leave to file an information against defendant. The court 

set aside its first order and dismissed the information 

without prejudice, after defense counsel moved to strike the 

information. Defense counsel asserted that the information's 

accompanying affidavit alleged insufficient facts to support 

the information's common scheme forgery charge. Following 

the entry of this order, leave of court was requested by the 

State again to file a common scheme forgery information 

against defendant. In support of this request, the State 

filed an affidavit identical to the one used to support the 

previous information. Leave to file this second information 

was granted by order of the District Court, but was later 

set aside on defense counsel's motion that the information's 

accompanying affidavit again insufficiently supported the 

information's charge. After the second order was set aside 

and dismissed without prejudice, the State appealed for this 

Court's review. 

The issue raised is whether the District Court erred 

by holding that the affidavits were insufficient to support 

an application to file a common scheme forgery information. 

We hold the court committed no error. We affirm the orders 

of the District Court. 

The defendant, Robert Renz, a Butte home builder, was 

accused of committing common scheme forgery. The informations, 

filed with the District Court, alleged defendant violated 

the forgery statute, section 45-6-325 (1) , MCA, in that: 
". . . on or about: the 28th day of May, 1980, 

the Defendant as part of a common scheme and 

with the purpose to defraud knowingly and 

without authority made or altered 2 money 

orders and an application for a permit to do 

plumbing and/or electrical work by signing 

the name of Larry Watts to said documents 

(who was unaware his name was being used) and/or 

delivered said documents to the State Plumbing 

Board knowing it [sic] to have been thus made or 

altered." (Emphasis added.) 

The identical affidavits filed in support of these 

informations contain the following facts and allegations to 

support the forgery accusations. 

1. The state electrical inspector and state plumbing 

inspector gave the county attorney documents relating to an 

application for state permits to do the plumbing and electrical 

wiring for a residential home under construction by defendant 

for Larry Watts in Boulder. The documents included two 

permit application forms and two signed money orders. 

2. These documents bear Watts' signature, although 

Watts claims never to have signed the documents. 

3. Defendant is not a licensed electrician or plumber. 

He would save considerable construction costs by having a 

homeowner apply for the wiring and plumbing permits and by 

completing the work himself, rather than hiring licensed 

plumbers and electricians to do the work. 

4. The money orders sent with the permit applications 

were obtained by defendant from the First Boulder Valley 

Bank. 

5. The facts which indicate that this activity is part 

of a common scheme can be seen by case histories of defendant's 

home construction activity in the Boulder area: 

a. Defendant builds homes in the Boulder area. Defendant 

could save money by having a homeowner purchase the required 

electrical and plumbing permits. 
b. Defendant asked the local plumber if he would allow 

plumbing permits to be taken in defendant's name, to which 

the plumber allegedly responded, "I wouldn't touch it with a 

10 foot pole." 

c. The records of the State Plumbing Bureau indicate 

that Alan Jones applied for a permit to do the plumbing work 

on his home, constructed by defendant, and that the application 

was not signed by Jones. 

d. Homes have been built with construction defects 

by defendant in the Boulder area. 

We agree with the District Court that these facts and 

allegations do not support leave for filing this charge 

against defendant. The code of criminal procedure requires 

that an affidavit be filed for application for leave to file 

an information. The affidavit must include sufficient facts 

to convince a judge that there is probable cause to believe 

the named defendant may have committed the crime described 

in the information. Section 46-11-201, MCA. This Court has 

held that a showing of a mere probability that defendant 

committed the crime charged is sufficient for establishing 

probable cause to file a criminal charge. Judges, when 

reviewing probable cause affidavits, should use their common 

sense in determining whether probable cause exists. State 

v. Hamilton (1980), - Mont . - , 605 P.2d 1121, 37 St.Rep. 

70; State v. Miner (1976), 169 Mont. 260, 546 P.2d 252. 

The allegations proffered in these affidavits, however, 

do not indicate a probability that defendant committed the 

crime of common scheme forgery. 

In State v. Adams (1980), - Mont. , 620 P.2d 856, 

37 St.Rep. 2053, we recently described "common scheme" 

criminal activity as follows: 
"The concept of 'common scheme' appears in 

several sections of Montana's Criminal Code. 

Section 45-2-101 (7) , MCA, defines the term 

as a series of acts or omissions 'motivated 

by a purpose to accomplish a single criminal 

objective or by a common purpose or plan which 

results in the repeated commission of the same 

offense or affects the same person or same 

persons or the property thereof.' This 

definition, as applied in the bad check, 

deceptive practices, and forgery statutes, imposes 

a higher penalty for offenses committed pursuant 

to an elaborate plan, in contrast to the penalties 

imposed for the single fraudulent act. See 

Annotator's Note, Montana Criminal Code 1973 

Annot., (1980 rev. ed.). See also sections 

45-6-316, 45-6-317 and 45-6-325, MCA." 

In Adamstthis Court reversed a common scheme theft 

conviction. We held, inter alia, that proof of "common 

scheme" required proof that the suspect series of acts 

constitute a common criminal scheme. These acts must be 

either individually incomplete such that they show that a 

single crime had been committed, or be acts which closely 

follow one another evidencing a continuing criminal design. 

In this case, the facts and allegations included in the 

affidavits are not sufficient to support a charge of common 

scheme forgery. There is an insufficient connection indicated 

between the money orders/permits forgery activity and defendant's 

other activities described in the affidavits, to indicate 

common scheme forgery activity under the Adams analysis. 

Defendant's activities are not a continuation of one another, 

a continual design, showing that only one crime was probably 

committed by defendant. 

We affirm the judgment of the District Court. 

< 0 

Justice 
We Concur: 

g;&9.%& Chief Justice