NO. 82-372 INTFIE SUPREME COURT OF THE STATE OF FlONTANA 1983

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsANTHONY MARTIN LAMERE, Defendant and Appellant.

Appeal from: DistrictCourt of theEighth JudicialDistrict, In and forthe County of Cascade, The Honorable H. William Coder, Judge presiding.

Counsel of Record: For Appellant: Marcia Birkenbuel, Great Falls, Montana

For Respondent: Bon. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Atty., Great Falls, Montana

Submitted on Briefs: December 16, 1982 Decided: February 3, 1983

Filed:

## FEB3

# -1983Nr. ChieiJusticeFrank I. Haswell delivered the Opinion of the Court. Anthony Martin LaMere was convicted by a jury in Cascade County, Montana, of burglary and felony theft. He

now appeaistheconviction. We affirm. On November 29, 1981, at approximately 5:30 a.m., Scheel's Hardware store inGreat Falls was burglarized and twenty-one handguns were stolen. Entrywas effectuatedby a

car which was driven through a large window of the store. lnvestigating police officers found the following evidence

near thepoint of entry: tiremarks on the sidewalk caused by vehicle acceleration, apieceof broken turn signallens, rubber molding in the brick of the building, and a yellow safety pole standing outside the building which had been scraped. From this evidence, police located 

### a suspect vehicle. By ma.tching the damage done to the store tothat of the car, they determined that the suspect vehicle was actually used to commit the crime. The car was owned by Leonard Dale Champagne. On December 4, 1981, Great Falls Police Detective Larry Kenman went to Champagne's residence and spoke with Tina Arguellowho was living there atthe 

### time. She stated thaton the evening inquestionChampagne had given the keys to the car toappellantwhile the two 

### were ata party. She further saidappellantleftthepartywithWilliamThumm. AlsoonDecember 4, 198l, Thumm was arrestedand questioned about the crimes. Originally denying any knowledge of theoffenses, he later statedthathe rode asa passenger in the car while appellant drove it through the window of the store. At that point, he said, appellant entered the store and returned with a pillowcase full of guns. Thumm

### was cndrged with burglary and telony thert. On December 7, 1981, Champagne came to the police statlor1and gave a statement toDetective Renman. He said that he ha3 given hiscar keys tothe appellant but had no now ledge of appellant's intentions. Hefurther statedthat

on the next day he received two handguns from appellant in lieuof damage tothe vehicle occasioned by the appellant's actions and he had a "good idea" thegunswere stolen. Appellant was arrested and charged with burglary and felony theft. He plead not guilty to the charges, and a jury trialwas schedules forApril 19, 1982. On April 16, 1982, in the presence of the appellant



### ana hls attorney, the State took Champagne's statement. Champagne said that he loaned the car to appellant but did not receive any guns. He then changed his storyand stated that he did receive two handguns aspayment for damage to hlscar. Champagne was not chargedwith any offenserelated tothecrimesorperjury. At trial the State presented testimony of Evelyn Komeotis who was living with Champagne atthe time of the burglary. She testifled that inthe earlymorning hours of the day of the 

### crimes the appellantcalled for Champagne and asked her if Champagne "wanted tomake some money." Further, she stated that after Champagne hung up the phone it rang again, he spoke to the caller and then left the residence. Komeotis also testified that on the afternoon after the burglary, whlle she was in bed, she thought she heard the appellantwithChampagne inanouter room and thatChampagne had two handguns with him. For some unknown reason, Champagne entered Komeotis's bedroom and held one of thepistols toher head. TinaArguello testlfled thaton the evenlng before the burglary shehad been very intoxicated. She statedthatshe lled when she told Detective Kenman she saw Champagne give his car keys to appellant and that she in fact could not remember what had happened thatevening. She indicated that Champagne had asked her to give a false statement to keep hlrn outof trouble. William Thumm also testified on behalf of the State. 

### In essence his testimony was consistent with the statement he gavepolice. Appellantwas convicted of burglary and felony theft. Further, due to a prior felony conviction and inaccordance with section 46-18-501(2), MCA, the State moved that the appellant be classified as a persistent felonyoffender. A hearing was held on June 11, 1982. The State presented testimony of Cascade County Deputy Sheriff Laurie Carrette who testrfied that two fingerprint cards 

### were located in appellant's file in her office and each card represented a separate arrest of the appellant. Further, she indicated that such records are kept in the ordinary course of business. Detective Kenman also testified for the State that the two cards represented separate arrests of the appellant and that the appellant was the individual identified on both cards. Patrick Ryan testified that he

was a probation and parole officer for the State of Montana and he supervised the appellant when he served a suspended sentence for felony theft on probation from 1977 to 1980. The court also took judicial notice of the fact that appellant signed and filed the following petition in the

### court: "Now comes a document for the defendant, TONY 

### M. LAMERE, from the Montana State Parole to summons patroi officer PatRyan to uphold his duty and to witness at the defendant's, TONY 114. 

### LAMERE hearing that his last felony due to his own guilty plea was a suspended sentence and was completed onNovember 10, 1980." 'Thecourt granted themotion to classify the appellant as a persistent felonyoffender. The appellant was sentenced to ten years confinement in the Montana State Prison for the burglary and ten years for the felony theft. He was sentenced to an additional twenty-fiveyearspursuant to thepersistent felony offender designation. The sentences are to be served consecutiveiy. On appeal, appellant presents three issues: 1. 

### Was Leonard Champagne an accomplice of appellant, thus requiring the State to corroboratehis testimony? 2. 

### If Champagne was accountable for appellant's offenses, was his testimony and that of Thumm sufficiently corroborated? 3. 

### Did the trial court err in its designation of the appellant as apersistent felony offender where the evidence of 

### the prior conviction consisted of hearsay testimony presented by appellant's probation officer? Appellant first contends that Champagne was legally accountable for the offenses he committed. Section 45-2- 

### 302,

### MCA, defines when accountability exists. It reads in part: "A

### person is legally accountable for the conduct of another when: 

### "(I) having a mental state described by the statute defining the offense, he causes another to perform the conduct, regardless of the legal capacity ormental stateof theother person;

"(3)either before or during the commission of an offense with the purpose to promote or facilitatesuchcomn~ission,he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. 11 

# ... Here there 

### is no evidence that Champagne had any knowledge or involvement with the appellant's actions. Indeed, Champagne admitted he atleasthad a "good iuea" the guns he received were stolen, but he did not know what the appellant was planning to do with his car when he relinquished it. Thus, he did not cause the appellant tocommit the crimes nor did he aid or abet the appellant to facilitatecommissionof thecrimes. 

### We recognize there was some testimony presented that may indicate Champagne had prior knowledge of the crimes. However, there 

### is substantial evidence upon which to conclude that Champagne was not responsible for theactsof the appellant. It also appears that the appellant 

### is asserting Champagne is legally accountable for his 

### crimes under the definition of "obtains or exerts control," required by the theft statute. Section 45-2-101(39), MCA, defines "obtains" and "exerts control" and includes possession as a method by which this requirement can be 

### met. Consequently, since appellant was charged and convicted of theft under section 45-6-301(1)(a), MCA, which in essence is knowingly obtaining or exerting unauthorized control over property of theowner todeprive saidowner of hisproperty, Champagne's

merepossessionof the stolenproperty fallswithinthe same

### statutory subsectionof theft. This is not a correct reading of the statute. The tneft statute defines four ways the crime can be committed. Appellant was convicted of theft under section 45-6- 301(l)(a), MCA,which contemplates actual taking. Champagne,

on the other hand, could only be convicted of theft under section 45-6-301(3)(c), MCA, which is essentially possession of stolenproperty. This subsection states: 

### "(3) 

### A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and:

"(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property." These 

### are statutorily distinct crimes. Possession of stolen property under section 45-6-301,MCA, supplants the old possessory statute, section 94-2721, R.C.M. 1947. All theftrelated offenses are described in section 45-6-301, MCA. 

### However,commission of one of the offenses doesnot make one responsible for all other crimes outlined in the statute. In support of his contention that Champagne's possession of stolen property makes him accountable, appellant cites State v. Standley (1978), 179 Mont. 153, 586 

### P.2d 1075. 

### The cases are clearly distinguishable. In Standley

we held that one of the State's witnesses was an accomplice whose testimonymust be corroborated. However, thedefendant was charged with possession of stolen property, 

### - not theft. The State's witness could have been charged with the same crime since he was knowingly holding stolen property, which he eventually appropriated for his own use.

### Pinaliy, in State v. 

### Wirtanen (1965), 146 Mont. 268, 

### 406 P.2d 376, this Court specifically held that a thief could not be an accomplice of a receiver of stolenproperty. State v. Mercer (1943), 114 Mont. 142, 133 P.2d 358; State



### v. Keays (19341,97 Mont. 404, 

### 34 P.2d 855. In coming to this conclusion, we determined that the rulewas predicated

on the separate offense theorywhich states that larceny and receiving stolen property are separateand distinct crimes. Secondly, appellant contends that the testimony of Champagne and Thumm,who he asserts are accomplices,was not corroborated. Section 46-16-213,MCA, reads: "A conviction cannotbe 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 itmerely shows the commission of the offense or the circumstances thereof." In addition, there is 

### a wealth of case law which enunciates principles best summarized in State v. Kemp (1979) I 

### Mont

# . , 597 P.2d 96, 99, 36 St.Rep. 1215, 1218, and recently recited in State v. Forsyth (1982), Mont. 

## , 642P.2d 1035, 1038-1039, 39 St.Kep. 540, 544: 

# ".

.

# . First of all, the sufficiency of such evidence is aquestion of law. [Kemp citation omitted.] To be sufficient, it must show more than that a crime was in fact committed or the circumstances of its commission. Itmust raise more than the suspicion of thedefendant's involvement or opportunity to commit the crime charged. But the evidence need not be sufficient by itself to support the defendant's conviction or even to make out 

### a prima facie case against him. It may be circumstantial and can come from the defendant or his witnesses. [Kempcitation omitted.] Under section 46-16- 213, MCA, 

### it must be evidence which in itself and without the aid of the 

### testimony of the one responsible or legally accountable for the same offensetends to connect thedefendant with thecommission of theoffense." Sincewe have determined thatChampagne isnot responsible for appellant's crimes, his testimony need not be corroborated. Furthermore, we believe the testimony of Thumm, who was clearly an accomplice, was sufficiently corroborated. Essentially, 'I'hurnm testified that (1)he was at 

### a party with the appellant prior to the burglary and theft; (2)he leftwith appellant inChampagne's car and appellant

was driving; (3) they both went to Scheel's Hardware; (4) appellant drove the car through a window of the store; (5) appellant left the car and entered the store; (6)appellant returned with a bagful1 of handguns; and (7) they both returned tothe party. The following evidence tends to connect the appellant with the 

### crime, thus providing adequate corroboration of Thumm'

### s testlmony. Champagne testified that both appellant and Thumm were attheparty. Carmen Komeotis testifiedthat appellant was attheparty. Champagne also stated that he lenthiscar toappellant. Furthermore, thedamage done to the car matched the damage done to tne store and physical evldence found at the scene of the crime was sufficiently connected tothe vehicle. Thiswas supported by the testimony of Detective Larry Renman. Detective Renman also testified that he believed the car was rammed into the window so appellant could gain entry to the store. Evelyn Komeotis testified that she heard appellant in her home theday aiter tile crimes were coininitted, and Champagne had two handguns which he indicatedwere fruitsof the crime, given in payment for damage to his vehicle. Finally, Champagne testified thathe had a "good idea" thegunswere stolenand fromwhere theywere stolen. Thirdly, the appellant asserts that the testimony of Patrick L. Ryan, probation and parole officer for the State of Montana, regarding appellant's prior conviction was hearsay and thus not competent proof of suchconvictions. InStatev. Cooper (1971), 158Mont. 102, 489 P.2d 99, thisCourt held thatinorder topresentevidence of aprior conviction in a sentencing proceeding there must be competentproof that the defendant in fact suffered the prior conviction. Moreover, theMontana Rules of Evidence exempt sentencing proceedings from evidentiary constraints. Rule 101(c)(3),Mont.R.Evid. Persistentfelonyoffender hearings

are part of the sentencing proceeding. Policy for this 

### is sound, as the court wants to examine complete historical data and potential of the defendant before 

### it pronounces sentence. The testimony of Ryan, al.thougharguably hearsay, was properly admitted during the persistent felony offender hearing pursuant toRule 101(c) (3) of the Montana Rules of Evidence. Furthermore, it was competent proof that the appellant was the same individual who was convicted of the prior felony. Ryan testified thathe supervised one Anthony Martin LaMere when he served a suspended sentence on probation for a felony theft committed in 1977. He further testified that the sameperson is the individual convicted 

### of the Scheel's burglary and theft.Affirrned. 

# spc~y$?@~(q Chief Justice

, Z We concur:

I U i 

## / Justices 

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