### No. 80-291 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiffand Respondent,

VS

# . DONALD E. WILSON, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula. HonorableJohn Henson, Judgepresiding. Counsel of Record: ForAppellant: Hood and Sherwood, Missoula, Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Robert Deschamps 111,CountyAttorney, Missoula,Montana



### -Submitted onbriefs: April 2, 

### 1981 Decided:Ju1.y 2, 

### 1981.

I/ I w w 

### ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. Defendant Donald Earl Wilson appeals from hisconviction by a jury on the charges of felony burglary and misdemeanor forgery, rendered after 

### trial inthe District Court of the Fourth Judicial District

## ,Missoula County, the Honorable John S. Henson, presiding. The defendant

### was sentenced to serve eightyears at hard labor in the StatePrison on the felony burglary charge and sixmonths 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 thisCourt's decision in Stateex 

### re1

# . Rasmussen v. District Court (1980), Mont

# . ,615 P.2d 231, 37 St.Rep. 1498. That 

### case held thatdistrict courts do not have jurisdiction over misdemeanor charges otherwise provided for, citing section 3-5-302 (1) (d)

## ,MCA; jurisdiction overmisdemeanors punishable by a finenot exceeding $500 and/or imprisonment not exceeding sixmonths 

### 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; Statev. 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, theDistrict 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 indenying defendant's motion in limine and allowing the prosecution to inquire into the defendant's exercise of hisMiranda rights

### to remain silent? 2. Whether the District Court erred inrefusing to grant defendant's motion for 

### a mistrial afterthe prosecution had violated an order in limine prohibiting the prosecution from inquiring into

### or soliciting any hearsay testimony with respecttothings said by Anna Doney to investigating officers? 3. Whether therewas sufficientevidence 

### to convict the defendant of burglary? We aff

### irmthe 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 Julyof 1978. The owners returned home

on July 15, and found the side door ajar. Mr. Thibodeau discovered that his checkbook was missing atthat time. Ata laterdate, when the coupletsaccount 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 silverdollars, a watch and a gold ring were also missing. The watch and ring 

### were laterrecovered by police atthe residence of

one Anna Doney. The defendant had given the 

### items toDoney's children. Defendant was arrested near Glasgow inDecember 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. Attrial, a store clerk from ShaffertsMarket testified thathe had cashed the subject check on June 24, 1978, for the defendant; and, that the defendant stated atthe 

### 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 atthe store. The clerk testified that defendant had used 

### part of the moneyreceived 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 attrial to hisversion of events. According to his testimony, he had been living atthe 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 atsome laterdate. The defendant did not know the man by any other name. Defendant testified thathe did not see Levi again for several weeks, until Saturday, June 24, when he noticed Levi in a citypark. 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 lentLevi hiswhite Ford stat ion wagon. The defendant test ified thatLevi returned approximately two hours laterwith the subject check. Defendant and Levi then went toShafferlsMarket to cash the check. Levi wrote the check ineither 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 thathe and Levi presented the check to the clerk. The defendant produced hischauffeurlslicense, and endorsed the check on the back with hisname and address. The defendant further testified that several weeks after June 24, he found the watch and gold ring between the seatsof hiswhite Ford wagon, the one thatLevi had used. The defendant thought the 

### items were junk and gave them to the children of Anna Doney, whose family

### were friendswith the Crosbys

# . The defendant testified that he continued to frequent Shaffer's Market until he got a job moving houses inNorth Dakota. He phoned the Crosby residence afterhe 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 tohim.The defendant testified thathe immediately 

### set out 

### to return toMissoula. 

### In Glasgow, he needed gas but had run out of money. He stopped atthe 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 thaton hisreturn 

### to Shaffer's Market to straightenout the dispute the clerk acted llsnottyvland "sarcastic" towards him. Appellant's Issue One. Aspart of its cross-examination of the defendant, the State asked whether defendant had ever discussed the check with any police officers, either inGlasgow

orMissoula, 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 hisMiranda 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, afterreviewing with defendant his testimony on directexamination, 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, aspart 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

### orbefore, then, 

### wewould have attempted tolocaEhim tohave himhere. 

### ----- So 

### we go to theBonner area through A1 Kimery and check out and 

### see if anyone knows thisLevi. Nobody but the Defendant and JimGates and their witnesses have ever heard of Levi." (Emphasis added.) 2. "When [defense counsel] began to address you, he told you about the Statehaving the resources of the sheriff's department and whatever. One thing he did not 

### tell you atthat time was that the sheriff's department serves the subpoenas forboth the State and the Defendant. Another thing he did not 

### tell you is whether ornot he issued 

### a subpoena for Mr. Levi when he has that sheriff's department available as a resource to him to attempt to locate thisMr. Levi orLevi. Wedid not know of Levi untilyesterday

# -- ------ "MR. SHERWOOD: Your honor, I'm going to object tothislineof discussion. It violates the Miranda right. "THE COURT: Mr. McLean? I1MR. McLEAN: Your Honor, I don't believe--He mentioned about thisLevi 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 hisexercise 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 lawenforcement officialswithin 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 credibilitymay be impeached and his testimony assailed like that of any otherwitness, and the breadth of hiswaiver is determined by the scope of relevant cross-examination. 

## '[He] has no right to 

### set forth to the jury all the facts which tend inhis 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 clearlyconveyed to the jury, in hisdirect testimony, hisunderstanding that the checkms good, and that he atalltimesacted in good faith, intending to speak to and resolve the matter with 

### lawenforcement 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, afterweighing the advantage of the privilege against self-incrimination against the advantage of putting forward hisversion of the facts and his reliability asa witness, not 

### to testify 

### at all. He cannot reasonably claim that the Fifth Amendment gives him not onlythis 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 onlya humane safeguard againstjudicially coerced self-disclosure but a positive invitation tomutilate the truth a party offers to tell.

# . .The interestsof the otherparty and regard for the function of courtsof justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and 

### limitsof the privilege against self-incrimination. Petitioner, asa party to the suit, was a volun-tarywitness. She could not take the stand to testify inher own behalf and 

### also claim the right tobe 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, 

### ismisplaced. The factsthere indicate the accused did not testifyabout theirpost-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 tothe 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 hisactions immediatelybefore 

### 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 thornyproblem in criminal 

### cases; but therecan be no doubt that

### matters put indispute by the accused himself by direct testimony 

### are always proper subjectsof 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 firstreference to 

### its lackof 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 inferenceof guiltbased on silence, as to constitute reversible 

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

Appellant's IssueTwo: Prior to 

### trial, defendant made several motions inlimine.Motion No. 4 was as follows: 

### "

# . .. Defendant

# .. .respectfullymoves the Court as follows:

4. To order the prosecution to refrain from asking any questions or soliciting any testimony from any witness regarding statementsmade by an Ann Doney

# ..."

The District Court granted the motion. Defendant claims the Stateviolated the court's order in limine. He moved for amistrial atthe 

### time. The motion was prompted by the following exchange between the prosecutor and a police officerduring the State Iscase-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 thiswatch listed in the sheriff's department asbelonging 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 tellyou who gave you 

### (sic)the watch? A. Yes. "MR. SHERWOOD: Objection, Your Honor, this is beyond the scope of the Motions inLimine and it's hearsay. "THE COURT: Sustained .I' The court denied the motion for mistrial stating thatthe officer's answer was not technicallyhearsay, but that the objectionwas sustained because of the inferencewhich might have been leftwith the jury. We dispose of this issue by noting that defendant, on cross-examination, testified he gave the ring and the watch 

### to "littlekids" "at a house out inWheeler Village," who "were friendsof the people that I lived with." In addition, Anna Doney was called as a rebuttal witness by the State. Shetestified 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 thatdefendant gave the watch and ring toher 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 othermeans; any errorcaused by the police officer's testimony

### was merely technical, and did not affect any substan

### tial right. Section 46-20-702, MCA; Statev. Grady (1975), 166 Mont. 168, 174-175, 531P.2d 681, 684. Appellant's IssueThree: The final issue 

### cites an alleged insufficiencyof evidence 

### to support the burglary conviction. The 

### correct 

### test is whether there is substantial evidence supporting the conviction, viewed in the lightmost favorable 

### to the State. State v. Brubaker (1981), Mont

# . ,625 P.2d 78, 81, 38 St.Rep. 432, 436; Statev. Azure (1979), Mont

# . I 591P.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; Statev. Merseal (1975), 167Mont. 412, 416, 538 P.2d 1366, 1368. Defendant argues the proper 

### test upon review is that 

### articulated inJackson v. Virginia (1979), 443 U.S. 307, 319, 99



### "

# ..

# .the relevant question is whether, after viewing the evidence in the lightmost 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 inMontana since before 1979does not fall short of the standard mandated in Jackson. Indeed, the Jackson 

### test has previously been applied by thisCourt. State v. Rodriguez (1981), Mont

# . -' - P.2d

## ,38 St.Rep. 578F, 5781. The Stateestablished that defendant had possession of the stolenproperty. 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. Statev. Pepperling (1974), 166Mont. 293, 298, 533 P.2d 283, 286; Statev. Lane (1973), 161Mont. 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 stolengoods; constitute substantial evidence on which to base a verdict. We aff

### irmthe burglary conviction and the eight year sentence. Wereverse the misdemeanor forgery conviction, vacate the sixmonths sentence, and

We concur:



# ---------------

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# ................................

Justices

Mr. JusticeDaniel J. Shea dissentsand willfilea written dissent later.