No. 80-449 & 80-450 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Appellant,
-vsROBERT RENZ, Defendant and Respondent.

Appeals from: District Court of the FifthJudickal 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:

ClerkMr. 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 counselmoved 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 againstdefendant. 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 orderwas set aside and dismissed without prejudice, the State appealed for this Court's review. The issue raised iswhether the District Court erred by holding that the affidavitswere 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:

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.. on or about: the 28th day of May, 1980, the Defendantas part of a common scheme and with the purpose to defraud knowingly and without authoritymade or altered 2money orders and an application for a permit to do plumbing and/or electricalwork 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 thusmade or altered." (Emphasisadded.) 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 statepermits to do the plumbing and electrical wiring for a residential home under constructionby defendant for Larry Watts in Boulder. The documents included two permit application formsand two signed money orders. 2. Thesedocuments bear Watts' signature, although Watts claimsnever to have signed the documents. 3. Defendant is not a licensed electrician or plumber. He would save considerable construction costsby having a homeowner apply for thewiring and plumbing permits and by completing thework himself, rather than hiring licensed plumbers and electricians to do the work. 

### 4. Themoney orders sentwith the permit applications
were obtained by defendant from the First Boulder Valley Bank.5. The factswhich indicate that this activity ispart of a common scheme canbe seenby case histories of defendant's home construction activity in the Boulder area:
a. Defendant builds homes in the Boulder area. Defendant could savemoney 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, "Iwouldn't touch itwith a 10 footpole."
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 againstdefendant. The code of criminal procedure requires that an affidavit be filed for application for leave to file
an information. The affidavitmust include sufficient facts to convince a judge that there is probable cause to believe the named defendantmay 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

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### , 605 P.2d 1121, 37 St.Rep. 70; Statev. Miner (1976), 169 Mont. 260, 546 P.2d 252. The allegationsproffered in these affidavits, however, do not indicate a probability that defendant committed the crime of common scheme forgery. In Statev. Adams (1980), -Mont. 

### , 620 P.2d 856, 37 St.Rep. 2053,we recently described "common scheme" criminal activity as follows:"Theconcept of 'commonscheme' appears in several sections ofMontana'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 objectiveor by a commonpurpose or plan which results in the repeated commissionof 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., (1980rev. ed.). See also sections 45-6-316, 45-6-317 and 45-6-325,MCA." InAdamstthisCourt reversed a common scheme theft conviction. We held, inter alia, that proof of "common scheme" requiredproof that the suspect series of acts constitutea common criminal scheme. These actsmust be either individually incomplete such that they show that a single crimehad been committed,or be actswhich closely followone another evidencing a continuing criminal design. In this case, the facts and allegations included in the affidavits are not sufficient to support a chargeof common scheme forgery. There is an insufficient connection indicated between themoney orders/permits forgery activity and defendant's other activities described in the affidavits, to indicate
common scheme forgery activityunder theAdams analysis. Defendant's activities are not a continuation of one another, a continual design, showing that only one crimewas probably committed by defendant. We affirm the judgment of the District Court.

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