NO. 91-085 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Randi M. Hood, Public Defender's Office, Helena, 

Montana 

For Respondent: 

Hon. MarcRacicot, Attorney General, Helena, Montana 

John Paulson, Assistant Attorney General, Helena, 

Montana 

Mike McGrath, Lewis and Clark County Attorney, 

Helena, Montana 

Filed: 

Submitted on Briefs: May 23, 1991 

Decided: June 18, 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

~ichael James Koontz appeals from the December 11, 1990, 

verdict of a jury sitting in the District Court of the First 

Judicial ~istrict, ~ewis and Clark County, Montana, finding him 

guilty of robbery by accountability, a felony, in violation of $5 

45-2-302 and 45-5-401(1)(b), MCA. We affirm. 

The issue is whether sufficient evidence corroborates the 

testimony of defendant's alleged accomplice in the robbery of a 

convenience store for the jury to find defendant guilty of robbery 

by accountability. 

I 

On February 24, 1990 at approximately 6:00 p.m., Broadwater 

Market in Helena, Montana, was robbed by Eddi Jo Howard. Howard 

entered the market, pointed a gun at the clerk, and demanded money. 

According to the testimony of the store clerk, she was dressed in 

a white coat and had a pair of nylon pantyhose on her head, but not 

pulled down over her face. After the clerk handed over all the 

money in the cash drawer, Howard told him to check underneath the 

food stamps for more cash. No money was under the food stamps, and 

Howard then instructed the clerk to give her all the money 

underneath the till. The clerk took the checks from under the till 

and spread them out to show Howard that no bills were among them. 

When he looked up, Howard was already out the door. 

The clerk caught a glimpse of a blue car with a white top, 

which he thought was perhaps a Chevrolet Monte Carlo, leaving the 

market's parking lot at a high rate of speed, but could not see who 

2 
was driving or how many people were in the car. 

At approximately 8:00 the same evening, Helena Police 

Department officers stopped a car matching the description given 

by the convenience store clerk. Defendant was a passenger in the 

car driven by Howard, who consented to a search of the car by 

police officers. When officers found nothing pertaining to the 

robbery in the car, including the trunk of the car, Howard and 

defendant were released. 

Howard continued working at her regular job in Helena for the 

next two months before leaving the city in April 1990 to visit her 

mother in Tacoma, Washington. 

In July 1990, defendant was detained by officers of the 

Federal Bureau of Investigation in Denver, Colorado. He gave 

F.B.I. agents a statement implicating Howard in the Broadwater 

Market robbery. Because of the information defendant had provided 

to the F.B.I., law enforcement officers arrested Howard on August 

10, 1990, in Tacoma. 

Howard pled guilty to robbery and was sentenced to fifteen 

years with ten years suspended plus a sentence enhancement of two 

years for use of a weapon. A condition of Howard's sentence was 

that she testify against defendant. 

Since defendant's statement to the F. B. I. and testimony of the 

principal witnesses are crucial evidence, we briefly summarize each 

witness' version of events surrounding the robbery. 

Defendant's Statement to F.B.I. Officers 

The F.B.I. report, admitted into evidence at trial, contained 

defendant s freely given statement that he was driving Howard1 s 

3 
car when the robbery was committed. According to defendant, Howard 

had asked him to go for a ride in her car. On their way out of 

town, Howard asked him to stop at Broadwater Market because she 

wanted to buy some cigarettes. Howard went into the store and came 

out in less than a minute, saying that her father, with whom she 

was on unfriendly terms, was in the store and that she wanted to 

go home, change her clothes, and go out for the evening. 

Defendant drove Howard to her home, where she changed her 

clothes while defendant waited in the car. They then went to the 

Gold Bar and played gambling machines. After leaving the Gold Bar, 

on their way to another bar, Howard and defendant were stopped by 

police who searched Howard's car. Finding nothing in the car, 

police released the couple. As the couple continued on their way 

to GinnyTs Casino, defendant began to question Howard about whether 

she had robbed Broadwater Market. Howard at first denied having 

committed the robbery. But after retrieving a revolver from the 

trunk of her car, Howard admitted that she had robbed Broadway 

Market. 

Defendant and Howard then went into Ginnyfs Casino where 

Howard gave defendant $50 for gambling while she gambled away four 

or five times that amount. After defendant left Ginnyrs Casino 

without Howard, he went to the residence of his girlfriend, Hannah 

Gibson, and told her that Howard had robbed Broadwater Market. He 

left the next day with Gibson to visit her children in Denver. 

Howard's Testimony 

Howard's account of the robbery differed markedly from 

defendant's statement. Howard said that she was depressed and 
contemplating suicide because of $800 worth of bad checks she had 

written to cover gambling debts. On the afternoon of the robbery, 

Howard and defendant had been drinking for three or four hours at 

a local bar when he suggested, to solve her financial difficulties, 

robbing a convenience store on the west side of town because no 

stores had been robbed in that area of Helena. Defendant 

instructed Howard to disguise herself by pulling a nylon down over 

her face, which she forgot to do while she was committing the 

robbery. In addition, defendant suggested that Howard order the 

convenience store clerk to lie down on the floor. 

Defendant drove Howard to Broadwater Market, and she went 

inside to buy a pack of cigarettes. After leaving the market, 

Howard cut the legs from a pair of pantyhose that she had in the 

car. She had hidden a .44 caliber handgun in the car under the 

seat. Defendant again drove Howard to Broadwater Market and waited 

outside while she robbed the store. 

After leaving the parking lot of Broadwater Market, Howard 

gave defendant $100 of the $405 she recovered in the robbery. 

Defendant directed Howard to dispose of her coat and change her 

clothes in order that she not be recognized. Howard threw out her 

pantyhose, and defendant drove Howard to her residence where she 

left the gun and changed her clothes. After throwing Howard's coat 

into a garbage container outside a restaurant, Howard and defendant 

went to the Gold Bar. In the Gold Bar, Howard gave defendant some 

more of the stolen money for gambling and in less than half an hour 

Howard gambled away the remainder of the money she had stolen. 

After Howard and defendant left the Gold Bar, around 8: 00 

5 
p.m., they were stopped by police. By this time, Howard had 

disposed of the pantyhose, the gun, her clothes, and the money. 

After being released by police, she and defendant drove to Ginnyis 

Casino. Howard did not have further contact with defendant after 

he left the casino. 

Hannah Gibson, defendant's girlfriend, appeared as a witness 

for the State and testified that she had seen both Howard and 

defendant, who were talking about being stopped by police, in 

Ginny's Casino on the night of the robbery. 

About a week later defendant described to Gibson his 

involvement in the robbery. Defendant told Gibson that he and 

Howard were in a bar on the afternoon of February 24, 1990, and 

that Howard was planning to commit a robbery with a gun she had. 

Defendant declined Howard's request to help her with the robbery 

and saw Howard leave by the back door of the bar. When Howard came 

back to the bar with the money, defendant threatened to call police 

unless Howard gave him some of the money. Gibson did not know 

whether or not Howard had given defendant any of the money. 

After the State rested, defendant moved to dismiss the charge 

of robbery by accountability against defendant on the ground that 

the State had not presented a prima facie case. Defendant argued 

that the State, as required by statute, had not introduced evidence 

corroborating Howard's testimony and showing that defendant had 

aided Howard before or during commission of the robbery. The court 

denied the motion. 

The defense had earlier stipulated that defendant's statement 

6 
to F. B. I. officers would be admitted into evidence if the defendant 

did not testify. When defendant decided not to take the stand, the 

District Court allowed the State to reopen its case and enter the 

F.B.I. report into evidence. After deliberating for approximately 

three hours, the jury returned a guilty verdict. 

The District Court sentenced defendant to thirty years in 

prison for robbery by accountability. 

Defendant contends that corroboration of Howard's testimony, 

as required by 5 46-16-213, MCA, was insufficient to support the 

jury's verdict that he was guilty of robbery by accountability. 

In deciding whether a person is legally accountable for an 

offense committed by another, a jury cannot rely exclusively on the 

testimony of an alleged accomplice because without corroborative 

evidence an innocent person may be convicted by the " 'testimony of 

one with a strong motive for seeing that such conviction 

occurred. IT State v. Conrad (1990), 241 Mont. 1, 5, 785 P.2d 185, 

187 (citing State v. Warren (l98l), 192 Mont. 436, 439, 628 P.2d 

By statute, the testimony of an alleged accomplice must be 

corroborated by independent evidence: 

A conviction cannot be had on the testimony of one 

responsible or legally accountable for the same offense, . . . 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. 

Section 46-16-213, MCA, To summarize, the statute sets out three 
requirements for corroborative evidence, which must: (1) be 

independent; (2) tend to connect the defendant with the commission 

of the offense; and (3) show more than the commission of an offense 

or the circumstances under which the offense was committed. 

Other criteria for evaluating evidence corroborating an 

alleged accomplice's testimony have been established by case law. 

Corroborative evidence must raise more than a suspicion that 

defendant was involved in, or had an opportunity to commit, the 

crime. State V. Warren (1981), 192 Mont. 436, 441, 628 P.2d 292, 

295. Corroborative evidence, in and of itself, need not be 

sufficient to make out a prima facie case against defendant and 

need not extend to every fact to which the alleged accomplice 

testifies. State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 

P.2d 439, 441-42. Corroborative evidence may be circumstantial and 

may come from the defendant or his witnesses. Kaczmarek, 243 Mont. 

at 460, 795 P.2d at 441. 

Since the jury must decide the factual question of whether 

corroborative evidence of an alleged accomplice's testimony is 

sufficient for a conviction, we apply the sufficiency of the 

evidence test. State v. Downing (1989), 240 Mont. 215, 217, 783 

P.2d 412, 414. This Court, after viewing the evidence in the light 

most favorable to the prosecution, must decide whether any rational 

trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. Downinq, 240 Mont. at 217, 783 P.2d at 

414. 

Commission of a crime by accountability consists of four 

elements. Defendant is legally accountable for the conduct of 

8 
another when (1) either before or during (2) the commission of an 

offense (3) with the purpose to promote or facilitate such 

commission (4) defendant solicits, aids, abets, agrees, or attempts 

to aid such other person in the planning or commission of the 

crime. Section 45-2-302(3), MCA; Downinq, 240 Mont. at 217, 783 

P.2d at 414. 

We now turn to the facts of this case to determine whether 

sufficient evidence corroborated Howard's testimony. First, Howard 

testified that while she and defendant were drinking in a bar two 

or three hours before the robbery, defendant advanced the idea of 

robbing a convenience store on the west side of Helena and helped 

plan the robbery. Defendant's admission to Hannah Gibson that he 

was in a bar with Howard prior to the robbery and that Howard had 

a gun and planned to commit a robbery tends to corroborate Howard's 

testimony. 

Second, defendant admitted that he was driving the car at the 

time of the robbery. As we noted in State v. Case (1980), 190 

Mont. 450, 454-55, 621 P.2d 1066, 1069, "the ensuing flight is 

considered part and parcel of a robbery until such time as the 

criminal purpose, including carrying away of the spoils of the 

crime, is completed. " Defendant's statements to the F. B. I. are 

independent corroboration that he drove the get-away car which 

constituted part of the crime. 

Although defendant claimed in his statement that he had no 

knowledge before or during the robbery of the crime being 

committed, defendant's version of events makes his claim 

questionable. Defendant stated in the F.B.I. report that after 

9 
Howard requested him to stop at Broadwater Market for cigarettes, 

Howard entered the store and I1came out of the market in less than 

a rninute.I1 ~ccording to defendant, approximately two hours after 

leaving Broadwater Market and after the police had searched 

Howard's car, he first learned of the robbery when Howard 

"retrieved a gun from the trunk of the vehicle." 

The jury had cause to doubt defendant's assertion that he had 

no knowledge that Howard was committing a robbery while he waited 

outside Broadwater Market. Defendant did not explain how Howard, 

without defendant's knowledge, could have exited the car with a gun 

which Howard said was hidden under the front seat- Nor does he 

reveal how Howard could have forced the store clerk to turn over 

the money, concealed the money, as well as the pantyhose, and 

deposited the gun in the trunk of the car without defendant's 

noticing, all in "less than a minute. Finally, defendant does not 

explain why police failed to find the gun in the car trunk, even 

though, as a police officer testified, the officers searched the 

trunk of the car carefully. 

In addition to acknowledging that he had driven the get-away 

vehicle and that he knew at some point of the robbery, defendant 

admitted to the F.B.I. that he had taken Howard to her residence 

to change clothes. While he waited in the car, Howard "was in the 

house less than three minutes.It Defendant also admitted that he 

had taken money from Howard after the robbery. These statements 

corroborate Howard's testimony about the events which occurred 

after the robbery. 

Lastly, police discovered defendant and Howard in a car 

10 
matching the description of the vehicle seen at the scene of the 

robbery less than two hours after the robbery. Independent 

evidence "tends to connect the defendant with the commission of the 

~ffense,~' and shows more than the mere "commission of the offense 

or the circumstances thereof." We hold that the evidence was 

sufficient for the jury to conclude that defendant was guilty of 

robbery by accountability. 

Affirmed . 
June 18, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the foolowing orders were sent by United States mail, 

prepaid, to the following named: 

Randi M. Hood 

Attorney at Law 

22 8 Broadway, Courthouse 

Helena, MT 59601 

Hon. Marc Racicot, Attorney General 

,Assistant 

Justice Bu?lding 

Helena, MT 59620 $@''lr& 

Mike McGrath 

County Attorney 

County Courthouse 

Helena, MT 59601 

ED SMITH 

CLERK OF VHE SUPREME COURT 

STATE OF MONTANA