No. 80-412 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

-vsTHOMAS DALE ROEERTS, Defendant and Appellant.

Appeal from: DistrictCourt of theFourth 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)

## 151981Mr. 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 

### twoyears suspended. Defendant appeals from the 

### judgment and sentence. On September 29, 1979, defendant and hisex-wife Carol



### were traveling in defendant's green Buick stationwagon from Dillon, Montana to Coeur DIAlene, Idaho, where they intended 

### to be remarried. They stopped inButte 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 atthe residence of Edrie Boulter who 

### was a girl friend of Chelini and the daughter of Robert Boulter, part owner of the Snake Eyes Store inLolo. Chelini and OIDonnellgot out of the 

### car and talked to Edrie for approximatelyhalf an hour. They then rejoined the three adults inthe 

### car and the fiveof them drove 

### to the LoloTavern which is located near the Snake Eyes Store inLolo. 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 fiveof them continued drinking inthe Lolo Tavern far intothe 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 inhitchhiking, 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 thearea 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 stationwagon 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 inwhich the Snake Eyes 

### store is located. The officer went to investigate, heard someone behind the store, and apprehended defendant who fitthe general description of the person the officerhad seen in the garage. Roberts was found to be carrying 

### two three-packs of Snap-E-Tom tomato cocktail, 16packs of cigarettes of five differentbrands, 

### twomagazines, and a can of lighter fluid, allstuffed inside his shirt. Roberts 

### was arrested and charged with burglary. Investigation revealed that the frontdoor 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
asthose found in defendant's possession, but that the other 

### items could not be identified ascoming from his store as they



### were eitherprepriced 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 inhis 

### store. He further testified that his daughter, Edrie, had a key 

### to the store. Defendant testified thathe 

### was married to Carol atthe timeof trial. Over defendant's objection, Carol was called as a prosecution witness athis trial and was permitted to testify concerning her observations of defendant's act ions on the night inquestion. 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 hiswife to testify over hisobjection, and (2) there 

### was insufficientevidence 

### to support his conviction of burglary. The admissibility of a spouse's testimony inMontana is governed by two separate statutes. Section 46-16-212, MCA provides: "Except with the consentof both or in cases of 

# ..--- criminal violence by one upon the other, abandonment 

### or neglect of childrenby eitherparty, 

### or abandonment 

### or neglect of one by the other, neither spouse is a competent witness 

### -- for

### or against theotherin 

### -- a criminal action

### -- or proceeding 

### towhich one orboth 

### 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 againsther 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 thisexception does not apply to a civil action orproceeding 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 orneglect of spouse orchildren and where the parties 

### are married at the 

### timeof trial, the applicable statute is section 46-16-212. Statev. Taylor (1973), 163Mont. 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 onlythe 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 testifybut excluded any testimony concerning communications between defendant and Carol. Thiswas 

### error. Both the language of the statuteand Montana case 

### law establish the contrary. The express language of section 46-16-212, MCA, indicates that a wife is not - a competent witnessagainst 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- 

### -- 

### - petentwitness 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 leftfor the court 

### to construe. Dunphy v. Anaconda Company (1968), 151Mont. 76, 438 P.2d 660 and 

### cases cited therein. The function of the court in such 

### cases is simply toascertain and declarewhat in 

### terms or in substance is contained in the statuteand 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 lawcompels the 

### same result. Statev. Storm (1950)

## , 124Mont. 102, 220 P.2d 674. There 

### we applied the prede

### cessor to section 46-16-212, MCA, 

### to reverse defendant's conviction of assaultwhere defendant's wife 

### was permitted 

### to testify

over her husband's objection that inpointing a loaded gun atthe sheriff, he 

### was resisting 

### arrest. There, 

### as here, the prede

### cessor statuteexpresslydealtwith the competency of a husband and wife as a witness against the other in a criminal proceeding. The Statecontends that Storm 

### is inconsistentwith State

v. Dixson (1927), 80Mont. 181, 260 P. 138, and Statev. Houchin (1967)

## , 149Mont. 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, themarital privilege statute, 

### was applied rather than the predecessor of the statute involved inthis

### case. The statute in ~ixson differed significantly from the statuteapplicable inthis

case. Accordingly, thatdecision is not germane to the situation presented in this

### case. Houchin is inapposite. It 

### also involved the predecessorof section 26-1-802, MCA, the marital privilege statute, which

serves toprotect confidential communications between spouses during marriage. In Houchin since the defendant's wife 

### was not called as a witness, the marital privilege statutedid not prohibit a deputy sheriff's testimony thatdefendant'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 timeof trial, the spouse 

### is incompetent to testify either foror against the defendant without his consent subject 

### to the statutoryexceptions. Section 46-16-212, MCA. If defendant is not married at the 

### time of trial, his former spouse is competent totestifybut cannot be examined without hisconsent as 

### to any communication made between 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 inother 

### 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 contemporaryjustification for affording an accused [theprivilege to exclude alladverse spousal testimony] is 

### also unpersuasive

# . When one spouse is willing to testify against the other in a criminal proceeding--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 thatpermits an accused to prevent adverse spousal testimony 

### seems farmore likely tofrustratejustice than to foster family peace

# ." (Bracketed 

### material paraphrased.) Trammel, supra, 445 U.S. at52, 100 S.Ct. at913.Whatever 

### merit thisviewmay possess, 

### it applies only in the federal courts and is contrary 

### to the statutory

### lawof 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 inpermitting Carol 

### to testify 

### is harmless 

### error under the circumstances of the 

### case. Montana 

### lawprovides thatno cause shallbe reversed by reason of any 

### error committed by the trial court unless the record shows that the 

### error 

### was prejudicial (section46-20-701, MCA) and that any error which does not affect substantial rights shallbe 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)t386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Under either the Montana 

### test or the federal constitutional test, the 

### error inpermitting 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 substantivelyor materiallydifferent as you remember it from what Carol remembers and testified to? A. No." Under such circumstances the 

### error was clearlynot prejudicial to defendant, did not affect any substantial rightof defendant, and there is no reasonable possibility that CarolIstestimony could have contributed to defendantts 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. Section 45-6-204, 

### MCA. Here the evidence concerning entry into the storeby defendant is circumstantial, but it is sufficientto enable the jury to reasonablyinfer the elements of the 

### crime. The frontdoor of the store 

### was unlocked; defendant was apprehended behind the 

### store shortlyafter 2:00 a.m. ;he had in hispossession various articles of merchandise sold inthe 

### store; and a person 

### was observed inthe garage portion of the storebuilding shortly before defendant's apprehension and 

### arrest whose general descriptionmatched defendant'

### s. Evidence that the merchandise found indefendantfs 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 fivepacks of Camel filtercigarettes 

### were found among the merchandise stuffed in defendant's shirt and none of the five persons traveling inhis 

### car smoked thatbrand; and the implausibility of defendant's explanation of hispossession of the articles. This is substantial evidence supporting the 

### crime of burglary. The issue of sufficiencyof the evidence boiled down to the credibilityof 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 qualityof the State's evidence is insufficient to meet the standard of sufficiency inJackson v. Virginia (1979),443 U.S. 307r 99 S.Ct. 2781r 61L.Ed.2d 560. We disagree. Jackson 

### states the required standard in thislanguage: 

### "

# ... the relevant question is whether, after viewing the evidence in the light

### most favorabletothe 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. at2789, 61L.Ed.2d at573. We find that the evidence

### meets this standard. Although the defendant argues that the testimony of the officers concerning hisobservation of a person in the garage portion of the storebuilding shortlybefore defendant's apprehension 

### is unworthy of belief and thatmissing tools from the garage 

### were

never recovered, these contentions in no way prevent any rational juror from concluding thatdefendant unlawfully entered the Snake Eyes Storewith the intentof committing the£

### t therein. Affirmed

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Chief

## ust tic-e 1

We concur: