No. 79-65 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

RODNEY ALLEN WEST, 

Defendant and Appellant. 

Appeal from: District Court 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 23 198TJ 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Defendant Rodney Allen West appeals from a conviction 

and judgment of felony theft in violation of section 45-6- 

301, MCA. Judgment was entered in the District Court, 

Fourth Judicial District, Missoula County. 

In the summer of 1977, a pickup truck was stolen from 

~itterroot Toyota in Missoula. On July 26, 1977, defendant 

sold a truck, matching the description of the stolen truck, 

to John Wright in the State of Idaho. Wright was given a 

bill of sale and told the title would be delivered to him 

from Montana. When Wright took the truck in for insurance 

coverage, he discovered the vehicle identification number 

had been obliterated. Wright turned the bill of sale and 

the truck over to Idaho authorities who were able to obtain 

a series of potential serial numbers from the partial numbers 

available on the truck. 

On February 26, 1979, defendant was charged by information with the felony theft of a truck bearing the vehicle 

identification number of CE142515821. At the beginning of 

the trial on July 9, 1979, the State moved to amend the 

vehicle identification number to read CCE142515821. The 

amendment was allowed over defendant's objection. 'The jury 

was then generally instructed that defendant was charged 

with the felony theft of a truck bearing the amended vehicle 

identification number. 

Defendant moved in limine 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 State would 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 the motion was denied. 

~efendant elected to give 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 this point, the 

State admitted an error in the information regarding the 

vehicle identification number. The State was permitted to 

amend the number in the information for a second time, this 

time striking the vehicle identification number from the 

information. Defendant then moved for a motion in limine of 

any testimony concerning the vehicle identification number 

stricken from the information. The motion was denied. 

During the State's case-in-chief, defendant was granted a 

continuing objection to any testimony regarding vehicle 

identification numbers. 

On July 11, 1979, the jury rendered a verdict finding 

defendant guilty of felony theft. Defendant moved for a new 

trial on the ground that John Wright's testimony was not 

corroborated. This motion was denied. On August 13, 1979, 

defendant, a nondangerous offender, was sentenced to ten 

years in the state prison with credit for time already 

served. 

Defendant has presented some twenty issues to be 

examined by this Court. However, only examination of (1) 

the issue of ~etective Sgt. Wilson's testimony and its use 

in the State's opening argument, and (2) the sufficiency of 

the evidence need be reviewed by this Court. 

Defendant contends that the District Court erred in 

refusing to grant a motion in limine and a mistrial based on 

proposed testimony of a State's witness which was later held 
to be inadmissible. This claim of error stems from defendant's contention that certain remarks made by the prosecuting attorney during his opening statement were prejudicial. These remarks referred to information Ted Beyers, an 

alleged accomplice of defendant, had given to Detective Sgt. 

Michael Wilson. 

Prior to trial defendant submitted a motion in limine 

precluding and prohibiting the State of Montana, its attorneys or witnesses from mentioning, referring to, or interrogating about any information that Ted Beyers had given to 

anyone, including Wilson. This motion was made on the basis 

that any such testimony would be strictly hearsay 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 in chambers. 

During his opening remarks, the prosecutor made the 

following statement: 

"We will then call Mike Wilson of the Clearwater County, Idaho Sheriff's office. Detective Sergeant Wilson will testify that individual known ---- to him as Ted 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 to him about a pickup that he 

and Rodney Allen West had sold to John Wright. 

Mr. ~ilson will relate the substance -- of that 

conversation was --- that Mr. Beyers and Carla 

--- Bray and the Defendant were -- in Missoula stay- 

--- ing at the 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 in chambers 

moved for a mistrial based on the prejudice the statement 

would have on the jury. Counsel's objection was sustained, 
but the court denied the motion for mistrial. 

The hearsay testimony of Detective Sgt. Wilson regarding the statement made by Beyers was subsequently deemed 

inadmissible and not presented to the jury. Defendant 

asserts that the statement made by the prosecuting attorney 

during his opening remarks was highly prejudicial to defendant, 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: State v. Zachmeier (1968) , 151 Mont. 

256, 441 P.2d 737; State v. Ruona (1972), 159 Mont. 507, 499 

P.2d 797; State v. 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. At that time the court 

reserved ruling on the motion. At the beginning of trial 

the motion was renewed. The court denied the motion but 

granted the defense counsel leave to renew the motion at a 

later point in trial. When the confession was later offered 

into evidence the court ruled it was inadmissible. However, 

during opening remarks the county attorney made a detailed 

recitation of the admission of guilt made by the defendant. 

This Court held that those remarks in counsel's opening 

statement were reversible stating that, " [wle do not think 

that the jury would completely disregard this detailed 

admission of guilt." 441 P.2d at 741. 

In both 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 are not unmindful of this 

Court's admonitions in State v. Langan, 151 

Mont. 558, 568, 445 P.2d 565 and cases cited 

therein. Furthermore, as stated in Fahy v. 

State of Connecticut, 375 U.S. 85, 84 S.Ct. 

229, 11 L.Ed.2d 171, cited in Langan, the 

test remains: 

"'Is there a reasonable possibility that the 

inadmissible evidence might have contributed 

to the conviction? ' " State v. Ruona, 499 P.2d 

at 800. 

We grant that Zachmeier is the extreme example and the 

statement made by the prosecuting attorney in the present 

case falls short of being as blatant. However, there is no 

doubt as to what he was trying to convey to the jury and 

little doubt that they picked it up. It necessarily follows 

that there remained a "reasonable possibility -- that the 

inadmissible evidence contributed -- to the conviction." 

We next address defendant's issue concerning the sufficiency of the evidence. At trial Detective William Faust 

testified about the Chevrolet truck in Idaho being the same 

one stolen in Missoula from Bitterroot Toyota. This testimony was based solely or wholly on conjecture and probability. 

The process of balancing vehicle identification numbers and 

probabilities to identify a machine never seen and bearing 

no complete set of vehicle identification numbers is not the 

quality of evidence to be considered for conviction beyond a 

reasonable doubt. No title in Bitterroot was ever furnished. 

The truck was never returned from Idaho. Bitterroot had two 

different vehicle 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 in evidence proves that the truck 
-- sold in Idaho was the truck taken from Missoula. And, there 

is no proof that defendant took the truck in Missoula. 

Furthermore, any proof that is acceptable would tend to 

prove a crime in the State of Idaho; there is no proof that 

defendant committed a crime in the State of 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 in Montana, and there is 

little or no chance to improve the matter inasmuch as time 

has seen the truck and other evidence destroyed. It appears 

too many years elapsed, as is, to have obtained better 

evidence, if better evidence there was. 

The conviction and judgment of the District Court is 

reversed, and the cause is dismissed with prejudice. 

We concur: 

Ph 4-e &!/ 

Chief Justice 

~onoFable Gordon R. Bennett, 

District Judge, sitting in place 

of Mr. Justice John 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