No. 80-412 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS DALE ROEERTS, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hood & Sherwood, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, County Attorney, Missoula, 

Montana 

Submitted on Briefs: June 24, 1981 

Decided: September 15, 1981 

Filed: $23) 1 5 1981 
Mr. Chief ~ustice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant Thomas Dale Roberts was convicted of burglary 

following a jury trial in the District Court of Missoula County. 

Judgment was entered thereon sentencing him to five years imprisonment with two years suspended. Defendant appeals from the 

j udgment and sentence. 

On September 29, 1979, defendant and his ex-wife Carol 

were traveling in defendant's green Buick station wagon from 

Dillon, Montana to Coeur DIAlene, Idaho, where they intended to 

be remarried. They stopped in Butte where they picked up Harold 

Nixon, Carol s stepfather, and two juveniles--Dale Chelini, 

defendant1 s nephew, and Dennis OIDonnell, Chelinils friend. They 

proceeded to Missoula where they stopped at the residence of 

Edrie Boulter who was a girl friend of Chelini and the daughter 

of Robert Boulter, part owner of the Snake Eyes Store in Lolo. 

Chelini and OIDonnell got out of the car and talked to Edrie for 

approximately half an hour. They then rejoined the three adults 

in the car and the five of them drove to the Lolo Tavern which is 

located near the Snake Eyes Store in Lolo. According to 

defendant's testimony, the occupants of the car had been drinking 

substantial amounts of beer and Snap-E-Tom tomato cocktail 

during the trip. 

The five of them continued drinking in the Lolo Tavern far 

into the night. According to defendant, he and Carol got into an 

argument in the Tavern, he got mad and he went to the car. Carol 

followed him to the car where the argument continued. Defendant 

testified he "grabbed up all of the stuff" in the car, left the 

car and walked toward the highway intending to hitchhike to 

Butte. He stated he was unsuccessful in hitchhiking, got cold and 

began to walk back to the tavern located near the Snake Eyes 

Store. 

About 2:00 a.m. Deputy Sheriff Newlon who was then in the 
area received a dispatcher's call about a possible burglary of a 

small grocery store. The report also described a suspect green 

station wagon. Deputy Newlon noticed a green station wagon outside the Lolo Tavern and upon investigation learned that the 

registered owner was Thomas Dale Roberts. Deputy Newlon 

testified he observed someone in the garage portion of the 

building in which the Snake Eyes store is located. The officer 

went to investigate, heard someone behind the store, and apprehended defendant who fit the general description of the person 

the officer had seen in the garage. Roberts was found to be 

carrying two three-packs of Snap-E-Tom tomato cocktail, 16 packs 

of cigarettes of five different brands, two magazines, and a can of 

lighter fluid, all stuffed inside his shirt. Roberts was 

arrested and charged with burglary. 

Investigation revealed that the front door of the store 

was unlocked and there were no signs of forced entry into the 

store or garage. Numerous items from the shelves and cooler were 

scattered on the floor including cases of beer and packs of 

Snap-E-Tom tomato cocktail. Robert Boulter, part-owner of the 

store, testified that the grease pencil price markings on the 

Snap-E-Tom tomato cocktails in the store appeared to be the same 

as those found in defendant's possession, but that the other 

items could not be identified as coming from his store as they 

were either prepriced when they came to the store or had no price 

markings on them. Boulter testified that all items found in 

defendant's possession were sold in his store. He further 

testified that his daughter, Edrie, had a key to the store. 

Defendant testified that he was married to Carol at the 

time of trial. Over defendant's objection, Carol was called as a 

prosecution witness at his trial and was permitted to testify 

concerning her observations of defendant's act ions on the night 

in question. The trial court did not allow her to testify concerning any communications made to her by the defendant. 
On appeal, defendant contends (1) that the District Court 

erred in allowing his wife to testify over his objection, and (2) 

there was insufficient evidence to support his conviction of 

burglary. 

The admissibility of a spouse's testimony in Montana is 

governed by two separate statutes. Section 46-16-212, MCA 

provides : 

"Except ..- with the consent -- of both or in cases of 

criminal violence by one upon the other, abandonment or neglect of children by either party, 

or abandonment or neglect of one by the other, 

neither spouse is a competent witness -- for or 

against the other in -- a criminal action -- or proceeding to which ---- one or both are parties." 

( ~mphas isadded . ) 

Section 26-1-802, MCA, hereafter identified as the marital privilege statute, provides : 

"A husband cannot be examined for or against his 

wife without her consent or a wife for or 

against her husband without his consent; nor can 

either, during the marriage or afterward, be, 

without the consent of the other, examined as to 

any communication made by one to the other 

during the marriage; but this exception does not 

apply to a civil action or proceeding by one 

against the other or to a criminal action or 

proceeding for a crime committed by one against 

the other." 

In a criminal case that does not involve violence or abandonment or neglect of spouse or children and where the parties are 

married at the time of trial, the applicable statute is section 

46-16-212. State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. 

Both parties agree. However, the State argues that this statute 

does not impose a blanket exclusion of the spouse as a witness, 

but rather excludes only the spouse's testimony as to communications made by the defendant to his spouse during the 

marriage. The trial court agreed with the State's theory and 

permitted Carol to testify but excluded any testimony concerning 

communications between defendant and Carol. This was error. 

Both the language of the statute and Montana case law 

establish the contrary. The express language of section 

46-16-212, MCA, indicates that a wife is not - a competent witness 
against her husband without his consent in a criminal proceeding 

against him (subject to exceptions not relevant to this case). 

"Except with the consent of both . . . neither spouse - is a com- - - 

petent witness for or against the other in a criminal action or 

proceeding to which one or both are parties." Section 46-16-212, 

MCA. (Emphasis added.) Where the language of a statute is plain, 

unambiguous, direct and certain, the statute speaks for itself 

and there is nothing left for the court to construe. Dunphy v. 

Anaconda Company (1968), 151 Mont. 76, 438 P.2d 660 and cases 

cited therein. The function of the court in such cases is simply 

to ascertain and declare what in terms or in substance is contained in the statute and not to insert what has been omitted or 

to omit what has been inserted. Section 1-2-101, MCA. A person 

who is not a competent witness cannot testify at all. 

Montana case law compels the same result. State v. Storm 

(1950) , 124 Mont. 102, 220 P.2d 674. There we applied the predecessor to section 46-16-212, MCA, to reverse defendant's conviction of assault where defendant's wife was permitted to testify 

over her husband's objection that in pointing a loaded gun at the 

sheriff, he was resisting arrest. There, as here, the predecessor statute expressly dealt with the competency of a husband 

and wife as a witness against the other in a criminal proceeding. 

The State contends that Storm is inconsistent with State 

v. Dixson (1927), 80 Mont. 181, 260 P. 138, and State v. Houchin 

(1967) , 149 Mont. 503, 428 P.2d 971. We find no inconsistency in 

these decisions. Dixson involved a criminal prosecution where 

the marriage of defendant and the witness had been annulled prior 

to trial and accordingly the predecessor of section 26-1-802, 

MCA, the marital privilege statute, was applied rather than the 

predecessor of the statute involved in this case. The statute in 

~ixson differed significantly from the statute applicable in this 

case. Accordingly, that decision is not germane to the situation 

presented in this case. 

Houchin is inapposite. It also involved the predecessor 
of section 26-1-802, MCA, the marital privilege statute, which 

serves to protect confidential communications be tween spouses 

during marriage. In Houchin since the defendant's wife was not 

called as a witness, the marital privilege statute did not prohibit a deputy sheriff's testimony that defendant's wife pointed 

out the location of stolen copper wire. 

Thus there are two distinct spousal privileges which may 

apply in a criminal proceeding. If the defendant is married at 

the time of trial, the spouse is incompetent to testify either 

for or against the defendant without his consent subject to the 

statutory exceptions. Section 46-16-212, MCA. If defendant is 

not married at the time of trial, his former spouse is competent 

to testify but cannot be examined without his consent as to any 

communication made be tween the spouses during the marriage. 

Section 26-1-802, MCA. 

The State criticizes the sweeping marital privilege of 

section 46-16-212, MCA, which permits the defendant to prevent 

his spouse from taking the witness stand. We note the current 

trend in other states and in the federal courts toward erosion of 

the marital privilege. Trammel v. United States (1980), 445 

U.S. 40, 100 Sect. 906, L.Ed. 2d . The United States 

Supreme Court in Trammel modified the common law marital privilege so that the spousal witness alone may exercise the privilege 

to refuse to testify adversely and may neither be compelled nor 

foreclosed from testifying in federal court. The Court reasoned : 

"The contemporary j ustif ication for affording an 

accused [the privilege to exclude all adverse 

spousal testimony] is also unpersuasive . When 

one spouse is willing to testify against the 

other in a criminal proceed ing--whatever the 

motivation--their relationship is almost certainly in disrepair; there is probably little in 

the way of marital harmony for the privilege to 

preserve. In these circumstances, a rule of 

evidence that permits an accused to prevent 

adverse spousal testimony seems far more likely 

to frustrate justice than to foster family 

peace ." (Bracketed material paraphrased. ) 

Trammel, supra, 445 U.S. at 52, 100 S.Ct. at 913. 
Whatever merit this view may possess, it applies only in 

the federal courts and is contrary to the statutory law of 

Montana. Our duty is to construe the law as we find it. Dunphy 

v. Anaconda Company, supra, and cases cited therein. Absent 

constitutional or statutory in£ irmities, this Court is not 

empowered to change the statutory law of this state. 

However, we hold that the error in permitting Carol to 

testify is harmless error under the circumstances of the case. 

Montana law provides that no cause shall be reversed by reason of 

any error committed by the trial court unless the record shows 

that the error was prejudicial (section 46-20-701, MCA) and that 

any error which does not affect substantial rights shall be 

disregarded. ( section 46-20-702, MCA. ) 

The federal constitutional test of harmless error is 

whether there is a reasonable possibility that the evidence 

complained of might have contributed to the conviction. Fahy v. 

Connecticut (1963)r 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. 

Or stated another way, can we as a reviewing court declare a 

belief that the error was harmless beyond a reasonable doubt? 

Chapman v. California (1967)t 386 U.S. 18, 87 S.Ct. 824, 17 

L.Ed.2d 705. Under either the Montana test or the federal 

constitutional test, the error in permitting Carol to testify is 

harmless. 

Here Carol s testimony was essentially identical to the 

defendant's. Her testimony did not contradict or vary 

defendant's own testimony in any material respect. The defendant 

himself agreed with her testimony: 

"Q. Is there anything substantively or 

materially different as you remember it from 

what Carol remembers and testified to? A. No." 

Under such circumstances the error was clearly not prejudicial to 

defendant, did not affect any substantial right of defendant, and 

there is no reasonable possibility that Carol Is testimony could 

have contributed to defendantt s conviction. 
Defendant also contends there was insufficient evidence to 

support his conviction of burglary. A person commits burglary if 

he knowingly enters or remains in an occupied structure with the 

purpose of committing an offense therein. Sect ion 45-6-204, MCA. 

Here the evidence concerning entry into the store by defendant is 

circumstantial, but it is sufficient to enable the jury to reasonably infer the elements of the crime. The front door of the 

store was unlocked; defendant was apprehended behind the store 

shortly after 2:00 a.m. ; he had in his possession various 

articles of merchandise sold in the store; and a person was 

observed in the garage portion of the store building shortly 

before defendant' s apprehension and arrest whose general description matched defendant' s. Evidence that the merchandise found 

in defendantf s possession came from the store rather than from 

defendant's car is found in the testimony of Robert Boulter that 

the grease pencil price marking on the Snap-E-Tom tomato cocktails appeared to be the same as those in the store; the fact 

that five packs of Camel filter cigarettes were found among the 

merchandise stuffed in defendant's shirt and none of the five 

persons traveling in his car smoked that brand; and the 

implausibility of defendant's explanation of his possession of 

the articles. This is substantial evidence supporting the crime 

of burglary. 

The issue of sufficiency of the evidence boiled down to 

the credibility of the State's witnesses vis-a-vis the 

defendant's testimony. The jury by its verdict resolved this 

conflict in favor of the State. 

Defendant argues that the quality of the State's evidence 

is insufficient to meet the standard of sufficiency in Jackson v. 

Virginia (1979), 443 U.S. 307r 99 S.Ct. 2781r 61 L.Ed.2d 560. We 

disagree. 

Jackson states the required standard in this language: 

" . . . the relevant question is whether, after 

viewing the evidence in the light most favorable 
to the prosecution, - 

any rational trier of fact 

could have found the essential elements of the 

crime beyond a reasonable doubt ." Jackson, supra, 

443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. 

We find that the evidence meets this standard. Although 

the defendant argues that the testimony of the officers concerning his observation of a person in the garage portion of the 

store building shortly before defendant's apprehension is 

unworthy of belief and that missing tools from the garage were 

never recovered, these contentions in no way prevent any rational 

j uror from concluding that defendant unlawfully entered the Snake 

Eyes Store with the intent of committing the£ t therein. 

Af f irmed . 

----------- 3 -kg -- pa, ----- --------- 4--

Chief ust tic-e 1 

We concur: