### No. 82-06 IN THE SUPREME COURT OF THE STATEOF MONTANA 1982

STATEOF MONTANA, Plaintiffand Respondent,

VS. 

### DENNYDEAN SHAW, DefendantandAppellant.

Appeal from: District Court of the Seventh JudicialDistrict, Inand for the County ofMcCone HonorableL. 

### C. Gulbrandson,Judgepresiding. Counselof Record: ForAppellant: FrancisJ. McCarvel,Glasgow, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana ArnieA. Hove,County Attorney,Circle,Montana

Submitted onbriefs: April 29, 1982 Decided:July 

### 15,1982

### Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The defendant was found guilty of felorly theft following a jury trial 

### in the McCone County District Court. The defendant appeals from the District Court's denial of hismotion for a new trial. At the trial, Jacque Kutzler and James Norwood, who allegedly had been with the defendant atthe time the crime

was committed, testified for the prosecution. They stated that they had accompanied the defendant in his Suburban from Glendive, Montana, to Circle, Montana, on the evening of March 2, 1981, and that the three of them were at the Traveller's Inn in Circle from about 10:00 p.m. until the bar closed atabout 2:00 a.m. They testified that the three of them then visited the defendant's wife staying until about 4:00 a.m. and that they then proceeded to the Vets Clubwhere thedefendant and Norwood broke into thebuilding and stolecash and merchandise. Kutzler also testified, over the defendant's objections, regarding threats allegedly made against her by the defendant shortly before the trial. In addition, the defendant's wife testified, also over the defendant's objections, regarding a visit she received from the defendant, Kutzler and Norwood on the night of the theft. The State also introduced evidence indicating that the tire tracks found outside the door to the Vets Club matched the tracksmade by the defendant's Suburban. In addition, there

was evidence that the defendant was familiar with the layout of the Vets Club as he had done electrical work atthe bar four or fiveyears prior to the theft. The defendant's testimony differed from thatgiven byKutzler and Norwood. He testified that he drove from Glendive to Circle alone in his ElCamino and that Norwood and Kutzler had borrowed his Suburban that night. He admitted meeting Norwood and Kutzler atthe Traveller's Inn and proceeding with them to his wife's house after leaving the bar, but he claims that the three parted company after they lefthiswife's house. He stated that he knew nothing about the theft. Ron Hedstrom testified for the defendant statiny that the defendant did have his ElCamino in Circle that night. However, there was also evidence to the contrary. The police officerwho had been on duty the night of the theft testified that he saw the defendant's Suburban inCircle that night but he did not see the ElCamino. Three 

### issues are presented for review: 1. Did the District Court err in allowing the defendant's wife to testify? 2. Did the District Court err in allowing witness Kutzler to testify as to threats allegedly made by the defendant? 3. Was sufficient independent evidence presented at trial to corroborate the accomplice testimony? The defendant contends that 

### it was prejudicial error to allow his wife to testify. This issue was recently addressed in State v. Roberts (1981), 

## -Mont. 

## , 633 P.2d 1214, 38 St.Rep. 1551. 

### In that case we stated that under Montana law if thedefendant ismarried atthe time of trial, the spouse 

### is incompetent to testify either for or against the defendant without his consent, subject to certain exceptions which are not applicable here. Section 46-16-212, MCA; Statev. Roberts, supra. ThisCourt went on

### tohold thatthe error in allowing the spouse to testifywas harmless in that case because the spouse's testimony was essentiallyidentical tothedefendant's, We have a similar situation here, and we find that the error in thiscasewas alsoharmless, The entire testimonygiven by the defendant's wife is 

### setforthbelow: "Q. 

### What is 

### your name and address for the record, please? A. 

### Anne Shaw, Circle, Montana, "Q. What 

### isyour occupation? A. 

### Nurse's aide. "Q. What 

### is your affiliation

## -- what 

### is your relationship with the defendant, Denny Dean Shaw? A. I'm

### hiswife. "Q. Where were you in the early morning of March 3, 

### 1981? A. At

### my home inbed. "Q. Were you awakened in the early morning hours? A. 

### Yes. "Q. 

### Can you remember about what time you were awakened? A. At

### 2:35. "Q. Who awoke you? A. 

### Denny.



# . Who were those 

## -- were there any people withDenny? A. 

### Yes, therewere, "Q. Can you recall who thesepeople were? A, 

### There was agirlnamed Jackie and aboy named Jamie. "Q. Did you talk with these people? A. A 

### littlebit. "Q. 

### About what time did these people leave? A. 

### Ten to four, "Q. Do you remember the order in which these people left? A. 

### Yes. "Q.Could you giveme thatorder? A. 

### Jackie and then Denny and then Jamie. "Q, 

### How many minutes apartwould thatbe? A. 

### Two or threeminutes." The defendant himself testified that he went to his wife's house with Norwood and Kutzler about 2:30 and stayed untiljust about 4:00. He went on to statethatJackie left first, then 

### he leftand went out tothe porch, and thenJamie left, and then he went back in the house just long enough to pick up some pants. Since the testimony given by the defendant's wife was essentially identical to the defendant's, the errorwas clearlynot prejudicial. The next issue is whether theDistrictCourt erred in allowing witness Kutzler to testify regarding threats allegedlymade by the defendant. The defendant argues that this testimony was evidence of other crimes, wrongs or acts and assuchwas inadmissible under Rule 404(b),Mont.R.Evid. The defendant further contends that even if thisCourt were to find that the evidence 

### is admissible under Rule 484(b), Mont.R.Evid., the District Court nevertheless erred in allowing the evidence to be introduced when the procedural safeguards established 

### in State v. Just (1979), 

### -Mont.



## ,602 P.2d 957, 36 St.Rep. 1649, were not followed. The statute in questionprovides asfollows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person 

### in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such asproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

### mistake or accident." Rule 404(b)

## ,Mont.R.Evid. The statutory

### list of purposes for which other crime evidence may be admitted 

### is not inclusive. State v. Gone (1978), 179Mont. 271, 587 P.2d 1291. Such evidencemay be admitted to prove consciousness of guilt. State v. Gone, supra. In this case the testimony regarding the threats allegedlymade by the defendant to one of the prosecution's key witnesseswas properly admitted forthatpurpose. "In a criminal prosecution any attempted intimidationof a witness 

### is properly attributable to a consciousness of guilt and testimony relating thereto 

### is relevant and admissible inevidence." People v. Smith (1972), 3 Ill.App.3d 958, 279

The defendant contends that this evidence should not have been admitted because the four element testof admissibility established in Just, supra, was not met and the mandatory procedural requirements setforth inJustwere not followed. We disagree. Both the admissibilitytestand the procedural requirements found inJustpertain to evidence of other prior crimes but do not apply to evidence establishing consciousness of guilt regarding the crime with which the defendant 

### is charged. "'Generally, evidence of other offensesor of other similar actsatother times is inadmissiblefor the purpose of showing the commission of the particular criminal offense charged. State v, Taylor, 163 Mont. 106, 120, 515 P,2d 695 (1973). The reason 

### isthat the defendant 

### is entitled to be informed of the offense charge [sic] so that he need prepare his defense only to that particular offense. Proof of other offenses subjects him to surprise and to a defense of multiple collateral or unrelated issues. State v. Jensen, 163 Mont. 233, 455 P.2d 631 (1969)



# ... I 11 Just, supra, 602 P.2d at 960, quoting Statev. Lave (1977), 174Mont. 401, 571 P.2d 97, 100. Presenting evidence of an attempted intimidation of a witness does not interfere with the defendant's right to be informed of the offense charged; such evidence pertains to the crime charged by indicating consciousnessof guilt. The defendant next argues that even if such evidence

was relevant 

### its probative value 

### is substantially outweighed by the danger of unfair prejudice, confusion of the issues

ormisleading the jury and therefore the evidence should not have been admitted according to Rule 4P13, Mont.R.Evid. We disagree. The evidence was important asproof of consciousness of guilt, and 

### itsprobative value outweighs any preju-dice to thedefendant. Thisevidencedid not cause confusion of the issues nor did it mislead the jury. The District Court did not err in allowing Kutzler to testify regarding the alleged threats. The last issue 

### iswhether there was sufficient independent evidence to corroborate the accomplice testimony. Under Montana law a defendantcannotbe convicted of a crime solely upon the testimony of an accomplice. Section 46-16- 213, MCA, provides: "A conviction cannot be had on the testimony of one responsible or legallyaccountable for the same offense, as defined in 45-2-301, unless the testimony 

### is corroboratedby other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration 

### is not sufficient if itmerely shows the commission of the offense or the circumstances thereof." Kutzler and Norwood were accomplices of the defendant and the defendant contends that their testimony was insufficientlycorroborated. hit11 regard to corroborating evidence the Court has stated:

"I. 

# .. the corroborating evidence may be supplied by the defendant or his witnesses; it may be circumstantial evidence; it need not be sufficient to sustain a conviction or establisha prima facia case of guilt; and it need not be sufficient to connect the defendant with the crime but must tend to connect him with the crime.

# ..'"Statev. Casagranda (1981)t 

## -Mont. 

## , 637 

### P.2d 826, 830, 38 St.Rep. 2122, 2128-2129, quoting State v. Standley (1978), 179 Mont. 153, 586 P.2d 1075, 11377. We find that there 

### is sufficient corroborating evidence to tend to connect the defendant with the theft at the Vets Club. The defendant admitted that he was withNorwood and Kutzler the evening of the crime, the tire tracks found near theVets Clubmatched the tiretracksmade by the defendant's Suburban, there was evidence that the Suburban was the only vehicle owned by the defendant that

was in Circle that night, and the defendant was familiar with the layout of the Vets Club. This evidence was sufficient to corroborate the testimonygiven by Norwood and Kutzler

# . Affirmed. 

# %4d#%4 Chief Justice

We concur: