No. 14992 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INTHE MATTER OF D. W. L., a Youth.

Appeal from: DistrictCourt of the Eighth JudicialDistrict, 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,

GreatFalls, Montana

Submitted: April 15, 1980 Decided: 

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Filed: 

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ClerkMr. 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 delinquentyouth. On May 18, 1979,while on routinepatrol, Officer Robert Dull observed a blue Mercury car run a red light at the intersectionof CentralAvenue 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 itwas registered to Tennison B. Kinkaid. Officer Dull then brought the driver to the police station where he was identified as DWL, aminor 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 stolenproperty report at that time. Subsequently,Officer Edward Sinnottwas dispatched to Kinkaid's residence to pick up the stolen property report. On May 29, 1979, the Cascade CountyAttorney initiated proceedings under Montana's Youth CourtAct, section 41-5- 101,et seq., MCA, to have DWL declared a delinquent youth. Thepetition alleged that DWLhad 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 appearedbefore the Cascade County Youth Court and denied the offense alleged in the petitiosDWLwas released to his mother's custody. -2-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 DWLwhen 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 thatwhen 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 ignitionkey 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, DWLmoved to dismiss the petition on the grounds of insufficientevidence. 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 delinquentyouth. 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 convictionwas improperlybased upon thetestimony of other individualswho were legally accountable for the alleged offense. -3-DWL's first specification of error is that the testimony given by Officer Dull and Officer Sinnott concerning a stolenproperty 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 stolenproperty report concerning theblue Mercury car. The State contends that Officer Dull's testimonywas offered only to show that Kinkaid did sign the stolenproperty 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 onemade by the declarantwhile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See State v. Newman (1973),162Mont. 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 reportwas 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 stolenproperty 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 thematter asserted. Officer Dull's testimony constitutedhearsay evidence. -4-Under Rule 802,M.R.Evid., hearsay is not admissible unless an exception to the hearsay rule exists. However, in the instant casewe find no applicable exception to the hearsay rule. Therefore,we find that Officer Dull's testimony thathe observed Kinkaid sign a stolenproperty report constitutes inadmissiblehearsay 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 showDm'sunauthorized 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 otherpurpose for the State introducing this evidence. Unless the testimony

was to show that a thefthad been committed, the mere fact that Officer Sinnottwent 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 actionmore 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 concerningpicking up "a signed stolen report"

was introduced only to prove the truth of the matter asserted, and was inadmissiblehearsay.



## -5-DWL's second specification of error is that his convictionwas improperlybased 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 theftwith evidence independentof the extrajudicial admission of DWL and independent of evidence offered by those legally accountable. The State contends that therewas 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. DWLwas chargedwith, 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 thathe 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: "Aconviction cannotbe had on the testimony of one responsible or legally accountable for the sameoffense, 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 defendantwith the commission of the offense. The corroboration is not sufficient if itmerely 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 DWLpurposely 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 -6-connect the defendantwith the commission of the offense; this requirementwas satisfied in the instant case. Officer Dull testified that when he stopped the vehicle DWLwas driving,DWL gave a false name, and misspelled Kinkaid when questioned. This testimonywas uncontradicted and it tends to directly connectDWLwith the commission of the offense. Testimony of the two girls who rodewith DWL also tends to connect DWL with the commissionof the offense. The two girls testified that when they left a Great Falls establishmentcalled The Fuse,DWL had the car parked in the parking lot. DWLwas behind the wheel, started the car with the ignitionkey, and proceeded to drive the car. In accordancewith 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 connectDWLwith the commissionof 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 testimonywas 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 Sinnottwas inadmissiblehearsay,we reverse DWL's conviction. The record does not show that the same result would have been reached by the court in this instancewithout 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 cannotbe viewed as harmless

error. -7-Reversed.

Chief Justice

We Concur:

Justices