No. 79-65 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

RODNEY ALLEN WEST, Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding. Counsel of Record: For Appellant: Smith, Connor & Van Valkenburg, Missoula, Montana Paul Smith argued, Missoula, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, Assistant Attorney General, Helena, Montana Robert L. Deschamps, 111, County Attorney, Missoula, Montana Michael Sehestedt argued, Deputy County Attorney, Missoula, Montana

Submitted: September 16, 1980 Decided: 

## OCT

## 23198TJMr. ~ustice Gene B. Daly delivered the Opinion of the Court. Defendant Rodney Allen 

### West appeals from a conviction and judgment of felony theft inviolation of section 45-6- 301, MCA. Judgment was entered inthe 

### District Court, Fourth Judicial District, Missoula County. In the summer of 1977, a pickup truck was stolen from ~itterroot Toyota inMissoula. On July 26, 1977, defendant sold a truck, matching the description of the stolen truck, toJohn Wright inthe Stateof Idaho. Wright was given a bill of sale and told the titlewould be delivered tohim from Montana. When Wright took the truck infor insurance coverage, he discovered the vehicle identificationnumber had been obliterated. Wright turned the bill of sale and the truck over to Idaho authoritieswho 

### were able toobtain



### a series of potential serialnumbers from the partial numbers available on the truck. On February 26, 1979, defendant was charged by information with the felony theftof a truck bearing the vehicle identificationnumber of CE142515821. Atthe beginning of the trial on July 9, 1979, the Statemoved to amend the vehicle identificationnumber toread CCE142515821. The amendment was allowed over defendant's objection. 'The jury



### was then generally instructed thatdefendant was charged with the felony theftof a truck bearing the amended vehicle identificationnumber. Defendant moved inlimine to exclude any testimony from Ted Beyers, an alleged accomplice of West. The motion was denied. During the State's opening remarks, the jury 

### was told that the Statewould call a detective, Sgt. ~ilson, who would relate a conversation he had with Beyers concerning how Beyers and defendant had stolen the truck. Defendant

### objected and moved for a 

### mistrial. The objection was sustained, but themotion was denied. ~efendant elected togive an opening statement following the State's. He

### propounded his defense which was based

on faulty vehicle identification numbers which did not or could not identify the stoien truck. At

### thispoint, the State admitted an error inthe information regarding the vehicle identification number. The Statewas permitted to amend the number inthe information for a second 

### time, this 

### time striking the vehicle identification number from the information. Defendant then moved for a motion inlimine of any testimony concerning the vehicle identificationnumber stricken from the information. The motion 

### was denied. During the State's case-in-chief, defendant was granted 

### a continuing objection toany testimony regarding vehicle identificationnumbers. On July 11, 

### 1979, thejury rendered a verdict finding defendant guilty of felony theft. Defendant moved for a new trialon the ground thatJohn Wright's testimony 

### was not corroborated. Thismotion 

### was denied. On August 13, 1979, defendant, a nondangerous offender, was sentenced to ten years inthe stateprison with credit for time 

### already served. Defendant has presented some twenty issues tobe examined by thisCourt. However, only examination of (1) 

### the issue of ~etective Sgt. Wilson's testimony and its use inthe State's opening argument, and (2) 

### the sufficiency of the evidence need be reviewed by this Court. Defendant contends that the DistrictCourt erred in refusing to grant a motion inlimine and a mistrialbased on proposed testimony of a State's witness which was laterheld

### tobe inadmissible. This claim of error stemsfrom defendant's contention that certainremarks made by the prosecuting attorney during hisopening statement

### wereprejudicial. These remarks referred toinformation Ted Beyers, an alleged accomplice of defendant, had given toDetective Sgt. Michael Wilson. Prior to trialdefendant submitted a motion in limine precluding and prohibiting the Stateof Montana, its attorneys orwitnesses from mentioning, referring to, or interrogating about any information thatTed Beyers had given to anyone, including Wilson. This motion 

### wasmade on the basis thatany such testimony would be strictlyhearsay and would deprive defendant of his constitutional right to confront and examine the witnesses against him. The motion 

### was denied, and the court advised counsel that it 

### could be reviewed when and if the witness was sworn and an offer of proof made inchambers. During his opening remarks, the prosecutor made the following statement: "We will 

### then callMike Wilson of the Clear

### water County, Idaho Sheriff's office. Detective SergeantWilson will

### testify thatindividual known tohim asTed Beyers, the same 

### ---- 

## -- Ted Beyers which was with Mr. 

### Wright who he 

### - --- 

### -- can't locate currently and who he has been 

### ----- lookina for for some 

### time, came in shortly

~ -- 

### after Mr. 

### Wright had bought the pickup and wanted to talk tohim about a pickup thathe and Rodney Allen West had sold toJohn Wright. Mr. 

### ~ilson 

### willrelate the substance -- 

### of that conversationwas thatMr. 

### Beyers and Carla 

### --- Bray and the Defendant were inMissoula stay- 

### --- -- ing 

### atthe Palace Hotel. That they went out 

### --- ---- to the Bitterroot Toyota. The Defendant drove 

### -- the vehicle from Bitterroot Toyota 

### --" (Emphasis supplied.) Defendant objected to this statement and inchambers moved for a mistrialbased on the prejudice the statement would have on the jury. Counsel's objectionwas sustained,but the court denied the motion formistrial. The hearsay testimony of Detective Sgt. Wilson regarding the statementmade by Beyers 

### was subsequently deemed inadmissible and not presented to the jury. Defendant 

### asserts that the statementmade by the prosecuting attorney during his opening remarks was highly prejudicial todefendant, could not be erased from the jury's mind and constituted reversible error. This Court has faced similar issues on a number of previous occasions: Statev. Zachmeier (1968)

## , 151Mont. 256, 441P.2d 737; Statev. Ruona (1972), 159 Mont. 507, 499 P.2d 797; Statev. Kolstad (1975), 166 Mont. 185, 531 P.2d 1346.Zachmeier was a homicide case. Prior to 

### trial the defendant had filed a motion to suppress a confession for violation of Miranda warnings. Atthat 

### time the court reserved ruling on the motion. Atthe beginning of trial the motion was renewed. The court denied the motion but granted the defense counsel leave torenew the motion ata 

### later point intrial. When the confession was later offered intoevidence the courtruled it 

### was inadmissible. However, during opening remarks the county attorney made 

### a detailed recitation of the admission of guiltmade by the defendant. This Court held that those remarks in counsel's opening statement 

### werereversible stating that, 

## "[wle do not think that the jury would completely disregard this detailed admission of guilt." 441P.2d at741. Inboth Ruona and Kolstad, Zachmeier was distinguised

on the facts: "Zachmeier held that the damaging opening statements of prosecution were not of the nature that the jury would completely dis-regard. Too, 

### we arenot unmindful of this Court's admonitions inStatev. Langan, 151 Mont. 558, 568, 445 P.2d 565 and cases cited therein. Furthermore, as stated inFahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, cited inLangan, the 

### test remains: "'Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction?

## '" Statev. Ruona, 499 P.2d at800. Wegrant that Zachmeier 

### is the extreme example and the statement made by the prosecuting attorney in the present

case falls short of being asblatant. However, there isno doubt as towhat he was trying toconvey to the jury and littledoubt that they picked 

### it up. Itnecessarily follows that there remained a "reasonable possibility that the 

### -- inadmissible evidence contributed to the conviction." 

### -- Wenext address defendant's issue concerning the sufficiency of the evidence. At

### trial Detective WilliamFaust testified about the Chevrolet truck in Idaho being the same

one stolen inMissoula from Bitterroot Toyota. This 

### testimony was based solely orwholly on conjecture and probability. The process of balancing vehicle identificationnumbers and probabilities to identify a machine never seen and bearing

no complete 

### set of vehicle identification numbers 

### isnot the quality of evidence tobe considered for conviction beyond a reasonable doubt. No 

### title inBitterroot 

### was ever furnished. The truck was never returned from Idaho. Bitterroot had two differentvehicle identification numbers for the stolen pickup truck in its file. The exact year model was never determined on the Idaho truck. The Idaho pickup was sold to an insurance carrier on October 31, 1977, and this date failed to compliment other dates deemed of importance by the State. In short, nothing inevidence proves that the truck

### sold inIdaho was the truck taken from Missoula. And, there 

### -- isno proof that defendant took the truck inMissoula. Furthermore, any proof that 

### isacceptable would tend to prove a 

### crime inthe Stateof Idaho; there isno proof that defendant committed 

### a crime inthe Stateof Montana. The admission of the evidence heretofore discussed was 

### highly prejudicial and requires a reversal of defendant's conviction. Further examination of the remaining evidence indicates that there was lacking any sufficient, credible evidence for conviction of a crime inMontana, and there is little

### or no chance to improve the matter inasmuch 

### as 

### time has seen the truck and other evidence destroyed. It 

### appears toomany years elapsed, 

### as is, tohave obtained better evidence, if better evidence there was. The conviction and judgment of the District 

### Court is 

### reversed, and the cause isdismissed with prejudice.

We concur:



### Ph4-e 

# &!/ Chief Justice

~onoFable Gordon R. 

### Bennett, DistrictJudge, sitting inplace of Mr. 

### JusticeJohn C. 

### Sheehy

### Mr. Justice Daniel J. 

### Shea concurring:

I 

### concur with both the reversal and dismissal ordered in this case. I 

### add, however, that the trial courts should, as a matter of course when reserving a decision

on a motion in limine, refuse to let 

### the attorneys mention the allegedly admissible evidence to the jury before the time comes for an actual ruling on its 

### admissibility. If that 

### is done, there would then be no danger of creating the prejudicial situation such as occurred here. Here, the trial court ultimately and properly ruled the evidence to be inadmissible but the jury had already heard what the evidence would be when the prosecutor made his 

### opening statement. The 

### jury could not eradicate these harmful statements from its 

### mind in reaching its 

### decision, and 

### we must not delude ourselves into thinking it 

### could do so.

Justi