No. 89-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCHARLES M. GRAVES, 

Defendant and Appellant. 

-7 8. :1 - 

-- 

: 1 : I-$ 

1 .: , . C J CL3 r: -. L3 

APPEAL FROM: District Court of the Eighth Judicial ~is&ict, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Barbara E. Bell; Bell & Marra, Great Falls, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney; J. Kim Schulke, 

Deputy, Great Falls, Montana 

Filed: 

Submitted on Briefs: Jan. 25, 1990 

Decided: March 2, 1990 

e 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

A jury empaneled in the District Court of the Eighth Judicial 

District, Cascade County, found Charles M. Graves, defendant, 

guilty on two counts of burglary in violation of 5 45-6-204(1), 

MCA, one count of theft in violation of 5 45-6-301, MCA, and one 

count of attempt in violation of 5 45-4-103, MCA. The District 

Court sentenced defendant to 15 years in the Montana State Prison 

on each count of burglary, 10 years on the theft count and 6 months 

on the attempt count. All sentences were to run concurrently. 

The court suspended five years on each burglary count and 6 months 

on the attempt count subject to conditions. Defendant was 

designated a persistent felony offender under 5 46-18-501, MCA, and 

sentenced to 10 additional years under the designation in 

accordance with 5 46-18-502, MCA, to run consecutively with prior 

sentences imposed. Under 5 46-18-404, MCA, defendant was 

designated a nondangerous offender for the purposes of parole 

eligibility and was given credit for time served. Defendant 

appeals. 

Affirmed. 

The issues raised on appeal are: 

1. Whether the District Court erred in denying defendant's 

motion for a directed verdict of acquittal. 

2. Whether the District Court erred in denying defendant's 

motion for a mistrial. 

3. Whether the District Court erred in denying defendant's 

motion for a separate trial. 

2 
4. Whether defendant was afforded effective assistance of 

counsel. 

5. Whether defendant's sentence was improperly enhanced under 

the persistent felony offender statute. 

On December 16, 1988, defendant was charged by information 

with two counts of burglary in violation of 5 45-6-204 (I), MCA, one 

count of theft in violation of 5 45-6-301, MCA, and one count of 

attempt in violation of 5 45-4-103, MCA. The information was once 

amended on March 16, 1989. Daniel E. Radi, co-defendant, was 

similarly charged. 

Counsel was appointed for defendant. On March 21, 1989, 

defendant's counsel filed a motion for separate trials. A similar 

motion had been previously filed by defendant, pro se. A hearing 

was conducted on the motion on March 24, 1989. The motion was 

denied and defendant was tried jointly with Radi on March 27, 1989. 

Defendant moved for a directed verdict of acquittal at the 

conclusion of the State's evidence upon the contention that the 

evidence was insufficient. When the motion was denied, counsel for 

Radi gave his opening statement, which had been earlier reserved. 

Radi did not testify. Portions of the assertions presented in the 

opening were unsupported by evidence. Subsequently, defendant 

moved for a mistrial upon the contention that he had been 

implicated by Radi's opening statement. The motion was denied. 

The first issue raised on appeal is whether the District Court 

erred in denying defendant's motion for a directed verdict of 

acquittal upon conclusion of the State's case. Defendant made the 
motion upon the contention that the evidence tying defendant to the 

burglaries in question was insufficient in one instance and 

nonexistant in another. We disagree. 

Section 46-16-403, MCA, provides in part: 

When, at the close of the state's evidence . . . the 

evidence is insufficient to support a finding or verdict 

of guilty, the court may, on its own motion or on the 

motion of the defendant, dismiss the action and discharge 

the defendant. (Emphasis ours.) 

The decision of whether or not to dismiss a charge at this 

stage lies within the sound discretion of the trial court and will 

not be disturbed absent an abuse of that discretion. See State v. 

Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085. Moreover, 

a directed verdict of acquittal may only be granted in instances 

where no evidence exists to support a guilty verdict. State v. 

Courville (Mont. 1989), 769 P.2d 44, 47, 46 St.Rep. 338, 342; State 

v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 974. 

The State submitted, as evidence, the testimony of several 

witnesses and introduced numerous exhibits. Witnesses for the 

State included the first burglary victim, Arvin Otter; Officer 

Michael Stimac; store clerk, Gerald Byington; Detective James 

Olson; and the second burglary victim, Demaris Renville. 

Arvin Otter testified that on December 11, 1988, at 

approximately 8:00 p.m., he and Janet Krantz were returning to 

their residence at 1401 Tenth Avenue Northwest when they observed 

a yellow vehicle in their driveway. As the couple approached, two 

men drove away in the vehicle. They observed that their garage 

door, which had been closed and locked when they left their house, 
was open. The garage door and the door frame were broken. They 

also observed a muddy footprint on the door. In their absence, the 

kitchen light had been turned on, the master bedroom doors opened, 

and contents in a closet disturbed. Nothing had been taken. 

Otter further testified that, while Krantz called the police, 

he followed the yellow vehicle to a nearby convenience store where 

he recorded the license plate number of the vehicle on the back of 

his hand. He observed the occupants of the yellow vehicle at that 

time. A white male, later identified as Radi, pumped gasoline into 

the vehicle while a black male, later identified as the defendant, 

entered the store. Otter then returned to his residence. 

Police Officer Michael Stimac testified that he responded to 

the call from the Otter residence on the night in question. Otter 

told him that the suspects had been observed by Otter at a nearby 

convenience store. Otter relayed the license plate number that he 

earlier recorded to the officer. Officer Stimac called in the 

number and vehicle description to the police dispatcher, who 

broadcast the information. 

Officer Stimac testified that he went to the convenience store 

where he spoke with the store clerk, Gerald Byington. Byington 

told the officer that, less than ten minutes before the officer 

arrived, two men in a yellow vehicle had purchased gasoline. 

Byington also testified to that effect as well as to the fact that 

defendant paid for the gasoline partially with rare coined money. 

Byington identified defendant at trial as the black male in the 

yellow vehicle who had purchased the gasoline. 
Shortly thereafter, the yellow vehicle was stopped by the 

police. Officer Stimac drove to the scene of the stop. He 

testified that at that time he observed that the pattern on the 

sole of Radi's shoe was similar to the footprint on Otter's garage 

door. Detective Jim Olson testified, as an expert, that the 

footprint was indeed made by the same type of shoe Radi wore that 

evening. Defendant and Radi were then placed under arrest. 

Detective Timothy Shanks testified that Radi made post-arrest 

statements to him in which Radi stated that defendant had been 

present when Radi kicked in the door of the Otter residence. 

At approximately 10:OO p.m. the same evening, the police 

received a report of another burglary. Demaris Renville testified 

that, when she and her husband returned to their residence at 101 

Sixteenth Avenue Northwest that evening, they observed that their 

door was open, the door frame was broken and a muddy footprint was 

on the door. Detective Olson testified that the footprint was also 

made by the same type of shoe Radi wore that evening. Renville 

further testified that several documents and her son's coin 

collection were missing. A search of the yellow vehicle that 

defendant and Radi were arrested in revealed the coin collection. 

Detective Shanks also testified that Radi made a post-arrest 

statement to him in which Radi said that he found the coins on the 

frozen river. 

As noted, a directed verdict of acquittal is proper only when 

- no evidence exists to support a guilty verdict. Courville, 769 

P.2d at 47. In light of the above evidence presented by the State, 
we cannot say that no evidence existed to support a guilty verdict 

at the close of the State's case. There was no error. 

The second issue raised on appeal is whether the District 

Court erred in denying defendant's motion for a mistrial. The 

motion was based on the opening statement of Radi's counsel that 

contained assertions implicating defendant, which were unsupported 

by evidence. 

Radi's counsel made an opening statement at the conclusion of 

the State's case which included the assertion that Radi kicked in 

Otter's garage door and that defendant and Radi were in possession 

of the stolen coins in question but only after finding them on the 

frozen river. ~adi's counsel called three witnesses--two of the 

witnesses stated that defendant and Radi were with them until 

approximately 6:30 p.m. on the day of the burglaries. One of the 

witnesses stated that nothing had been taken from the Otter 

residence. Radi did not testify. No testimony was given concerning 

the assertions set forth in the opening statement. Defendant 

argues that Radi's opening statement, therefore, prejudiced his 

case. 

However, the court instructed the jury as follows: 

Opening statements by attorneys are not evidence. 

Anything said by an attorney and not substantiated by the 

evidence is to be totally disregarded by the jury. 

See State v. Kolstad (1975), 166 Mont. 185, 531 P.2d 1346, where 

we upheld such a cautionary instruction. 

A motion for a mistrial is left to the discretion of the trial 

court and will not be disturbed absent a showing of abuse of that 

7 
discretion. Here, the jury was properly instructed to ignore 

counsel's comments when unsupported by evidence. This Court cannot 

assume that the jury ignored the instruction. There was no abuse 

of discretion. 

The third issue raised on appeal is whether the District Court 

erred in denying defendant's motion for a separate trial. 

Defendant made the motion based on post-arrest statements that Radi 

made to Detective Shank which defendant believed would prejudice 

his case. Specifically, defendant complains of the statement that 

Radi made to Detective Shanks, an officer investigating the 

burglaries, that Radi and defendant found the coins on the frozen 

river and that defendant had been present when Radi kicked in the 

door of the Otter residence. Detective Shanks was expected to 

testify to the statements and did indeed so similarily testify as 

discussed previously. 

Section 46-11-404(4), MCA, provides: 

If it appears that a defendant or the state is prejudiced 

by a joinder of related prosecutions or defendants in a 

single charge or by joinder of separate charges or 

defendants for trial, the court may order separate trials . . . (Emphasis ours.) 

Under the statute, it is within the trial court's discretion 

to grant or deny a motion for a separate trial. See State v. 

Strain (1980), 190 Mont. 44, 55, 618 P.2d 331, 337; State v. 

Fitzpatrick (1977), 174 Mont. 174, 187, 569 P.2d 383, 392. In 

Strain, 618 P.2d at 338, we set forth the considerations in making 

such a determination: 

Joint trials speed the administration of criminal 

8 
justice, conserve judicial time, lessen the burden on 

prospective jurors and obviate the necessity of recalling 

witnesses . . . the trial court must weigh these benefits 

against the potential prejudice to a defendant which may 

arise as a result of his being tried with another 

defendant. 

While prejudice to the defendant may be inherent in joint 

trials, we cannot say, in this case, that defendant was so 

prejudiced as to warrant reversal. Here, both defendants were 

charged with primarily the same offenses for their acts arising 

from the same crimes--both were charged with one count of burglary 

and one count of attempt in association with the Otter residence; 

both were charged with one count of burglary and one count of theft 

in association with the Renville residence; and Radi was charged 

with criminal mischief in addition to his other offenses at the 

Otter residence. Further, here, as in Strain, the State needed the 

same witnesses to prove the charges against both defendants. Also, 

both defendants used the same story in their defense--that of 

finding the stolen coins on the frozen river. In light of the 

circumstances of the case as applied to the considerations set 

forth in Strain, we cannot say that the District Court abused its 

discretion in denying defendant's motion for a separate trial. 

The fourth issue raised on appeal is whether defendant was 

afforded effective assistance of counsel. 

Defendant asserts that, because trial counsel did not object 

to the rebuttal testimony of Detective Shanks regarding Radi's 

post-arrest statements to Shanks as discussed earlier, he was 

denied effective assistance. We disagree. 
In making a determination of effective assistance of counsel, 

this Court has adopted the test set forth in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

See State v. Boyer (1985), 215 Mont. 143, 695 P.2d 829. Under 

Strickland, the defendant must first show that counsells 

performance was deficient and, if so, defendant must then show that 

the deficient performance was of such a magnitude as to have 

deprived defendant of a fair trial. Thus, defendant must show 

that, "but for counselts unprofessional errors, the result of the 

proceeding would have been different." Strickland, 466 U.S. at 

Defendant has made no showing, other than an assertion of 

prejudice, that failure to make an objection to the rebuttal 

testimony of ~etective Shanks would have changed the outcome of the 

proceedings. Defendant's trial counsel was not constitutionally 

inadequate. 

The last issue raised on appeal is whether defendant's 

sentence was improperly enhanced under the persistent felony 

offender statute. 

A persistent felony offender is defined in 5 46-18-501, MCA, 

which provides: 

A "persistent felony offenderw is an offender who has 

previously been convicted of a felony and who is 

presently being sentenced for a second felony committed 

on a different occasion than the first. An offender is 

considered to have been previously convicted of a felony 

if: 

(1) the previous felony conviction was for an offense 

committed in this state or any other jurisdiction for 

which a sentence to a term of imprisonment in excess of 
1 year could have been imposed; 

(2) less than 5 years have elapsed between the 

commission of the present offense and either: 

(a) the previous felony conviction; or 

(b) the offender's release on parole or otherwise from 

prison or other commitment imposed as a result of the 

previous felony conviction. 

Here, defendant was previously convicted of mitigated 

deliberate homicide on February 19, 1980, and was paroled on that 

offense on October 9, 1985. Defendant was convicted of the 

offenses associated with the present appeal on March 29, 1989. 

Therefore, defendant met the definitional requirements of a 

persistent felony offender. Based on the designation, the District 

Court sentenced him to 10 additional years to be served 

consecutively with the sentences imposed on the convictions at 

issue in accordance with 5 46-18-502, MCA. There was no error. 

Affirmed. 

We Concur: 

&rap& Justices