i 

No. 80-159 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

CRISS ALLEN CASE, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In andfor the County of Lewis and Clark. 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hull and Sherlock, Helena, Montana 

Jeffrey Sherlock argued, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles Graveley, County Attorney, argued, Helena, 

Montana 

Submitted: November 18, 1980 

Decided: BEG 2 9 5980 

Filed: OEC 2 9 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant Criss Allen Case appeals from his conviction . 

in the District Court, First Judicial District, Lewis and 

Clark County, of one count of robbery. For reasons hereinafter set forth, we reverse the conviction and dismiss the 

charge. 

Defendant raises the following issues on appeal: 

1. Was defendant denied his right to a speedy trial 

where 340 days elapsed between the filing of the information 

and trial? 

2. Was sufficient evidence presented at trial to 

support a conviction? 

3. Was the accomplice testimony of Ron Worden sufficiently corroborated? 

4. Was evidence of other crimes properly admitted? 

5. Did jury instructions allowing permissive inferences shift the burden of proof? 

Case and his three codefendants Rick Worden, Ron Worden 

and Austin Metcalf drove to Montana together from California 

in November 1978. During the trip, the men discussed plans 

for robberies of roadhouse saloons, purchased a gun and tape 

for restraining victims, and cased a number of bars as 

potential robbery sites before arriving in Montana. 

On November 7, 1978, the Worden Brothers robbed Mac's 

Bar in Wolf Creek while Case and Metcalf remained outside in 

the car. The victims of the robbery, Charles and Carol 

Marcus presented no evidence concerning defendant, and 

neither could identify him as having participated in the 

crime. Emil Kersey, a patron who left the bar immediately 

preceding the robbery, saw the getaway car as he departed 

and noticed someone he identified as a blonde woman sitting 
in the driver's position. Other testimony concerning the 

Wolf Creek robbery was presented primarily by Ron Worden, 

who had turned State's evidence, and also by Deputy Richard 

Hammerbacker who had taken statements from Rick Worden and 

Metcalf. 

On the evening of November 8, 1978, the day following 

the Mac's Bar robbery, defendant and his companions robbed a 

bar in Loring, Montana. All four men participated in that 

robbery, which involved multiple kidnappings and homicides 

as well as robbery. Defendant has already been tried and 

convicted for his participation in the Loring robbery. He 

has been sentenced to a total of 175 years in connection 

with that incident. That sentence is unrelated to and not 

affected by this appeal. 

On November 30, 1978, Case was charged by information 

in Lewis and Clark County with robbery. He was tried for 

that offense under the accountability statute, section 

45-2-302, MCA. Trial was eventually commenced on November 

5, 1979, 340 days after the filing of the information. 

Defendant appeals from a verdict and judgment of guilty. 

The Attorney General did not participate in oral 

argument. 

The speedy trial issue here is essentially identical to 

the issue presented and discussed in detail in State v. 

Worden (1980), Mont. , 611 P.2d 185, 37 St.Rep. 

869. The only material distinction here from Worden is a 

delay of an additional 19 days before commencement of this 

trial. The relatively minor additional delay here under the 

same facts as Worden is not so substantial as to pursuade us 

to abandon the position we adopted in Worden. Defendant was 

not denied his right to a speedy trial. 

Defendant questions the sufficiency of the evidence on 
three separate bases: (1) the essential element of fear 

was never directly established; (2) the testimony of Ron 

Worden indicated defendant's actions did not bring him 

within the accountability statute; and, (3) a fatal variance 

existed between the matters alleged in the information and 

the proof adduced at trial. None of these arguments are 

persuasive. 

Defendant urges that under State v. Merseal (1975), 167 

Mont. 412, 538 P.2d 1366, the State's failure to elicit 

direct testimony from the Marcus' that they were placed in 

fear leaves that element unproven. The factual situation 

here is substantially different than that in Merseal, and 

the latter does not control. 

In Merseal, defendant was driving a car in which a 

police officer was a passenger. Defendant slowed the car, 

moved to jump out of the vehicle and also reached toward the 

floor of the auto, where it was suspected he had a concealed 

gun. The officer, who was armed, drew his weapon and 

restrained defendant. The officer, allegedly the victim of 

an assault, did not testify that he had experienced fear. 

Here the robbers were in more complete control of the 

situation. Rick Worden inquired of Charles Marcus at 

gunpoint if he understood about robbery. Charles and 

Carol Marcus were placed face down on the floor, and bound 

with tape, while the robbers took the money in the till, 

whiskey and cigarettes. The victims were then admonished 

not to move for a quarter hour after the thieves' departure. 

While the only testimony which served as an admission of 

fear was Carol Marcus' statement: "Well, I understood it 

that they meant they would kill us if we didn't (remain on 

the floor) ," actual fear may be deduced by the jury when the 

victims are placed under such total domination by the 
offenders. It is well within the province of the jury to 

determine that fear exists in such a situation. 

Rick Worden's brandishing of the gun could hardly be 

anything less than sufficient circumstances to place the 

victims in fear. The Marcus' compliance with Worden's 

orders and their total submission indicated a fear of the 

consequences of failure to do so. It would be contrary to 

the common experience of all mankind to conclude that a 

person would experience no fear when confronted with a 

robber wielding a gun. Daellenbach v. State (Wyo. 1977), 

562 P.2d 679. 

Defense counsel elicited undisputed testimony from Ron 

Worden that Case did not engage in any of the acts 

proscribed by section 45-2-302(3), MCA, either before the 

robbery or during the time the Wordens were actually in 

Mac's Bar. Defendant therefore argues that his complicity 

arose, if at all, only after the robbery had concluded -- 

thus removing Case from any accountability for the robbery. 

Ron Worden also testified that Criss Case drove the car 

during the getaway from Mac's. Defendant's argument here is 

dependent on the validity of his conclusion that the robbery 

ended the moment the Worden brothers stepped outside the 

bar. However, in Montana, the ensuing flight is considered 

part and parcel of a robbery until such time as the criminal 

purpose, including carrying away of the spoils of the crime, 

is completed. State v. Jackson (1924), 71 Mont. 421, 230 P. 

370. Here, defendant's involvement commenced before the 

robbers had reached a place of seeming security and before 

the proceeds had been divided. By serving as a getaway 

driver, defendant aided the Wordens in the commission of the 

robbery, and became liable for the robbery under section 

45-2-302, MCA. 
Defendant's third assault on the evidence adduced at 

trial is that it failed to establish the robbery in the mode 

specified in the information -- purposely or knowingly put 

the bar owners in fear of immediate bodily injury. 

Defendant argues that the state's failure specifically to 

prove fear, where fear was specifically alleged, is fatal. 

This argument evaporates in light of our above ruling that 

the fear element was indeed sufficiently established. 

We turn now to the issue of corroboration of accomplice 

testimony. The state's major witness was Ron Worden, who 

testified regarding the events which occurred from the time 

the four men left California through the commission of the 

Loring robbery. It was Worden's testimony that placed Case 

behind the wheel in the getaway vehicle. The only other 

testimony regarding defendant's possible presence and 

participation was presented by Kersey, Hammerbacker and 

Officer Ralph Schmoldt, a jailer who overheard defendant 

express anger at Ron Worden because, "Ronny had turned 

State's evidence on some robberies and other things that had 

gone on.'' The District Court ruled Kersey's testimony 

sufficient to corroborate Worden. 

Section 46-16-213, MCA, mandates that accomplice 

testimony be corroborated by other independent evidence 

which tends to connect the defendant with the offense. The 

quantum and character of this requisite proof has been 

recently discussed in State v. Kemp (1979), Mont . 

, 597 P.2d 96, 36 St.Rep. 1215: 

"To be sufficient, corroborating evidence 

must show more than that a crime was in fact 

committed or the circumstances of its commission. (Citation.) It must raise more 

than a suspicion of the defendant's involvement in, or opportunity to commit, the crime 

charged. (Citation.) 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.) Corroborating evidence may be 

circumstantial (Citation.) and can come from 

the defendant or his witnesses. (Citation.) 

" With these principles in mind, 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. 

"One accomplice cannot supply the independent 

evidence necessary to corroborate another 

accomplice. (Citations.)" 597 P.2d at 99, 

36 St.Rep. at 1217-1218. 

The corroborative evidence must clearly: 

(1) Be independent 

(2) Point toward defendant's guilt, and 

(3) Provide a legally sufficient connection between 

defendant and offense. 

See, Civil Procedure and Evidence, Montana Supreme Court 

Survey, 41 Mont.L.Rev. 293, 319 (1980). 

Deputy Hammerbacker's testimony concerned statements he 

had taken from Rick Worden and Austin Metcalf in Las Vegas, 

Nevada. Coming from accomplices, the evidence cannot be 

considered independent. Kemp, supra. 

Emil Kersey provided independent evidence insofar as he 

saw a person, a blonde female, in the driver's position of 

the getaway vehicle. Kersey could not identify the husky 

red-haired defendant as that person, however. The testimony 

thus implicates defendant only when viewed in conjunction 

with Ron Worden's and therefore is also not independent. 

Officer Schmoldt's testimony was fully independent, but 

vague. The Wolf Creek robbery was not mentioned by 

defendant, whose anger at Worden could just as easily be 

attributed to the Loring robbery or some other intervening 

incident. The expression of anger at Worden is not more 

consistent with complicity than noncomplicity in the Wolf 

Creek robbery. It is therefore insufficient as 

corroboration. State v. Keckonen (1938), 107 Mont. 253, 
264, 84 P.2d 341, 346. 

The State has clearly failed to present any evidence 

corroborative of accomplice testimony. This failure 

necessitates reversal. 

The State presented testimony at trial, through Ron 

Worden, of the planning and commission of the Loring 

robbery. The evidence was presented for the limited purpose 

of showing defendant's intent, preparation, plan and 

knowledge. The specific details of the Loring robbery, 

other than its commission, were not revealed. Defendant 

argues on appeal that all evidence relating to the Loring 

robbery was improperly admitted. We agree. 

We have repeatedly expressed our concern over the 

widespread use of other crimes evidence. Our apprehension 

has led us to apply the general rule against use of evidence 

of other crimes, and to allow such evidence only under 

closely limited circumstances. Toward this end, we have 

established substantive and procedural guidelines for 

application of the exception, which we have set forth in 

State v. Just (1979), Mont. , 602 P.2d 957, 36 

St.Rep. 1649. In this instance, neither the substantive nor 

the procedural requirements have been fulfilled. 

Admissibility of evidence of other crimes is to be 

determined by the District Court pursuant to a four element 

test: 

(1) Similarity of crimes; 

(2) Nearness in time; 

(3) Tendency to establish a common scheme, plan or 

system, and; 

(4) The probative value of the evidence is not substantially outweighed by prejudice to the defendant. Just, 

supra, 602 P.2d at 961, 36 St.Rep. at 1653. Only the time 
factor has been met here. 

First, the Wolf Creek and Loring robberies were too 

dissimilar to allow the State to invoke the other crimes 

exception. Where the alleged similarities between the 

crimes reveal little in common other than a sequence of time 

from the crime charged, the acts are not unusual and 

distinctive enough to come within the purview of the 

similarity element of the exception. State v. Hansen 

(198o)t Mont . , 608 P.2d 1083, 1087, 37 St.Rep. 

657, 661. 

In Wolf Creek, the Wordens robbed the bar using no 

force other than threats, while Case and Metcalf waited in 

the car. In Loring, all four men entered the bar, each man 

assumed a predesignated duty station, and the ensuing 

violence resulted in multiple homicides. The two incidents 

are similar only in that both involved barroom robberies. 

That sole similarity between the two is clearly not 

sufficient to trigger the exception. 

Next, the crimes do not tend to establish a common 

scheme, plan or system. Again, the crimes were carried out 

in vastly dissimilar fashion within the pervasively common 

scenario of the barroom holdup. Absent proof of any further 

distinguishing event peculiar to the commission of both 

crimes, no common scheme exists. Hansen, supra. 

Finally, the probative value of the evidence must be 

weighed against prejudice to the defendant. Evidence of 

other crimes invariably will result in prejudice to a 

defendant to a certain degree. The likelihood of such 

prejudice was compounded here, where the other crime had 

been highly publicized. The lack of probative value of the 

evidence of the other crime, coupled with the prejudice 

inherently connected with the admission of such evidence, 
compels our conclusion that the prejudicial effect 

outweighed its probative value. 

This case does not on its facts fall within the 

exception to the general rule barring evidence of other 

crimes. The improper admission of the evidence under the 

exception is reversible error. 

Once having determined that evidence of other crimes is 

admissible, which we again emphasize should only occur under 

limited conditions justifying a departure from the general 

rule, the court must follow the procedural requirements set 

forth in Just, 602 P.2d at 963-964, 36 St.Rep. at 1657-1658. 

Failure to adhere to the procedural mandates of Just -- 

constitutes error. ~his case was tried two months after we 

handed down Just, yet none of the prescribed procedures were 

met. 

First, the State must provide written notice to the 

defendant, before the case is called for trial, that the 

evidence is to be produced. The notice must include a 

statement of the purposes for which the evidence is to be 

presented. Here, defendant received no written notice 

whatsoever; before trial the State had verbally indicated 

only that it might present such evidence; and the defendant 

was finally apprised of the State's definite intention to 

present the evidence, and of the purpose for that presentation, only at the conclusion of the first day of trial. 

Next, the trial court must, at the time the evidence is 

introduced, explain to the jury the purpose of the evidence 

and admonish the jury to weigh the evidence only for those 

purposes. The Court did not so instruct the jury. 

The final procedural step requires: 

"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 964, 36 St.Rep. at 

1658. 

The jury was instructed regarding such evidence as 

follows: 

"Evidence of other crimes, wrongs, or acts is 

not to be used by you to prove the character 

of the defendant to show that he acted in 

conformity therewith, nor is such evidence to 

be used by you as evidence that the defendant 

committed the act with which he is charged. 

However, evidence of other crimes, wrongs or 

acts may be considered by the jury for other 

purposes such as proof of intent, opportunity, maintenance, preparation, plan or 

knowledge. " 

The specifically required unequivocal warning of the 

possibility for unjust double punishment was not included. 

Hence, the jury was inadequately instructed in its final 

charge. 

Again, the failure to provide necessary procedural 

safeguards prejudiced defendant. This failure, of itself 

dictates reversal. 

Finally, defendant argues certain jury instructions 

improperly shifted the burden of proof. The instructions 

complained of allowed the jury to infer knowledge and intent 

on the part of the defendant. Defendant submits the 

instructions violated the spirit and intent of Sandstrom v. 

Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. 

We disagree. 

We have previously considered the validity of similar 

instructions allowing permissive inferences, State v. Sunday 

(1980) I Mont. , 609 P.2d 1188, 37 St.Rep. 561; 

State v. Wogamon (1980), Mont. , 610 P.2d 1161, 37 

St.Rep. 840, and have determined such instructions place no 

burden on defendants. We stated in Sunday: 

"Since a permissive inference is involved, 
Sunday must show the invalidity of the 

inference as applied to him. Sunday must 

show there is no rational way under the facts 

of this cause for the jury to make the 

connection permitted by the inference. Only 

then is there a risk the presumptively 

rational jury will use the inference to make 

an erroneous factual determination. 

(Citation.) Sunday has not carried his 

burden upon appeal." 609 P.2d at 1196, 37 

St.Rep. at 569. 

The same reasoning applies here. Defendant was not 

prejudiced through the use of permissive inferences. 

Reversed and dismissed. 

Justice 

We Concur: 

....................... 

Chief Justice 

....................... 

Justices 
Mr. Chief Justice Frank I. Haswell, specially concurring: 

I concur in the result of the foregoing opinion but not 

with all the statements and discussion contained therein. 

Chief Justice 

Mr. Justice Daniel J. Shea concurs and will file a concurring 

opinion at a later time. 
THE STATE OF MONTANA 

vs . 

CRISS ALLEN CASE 

No. 80-159 

CONCURRING OPINION OF MR. JUSTICE DANIEL J. SHEA 

....................................................... 

Dated: January 5, 1980 
Mr. Justice Daniel J. Shea concurring: 

Generally, I concur in the majority opinion. The evidence 

was legally insufficient, and therefore a reversal and dismissal is required. Even if the evidence was sufficient to 

convict, the failure of the State to comply with the mandate 

of State v. Just, supra, as the opinion states, would require a 

reversal and a new trial. I would like to comment on the State's 

failure to comply with Just. 

I dissented in Just because the defendant was not given the 

benefit of the ruling--which would have required a reversal and 

a new trial. I also stressed the importance of the trial court 

to first assess the State's need for the similar-crimes evidence, 

and then determine whether the evidence, if admitted, would 

be unduly prejudicial. Undoubtedly, the State needed the 

evidence--with the testimony from the accomplice about the other 

robbery, it tended to show that defendant and the accomplice 

were involved in a common scheme or plan. This was an attempt 

of the State to pull accomplice testimony up by its own boot 

straps--clearly improper. Assuming the admissibility of the 

accomplice testimony as to the robbery at Loring, the trial 

court without question failed to consider the potential harmful 

effects that the testimony would have as to the Loring robbery. 

The so-called similar crime, was not only a robbery; it involved 

multiple brutal murders committed by the accomplice and the 

defendant. I doubt that any juror could fairly state that he 

had not heard nor read about the robbery and murders at Loring. 

Therefore, even if there was no direct reference to the murders 

committed in the process of the robbery at Loring, there is no 

doubt that the jury knew it had a person on trial who was involved 

in the Loring murders. Proper consideration of these factors 

before admitting the testimony, would have led to a decision 

-14- 
that the accomplice testimony as to the Loring robbery was 

loaded with prejudice that could never be overcome. 

I stress that just because State v. Just, supra, sets 

out the procedural requirements for admission of similar crimes, 

it does not mean that the trial court should always admit 

such evidence when it is offered. The trial court should 

carefully scrutinize the attempted use of such evidence and the 

potential prejudice that will ensue, and where he has any doubt, 

it should be resolved against use of such evidence. 

Finally, the conviction of defendant in this case, has, 

as its underlying cause, a manifest abuse of prosecutorial 

discretion. We must remember that at the time defendant was 

tried for the Wolf Creek robbery, he was already under sentence 

of 175 years in prison for the Loring robbery and murders. 

It is perhaps understandable that the prosecutor first 

filed robbery charges against defendant arising from the Wolf 

Creek robbery, for then the prosecutor was not confronted with 

the thin evidentiary case and the legal requirements as to 

corroboration of accomplice testimony. Maybe his initial charge 

was supported by legally sufficient probable cause, I don't 

know. But as the case neared the trial stage, the prosecutor 

knew or should have know that he did not have sufficient legal 

evidence on which to base a conviction that would withstand 

the legal requirements. Therefore, he had every reason to believe 

that a conviction would ultimately lead to a reversal and a 

dismissal. Also, assuming that the prosecutor was unaware of 

the rigorous requirements for accomplice testimony, it is sad 

that he succeeded in getting the Loring robbery evidence admitted 

when there was not even an attempt to comply with State v. Just. 

It is not unreasonable to conclude here that the Loring robbery 

evidence, coupled with the widespread press coverage of the Loring 

murders,sealed the defendant's fate before the jury. PA&+--