No. 14992 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF D. W. L., a Youth. 

Appeal from: District Court of the Eighth Judicial District, 

In and For the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Lawrence A. Anderson, Public Defender, argued, 

Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson argued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Daniel L. Falcon argued, Deputy County Attorney, 

Great Falls, Montana 

Submitted: April 15, 1980 

Decided : AuG 14 19@ 

Filed: AUG 1 1380 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

DWL appeals from the judgment of the Cascade County 

Youth Court declaring him to be a delinquent youth. 

On May 18, 1979, while on routine patrol, Officer 

Robert Dull observed a blue Mercury car run a red light at 

the intersection of Central Avenue and Sixth Street in Great 

Falls, Montana. Officer Dull stopped the car, and when the 

driver told him he did not have a driver's license, Officer 

Dull asked the driver to join him in the patrol car. Officer 

Dull informed the driver that he was being cited for driving 

without a driver's license and for failure to stop at a red 

light. When Officer Dull asked the driver what his name 

was, the driver replied "Caincade" and spelled it accordingly. 

Officer Dull ran a registration check on the blue Mercury 

car and learned that it was registered to Tennison B. 

Kinkaid. 

Officer Dull then brought the driver to the police 

station where he was identified as DWL, a minor youth. 

Officer Dull later returned the car to its owner, Tennison 

Kinkaid, at the owner's residence in Great Falls. Officer 

Dull testified that Kinkaid signed a stolen property report 

at that time. Subsequently, Officer Edward Sinnott was 

dispatched to Kinkaid's residence to pick up the stolen 

property report. 

On May 29, 1979, the Cascade County Attorney initiated 

proceedings under Montana's Youth Court Act, section 41-5- 

101, et seq., MCA, to have DWL declared a delinquent youth. 

The petition alleged that DWL had taken a 1966 Mercury car 

without the owner's consent, in violation of section 45-6- 

301(l) (a), MCA. On June 8, 1979, DWL appeared before the 

Cascade County Youth Court and denied the offense alleged in 

the petitios DWL was released to his mother's custody. 

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The trial, denominated an adjudicatory hearing, was 

held on June 29, 1979. The evidence established that DWL 

had not been alone in the car. Greg Jarvey, Carmello 

Cozino, Caroline Jeffrey and Mary Brogden were in the car 

with DWL when stopped by Officer Dull. At trial the two 

girls described going for a ride in the car at the boys' 

invitation. However, neither girl had anything to do with 

the theft of the car. 

Cozino testified that when he and Jarvey had met DWL 

earlier that day, DWL told them he had taken the keys to 

Kinkaid's car. Cozino related how he, Jarvey, and DWL later 

rode around in Kinkaid's car. He further testified that DWL 

started the car with the ignition key and was the first 

person to drive the car, but that he had also driven it. 

Jarvey also testified that DWL told him he had stolen the 

keys to Kinkaid's car. DWL did not testify at trial. 

Tennison Kinkaid, owner of the car, died prior to trial. 

At the close of the State's case, DWL moved to dismiss 

the petition on the grounds of insufficient evidence. The 

Youth Court denied the motion on August 1, 1979. On August 

28, 1979, the Youth Court entered findings and declared DWL 

to be a delinquent youth. In essence, the Youth Court found 

that the evidence adduced at trial established that DWL 

committed the charged offense, felony theft of the car. 

This appeal followed. 

Two issues have been raised on appeal: 

(1) Whether the testimony given by Officer ~ull and 

Officer Sinnott concerning a stolen property report constitutes inadmissible hearsay evidence. 

(2) Whether DWL's conviction was improperly based upon 

the testimony of other individuals who were legally accountable 

for the alleged offense. 

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DWL's first specification of error is that the testimony 

given by Officer Dull and Officer Sinnott concerning a 

stolen property report constituted inadmissible hearsay 

evidence. DWL contends that the Youth Court's ruling, which 

allowed both officers' testimony, constitutes reversible 

error. 

Officer Dull testified, over DWL's objection, that he 

observed Kinkaid sign a stolen property report concerning 

the blue Mercury car. The State contends that Officer 

Dull's testimony was offered only to show that Kinkaid did 

sign the stolen property report, and that viewed in this 

light, Officer Dull's testimony is not inadmissible hearsay. 

Rule 8Ol(a), M.R.Evid., provides that nonverbal conduct 

of a person, if it is intended by him as an assertion, is a 

statement. Rule 801 (b) , M. R. Evid., defines a declarant as a 

person who makes a statement. Rule 8Ol(c), M.R.Evid., 

defines hearsay as a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered 

in evidence to prove the truth of the matter asserted. See 

State v. Newman (1973), 162 Mont. 450, 457, 513 P.2d 258, 

262. 

Officer Dull testified at trial that he observed inka aid 

sign a stolen property report. Kinkaid's signing of the 

report was nonverbal, assertive conduct. Kinkaid signed the 

report at his residence, and therefore it was an extrajudicial 

statement. The record clearly shows that the State offered 

the testimony of Officer Dull concerning Kinkaid's signing 

of the stolen property report to prove the fact that DWL 

exerted unauthorized control over Kinkaid's car. In other 

words, the State offered the testimony of Officer Dull to 

prove the truth of the matter asserted. Officer Dull's 

testimony constituted hearsay evidence. 

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Under Rule 802, M.R.Evid., hearsay is not admissible 

unless an exception to the hearsay rule exists. However, in 

the instant case we find no applicable exception to the 

hearsay rule. Therefore, we find that Officer Dull's testimony that he observed Kinkaid sign a stolen property report 

constitutes inadmissible hearsay evidence under Rule 802, 

M.R.Evid. 

Officer Sinnott testified over Dm's objection, that he 

was dispatched to pick up a stolen property report on a car 

at Kinkaid's residence. DWL contends that Officer Sinnott's 

testimony also constitutes inadmissible hearsay evidence. 

The State contends that Officer Sinnott was asked only about 

his purpose in going to Kinkaid's residence and that such 

testimony does not constitute hearsay evidence. We disagree. 

Clearly the report is hearsay, and again, the State was 

attempting to show Dm's unauthorized control of Kinkaid's 

car by introducing Officer Sinnott's testimony about the 

report. He, like Officer Dull, was testifying to an out-ofcourt statement by Tennison Kinkaid, and the testimony was 

offered to prove the truth of the matter asserted. Despite 

the State's contention otherwise, we can see no other purpose 

for the State introducing this evidence. Unless the testimony 

was to show that a theft had been committed, the mere fact 

that Officer Sinnott went to Kinkaid's home was not relevant 

to the case. Such evidence did not have "any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable. . ." 

Rule 401, M.R.Evid. See also, State v. Sanders (1971), 158 

Mont. 113, 117-118, 489 P.2d 371, 373. Therefore, we find 

the testimony concerning picking up "a signed stolen report" 

was introduced only to prove the truth of the matter asserted, 

and was inadmissible hearsay. 

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DWL's second specification of error is that his conviction was improperly based upon the testimony of Greg 

Jarvey and Carmello Cozino, and that they were legally 

accountable for the theft of Kinkaid's car under the provisions 

of section 45-2-302, MCA. DWL contends that the State must 

first establish the corpus delecti of the theft with evidence 

independent of the extrajudicial admission of DWL and independent 

of evidence offered by those legally accountable. The State 

contends that there was independent evidence which tends to 

connect DWL with the theft of Kinkaid's car, and that 

Jarvey and Cozino were not legally accountable for the theft 

of Kinkaid's car. 

DWL was charged with, and found guilty of, the 

theft of Kinkaid's car, section 45-6-301(1)(a), MCA. The 

only element of the offense of theft disputed in the instant 

case is that of unauthorized control. Jarvey and Cozino 

both testified that DWL admitted to them that he stole the 

keys to Kinkaid's car. DWL told Jarvey and Cozino that he 

had stolen the keys to Kinkaid's car after he had actually 

taken the keys. 

Section 46-16-213, MCA, provides that: 

"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." 

In order to establish the crime of theft under section 

45-6-301(1)(a), MCA, the State was required to prove that 

DWL purposely or knowingly obtained or exerted unauthorized 

control over Kinkaid's car. All that section 46-16-213, 

MCA, requires is that other, independent evidence tends to 

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connect the defendant with the commission of the offense; 

this requirement was satisfied in the instant case. 

Officer Dull testified that when he stopped the vehicle 

DWL was driving, DWL gave a false name, and misspelled 

Kinkaid when questioned. This testimony was uncontradicted 

and it tends to directly connect DWL with the commission of 

the offense. Testimony of the two girls who rode with DWL 

also tends to connect DWL with the commission of the offense. 

The two girls testified that when they left a Great Falls 

establishment called The Fuse, DWL had the car parked in the 

parking lot. DWL was behind the wheel, started the car with 

the ignition key, and proceeded to drive the car. 

In accordance with section 46-16-213, MCA, the State 

did introduce evidence on the element of unauthorized 

control, independent of DWL's extrajudicial admissions, 

which tended to connect DWL with the commission of the 

offense of the theft of Kinkaid's car. The testimony of 

Jarvey and Cozino concerning Dm's admissions was properly 

admissible. 

The record contains sufficient independent evidence to 

support the district judge's ruling that Cozino's and Jarvey's 

testimony was admissible. That testimony, in conjunction 

with the independent corroborating evidence, could support a 

conviction in some cases. However, because of our determination 

that the testimony of Officer Dull and Officer Sinnott was 

inadmissible hearsay, we reverse DWL's conviction. The 

record does not show that the same result would have been 

reached by the court in this instance without the inadmissible 

hearsay. We find that the judge's ruling, allowing the 

testimony, so affected the substantial rights of DWL, Rule 

14, M.R.App.Civ. P., that it cannot be viewed as harmless 

error. 

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Reversed. 

Chief Justice 

We Concur: 

Justices