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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Todd R. Hillier, Esq.; R. Mark Josephson, Esq.; Big 

Timber, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer M. Anders, Asst. Attorney General, Helena, 

Montana 

James Tulley, Deputy County Attorney; Thomas Biglen, 

County Attorney, Big Timber, Montana 

Filed: 

Submitted on Briefs: June 14, 1990 

Decided: September 13, 1990 

! 

" Clerk 
south on Highway 298 toward the McLeod fishing access the same 

afternoon. The driver of the pickup looked familiar to 

Undersheriff Ames. 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 the pickup driver and had 

reason to believe the driver may have been responsible for the 

damage to Leader's vehicle. Ames arranged for lookouts on various 

routes leading from the McLeod area while he and a deputy drove up 

the Boulder River drainage several miles past the fishing access. 

Ames's son Dan, a Stillwater County Sheriff's Deputy, then 

advised his father he was following a turquoise-colored pickup with 

23-county license plates occupied by one male. 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 

the defendant, had him transported to Columbus and arranged for his 

pickup to be towed into town. 

Carl Leader identified defendant's vehicle as the one he had 

seen at the fishing access prior 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 recovered 
into 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 information with attempted theft, a 

felony, in violation of § 45-6-301, MCA, and criminal trespass to 

vehicles, a misdemeanor, in violation of 5 45-6-202, MCA. Counsel 

was appointed for defendant and he pled not guilty to both 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 the vehicle was parked at a Fishing Access 

site in Sweet Grass County, Montana, on August 23, 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. 

2. Evidence of a theft by 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 from a motor vehicle belonging 

to John Hewitt and JoAnne Rathburn while the vehicle was 

parked at Mallard's Rest ~ishing Access on August 9, 

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. 

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 his place of residence in Roundup, Montana. 
Such evidence will be offered by the State to establish 

a common scheme of thefts by the defendant 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 connection with the rifle theft at Grey Cliff 

Fishing Access. 

Counsel for defendant movedto dismiss the amended information 

arguing the State "attempt[ed] to combine two or more misdemeanors 

under the concept of common scheme in order to establish a felony 

status against . . . defendant" and that the facts contained within 

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 throttle bracket 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 taken 
Justice Diane G. Barz delivered the Opinion of the Court. 

Tommy Johnstone appeals his conviction of felony attempted 

theft and criminal trespass to vehicles 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 the parking area. He proceeded up a bank and saw an older model 

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 the vehicle smiled and waved at Mr. 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 proceeding 
from 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 pockets had a higher density. Howard testified 

the probability was high that the glass samples originated from the 

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 

describing his practice of rummagingthrough dumpsters sniffing out 

valuable refuse. These activities took place in addition to 

defendant's customary employment as a logger. Defendant stated 

that although he had not worn the clothes in which he was arrested 

on a dumpster-foraging expedition since last laundering them, he 

expected the glass was heavy enough to remain in the pockets during 

washing and require manual 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. The District Court sentenced defendant to six years in the 

Montana State Prison on the attempted theft charge and six months 

on the criminal trespass to vehicles charge. These sentences were 

to be served concurrently, but consecutively with defendant's prior 

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 State prove beyond a reasonable doubt, facts from 

which defendant's mental 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 appears to argue the State must prove beyond a reasonable 

doubt that he specifically intended to steal Leader's pistol. 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 the commission of such offense. (Emphasis added. ) 
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 obtains or 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 

the property in such manner as to deprive the owner 

of the property; or 

(c) uses, conceals, or abandons the property knowinq 

such use, 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 circumstance described by a statute defining 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 

offense when he is aware that it is highly 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 

a person is aware of a high probability of its existence. 

Section 45-2-101 (33) , MCA. 

[A] person acts purposely with respect to a result or to 

conduct described by a statute defining 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 a mental 

state [to] . . . be inferred from the acts of the accused and the 

facts and circumstances connected with the offense." What the 
State must prove beyond a reasonable doubt are facts and 

circumstances in addition to acts of the defendant from which the 

jury may infer defendant's mental state. In criminal prosecutions, 

a verbal or written statement by the defendant regarding his or her 

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 the defendant would have exerted unauthorized 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: 

INSTRUCTION NO. 10 

The difference between theft, a felony, and theft, 

a misdemeanor, is that in order for theft to amount to 

a felony, the value of the property 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. 

INSTRUCTION NO. 12 

To convict the defendant of the offense of attempt, 

the State must prove the following elements: 

FIRST: That the defendant performed an act which 

constituted a material 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 your 
consideration 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. 

INSTRUCTION NO. 13 

The attempted theft charge against the defendant is 

a felony charge, and all twelve of your number 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 in mind that the burden 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. 

INSTRUCTION NO. 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. 

INSTRUCTION NO. 15 

You are instructed that in the event that you find 

the defendant guilty of an attempted theft, but the value 

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 that he locked several items of fishing 

gear and a pistol concealed by his jacket in his truck before he 

started fishing. When he left the vehicle, all windows were rolled 

up and intact. Leader neither saw nor heard a vehicle other than 
that identified as the defendant's. Leader observed the occupant 

of the vehicle whom he later identified as the defendant. Upon 

returning to his vehicle, Leader found the ventilator window broken 

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. 

Defendant testified that he sat on Interstate 90 for two hours 

with a broken throttle bracket before turning around to return to 

Billings. He denied being at the McLeod 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 the pistol 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 the District Court improperly admitted 
testimony 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 

defendant may have been attempting to steal. The information need 

not have referred to any particular item contained within 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. The original information and the amended 

information gave defendant and his attorney notice 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 attempting to remove a pistol 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 arguing his motion in limine 

regarding evidence of other crimes, defense counsel stated to the 

court: "And then we are going to be into the question 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 the pistol which was in 
a 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 restrict the prosecution~s strategy in presenting 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. 

Defendant did not object to this testimony at 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's mental state could be 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 

defendant behaved consistently with past criminal conduct 'I [i] t may 

. . . 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 State v. 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's crimes meet the Just similarity requirement. 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 -to the 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 satisfy the first of the Just factors. We 

further find that the similarity of defendant's methods satisfy the 

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 sought by considering the number of incidents and the 

nearness in time of the last prior crime. State v. Hansen (1980), 

187 Mont. 91, 98, 608 P.2d.1083, 1087. Defendant was convicted of 

his previous crimes in September and October of 1986. The incident 

at issue here took place on September 1, 1988. Defendant's crimes 
were interrupted only by his incarceration at Montana State Prison. 

This Court has previously held 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, the probative value of the other crimes evidence must 

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 such purposes. 

(c) In its final charge, the court should instruct 

the jury in unequivocal terms that such evidence was 

received only for the limited purposes earlier stated and 

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 

George Ames regarding defendant's prior crimes, the District Court 

gave the following instruction: 
Ladies and Gentlemen of the jury, evidence is about 

to be introduced for the purpose of showing the defendant 

committed acts other than the ones for which he is on 

trial. You may not consider this evidence to prove 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 to prove existence of a mental state which 

is an element of the crime charged. You may not consider 

this evidence for any other purpose that would expose the 

defendant to unjust double punishment. 

The District Court properly admitted evidence of defendant's other 

crimes. 

IV. 

Defendant maintains there was insufficient evidence to 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 to his 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 as well as pieces of glass discovered 

on the wrecking bar in the same vehicle. Dr. Howard of the State 
Crime 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's vehicle. 

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 section provides: 

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. He may 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 to prohibit 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 

Supreme Court considered this issue in Blockburger v. United States 

(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, 

concluding: 
[Tlhat where the same act or transaction constitutes a 

violation of two distinct statutory provisions, the test 

to be applied to determine whether there are two offenses 

or only one, is whether each provision requires proof of 

a fact which 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 

without authority enters any vehicle or any part thereof. 

Section 45-6-301(1), MCA, states that: 

A person commits the offense of theft when he purposely 

or knowingly obtains or exerts unauthorized 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, or abandons the property knowing 

such use, concealment, or abandonment probably will 

deprive the owner of the property. 

Clearly, criminal trespass to vehicles involves unauthorized 

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 the prosecutor 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. the prosecutor's opening statement wherein he referred 

to defendant's prior convictions. 

2. Failure to disqualify Judge Robb despite the fact that he 

presided over defendant's three prior 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 identify defendant 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 

Strickland v. Washinston (1984), 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674. First, counsel's performance must 

be deficient. To assess deficient performance, this 

Court employs the effective assistancet test 

of whether a defendant's counsel acted within the range 

of competence demanded of attorneys in criminal cases. 

(Citation omitted.) State v. Elliott (1986), 221 Mont. 

174, 178, 717 P.2d 572, 575. Second, counsel's deficient 

performance must have so prejudiced the defendant as to 

deprive the defendant of a fair trial. State v. Leavens 

(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The 

standard for evaluating prejudice is whether a reasonable 

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 Court 
will not second guess.tria1 tactics and 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 of venue was supported by outside evidence. Introduction 

of other evidence is proper when seeking a writ 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 Judge Robb, we find no indication in 

the record that defendant was prejudiced by this fact. 

Affirmed. 

We concur: ,' 

Chief Justice 

Justices 
Justice William 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 

following to their discussion regarding issue three, admissability 

of other crimes evidence; and issue six, ineffective assistance of 

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 evidence versus its prejudicial 

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 the prior crimes evidence fits within the first three 

Just factors, as it did in this case, thereby I1giv[ing] great 

probative weight to the evidence of prior 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 

linking defendant with the charge of criminal trespass to a vehicle 

and the compliance with the procedural factors and the first three 

Just factors, the probative value exceeds the prejudicial effect 

of the introduction of the other crimes evidence. 

Discussing the sixth 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 was 
not 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 

the manner challenged.'' People v. 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 

inactions went beyond tactical decision. 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 Kimrnelman v. Morrison, 477 U.S. 365, 

91 L.Ed.2d 305, 106 S.Ct. 2574 (1986); Sullivan v. Fairman, 819 

F.2d 1382 (7th Cir. 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 then used 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 People v. Leichtweis, 399 N.Y.S.2d 

439 (1977); State v. Niehuser, 533 P.2d 834 (0re.App. 1975). In 

this case, the information charged defendant with 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 any particular item contained within Leader's truck in 

order to properly set forth a charge of attempted theft, but since 

it did, the State is under obligation to prove beyond a reasonable 

doubt that defendant was attempting to steal the pistol. 

Defendant l'acted'l when 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 knowingly plan 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 State had planned, throughout its investigation, 

to rely on this other property evidence to prove defendant 

purposely or knowingly planned to steal the pistol. The discussion 

occurred as follows: 

DEFENSE COUNSEL: You never said anything up until today 

about including fishing poles and fishing tackle and 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 in the car that 

the jury could find he was likely to take or be inclined 
to 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 other property evidence. The State's failure to 

notify defendant of its intent to use this other property evidence 

at trial made it impossible for defendant to prepare any rebuttal, 

resulting in severe prejudice to defendant. 

At trial, defendant failed to object to the use of this other 

property evidence. However, this Court has the discretion to 

consider the use 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 ascertained with due diligence by defendant 

or his attorney. The use of this other property 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. I would reverse the ~istrict Court. 

/ 

Justice 

I concur with the foregoing dissent. 

4.~ e 

Justice