No. 89-242 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,

TOMMY G. JOHNSTONE, a/k/a TOM JOHNSTONE, Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District, In and for the County of Sweet Grass, The Honorable Byron Robb, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Todd R. Hillier, Esq.; R. Mark Josephson,Esq.; Big Timber, Montana For Respondent: Hon.MarcRacicot,AttorneyGeneral, Helena, Montana Jennifer

### M. Anders,Asst. Attorney General,Helena, Montana JamesTulley,Deputy CountyAttorney;ThomasBiglen, County Attorney, Big Timber,Montana

Filed: Submitted on Briefs: June 14, 1990 Decided: September 13, 1990

! " Clerksouth on Highway 298 toward the McLeod fishing access the same afternoon. The driver of the pickup looked familiar to UndersheriffAmes. After stopping at the sheriff's department in Big Timber, Ames went off duty. At his home, Ames later received

a call from the sheriff's department dispatcher describing the circumstances surrounding the damage to Carl Leader's vehicle. At this time,Ames recalled the identity of thepickup driver and had

reason to believe the driver may have been responsible for the damage to Leader's vehicle. Ames arranged for lookoutsonvarious routes leading from theMcLeod area while he and a deputy drove up the Boulder River drainage severalmiles past the fishing access. Ames's son Dan, a Stillwater County Sheriff's Deputy, then advisedhis fatherhewas following a turquoise-colored pickupwith 23-county license plates occupiedby onemale. Ames requested that his son make a felony stop. The driver of the turquoise pickup, the defendant, stopped approximately two miles east of Columbus, roughly 65 miles from the fishing access. Deputy Ames arrested thedefendant,had him transportedtoColumbusand arranged for his pickup to be towed into town. Carl Leader identified defendant's vehicle as the one he had seen at the fishing accessprior to discovering his window broken. Leader did not at that time identify defendant as the occupant of that vehicle. During an inventory of defendant's personal possessions as part of the booking process, Stillwater County Deputy Albert Hust removed a quantity of glass particles from defendant's shirt and pant pockets. Hust put the glass recoveredinto separate evidence bags. Defendant gave Undersheriff Ames permission to search his vehicle. Ames found leather gloves imbedded with glass and a pry bar with pieces of glass on it. Defendant was charged by informationwith attempted theft, a felony, in violation of § 45-6-301, MCA, and criminal trespass to vehicles, amisdemeanor, inviolation of 5 45-6-202,MCA. Counsel

was appointed fordefendantandhe pled not guilty toboth charges. The State gave notice to defendant of its intention to offer evidence of other crimes as follows: 1. Evidence of a theft by the defendant of a tool box and tools from a motor vehicle belonging to Marvin Maxwell while thevehicle was parked at a Fishing Access site in Sweet Grass County,Montana, onAugust 23, 1986, includingproof ofdefendant's conviction of felony theft in such matter. Such evidence will be offered to establish motive, intent,plan and/or absence of mistake or accident with respect todefendant's conduct at issue in these proceedings. 2. Evidence of a theftby the defendant of a purse and cash from a motor vehicle belonging to Cora Nelson while it was parked at Carter's Bridge, Park County, Montana, on August 7, 1986, including proof of defendant's conviction of felony theft in such matter. Such evidence will be offered to establish motive, intent,plan and/or absence of mistake or accident with respect to defendant's conduct at issue in these proceedings. 3. Evidence of a theft by defendant of binoculars, camera equipment and cash fromamotor vehicle belonging to JohnHewitt and JoAnneRathburnwhile thevehiclewas parked at Mallard's Rest ~ishing Access on August 9, 1986,including proof ofdefendant's convictionof felony theft in suchmatter. Such evidence will be offered to establish motive, intent,plan and/or absence of mistake or accident with respect to defendant's conduct at issue in these proceedings. 4. Evidence of a theft of a rifle from a pickup truck at Grey Cliff Fishing Access, Sweet Grass County, Montana, in August 1988 and possession thereof by defendant at hisplace of residence inRoundup,Montana.Such evidence will be offered by the State to establish a common scheme of theftsby thedefendant as well as to establish motive and intent. Respondent then filed an amended information adding a third count

(Count 111) charging defendant with felony theft in violation of 5 45-6-301, MCA, in connectionwith the rifle theft at Grey Cliff Fishing Access. Counsel fordefendantmovedto dismisstheamended information arguing the State "attempt[ed] to combine two ormore misdemeanors under the concept of common scheme in order to establish a felony statusagainst

# . ..defendant"and that the facts containedwithin the information were insufficient to establish criminal conduct. The District Court denied this motion as well as a second motion to dismiss based on an absence of probable cause. Counsel for defendant filed briefs accompanied by exhibits in support of both motions. The court further denied the State's motion to dismiss Count I11 of the information. At trial, defendant testified that on September 1, 1988,he had driven from Roundup to Bozeman seeking work as a firefighter. At Reedpoint, the throttlebracket on defendant's pickup broke and he lost power. Approximately two hours later, around 5:00 p.m.

### , defendant turned back toward Billings. He testified to using his gears to pull his pickup over the hill where Deputy Sheriff Dan Ames eventually arrested him. Defendant denied breaking into Leader's vehicle. The State called Dr. Larry 

### B. Howard of the State crime lab who performed tests comparing the glass found in defendant's pockets and imbedded in his gloves with glass takenJustice Diane G. Barz delivered the Opinion of the Court.
Tommy Johnstone appeals his conviction of felony attempted theft and criminal trespass tovehicles by a jury empaneled in the District Court of the Sixth Judicial District, Sweet Grass County. We affirm. On September 1, 1988, Carl Leader was fishing at a State

access on the Boulder River off Highway 298 near McLeod, south of Big Timber, Montana. Mr. Leader arrived at the access at approximately 3:30 p.m. and fished for roughly one and one-half hours. Leader locked a pistol, fishing gear and a jacket inside his truck. There was no one else present at the access when Mr. Leader arrived and he saw only one other vehicle during this time. Mr. Leader did not have a clear view of the parking area at all times. Shortly before leaving, Mr. Leader heard another vehicle in theparking area. Heproceeded up abank and sawan oldermodel Ford pickup bearing 23 license plates. Mr. Leader on that day described the vehicle as green but at trial stated it was bluishgreen. The occupant of thevehicle smiled and waved atMr. Leader before driving away. Leader at trial identified defendant as the occupant of the truck. Upon entering his vehicle, Leader discovered the driver's side ventilator window was broken and the main window was rolled down, however nothing was missing from the truck. Leader drove the fourteen and one-half miles into Big Timber to report the incident, arriving around 6:00 p.m. George Ames, Sweet Grass County Undersheriff, observed a turquoise Ford pickup bearing 23-county license plates proceedingfrom the broken window on Leader's vehicle. Howard testified all the glass had the same refractive index and that the pant pocket glass and the glass from the window had similar densities while that from the shirt pocketshad ahigher density. Howard testified theprobabilitywashigh that the glass samples originated fromthe

same source. Howard further opined that the highly fragmented glass resulted from a blow from a heavy instrument as contrasted with "diced1' glass which would result from an accident. Defendant explained the glass found on his clothing by describinghispractice of rummagingthroughdumpsters sniffingout valuable refuse. These activities took place in addition to defendant's customary employment as a logger. Defendant stated that althoughhe had not worn the clothes inwhich he was arrested

on a dumpster-foraging expedition since last laundering them, he expected theglasswasheavy enough to remain in the pockets during washing and requiremanual removal. The State offered no evidence of Count I11 of the information and the District Court dismissed this charge upon defendant's motion. The jury returned a guilty verdict on the remaining counts. TheDistrict Court sentenceddefendant to six years in the Montana State Prison on the attempted theft charge and sixmonths

on the criminal trespass tovehicles charge. These sentenceswere tobe served concurrently, but consecutivelywith defendant'sprior sentences for which he was on parole at the time of this offense. Defendant was further designated a persistent felony nondangerous offender

# .Defendant raises the following issues on appeal: 1. Did the Stateprovebeyond a reasonable doubt, facts from which defendant'smental state could be inferred? 2. Did the District Court erroneously permit testimony regarding other items contained within Leader's vehicle? 3. Did the District Court properly admit evidence of defendant's other crimes? 4. Did the jury have sufficient evidence upon which to convict defendant of criminal trespass to vehicles? 5. Was defendant convicted of both attempted theft and criminal trespass to vehicles in violation of 5 46-11-502, MCA? 6. Did defendant receive effective assistance of counsel?

Defendant was charged with attempted theft because he "enter[ed] [Leader s] vehicle attempting to remove a pistol from the front seat of the vehicle 

# . . . Defendant argues that because the pistol was concealed by Leader's jacket, he could not have formulated the requisite mental state for attempted theft. Defendant appearstoarguethe Statemustprovebeyond a reasonable doubt thathe specifically intended to steal Leader'spistol. This would be impossible to prove because, as Leader testified, the pistol was covered and defendant could not see it. Section 45-4-103(1), MCA, provides that: 

### A person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act toward thecommissionof suchoffense. (Emphasisadded.)The requisite mental state for theft is set forth at 5 45-6- 301(1), MCA: A person commits the offense of theft when he purposely - or knowinslv obtainsor exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property; (b) purposelv or knowinglv uses, conceals, or abandons theproperty in suchmanner as to deprive the owner of the property; or (c) uses, conceals, or abandons the property knowinq suchuse, concealment, or abandonment probably will deprive the owner of the property. (Emphasis added.) Knowingly and purposely are both defined by statute: [A] person acts knowingly with respect to conduct or to a circumstancedescribedby a statutedefining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offensewhen he is aware that it ishighly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if aperson is aware of ahigh probability of its existence. Section 45-2-101(33)

### , MCA. [A]person actspurposely with respect to a result or to conduct describedby a statutedefining an offense if it is his conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. Section 45-2-101(58), MCA. Section 45-2-103(3)

### ,MCA,permits [t] he existence of amental state [to] 

# . . . be inferred from the acts of the accused and the facts and circumstances connected with the offense." What theState must prove beyond a reasonable doubt are facts and circumstances in addition to acts of the defendant from which the jurymay infer defendant'smental state. Incriminalprosecutions, a verbal orwritten statementby thedefendantregardinghis orher mental state is very rare. Furthermore, rarely does a thief know precisely what item or items he will take when he has not had the opportunity to see them all. An examination of the evidence 

### in this case established a sufficient basis for the jury to conclude that thedefendantwouldhave exertedunauthorized control over any

or all the property in the pickup whether he could see it or not had he not been interrupted. The jury received instructions on the statutory definition of attempt, theft, purposely and knowingly in addition to the following instructions:INSTRUCTIONNO. 10 The differencebetween theft, a felony, and theft, a misdemeanor, is that in order for theft to amount to a felony,thevalue of theproperty subject to the theft exceeds $300.00. If the value of the subject property is $300.00 or less, then a theft can only be a misdemeanor.

INSTRUCTIONNO. 12 To convict thedefendant of the offense of attempt, the State must prove the following elements: FIRST: That the defendant performed an act which constituted amaterial step toward the commission of the offense of theft; and SECOND: That the defendant did so with the purpose to commit the offense of theft. If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from yourconsideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

INSTRUCTIONNO. 13 The attempted theft charge against thedefendant is a felony charge,and all twelve ofyournumber must agree in order to return either a verdict of guilty or not guilty. To do so, it is necessary that you consider the crime of attempted theft, a felony, first and that all twelve of you find the defendant either guilty or not guilty of that charge. In the event you find the defendant guilty of attempted theft,a felony,you need go no further as you will have reached a verdict on that count. In the event you find the defendant not guilty of attempted theft, a felony, you must then consider the lesser included offense of attempted theft, a misdemeanor. You must then find the defendant guilty or not guilty of this charge. When you have done so you have reached a verdict. The jury will bear inmind that theburden is always upon the prosecution to prove beyond a reasonable doubt every essential element of any lesser offense which is necessarily included in the crime charged in the information. INSTRUCTIONNO. 14 You are instructed that the defendant may not be convicted of a felony unless you are satisfied from the evidence that the property alleged to be the subject of the attempted theft exceeds the sum of $300.00 in value. INSTRUCTIONNO. 15 You are instructed that in the event that you find thedefendant guilty of an attemptedtheft,but thevalue of the item made the .subject of the attempted theft is less than $300.00, then the defendant can only be found guilty of misdemeanor attempted theft. Carl Leader testified thathe locked several items of fishing gear and a pistol concealed by his jacket in his truck before he started fishing. Whenhe left thevehicle, allwindowswere rolled up and intact. Leader neither saw nor heard a vehicle other thanthat identified as the defendant's. Leader observed the occupant of the vehicle whom he later identified as the defendant. Upon returningtohisvehicle,Leader found theventilatorwindowbroken and the driver's side window rolled down. Although he testified

no items were taken, there is no testimony on how he found those items when he returned to his truck. He was never questioned on whether or not the pistol was still covered by the jacket. Defendanttestified thathe sat on Interstate 90for twohours with a broken throttle bracket before turning around to return to Billings. He denied being at theMcLeod fishing site at all which is located on the Boulder River roughly sixteen miles south of Big Timber and Interstate 90. This was his testimony after he had already heard Leader identify him as the person at the fishing access,heard that thepistol was covered with a jacket,and heard the undersheriff's testimony that he saw him on the Boulder River road that same afternoon, too. Where the evidence, viewed in a light most favorable to the State, permits a rational trier of fact to find the essential elements of a crime, we will not reverse the defendant's conviction. Given the evidence and instructions presented to the jury, it could reasonably conclude beyond a reasonable doubt defendant had the requisite mental state for conviction of felony attempted theft.

Defendant also asserts theDistrict Court improperlyadmittedtestimony regarding other items visible in Leader's vehicle when defendant broke the window. Defendant seems to argue that the prosecution surprised him by referring to these other articles defendantmay have been attempting to steal. The informationneed not have referred to any particular item containedwithin Leader's vehicle to properly set forth a charge of attempted theft. It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted. Section 45-4-103(2)

### ,MCA. Theoriginal informationand theamended informationgavedefendantandhis attorneynotice about the "other in addition to the pistol Leader's vehicle. On the afternoon of September 1, 1988, the defendant, TOMMY JOHNSTONE,did knowingly or purposely and without authority break the driver's side vent window of a pickup truck belonging to Carl Leader and did enter the vehicle attemptingto remove apistol from the front seat of the vehicle, all within the County of Sweet Grass, State of Montana. The value of the pistol, together with the value of other property taken in what authorities believe is a common scheme of theft of property from vehicles parked at recreation sites, exceeds $300. Furthermore, prior to trial while arguinghis motion in limine regarding evidence of other crimes, defense counsel stated to the court: "And thenwe aregoing to be into thequestion of valuation about the items alleged to be the object of the attempted theft I suppose 

# . . . Finally, the defendant had an expert who offered evidence of the value of the pistol and the holster. The testimony of Mr. Leader was that he left a spinning rod,

a basket of fishing tackle, his jacket and thepistol which was 

### ina holster in his vehicle when he went to go fishing. Only the pistol and holster were admitted as an exhibit in evidence. There

was no objection to this testimony or the exhibit during trial. Furthermore, the policy behind the statutory requirements of the information is to afford a defendant due process of law; and not to restricttheprosecution~s strategy inpresenting its case once the defendant is fully apprised of the charges against him. See, State v. Sanderson (1985), 214 Mont. 437, 453-54, 692 P.2d 479, 488. Defendantdid not object tothis testimonyat trial. Although we have the discretion to consider on appeal matters not raised before the District Court in the interests of justice, because we determine defendant received effective assistance of counsel, we decline to do so here.

111. As we noted above,defendant'smental state couldbe inferred from his acts, and the surrounding circumstances. A critical factor was defendant's motivation or lack thereof. Although evidence of other crimes. is inadmissible to show a criminal defendantbehaved consistently with past criminal conduct 'I [i]tmay



# . . 

# . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Rule 404(b)

## ,M.R.Evid. Evidence of defendant's past crimes was probative of his mental state,intent and preparation. Other crimes evidence is admissible only when the State satisfies the four factor test set forth in Statev. Just (1979), 184 Mont. 262, 269, 602 P.2d 957, 961: 1. Similarity of crimes or acts; 2. nearness in time;

### and 3. tendency to establish a common scheme, plan or system;

### and 4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. (Emphasis in original.) Defendant'scrimesmeet the Just similarityrequirement. Each involved a vehicle parked at a remote recreation access site. In each case, either the driver's side window or wing window were broken to afford access -tothe vehicle. In each case, the perpetrator took small, easily transported items. None of the vehicles were stolen. Each theft was a felony. Defendant's past crimes are substantially similar to those for which he was charged in this action and thus satisfythe first of the Just factors. We further find that the similarityofdefendant'smethods satisfythe third Just factor: a common plan, scheme or system. The District Court in its discretion may find adequate proximity in time between the crimes charged and those for which conviction is soughtby considering thenumber of incidentsand 

### the

nearness in time of the lastprior crime. Statev. Hansen (1980), 187 Mont. 91, 98, 608 P.2d.1083,1087. Defendantwas convicted of his previous crimes in Septemberand October of 1986. The incident at issue here took place on September 1, 1988. Defendant's crimeswere interrupted onlybyhis incarceration at Montana StatePrison. ThisCourthaspreviouslyheld that crimes taking place three years earlier were not too remote in time under this rule. State v. Heine (1975), 169 Mont. 25, 28, 544 P.2d 1212, 1214. Defendant's prior crimes were sufficiently close in time to satisfy the second Just test. Lastly, theprobative value of the other crimes evidencemust outweigh its prejudicial nature. This Court recognizes that evidence of other crimes is unquestionably prejudicial. In Just, we set forth precautionary steps which minimize the prejudice to the defendant: (a) Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced. The procedures set forth in section 46-18-503 MCA should serve as guidelines for the form and content of such notice. Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted. (b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for suchpurposes. (c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only forthelimitedpurposes earlier statedand 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. Just, 602 P.2d at 963-64. In this case, the State notified defendant of its intention to introduce evidence of his prior crimes. Prior to testimony by GeorgeAmes regarding defendant'sprior crimes,the District Court gave the following instruction:Ladies and Gentlemen of the jury, evidence is about tobe introduced forthepurpose of showingthedefendant committed acts other than the ones for which he is on trial. You may not consider this evidence toprove that the defendant is a person of bad character, or that he has a disposition to commit crimes. You may only consider this evidence for the limited purposes of providing a characteristic method, plan or scheme used in the commission of the offense. You may also consider this evidence toprove existence of amental statewhich is an element of the crimecharged. You maynot consider thisevidence forany other purpose thatwould expose the defendant to unjust double punishment. The District Court properly admitted evidence of defendant's other crimes.

IV. Defendant maintains there was insufficient evidenceto sustain his conviction for criminal trespass to vehicles. Section 45-6- 202(1)

## ,MCA, states: A person commits the offense of criminal trespass to vehicles when he purposely or knowingly and without authority enters any vehicle or any part thereof. Mr. Leader testified he left his vehicle locked with the windows intact. Mr. Leader heard a vehicle he identified as the defendant's in the parking area and immediately climbed over the bank to investigate. He saw a man, later identified as the defendant,driving away. Upon returning tohis truck,Leader found the ventilator window broken and the driver's side window rolled down. When defendant was arrested, his pants and shirt pockets contained glass. There were slivers of glass imbedded in gloves found in defendant's vehicle aswell aspieces of glass discovered

on the wrecking bar in the samevehicle. Dr. Howard of the StateCrime Lab testified this glass was tempered auto glass, resulted from a blow to the glass rather than an accident and was probably the same glass found in Leader'svehicle. The jury had sufficient credible evidence upon which to base defendant's conviction of criminal trespass to vehicles. Defendant's assertions otherwise are without merit.

Defendant contends he was improperly convicted of criminal trespass to vehicles and attempted theft in violation of 5 46-11- 502,MCA. That sectionprovides: When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. Hemay not,however,be convicted of more than one offense if: (1) one offense is included in the other; (2) one offense consists only of a conspiracy or other form of preparation to commit the other; (3) inconsistent findings of fact are required to establish the commission of the offenses; (4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (5)the offense is defined toprohibit a continuing course of conduct and the defendant's course of conduct was interrupted, unless the law provides that the specific periods of such conduct constitute separate offenses

# . Defendant argues that the trespass to the vehicle was committed merely in preparation for the attempted theft. The United States SupremeCourt consideredthis issue inBlockburgerv. United States

(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, concluding:[Tlhatwhere the same act or transaction constitutes a violationof two distinct statutoryprovisions, the test tobe applied todetermine whether there are two offenses or only one, iswhether eachprovision requiresproof of a factwhich the other does not. (Citations omitted.) Section 45-6-202(1), MCA, sets forth the elements of criminal trespass to vehicles: (1) A person commits the offense of criminal trespass to vehicles when he purposely or knowingly and withoutauthorityentersanyvehicle orany part thereof. Section 45-6-301(1), MCA, states that: A person commits the offense of theft when he purposely or knowingly obtains or exertsunauthorized control over property of the owner and: (a)has the purpose of depriving the owner of the property; (b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or (c)uses,conceals,orabandonsthepropertyknowing such use, concealment, or abandonment probably will deprive the owner of the property. Clearly, criminal trespass to vehicles involvesunauthorized entry of a vehicle while theft requires unauthorized exertion of control over another's property. These are distinct and separate elements. Defendant's conviction does not violate 5 45-11-502, MCA

# .

VI

# . Defendant maintains he received ineffective assistance of counsel evidenced by the following: 1. Failure to object to:

a. statements made by theprosecutor regarding the third count of the amended information;b. introduction of an empty plastic bag which once contained glass taken from defendant's pockets;

c. theprosecutor's opening statement whereinhereferred to defendant's prior convictions. 2. Failure to disqualify Judge Robb despite the fact that he presided over defendant's threeprior convictions. 3. Failure to move for change of venue. 4. Failure to call expert witnesses to testify regarding the glass taken from

### defendant.'^ pockets. 5. Failure to call witnesses to testify about the condition of defendant's vehicle. 6. Failure to cross-examine law enforcement officials as to their reasons for not having Carl Leader identifydefendant at the Stillwater County jail in Columbus. In State v. Coates (Mont. 1990), 786 P.2d 1182, 1185, 47 St.Rep. 328, 332, we made the following observation concerning effective assistance of counsel: In evaluating ineffective assistance of counsel claims, this Court utilizes a two-part test set forth in Stricklandv. Washinston (1984), 466U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674. First, counsel's performancemust be deficient. To assess deficient performance, this Court employsthe effectiveassistancettest of whether a defendant's counsel acted within the range of competence demanded of attorneys in criminal cases.

(Citationomitted.) Statev. Elliott (1986), 221Mont. 174, 178,717P.2d 572, 575. Second, counsel's deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. Statev. Leavens

(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The standard forevaluatingprejudice iswhetherareasonable probability exists that but for counsel's deficient performance, the trial's outcome would have been different. Leavens, 723 P.2d at 237. However, in evaluating a defense counsel's performance, this Courtwill not second guess.tria1tacticsand strategy. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872. Allegations 1, 4, 5 and 6 concern trial tactics. We have repeatedly held that we will not second-guess trial tactics on appeal. State v. LaValley (1983)

## , 203 Mont. 393, 397, 661 P.2d 869, 872. Defendant's assertion that counsel failed to move for

a change ofvenue was supportedby outside evidence. Introduction of otherevidence isproperwhen seeking awrit for post-conviction relief, not on appeal. State v. Elliott (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. As to defendant's contention that his counsel failed to disqualify JudgeRobb, we find no indication in the record that defendantwas prejudiced by this fact. Affirmed.

We concur: ,'

Chief Justice

JusticesJusticeWilliam E. Hunt, Sr., dissenting:

I concur in part and dissent in part and would reverse the conviction. I concur with the majority's conclusions concerning the issues three, four, five and six. I dissent to the majority conclusions on issues one and two. While I concur with the majority I would like to add the followingto their discussionregarding issue three,admissability of other crimes evidence;and issue six, ineffective assistanceof counsel. In the third issue, admissability of other crimes evidence, the majority fails to actually apply the fourth Just factor, the weighing of probative value of the evidenceversus itsprejudicial effect, to the facts of the case. The majority says that the procedural safeguards were complied with and, by implication, indicates that compliance with these safeguards alleviates any prejudicial effect the other crimes evidence may have on the defendant. This is just not so. Although the procedural safeguards do alleviate some of the prejudice to the defendant, they do not replace the court's ultimate task of weighing the probative value of the other crimes evidence against its prejudicial effect. Even if theprior crimes evidence fits within the first three Just factors, as it did in this case, thereby I1giv[ing] great probative weight to theevidence ofprior acts,I' the final weighing must occur. State v. Eiler, 234 Mont. 38, 51, 762 P.2d 210, 218

(1988). 

### I do agree that, in light of the significant evidence linkingdefendant with the chargeof criminal trespassto a vehicle and the compliance with theprocedural factorsand the first three Just factors, the probative value exceeds the prejudicial effect of the introduction of the other crimes evidence. Discussingthesixth issue,ineffective assistance of counsel, the majority concludes that because the alleged errors of counsel were merely trial tactics, it cannot be said that counsel was ineffective. While I agree with the conclusion that counsel wasnot ineffective, I do so for different reasons than those used by the majority. Our review of defendant's allegations must be confined to the record. "In some cases, however [sic] the record on appeal sheds no light on why counsel acted or failed to act in themanner challenged.'' Peoplev. Pope, 590 P.2d 859 (Cal. 1979). Without an explanation in the record for counsel's actions or llunless there simply could be no satisfactory explanationtt it is difficult to objectively decide whether counsel's actions or inactionswent beyond tacticaldecision. People, 590 P.2d at 867. Many of the jurisdictions that have recently found ineffectiveness under the Strickland standards have done so on post-conviction or habeas corpus. See generally Kimrnelmanv. Morrison, 477U.S. 365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986); Sullivan v. Fairman, 819 F.2d 1382 (7thCir. 1987); and Williams v. State, 515 So.2d 1042

(F1a.Dist.Ct.A~~. 1987). In each case, an evidentiary hearing was held to explain inconsistencies in the record. Turning to the first two issues, that of the State proving the requisite mental state for attempt beyond a reasonable doubt and the State's use of other property evidence to support this mental state, I dissent to the conclusions of the majority. The principle of criminal law is that the State has the burden of "establish[ing] the necessary criminal intent beyond a reasonable doubt.'' State v. Watson, 211 Mont. 401, 415, 686 P.2d 879, 886

(1984); See 5 46-16-601, MCA; State v. Kramp, 200 Mont. 383, 651 P.2d 614 (1982); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970); U.S.Const. Amend. XIV. Although 

### I agree with the majority that this burden can be met through inference, nonetheless the standard still exists. In its case-in-chief, the State fails to meet this burden in proving that the defendant committed an attempted theft. The State failed to meet its burden in two ways. First, the State failed to prove that defendant had purposely and knowingly planned to steal an object of which he was not aware. Secondly, the State thenused inadmissable evidence of other property visible in the vehicle to support the defendant's mental state.A person cannot commit the offense of attempt if, looking at the facts as they were understood by that person at the time he acted, the crime did not appear possible. People v. Meyer, 215 Cal.Rptr. 352 (1985). See also Peoplev. Leichtweis, 399 N.Y.S.2d 439 (1977); State v. Niehuser, 533 P.2d 834 (0re.App. 1975). In this case, the information charged defendantwith attempt to steal a particular piece of property, namely, the pistol. I agree with the majority's contention that the information need not have referred to anyparticular item containedwithin Leader's truck in order toproperly set forth a charge of attempted theft,but since it did, the State isunder obligation toprove beyond a reasonable doubt that defendant was attempting to steal the pistol. Defendant l'acted'lwhen he broke the ventilator window of Leader's truck. At that time, the pistol was hidden from view by a jacket. Because defendant did not know, at the time he acted, that the pistol existed, it was impossible for defendant to purposely or knowinglyplan to steal the pistol. To overcome this flaw, the State presented evidence during trial of other property, primarily fishing gear, that was visible within the truck. As indicated during the following discussion that occurred between the State and defense counsel during jury instructions,the Statehad planned, throughout its investigation, to rely on this other property evidence to prove defendant purposely orknowinglyplanned to steal thepistol. Thediscussion occurred as follows:

DEFENSE COUNSEL: You never said anything up until today about including fishing poles and fishingtackleand that kind of stuff in the truck as well. STATE COUNSEL: I think I told you there was some other stuff there. DEFENSE COUNSEL: I don't recall that. The only thing we have ever talked about that I ever had in mind was just the gun, which was on the front seat, or whatever. STATE COUNSEL: But there was other stuff inthe car that the jury could find he was likely to take or be inclinedto take. So I think the property, as the generic term, is more apropos. Defendant was never given notice prior to trial of the existence of this otherproperty evidence. The State's failure to notify defendant of its intent to use this otherproperty evidence at trial made it impossible for defendant toprepare any rebuttal, resulting in severeprejudice to defendant. At trial,defendant failed to object to theuse of this other property evidence. However, this Court has the discretion to consider theuse of this evidence in the interests of justice. As stated in our codified version of the plain error doctrine, 

### 5 46- 20-701(2), MCA, a trial error may be considered on appeal if the introduction of the questioned evidence affected a constitutional right,was prejudicial to the defendant's guilt, and was not known and could not have been ascertainedwithduediligenceby defendant or his attorney. Theuse of this otherproperty evidence complies with these factors. When viewing the evidence in a light most favorable to the State,there is insufficient evidence to establish the defendant's requisite mental state beyond a reasonable doubt for attempted theft of a pistol. Iwould reverse the ~istrict Court. /

Justice

I concur with the foregoing dissent. 

# 4.~ 

# e Justice