No. 81-189 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

VERNON L. VAN NATTA a/k/a JOHN SMITH, 

Defendant and Appellant. 

F&(ifi Appeal from: District Court of the Judicial District, 

In and for the County of Cascade 

Honorable H. William Coder, Judqe presiding. 

Counsel of Record: 

For Appellant: 

Karl Nagel, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

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

Submitted on briefs: April 1, 1982 

Decided: September 23, 1982 

Filed: SEP 2 3 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Def endant-appellant was arrested and charged with two counts 

of felony burglary and two counts of felony theft. Following a 

rash of incidents in Cascade County and Lewis and Clark County on 

November 16, 1980, and November 17, 1980. On February 24, 1981, 

a jury verdict found defendant guilty on all four counts. 

Defendant appeals from this conviction. 

In the early morning hours of November 17, 1980, three bars 

in the Cascade-Wolf Creek area were burglarized. Prior to the 

burglaries, on November 16 1980 , Jack Pachek reported someone 

stole his late model pickup truck. The truck, a 1977 two-tone 

blue and white Ford club cab was stolen while parked in front of 

Pachek' s business located in Great Falls. 

The first break-in took place at the Ulm Bar in Ulm, Montana. 

The intruder first attempted to enter the bar by removing pieces 

of the window frame on the front door. When this attempt proved 

unsuccessful, entrance was gained by breaking into a residence 

owned by Frank Ball which lies adjacent to the bar. Early in the 

morning of November 17, 1982, Ron Ball was awakened by an 

intruder. When Ron looked down the hallway of the house he 

observed an individual, who he later identified as the defendant, 

removing guns from the gun room. Ron watched as the defendant 

removed the guns, proceeded down a hallway and left through a 

garage door. Frank Ball later identified the stolen guns as an 

old Winchester Model 70 rifle, a 12-gauge shotgun, a 10-gauge 

shotgun, a 300 Savage and a Remington 22-250. Frank Ball, who 

was not present during the robbery, also noted that several items 

had been stolen from the bar adjacent to the residence including 

a stamp machine, a saddle, a case of Rainier beer and approximately $40 from the jukebox. 

A second break-in occurred in the early morning hours of 

November 17, 1980, at the Mountain Palace Bar, thirteen miles 

south of Cascade, Montana. At the Mountain Palace Bar the 
intruder gained entry by prying loose the wooden strips of a window frame, removing the window and then reaching through and 

unlocking the door. After unplugging the burglar alarm, the 

intruder removed a case of Olympia beer from the cooler and 

approximately $300 to $500 from the jukebox. 

A third break-in occurred in the early morning of November 

17, 1980, at the Craig Bar in Craig, Montana. At the Craig Bar 

the intruder gained entrance by removing the pins of the hinges 

of the front door. Several items were stolen from the bar 

including the money in the jukebox, some Lucky Lager beer, and a 

bottle of Seagram's Seven whisky. 

At approximately 1:30 a.m. to 2:00 a.m. on November 17, 1980, 

Elmer Lindquis t observed someone matching the description of the 

defendant park a blue pickup truck outside his house located near 

Cascade, Montana. When Lindquist made a noise in the house, the 

individual returned to the truck and drove to the highway. 

Lindquist went outside and noted a size L-78 by 15 Goodrich tire 

mounted on a cream colored wheel had been stolen from the bed of 

his pickup. 

On the afternoon of November 17, 1980, John Strandel, a 

deputy sheriff in Cascade County, was driving to Great Falls on 

Interstate 15 to do follow-up reports on the Ulm and Mountain 

Palace break-ins. On the way, Strandel observed a highway 

patrolman parked behind a Ford club cab pickup. The previous 

night Strandel had observed a similar pickup parked west of 

Cascade on St. Peter's Mission Road at approximately 4:00 a.m. 

Strandel stopped to investigate and learned from Highway 

Patrolman, Larry Strickland, that the truck had been stolen from 

Great Falls. On the southside of the pickup, in the ditch, 

Strandel found six cans of Olympia beer, one can of Rainier beer, 

three cans of Lucky Lager beer and one Seagram's Seven whisky 

bottle. Lying on the pavement next to the passenger door of the 

pickup Strandel found on 12-gauge Remington shotgun shell, and 

one 10-gauge Remington shotgun shell. Strandel then searched an 
area a few yards from the ditch where he first found the beer and 

found a stamp machine approximately fifty yards away from the 

pickup. Approximately ten yards east of the stamp machine, 

Strandel found six rifles laid side-by-side in the grass. Five 

of the rifles were later identified as those taken from the Ball 

residence in Ulm and the stamp machine was identified as that 

taken from the Ulm Bar. In the back of the truck Strandel found 

a B.F. Goodrich tire and wheel later identified as belonging to 

Elmer Lindquist, The sixth rifle was later identified as a .22 

caliber rifle which had been stolen from a house in Craig on 

November 17, 1980. 

On the morning of November 17, 1980, a man later identified 

as the defendant registered for a room at the Belmont Hotel in 

Great Falls under the name of Jim Todd. The individual paid for 

his room with £if ty-cent pieces. On November 17 and 18 , 1980 , a 

man later identified as the defendant, entered the Town Tavern 

approximately one and one-half blocks from the Belmont Hotel. On 

November 17, the man spent approximately $40 in the bar and paid 

for all his drinks with fif ty-cent pieces. On November 18 , 1980, 

the man returned and again paid for all of his drinks with fiftycent pieces. 

On November 20, 1980, defendant was arrested and charged with 

burglary and the£ t . Defendant ref used to identify himself except 

as "John Smith." An FBI check later revealed his true name of 

Vernon Leroy Van Natta. Initially, defendant was charged by 

information of Count I: Felony Theft, arising out of the the£ t 

of Pachek's pickup; Count 11: Burglary, arising out of 

defendant's alleged break-in at the Ulm Bar; Count 111: Felony 

Theft, arising out of defendant's alleged break-in at the Craig 

Bar; and Count IV: Burglary, arising out of the break-in at the 

Mountain Palace Bar. On February 11, 1981, respondent sent 

notice to defense counsel that the county attorney intended to 

amend the in£ ormation. Respondent moved to amend the in£ ormat ion 

by substituting the the£ t of personal property at the Ulm Bar in 
the place of the break-in at the Craig Bar. The motion was 

granted by the District Court on February 17, 1981. On February 

19, 1981, defendant was rearraigned and pled not guilty to all 

four counts. Up until February 19, 1981, defendant refused to 

cooperate with defense counsel. On that day, defendant requested 

the District Court to appoint other defense counsel. His request 

was denied. On February 20, 1981, defendant filed a motion to 

continue the trial date set for February 23, 1981, on the grounds 

that defendant was now ready to cooperate with defense counsel 

and more time was necessary to prepare for trial. Immediately 

prior to trial, on February 23, 1981, the District Court denied 

defendant's motion to continue. The District Court also denied 

defendant's motion in limine to exclude evidence of similar 

crimes committed on the same date as the crimes with which defendant was already charged. On February 24, 1981, a jury verdict 

found defendant guilty on all four counts. Defendant appeals 

from this conviction. 

The issues presented for review are: 

1. Whether the District Court erred by admitting evidence of 

crimes similar to those with which defendant was charged? 

2. Whether the District Court erred by denying defendant's 

motion to continue the trial? 

Rule 404(3)(b), Mont.R.Evid. defines the rule on the 

admission of other crimes evidence as follows: 

"Evidence of other crimes, wrongs, or acts is 

not admissible to prove the character of a 

person in order to show that he acted in conf ormity therewith. It may, however, be 

admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of 

mistake or accident." 

Rule 404(3)(b) Mont.R.Evid., incorporates the general rule that 

evidence of other crimes is not admissible to show defendant committed a particular crime as charged. State v. Casagranda 

(1981) - Mont . , 637 P.2d 826, 38 St.Rep. 2122; State v. 

Hanson ( 1980 ) , ---- Mont . , 608 P.2d 1083, 37 St.Rep. 657. 

Rule 404(3)(b) also states there are exceptions to the general 
rule. These exceptions are governed by the guidelines set out in 

State v. Just (1979), - -- - . - . Mont . I 602 P.2d 957, 36 St.Rep. 

1649 : 

"There emerges a four-element test to determine the admissibility of evidence of other 

crimes or acts criminal prosecutions such as 

the one here. The first three of these elements were identified in State v. Jensen, 153 

Mont. at 239, 455 P.2d at 634; the fourth is 

based on Rule 403, Mont.R.Evid. The four 

h&e are: 

-Pc,Ct"P: 

1- 

"1. Similarity of crimes or acts; 

"2. Nearness in time; and 

"3. Tendency to establish a common scheme 

plan or system; - and 

"4. The probative value of the evidence is 

not substantially outweighed by the prejudice 

to the defendant." 602 P.2d at 961. 

This four-element test has been followed and applied in State 

v. Wurtz (1981), Mon t . -- - , 636 P.2d 246, 38 St.Rep. 1808; 

State v. Brubaker (1981) , - - -- .- Mont . ---- 1 625 P.2d 78, 38 

St.Rep. 432; and State v. Case (1980), -- Mon t . , 621 P.2d 

1066, 37 St.Rep. 2057. When we apply the four-part test to the 

factual situation in the present case we find the evidence of the 

Craig break-in was admissible. 

First, the break-ins at all three bars were similar. At each 

of the three break-ins the intruder gained entrance by prying 

open a door or window. Also, at each of the three bars the 

intruder broke into and stole the change from the jukebox and 

stole some beer or other alcohol. 

Second, all three break-ins occurred some time during the 

early morning hours of November 17, 1980. The distance between 

Ulm and Craig, Montana, is approximately thirty miles. The 

Mountain Palace bar is between Ulm and Craig. Certainly, the factors of timing and location indicate that the three break-ins 

were the work of the same person or persons. 

Third, the pattern of the three break-ins do establish a common scheme, plan or system. As stated above , the methods of 
break-in were similar, similar items were taken and all three 

break-ins occurred in the same time frame within thirty miles of 

each other. As all three bars are connected by Interstate 15, 

the facts indicate the three break-ins were effectuated pursuant 

to a common scheme, plan or system. 

Fourth, the probative value of the evidence is not substantially outweighed by prejudice to the defendant. The admission 

provided circumstantial evidence which explained the finding of 

the Lucky Lager beer and the Seagram's Seven whisky bottle with 

the other evidence found at or near Pachek's stolen pickup truck. 

Here the evidence was not admitted merely to impugn defendant's 

character. The evidence was admitted for the purpose of showing 

a characteristic method, plan or scheme used in the commission of 

the offense or for the purpose of identifying the person who 

committed the offense and the jury was so informed. 

In -- Just, supra, this Court held although other crime evidence 

may be admissible per the above criteria, it will not be admitted 

unless the proper procedure is followed. That procedure is: 

"(a) Evidence of other crimes may not be 

received unless there has been notice to the 

defendant that such evidence is to be introduced. The procedures set forth in section 

46-18-503, MCA, should serve as guidelines for 

the form and content of such notice. 

Additionally, the notice to the defendant 

shall include a statement as to the purposes 

for which such evidence is to be admitted. 

"(b) At the time of the introduction of such 

evidence, the trial court shall explain to the 

jury the purpose of such evidence and shall 

admonish it to weigh the evidence only for 

such purposes. 

"(c) In its final charge, the court should 

instruct the jury in unequivocal terms that 

such evidence was received only for the 

limited purposes earlier stated and that the 

defendant is not being tried and may not be 

convicted for any offense except that charged, 

warning them that to convict for other offenses may result in unjust double punishment." 

602 P.2d at 963. 

Again, we find the proper procedure was followed in the 

present case. The first requirement is that the defendant have 

notice of the intent to introduce other crime evidence. 
Respondent did give defendant notice of its intent as is 

reflected by defense counsel's introduction of the motion in 

limine, " [ylour honor, the State has given notice that they 

intend to introduce evidence of other crimes committed approximately the same date as the crimes with which Mr. Van Natta is 

charged. " 

The second and third requirements are that the jury must be 

properly instructed that the evidence is only received for a 

limited purpose, what that purpose is, and that the defendant is 

not being tried for the other offenses. Here the trial court 

instructed the jury as follows: 

"Ladies and gentlemen of the jury, evidence 

is about to be introduced for the purpose of 

showing the defendant committed crimes other 

than the ones for which he is on trial. You 

may not consider this evidence to prove that 

the defendant is a person of bad character, or 

that he has a disposition to commit crimes. 

You may only consider this evidence for the 

limited purposes of providing a characteristic 

method, plan or scheme used in the commission 

of the offense in this case, or the identity 

of the person who committed the offense. You 

may also consider this evidence to prove 

existance of intent, which is an element of 

the crime charged. You may not consider this 

evidence for any other purpose that would 

expose the defendant to unjust double 

punishment." 

This instruction satisfies the requirements this Court put 

forth in -- Just, supra. 

Defendant argues the District Court erred by denying 

defendant's motion to continue the trial date. Defendant's 

motion for a continuance states, " [clomes now the defendant . . . and moves the Court for an order continuing the trial in the 

above-entitled matter for the reason that up to the date of this 

motion, the defendant has refused to discuss the case or 

cooperate with his counsel. The defendant has indicated on the 

date of this motion that he will cooperate with his counsel. 

Therefore, counsel will require time to prepare for trial and the 

two days between the date of this motion, and the date set for 

trial is insufficient time for such preparation." The motion is 

dated February 20, 1981. Defendant was arrested and charged on 
November 20, 1980. Up until the date of the motion for continuance defendant refused to cooperate with defense counsel. 

Before a motion for a continuance is granted, the movant must 

show that he has employed due diligence to procure that which he 

now requests additional time to procure. State v. Klemann 

(1981) 1 Mont . , 634 P.2d 632, 38 St.Rep. 1627. Here the 

record shows defendant did not employ due diligence to cooperate 

with defense counsel before the motion and thus the trial court 

was correct in denying defendant's motion. Motions for continuance are addressed to the discretion of the trial court and 

the granting of a continuance has never been a matter of right. 

The District Court cannot be overturned on appeal in absense of a 

showing of prejudice to the movant. State v. Kirkland (1979) , 

- -- . .- . - Mont . - - -- -- , 602 P.2d 586, 36 St.Rep. 1963. 

On appeal defendant argues the continuance should have been 

granted because the information was amended on February 17, 1981, 

and the trial date was February 23, 1981. We note defendant did 

not make this objection in his motion for a continuance. A similar situation arose in State v. Olson (1980 ), Mont . I 

614 P.2d 1061, 37 St.Rep. 1313, where this Court ruled since the 

informations were based on the same set of facts and because the 

charges involved were not significantly different , there was no 

prejudice to the defendant when the information was amended. 

Here the amended information was based on the same set of facts 

and there was no prejudice to the defendant, Judgment is 

affirmed. 

We concur: 

'" Justice Shea did not participate in this decision.