No. 80-291 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

DONALD E. WILSON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula. 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hood and Sherwood, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Deschamps 111, County Attorney, Missoula, Montana 

- 

Submitted on briefs: April 2, 1981 

Decided: Ju1.y 2, 1981. 

I/ I w w Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Donald Earl Wilson appeals from his conviction 

by a jury on the charges of felony burglary and misdemeanor 

forgery, rendered after trial in the District Court of the Fourth 

Judicial District , Missoula County, the Honorable John S. Henson, 

presiding. The defendant was sentenced to serve eight years at 

hard labor in the State Prison on the felony burglary charge and 

six months in the Missoula County jail on the misdemeanor forgery 

charge, the sentences to run concurrently. 

Both parties recommend that the misdemeanor conviction be 

reversed, based on this Court's decision in State ex re1 . Rasmussen v. District Court (1980), Mont . , 615 P.2d 231, 

37 St.Rep. 1498. That case held that district courts do not have 

jurisdiction over misdemeanor charges otherwise provided for, 

citing section 3-5-302 (1) (d) , MCA; jurisdiction over misdemeanors 

punishable by a fine not exceeding $500 and/or imprisonment not 

exceeding six months was found to be given to justice courts 

under section 3-10-303(1), MCA. Rasmussen, 615 P.2d 231, 232, 37 

St.Rep. 1499; State v. Campbell (1981), Mont . , 622 P.2d 

200, 202, 38 St.Rep. 19, 21-22. Misdemeanor forgery is punishable 

within the above-stated limits. Section 45-6-325 (4), MCA. 

Therefore, the District Court did not have jurisdiction to try 

the charge. Defendant1 s misdemeanor forgery conviction must be 

reversed, his sentence vacated, and the charge dismissed. 

Defendant presents the following issues concerning the 

burglary conviction: 

1. Whether the trial court erred in denying defendant's 

motion in limine and allowing the prosecution to inquire into the 

defendant's exercise of his Miranda rights to remain silent? 

2. Whether the District Court erred in refusing to grant 

defendant's motion for a mistrial after the prosecution had 

violated an order in limine prohibiting the prosecution from 

inquiring into or soliciting any hearsay testimony with respect 
to things said by Anna Doney to investigating officers? 

3. Whether there was sufficient evidence to convict the 

defendant of burglary? 

We af f irm the defendant's conviction. 

The undisputed facts include the following: The home of 

Patrick and Gwen Thibodeau was burglarized while they were away on 

vacation during June and July of 1978. The owners returned home 

on July 15, and found the side door ajar. Mr. Thibodeau discovered that his checkbook was missing at that time. 

At a later date, when the couplets account statement and 

cancelled checks arrived from the bank, they discovered a check 

written to Shaffer's Market in Missoula in the amount of $79.50, 

which neither had issued. The check was endorsed on the back in 

the defendant's name. After inquiring about the check at 

Shaffer's Market, the couple contacted the police, and then 

further searched their home. They discovered that eight 1879 

silver dollars, a watch and a gold ring were also missing. The 

watch and ring were later recovered by police at the residence of 

one Anna Doney. The defendant had given the items to Doney's 

children. 

Defendant was arrested near Glasgow in December 1978. He 

was charged by information with felony burglary and misdemeanor 

forgery. Defendant pleaded not guilty to each. Trial was held 

on January 3 and 4, 1980. 

At trial, a store clerk from Shafferts Market testified 

that he had cashed the subject check on June 24, 1978, for the 

defendant; and, that the defendant stated at the time, first, that 

Thibodeau had given the check to the defendant in payment for 

work which he had done on Thibodeau's ranch, and second, that 

defendant had asked Thibodeau to make the check payable to 

Shaffer's Market because the banks were closed that day and 

because the defendant intended to cash it at the store. The 

clerk testified that defendant had used part of the money 
received to pay a bill owed by one Judy Crosby and part to buy 

groceries, and the rest he had received in cash. The clerk 

further testified that a few weeks prior to trial defendant had 

returned to the store to discuss the check; the defendant stated 

the check had been given to him in payment for a truck sold by 

the defendant, that the check had been made out by another person 

in the store in front of the clerk, and that the defendant knew 

40 witnesses who could testify to that effect. The clerk testif ied the defendant wanted to know why the clerk did not like him. 

Defendant testified at trial to his version of events. 

According to his testimony, he had been living at the home of 

Judy Crosby. He had vehicles parked in the yard. One, a 1966 

Ford, he sold to a man named Levi af ter Judy Crosby had stated 

that she wanted the vehicle moved. Levi wanted the car for 

parts. The sale price was $75. Defendant helped Levi tow the 

car away. Levi promised to pay at some later date. The defendant did not know the man by any other name. 

Defendant testified that he did not see Levi again for 

several weeks, until Saturday, June 24, when he noticed Levi in a 

city park. Defendant approached Levi to demand payment. Levi 

stated that he could go and get the money, and asked to borrow 

the defendant's car. The defendant agreed, on the condition that 

Levi pay for the gas he would use, and lent Levi his white Ford 

stat ion wagon. 

The defendant test if ied that Levi returned approximately 

two hours later with the subject check. Defendant and Levi then 

went to Shafferls Market to cash the check. Levi wrote the check 

in either the car or the store, in the amount of $79.50, which 

included $4.50 for the gas he had used. Because the defendant 

did not know Levi's real name, he had no reason to suspect that 

Levi was not Patrick Thibodeau. 

The defendant testified that he and Levi presented the 

check to the clerk. The defendant produced his chauf feurls 
license, and endorsed the check on the back with his name and 

address. 

The defendant further testified that several weeks after 

June 24, he found the watch and gold ring between the seats of 

his white Ford wagon, the one that Levi had used. The defendant 

thought the items were junk and gave them to the children of Anna 

Doney, whose family were friends with the Crosbys . The defendant testified that he continued to frequent 

Shaffer's Market until he got a job moving houses in North 

Dakota. He phoned the Crosby residence after he had moved, and 

was informed that there were problems with the check. He 

directed Judy Crosby to contact the police and find out what was 

going on. When the defendant called back, Judy Crosby told him 

the check was no good and the police were interested in talking 

to him. 

The defendant testified that he immediately set out to 

return to Missoula. In Glasgow, he needed gas but had run out of 

money. He stopped at the Glasgow Police Department to ask for 

help, and told them that he had to get to Missoula to straighten 

out a legal problem. He was given ten gallons of gas, but was 

then stopped and arrested a short distance outside of Glasgow. 

After the defendant was returned to Missoula, he was 

released on bail. He never was able to locate Levi. He testified 

that on his return to Shaffer's Market to straighten out the 

dispute the clerk acted llsnottyvl and "sarcastic" towards him. 

Appellant's Issue One. As part of its cross-examination 

of the defendant, the State asked whether defendant had ever 

discussed the check with any police officers, either in Glasgow 

or Missoula, in an attempt to rectify the matter. Defendant 

objected and, in chambers, moved for an order in limine to prevent the State from asking any questions which might reflect or 

comment upon defendant's exercise of his Miranda right to remain 

silent. The Court denied the motion on the grounds that defen- 
dant had opened the area himself upon direct. 

The court and counsel then returned to the courtroom and 

the prosecutor, after reviewing with defendant his testimony on 

direct examination, elicited the following: 

"Q. Did you ever talk to anyone to get the 

matter straightened out then? A. No. I never 

got back here. 

"Q. So then you never gave anyone, you never 

talked to anyone to clear the matter up, then? 

A. NO, sir." 

Defendant includes, as part of this issue, two statements 

made by the prosecutor during closing argument, as follows: 

1. "Then, we hear from Allen Kimery again . . . Allen Kimery attempts to locate people down 

there to find out if anyone else knows of this 

Levi. The first -- we have heard --- of Levi was 

yesterday, --- and had we known about this 

mysterious Levi first or before, then, we would 

have attempted to locaE ----- him to have himhere. 

So we go to theBonner area through A1 Kimery 

and check out and see if anyone knows this Levi. 

Nobody but the Defendant and Jim Gates and their 

witnesses have ever heard of Levi." (Emphasis 

added. ) 

2. "When [defense counsel] began to address you, 

he told you about the State having the resources 

of the sheriff's department and whatever. One 

thing he did not tell you at that time was that 

the sheriff 's department serves the subpoenas 

for both the State and the Defendant. Another 

thing he did not tell you is whether or not he 

issued a subpoena for Mr. Levi when he has that 

sheriff's department available as a resource to 

him to attempt to locate this Mr. Levi or Levi. 

------ We did not know of Levi until yesterday -- 

"MR. SHERWOOD: Your honor, I'm going to object 

to this line of discussion. It violates the 

Miranda right. 

"THE COURT: Mr. McLean? 

I1MR. McLEAN: Your Honor, I don't believe--He 

mentioned about this Levi and our sources and 

I'm telling the jury that we tried to locate Mr. 

Levi. 

"THE COURT: I will sustain the objection. 

"MR. McLEAN: Thank you, Your Honor . . . II 

( Emphasis added. ) 

Defendant argues the emphasized portions above were also 

impermissible comments upon his exercise of the right to remain 

silent, and amount to reversible error. 
The q u e s t i o n s asked of defendant on cross-examination did 

not comment upon his failure to give an explanation to law enforcement officials within the context of the right to remain silent. 

Rather, the questions legitimately explored a subject which 

defendant himself had placed into dispute during direct 

examination. 

"If [a defendant in a criminal case] takes the 

stand and testifies in his own defense, his credibility may be impeached and his testimony 

assailed like that of any other witness, and the 

breadth of his waiver is determined by the scope 

of relevant cross-examination. ' [He] has no 

right to set forth to the jury all the facts 

which tend in his favor without laying himself 

open to a cross-examination upon those facts.' . . .I1 Brown v. United States (1958), 356 U.S. 

148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, 

596-597. 

Defendant clearly conveyed to the jury, in his direct 

testimony, his understanding that the checkms good, and that 

he at all times acted in good faith, intending to speak to and 

resolve the matter with law enforcement officials. After the 

defendant's direct testimony, the prosecutor's questions were 

within the scope of relevant cross-examination. Rule 611 (b) (1), 

" [W] hen a witness voluntarily testifies, the 

privilege against sel £-incrimination is amply 

respected without need of accepting testimony 

freed from the antiseptic test of the adversary 

process. The witness himself, certainly if he 

is a party, determines the area of disclosure 

and therefore of inquiry. Such a witness has 

the choice, after weighing the advantage of the 

privilege against self -incrimination against 

the advantage of putting forward his version of 

the facts and his reliability as a witness, not 

to testify at all. He cannot reasonably claim 

that the Fifth Amendment gives him not only this 

choice but, if he elects to testify, an immunity 

from cross-examination on the matters he has 

himself put in dispute. It would make of the 

Fifth Amendment not only a humane safeguard 

against judicially coerced self-disclosure but a 

positive invitation to mutilate the truth a 

party offers to tell. . . The interests of the 

other party and regard for the function of 

courts of justice to ascertain the truth become 

relevant, and prevail in the balance of considerations determining the scope and limits of 

the privilege against self -incrimination. 

Petitioner, as a party to the suit, was a volun- 
tary witness. She could not take the stand to 

testify in her own behalf and also claim the 

right to be free from cross-examination on matters raised by her own testimony on direct 

examination." Brown, 356 U.S. 155-156, 78 S.Ct. 

627, 2 L.Ed.2d 597. 

Defendant's reliance upon Doyle v. Ohio (1976), 426 U.S. 

610, 96 S.Ct. 2240, 49 L.Ed.2d 91, is misplaced. The facts there 

indicate the accused did not testify about their post-arrest 

acts, intentions or silence. They merely testified to a story 

which the prosecution had not heard before. The State, on 

cross-examination, inquired into the fact of and the reasons 

behind defendantst previous silence, justifying the questions by 

asserting a need to present to the jury all information relevant 

to the defendants' credibility. Doyle, 426 U.S. 613-616, 96 

S.Ct. 2242-2244, 49 L.Ed.2d 95-97. In this case the defendant 

testified at length about his actions immediately before as well 

as after his arrest. 

The issue whether interrogation of an accused upon the 

point of credibility is within the scope of cross-examination 

is a thorny problem in criminal cases; but there can be no doubt 

that matters put in dispute by the accused himself by direct 

testimony are always proper subjects of cross-examination. 3 

Weinstein's Evidence, 5 611[031. 

Defendantt s contention about the prosecutor 's comments 

during closing argument remains. We note that the defendant did 

not object to the State's first reference to its lack of 

knowledge concerning the man called "Levi .If Defendant did object 

to the second reference; the objection was immediately sustained, 

and the State did not mention the subject again. The comments 

were not so extensive, nor did they so stress an inference of 

guilt based on silence, as to constitute reversible error. 

Anderson v. Nelson (1968), 390 U.S. 523-524, 88 S.Ct. 1133, 1134, 

Appellant's Issue Two: 

Prior to trial, defendant made several motions in limine. 
Motion No. 4 was as follows: 

" . . . Defendant . . . respectfully moves the 

Court as follows: 

4. To order the prosecution to refrain from 

asking any questions or soliciting any testimony 

from any witness regarding statements made by an 

Ann Doney . . ." 

The District Court granted the motion. 

Defendant claims the State violated the court's order 

in limine. He moved for a mistrial at the time. The motion was 

prompted by the following exchange between the prosecutor and a 

police officer during the State Is case-in-chief : 

"Q. I'm handing you State's Exhibit 2 and ask 

you if you can identify it. A. Yes, sir, I 

can. 

"Q. Would you identify it, please? A. This is 

the watch that I recovered on that search 

warrant. 

"Q. To whom was this watch listed in the 

sheriff's department as belonging to? A. Pat 

Thibodeau . "Q. Did you have occasion to ask Mrs. Doney how 

she came into possession of the watch? A. Yes, 

I did. 

"Q. Did she tell you who gave you (sic) the watch? 

A. Yes. 

"MR. SHERWOOD: Objection, Your Honor, this is 

beyond the scope of the Motions in Limine and 

it's hearsay. 

"THE COURT: Sustained .I' 

The court denied the motion for mistrial stating that the 

officer's answer was not technically hearsay, but that the 

objection was sustained because of the inference which might have 

been left with the jury. 

We dispose of this issue by noting that defendant, on 

cross-examination, testified he gave the ring and the watch to 

"little kids" "at a house out in Wheeler Village," who "were 

friends of the people that I lived with." In addition, Anna 

Doney was called as a rebuttal witness by the State. She 
testified to the same points. The issue whether the jury might 

have gleaned an impermissible inference from the above questions 

was rendered moot by Anna Doney's testimony that defendant gave 

the watch and ring to her daughter for the daughter's birthday in 

June of 1978, and that she was present when defendant gave the 

items to the daughter. We find Doney's credibility was fully 

challenged bythe defense. The evidence was properly before the 

jury by other means; any error caused by the police officer's 

testimony was merely technical, and did not affect any substantial right. Section 46-20-702, MCA; State v. Grady (1975), 166 

Mont. 168, 174-175, 531 P.2d 681, 684. 

Appellant's Issue Three: 

The final issue cites an alleged insufficiency of evidence 

to support the burglary conviction. 

The correct test is whether there is substantial evidence 

supporting the conviction, viewed in the light most favorable to 

the State. State v. Brubaker (1981), Mont . , 625 P.2d 78, 

81, 38 St.Rep. 432, 436; State v. Azure (1979), Mont . I 

591 P.2d 1125, 1131, 36 St.Rep. 514, 520. "Substantial evidence" 

is such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion. State v. Graves (1981), 

Mont . , 622 P.2d 203, 208, 38 St.Rep. 9, 14; State v. Merseal 

(1975), 167 Mont. 412, 416, 538 P.2d 1366, 1368. 

Defendant argues the proper test upon review is that articulated in Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 

" . . . the relevant question is whether, after 

viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact 

could have found theessential elements of the 

crime beyond a reasonable doubt ." 

We find the standard of review applied in Montana since 

before 1979 does not fall short of the standard mandated in 

Jackson. Indeed, the Jackson test has previously been applied by 

this Court. State v. Rodriguez (1981), Mont . -' - P .2d 
, 38 St.Rep. 578F, 5781. 

The State established that defendant had possession of the 

stolen property. While it is true that such fact alone is insufficient to support the conviction, it is one of the factors which 

the jury may consider. State v. Pepperling (1974), 166 Mont. 

293, 298, 533 P.2d 283, 286; State v. Lane (1973), 161 Mont. 

369, 372-373, 506 P.2d 446, 447-448. 

A review of the record in a light most favorable to the 

State indicates that there is substantial evidence upon which a 

rational jury could have found defendant guilty. The testimony 

of the clerk in Shaffer's Market and of Anna Doney, and the 

defendant's possession of the stolen goods; constitute substantial evidence on which to base a verdict. 

We aff irm the burglary conviction and the eight year 

sentence. We reverse the misdemeanor forgery conviction, vacate 

the six months sentence, and 

We concur: 

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Justices 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.