No. 81-189 INTHE 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: DistrictCourt of the Judicial District, In and fortheCounty 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, GreatFalls, Montana

Submitted on briefs: April 1, 1982 Decided: September 23, 1982 Filed: 

### SEP

## 23

## 1982Mr. Justice John Conway Harrison delivered the Opinion of the Court.

Defendant-appellant was arrested and charged with 

### twocounts of felony burglary and two counts of felony theft. Following a rashof incidents inCascade 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 thisconviction. In the earlymorning 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 clubcab 

### was stolenwhile parked in frontof Pachek's business located inGreat Falls. The firstbreak-in tookplace attheUlmBar inUlm, Montana. The intruder firstattempted to enterthe bar by removing pieces of the window frame on the front door. When thisattemptproved unsuccessful, entrance 

### was gained by breaking into a residence owned by Frank Ballwhich 

### lies adjacent to the bar. Earlyinthe 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 lateridentified 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 notpresent 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 theintrudergained entrybyprying loose the wooden stripsof 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 earlymorning of November 17, 1980, at the Craig Bar in Craig, Montana. Atthe 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 bottleof Seagram's Sevenwhisky. Atapproximately 1:30 

### a.m. to2:00 

### a.m. onNovember 17, 1980, Elmer Lindquist observed someone matching the description of the defendant park a blue pickup truck outsidehishouse 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 sizeL-78 by 15Goodrich tire mounted on a cream colored wheel had been stolen from the bed of hispickup. 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 sixcans of Olympia beer, one canof 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 anarea a few yards from the ditchwhere he firstfound 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 rifleswere 

### later identified as those taken from the Ball residence in Ulm and the stamp machine 

### was identified as that taken from the UlmBar. 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 JimTodd. The individual paid for hisroom with £ifty-cent pieces. On November 17and 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 inthe bar and paid forallhisdrinkswith fifty-cent pieces. On November 18

## , 1980, theman returned and againpaid forallof hisdrinkswith fiftycentpieces. On November 20, 1980, defendant

### was arrested and charged with burglaryand the£t

# . Defendant refused 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 atthe 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 toamend the in£ormation by substituting the the£t of personal property at the Ulm Bar inthe 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 thatday, defendant requested theDistrict Court to appoint otherdefense counsel. Hisrequest

was denied. On February 20, 1981, defendant filed a motion to continue the trial date set forFebruary23, 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 dateas the 

### crimes withwhich defendant 

### was already charged. On February 24, 1981, a jury verdict found defendant guilty on all four counts. Defendant appeals from thisconviction. The issuespresented forreview are: 1. Whether theDistrict 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 tocontinuethe trial? Rule 404(3)(b),Mont.R.Evid. definesthe rule on the admissionof other

### crimes evidence as follows: "Evidence of other 

### crimes, wrongs, 

### or acts is not admissible 

### to prove the character of a person inorder to show thathe acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake oraccident." Rule 404(3)(b)Mont.R.Evid., incorporates the general rule that evidence of other

### crimes is not admissible to showdefendant 

### committed a particular crime 

### as charged. State v. Casagranda (1981) - Mont

# . ,637 P.2d 826, 38 St.Rep. 2122; Statev. Hanson (1980)

## ,---- Mont

# . , 608 P.2d 1083, 37 St.Rep. 657. Rule 404(3)(b)also states there are exceptions to the generalrule. These exceptions are governed by the guidelines set out in Statev. Just (1979), - ---

. - . Mont

# . I602 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 Statev. Jensen, 153 Mont. at239, 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. Similarityof crimes oracts; "2. Nearness in

### time; and "3. Tendency to establish a common scheme plan orsystem; - and "4. The probative value of the evidence is not substantiallyoutweighed by the prejudice 

### to the defendant." 602 P.2d at961. This four-element test has been followed and applied inState

v. Wurtz (1981), Mont

# .-- -

## ,636 P.2d 246, 38 St.Rep. 1808; State v. Brubaker (1981)

## , ---- .- Mont

# .---- 1 625 P.2d 78, 38 St.Rep. 432; and Statev. Case (1980), -- Mont

# . ,621P.2d 1066, 37 St.Rep. 2057. When 

### we apply the four-part test to the factual situation inthe present case 

### we find the evidence of the Craigbreak-in 

### was admissible. First, the break-ins at

### allthree bars 

### were similar. Ateach 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 sometime during the earlymorning hours of November 17, 1980. The distance between Ulm and Craig, Montana, is approximately thirty miles. The Mountain Palacebar is between Ulm and Craig. Certainly, the fac

### tors of timing and location indicate that the three break-ins



### were the work of the 

### same person orpersons. Third, thepatternof the threebreak-ins do establisha common scheme, plan 

### or system. As stated above

## , the methods ofbreak-in were similar, similar items were taken and all three break-ins occurred in the 

### same time frame within thirtymiles of each other. As all three bars are connected by Interstate 15, the facts indicate the three break-ins 

### were effectuated pursuant toa common scheme, planorsystem. 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 otherevidence found atornearPachek's stolenpickup truck. Here the evidence 

### was not admitted merely to impugn defendant's character. The evidence was admitted for the purpose of showing

a characteristicmethod, plan orscheme used inthe commission of the offense 

### or for the purpose of identifying the person who committed the offense and the jurywas 

### so informed. In-- Just, supra, thisCourt held although other

### crime evidence may be admissibleper the above criteria, it willnot 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 forwhich such evidence 

### is to be admitted. "(b) Atthe 

### time of the introductionof such evidence, the trial court shallexplain to the jury the purpose of such evidence and shall admonish it 

### to weigh the evidence only for suchpurposes. "(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 foranyoffense except thatcharged, warning them that to convict for other offensesmay resultinunjustdoublepunishment." 602 P.2d at963. 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 thatpurpose 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 thedefendant 

### 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 inJust, supra. -- Defendant argues the District Court erred by denying defendant's motion to continue the trial date. Defendant's motion fora continuance states, 

### "[clomesnow the defendant

# .

# . . and moves the Court for an order continuing the trial in the above-entitled matter for the reason thatup to the dateof 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 willrequire time

### to prepare fortrial and the two days between the date of thismotion, and the date set for trial is insufficient time for such preparation." The motion is dated February 20, 1981. Defendant 

### was arrested and charged onNovember 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 thathe 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 inabsense 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 notmake thisobjection inhismotion fora 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.

Weconcur:



# '" JusticeSheadidnotparticipateinthisdecision.