No. 82-06 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

DENNY DEAN SHAW, 

Defendant and Appellant. 

Appeal from: District Court of the Seventh Judicial District, 

In and for the County of McCone 

Honorable L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Francis J. McCarvel, Glasgow, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Arnie A. Hove, County Attorney, Circle, Montana 

Submitted on briefs: 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 

his motion for a new trial. 

At the trial, Jacque Kutzler and James Norwood, who 

allegedly had been with the defendant at the 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 at about 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 

Club where the defendant and Norwood broke into the building 

and stole cash 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 

tracks made 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 at the bar 

four or five years prior to the theft. 

The defendant's testimony differed from that given by 
Kutzler and Norwood. He testified that he drove from 

Glendive to Circle alone in his El Camino and that Norwood 

and Kutzler had borrowed his Suburban that night. He 

admitted meeting Norwood and Kutzler at the 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 left his wife's house. He stated that he knew nothing 

about the theft. Ron Hedstrom testified for the defendant 

statiny that the defendant did have his El Camino in Circle 

that night. However, there was also evidence to the 

contrary. The police officer who had been on duty the night 

of the theft testified that he saw the defendant's Suburban 

in Circle that night but he did not see the El Camino. 

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 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 

certain exceptions which are not applicable here. Section 

46-16-212, MCA; State v. Roberts, supra. This Court went on 
to hold that the error in allowing the spouse to testify was 

harmless in that case because the spouse's testimony was 

essentially identical to the defendant's, We have a similar 

situation here, and we find that the error in this case was 

also harmless, The entire testimony given by the defendant's 

wife is set forth below: 

"Q. What is your name and address for the 

record, please? A. Anne Shaw, Circle, 

Montana, 

"Q. What is your occupation? A. Nurse's aide. 

"Q. What is your affiliation -- what is your 

relationship with the defendant, Denny Dean 

Shaw? A. I'm his wife. 

"Q. Where were you in the early morning of 

March 3, 1981? A. At my home in bed. 

"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 

with Denny? A. Yes, there were, 

"Q. Can you recall who these people were? A, 

There was a girl named Jackie and a boy named 

Jamie. 

"Q. Did you talk with these people? A. A 

little bit. 

"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 give me that order? A. Jackie 

and then Denny and then Jamie. 

"Q, How many minutes apart would that be? A. 

Two or three minutes." 

The defendant himself testified that he went to his 

wife's house with Norwood and Kutzler about 2:30 and stayed 

until just about 4:00. He went on to state that Jackie left 

first, then he left and went out to the porch, and then 
Jamie 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 error was clearly not prejudicial. 

The next issue is whether the District Court erred in 

allowing witness Kutzler to testify regarding threats 

allegedly made by the defendant. The defendant argues that 

this testimony was evidence of other crimes, wrongs or acts 

and as such was inadmissible under Rule 404(b), Mont.R.Evid. 

The defendant further contends that even if this Court 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 question provides as follows: 

"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 as proof 

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), 179 Mont. 271, 587 P.2d 1291. Such evidence may be 

admitted to prove consciousness of guilt. State v. Gone, 

supra. In this case the testimony regarding the threats 

allegedly made by the defendant to one of the prosecution's 

key witnesses was properly admitted for that purpose. "In a 

criminal prosecution any attempted intimidation of a witness 

is properly attributable to a consciousness of guilt and 

testimony relating thereto is relevant and admissible in 
evidence." 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 test of admissibility established in Just, supra, was not met and the 

mandatory procedural requirements set forth in Just were not 

followed. We disagree. Both the admissibility test and the 

procedural requirements found in Just pertain 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 offenses or of 

other similar acts at other times is inadmissible for 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 is that 

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 State v. Lave (1977), 174 Mont. 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 consciousness of 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 

or misleading the jury and therefore the evidence should not 

have been admitted according to Rule 4P13, Mont.R.Evid. We 

disagree. The evidence was important as proof of consciousness of guilt, and its probative value outweighs any preju- 
dice to the defendant. This evidence did 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 is whether there was sufficient independent evidence to corroborate the accomplice testimony. 

Under Montana law a defendant cannot be 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 legally accountable for 

the same offense, as defined in 45-2-301, 

unless the testimony is corroborated by 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 it merely 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 insufficiently corroborated. 

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 

establish a 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. . .'" State v. 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 with 
Norwood and Kutzler the evening of the crime, the tire 

tracks found near the Vets Club matched the tire tracks made 

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 testimony given by Norwood and 

Kutzler . 

Affirmed. 

%4d#%4 Chief Justice 

We concur: