NO. 94-083

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

v.

PETE GEORGE JOHNSTON,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jennifer Wendt Bordy, Attorney at Law,

Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg W. Coughlin, Assistant Attorney

General, Helena, Montana

Mike Salvagni, Gallatin County Attorney,

Marty Lambert, Deputy County Attorney,

Bozeman, Montana

Filed:

Submitted on Briefs: August 11, 1994

Decided: October 27, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant Pete George Johnston was charged and convicted in

the Eighteenth Judicial District Court, Gallatin County, of

accountability for burglary, in violation of 55 45-Z-302 and

45-6-204, MCA. Johnston was sentenced to ten years in prison with

all time suspended, based on certain conditions. Johnston appeals

from the conviction. We reverse.

The issues on appeal are:

1 . Did the District Court err when it admitted evidence of

a prior misdemeanor forgery conviction?

2. Is the evidence sufficient to support defendant's

conviction of accountability for burglary?

FACTUAL BACKGROUND

On May 29, 1993, at approximately 1:20 a.m., an individual

heard glass breaking at the First Lutheran Church in Bozeman and

notified the Bozeman Police Department. Police officers surrounded

the church and ordered anyone inside the church to come out.

Daniel Maggard emerged and was arrested for burglary at 2:02 a.m.

The officers sea:rched the church but did not find anyone else.

While searching Haggard, the officers found a vehicle key.

One and one-half hours after the burglary was reported and

forty minutes after Maggard's arrest, while continuing their search

for possible suspects, police officers heard a car horn and saw a

flash of light. Two police officers approached the car and

discovered Johnston sitting in the passenger seat with the lights

and motor off. Johnston would not emerge when asked to do so by

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the officers, and they had to open the car door and physically

remove him. The officers stated that Johnston smelled strongly of

alcohol and emerged from the car in his socks. The vehicle key

which Maqqard had been carrying fit this car's ignition. Johnston

was arrested at 2~48 a.m.

Officers later discovered that Maqqard had stolen some blank

checks from the First Lutheran Church, and charged him with

burglary. Johnston was charged by information on June 11, 1993,

with accountability for burglary in violation of 5s 45-2-302 and

45-6-204, MCA.

At trial, Johnston testified that he passed out in the car

when Maqqard was driving and was awakened by the police officers.

Johnston stated that he became cold in the car and attempted to

turn on the dome light to search for the key to turn the car on and

must have accidently sounded the horn.

On September 21, 1993, just nine days before trial, the State

provided notice pursuant to stateV.JUSt (1979), 184 Mont. 262, 602

P.2d 957, and Statev.Matt (1991), 249 Mont. 136, 814 P.2d 52, that it

would offer evidence of a prior conviction for misdemeanor forgery.

The State's ht notice stated that it would offer the

conviction for misdemeanor forgery for the following purposes:

1 . ----A Plan. The evidence is offered to show that

defendant has, in the past, planned to pass checks stolen

from Bozeman area churches with Maqqard. It was

defendant's plan to serve as a lookout for Maqqard when

he committed the burglary of the First Lutheran Church on

May 29, 1993.

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2 . Knowledse: The evidence is offered to prove

that defendant was aware Maggard was committing a

burglary of the First Lutheran Church on May 29, 1993

when defendant was first discovered in Maggard's car

parked near the church.

Johnston objects to the Just notice, for the following reasons:

1 . The State asserts in its Just notice that the evidence of

prior crimes is offered to show a plan that defendant had, in the

past, planned to pass stolen checks. It does not establish that he

planned to actually commit the burglaries with Maggard, nor that he

planned to act as a lookout for Maggard while Maggard committed the

burglaries.

2 . The State offers the evidence to prove defendant knew

that Maggard was burglarizing the First Lutheran Church. However,

"[t]he mere knowledge that a crime is about to be committed does

not make one an accomplice." State% Nordahl (1984), 208 Mont. 513,

517, 679 P.2d 241, 243 (citing Statev.Harvey (1979), 184 Mont. 423,

431, 603 P.2d 661, 666). Furthermore, "[m]ere presence at the

scene of the theft, or even failure to interfere with a theft which

someone is aware is taking place, is insufficient to hold one

accountable as a principal to the crime." State v. Hart (1981), 191

Mont. 375, 390, 625 P.2d 21, 29 (citing PeopIev.Durham (Cal. 1969),

449 P.2d 198). Thus, Johnston argues that even if he knew of the

crime, which he claims he did not, failure to prevent the crime is

insufficient to hold him accountable.

3 . Johnston states that the evidence does not meet the

modified Just reguirement that the other crimes or acts must be

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similar to the crime charged. He previously pled guilty to

misdemeanor forgery as a matter of convenience, and that offense is

not similar to felony burglary.

4 . Johnston asserts that the probative value of the evidence

is substantially outweighed by its prejudice. He pled guilty to

misdemeanor forgery because he was living in North Dakota at the

time and, for convenience, decided not to pursue the matter to

trial. The fact that he pled guilty, however, is extremely

prejudicial.

The State, on the other hand, argues that the District Court

did not abuse its discretion by admitting evidence of Johnston's

prior misdemeanor forgery conviction. The State argues that there

is a similarity between misdemeanor forgery and felony

accountability for burglary. The State claims that this Court has

held that a prior act need not be identical to the offense

committed, it must only be of sufficient similarity to warrant its

admission. State v. Ramstead (1990) , 243 Mont. 162, 167, 793 P.2d 802,

805; Statev.Randall (1989), 237 Mont. 271, 274, 772 P.2d 868, 870.

ISSUE 1

Did the District Court err when it admitted evidence of a

prior misdemeanor forgery conviction?

When we review whether a district court properly allowed

evidence of a prior conviction, we will uphold the district court

unless the district court abused its discretion. State v. Gollehon

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(1993) I 262 Mont. 293, 301, 864 P.2d 1257, 1263 (citing &?teV. &St

(1992) I 253 Mont. 442, 833 P.2d 1052).

To insure that prior crimes are not used to prove a bad

character, this Court has established a four-part test to determine

the admissibility of evidence of other crimes or acts in criminal

prosecutions. kfatt, 814 P.2d at 56. The four elements of that test

are: (1) the other crimes, wrongs, or acts must be similar: (2) the

other crimes, wrongs, or acts must not be remote in time: (3) the

evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show that he acted in

conformity with such character: but may be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident; (4) although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusing the issues, misleading of the jury,

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence. kktt. 814 P.2d at 56. This

rule modified the Just rule, which originally set forth the basis

for admission of other crimes, wrongs, or acts.

The following procedural protections apply as part of the

modified kit rule::

1 . Evidence of other crimes, wrongs, or acts may not be

received unless there has been written notice to the defendant that

such evidence is to be introduced. The notice to the defendant

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shall specify the other crimes, wrongs, or acts to be admitted, and

the specific rule 404(b) purpose or purposes for which it is to be

admitted.

2 . At the time of the introduction of such evidence, the

trial court shall explain to the jury the purpose of the evidence

and shall admonish it to consider the evidence for only such

purposes.

3 . In its final charge, the court shall instruct the jury in

unequivocal terms that such evidence was received only for the

limited purposes earlier stated and that the defendant is not being

tried and may not be convicted for any offense except that charged.

Mutt, 814 P.2d at 56.

This case involves the prior crime of misdemeanor forgery.

According to § 45-6-325(l), MCA, a person commits the offense of

forgery when, with the purpose to defraud, the person knowingly:

(4 without authority makes or alters any document

or other object apparently capable of being used to

defraud another in a manner that it purports to have been

made by another or at another time or with different

provisions or of different composition;

(b) issues or delivers the document or other object

knowing it to have been thus made or altered;

(c) possesses with the purpose of issuing or

delivering any such document or other object knowing it

to have been thus made or altered . . . .

On the other hand, § 45-6-204, MCA, provides that a person commits

the offense of burglary if he knowingly enters or remains

unlawfully in an occupied structure with the purpose to commit an

offense therein. The crimes of burglary and forgery are distinct

and are quite different in their respective elements. We held in

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Matt, 814 P.2d at 57, that "[t]he linchpin for determining whether

a single instance of prior conduct is sufficient . . . is relevancy

based on similarity." We held in Statev.Keys (1993), 258 Mont. 311,

316, 852 P.2d 621, 624, that "[t]he determination of similarity

depends on whether the conduct has some relevance to place an issue

in dispute." Here, misdemeanor forgery and felony accountability

for burglary are not similar, and as such, the prior crime was not

relevant. We conclude that the prior misdemeanor forgery is not

sufficiently similar to the charge of accountability for burglary

to satisfy the first element of the modified Just rule and that the

District Court erred by admitting the evidence of a prior crime.

ISSUE 2

Was the evidence sufficient to support defendant's conviction

of accountability for burglary?

When we review a conviction challenged on sufficiency of the

evidence, we will uphold the district court if, after reviewing the

evidence in a light most favorable to the prosecution, any rational

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

beyond a reasonable doubt. Statev.Bower (1992), 254 Mont. 1, 6, 833

P.2d 1106, 1110 (citing Statev.Ri&y (1992), 252 Mont. 469, 830 P.2d

549). In this case, we consider the record without evidence of

Johnston's prior :forgery conviction, which we have held should have

been excluded.

Johnston contends that the evidence was not sufficient to

support his conviction of accountability for burglary because a

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rational trier of fact could not have found the essential elements

of the crime beyond a reasonable doubt.

Under g 45-2-302(3), MCA, a person is legally accountable for

the conduct of another when

either before or during the commission of an offense with

the purpose to promote or facilitate such commission, he

solicits, aids, abets, agrees, or attempts to aid such

other person in the planning or commission of the

offense.

There is no evidence that Johnston aided Maggard before,

during, or after the burglary. The driver's seat of the car was

positioned to suggest that Maggard had driven to the scene. Maggard

possessed the key, and Johnston was found on the passenger side of

the car. Johnston did not abet Maggard during the burglary. He

briefly honked the horn and flashed the lights after Maggard was

already in custody. The State fails to establish how this, in any

way, aided or abetted Maggard in the commission of tt.e crime.

The only thing that linked Johnston to the crime was the fact

that he was found near the scene of the crime. The police

discovered Johnston across the street from the burglzrized church

sitting in a parked car. The State argues that the evidence was

sufficient to convict Johnston of accountability for burglary and

that any rational trier of fact could have found the essential

elements of accountability for burglary beyond a reasonable doubt.

We have held that mere presence at the crime iscene is not

enough to establ.ish criminal responsibility. "[WE: have] long

adhered to the principle that more than mere presence at the scene

of a crime is necessary to establish criminal responsibility." State

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exrel.Murphyv.McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909.

SeeakoStatev.Bradford (1984), 210 Mont. 130, 683 P.2d 924: State% Hart

(1981) t 191 Mont. 375, 625 P.2d 21. Furthermore, mere knowledge

that a crime is about to be committed

accomplice or accountable for that crime.

a true accomplice is

does not make one an

We held in Nordahl that

'one who knowingly, voluntarily and with common intent

with the principal offender unites in the commission of

a crime . . . . One may become an accomplice by being

present and joining in the criminal act, by aiding and

abetting another in its commission, or not being present,

by advising and encouraging its commission: but knowledge

and voluntary actions are essential in order to impute

guilt.'

Nordahl, 679 P.2d at 243 (quoting Statev.Harmon (1959), 135 Mont. 227,

236, 340 P.2d 128, 132).

We conclude that the evidence was not sufficient to support

the conviction of felony accountability for burglary.

The judgment of the District Court is reversed and this case

is remanded for further proceedings consistent with this opinion.

us ice

We concur:
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October 27, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Jennifer Bordy

Attorney at Law

1822 West Lincoln, Suite B

Bozeman, MT 59715

Marty Lambert

Deputy County Attorney

615 So. 16th Avenue, Room 100

Bozeman, MT 59715

Hon. Joseph P. Mazurek, Attorney General

Cregg Coughlin, Assistant

Justice Building

Helena. MT 59620

ED SMITH

CLERK OF THE SUPREME COURT

STATE IOF MONTANA