No. 92-328 

IN THE SUPFZME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSDALE LEE JOHNSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial ~istrict, 

In and for the County of Dawson, 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F, Hooks, Appellate ~efender office, Helena, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Cregg Coughlin, 

Assistant Attorney General, Helena, Montana 

Gerald J. Navratil , Dawson County Attorney ' s Off ice, 

Glendive, Montana 

D 

MAR 2 1993. Submitted on ~riefs: November 12, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from a jury verdict finding the appellant, 

Dale Lee Johnson (Johnson), guilty of the crime of burglary. This 

appeal is from the Seventh Judicial District of the State of 

Montana, in and for the County of Dawson, the Honorable Dale Cox 

presiding. We affirm. 

The following are the restated issues on appeal: 

1. Has Johnson waived any claim that testimony of the 

accomplice was insufficiently corroborated? 

2. Has Johnson waived any objection to the place of trial? 

3. Was there sufficient evidence from which the jury could 

determine that the crime was committed in Dawson County? 

4. Has Johnson waived any claim that the State improperly 

bolstered the credibility of its witness? 

5. Was Johnson provided effective assistance of counsel? 

During the evening of September 27 or the morning of September 

28, 1991, Larry's Interstate Exxon in Glendive, Montana, was 

burglarized. The owner of the gas station testified that he found 

a window at the rear of his station had been damaged, and the 

entire plate glass in the front door to the business knocked out. 

The owner testified that cigarettes, jerky, beer and coins were 

stolen from the business. 

At the time of the burglary in September, 1991, Johnson and 

his common-law wife, Lori, were sharing their home with several 

people: Terri; her son, Beau; and Terrils boyfriend, Dave. Prior 

to the burglary Terry Kelly (Kelly) had resided with Johnson, but 

2 
at the time of the burglary Kelly was living in another house in 

Glendive with Daryl Thies (Thies) and Theresa Upchurch. 

Kelly was picked up by the Glendive police after he had gotten 

into a fight in town and he was eventually bussed out of town 

following the affair. At the time Kelly was picked up, the police 

asked him whether he had anything to do with the Exxon burglary; he 

denied any involvement. In January 1992, Kelly was arrested in 

Great Falls, Montana, and after being returned to Glendive he gave 

the authorities a statement as to what had happened during the 

evening of September 27, 1991. 

During the trial, Kelly stated that on the evening of 

September 27, 1991, he, Johnson and Thies were drinking beer at the 

house Kelly shared with Thies and Upchurch. Kelly testified that 

Johnson, who was a former employee of Larry's Interstate Exxon, 

knew of a place that "would be easy to knock . . . off ." Kelly 

testified that he did not think it was such a good idea, but he 

went along with the plan due to being "drunk" at the time. 

According to Kelly, he and Johnson left on a motorcycle for 

Johnson's house where they retrieved plastic bags and a pillowcase 

before driving to the Exxon station. They parked the motorcycle 

off the road in some trees. Kelly testified that while Johnson 

went to the rear of the building Kelly attempted to kick in the 

front window; he eventually knocked the front window out with a 

large piece of wood. Once inside, Kelly grabbed a jar of coins 

totalling approximately $50 and he took cigarettes from the 

station's freezer; Johnson took jerky from the counter. Kelly and 
Johnson left the station and went to Johnson's house where they 

divided the coins, cigarettes and jerky. 

Testimony at trial included that of one of Johnson's house 

guests, Terri, who testified that she awoke around 3: 30 to 4:00 

a.m. on the morning of September 28, 1991. Terri testified that 

after she entered the kitchen she saw Kelly and Johnson at the 

kitchen table which was strewn with beer, cartons of cigarettes, 

and jerky. Terri testified that the two were drinking beer and 

"talking about what they had just done at Larry's Exxon." She also 

saw other cartons of cigarettes and containers of jerky in the 

freezer. From what she observed and heard from Kelly and Johnson, 

Terri testified that she got the impression that both Kelly and 

Johnson had participated in the commission of the burglary on 

Larry's Interstate Exxon. 

The jury found Johnson guilty of burglary and not guilty of an 

unrelated charge of theft. 

I 

Has Johnson waived any claim that testimony of the accomplice 

was insufficiently corroborated? 

It is Johnson's position that the testimony of Kelly, an 

accomplice, was insufficiently corroborated. Kelly was an 

accomplice to the burglary and was charged with the burglary along 

with Johnson. He pled guilty to that offense and was sentenced by 

the District Court in Dawson County. There is no question that 

Kelly was responsible or legally accountable for the burglary, 

therefore, under 5 46-16-213, MCA, his testimony, standing alone, 
would not have been sufficient to convict Johnson. 

While Johnson arguesthat evidence corroborating the testimony 

of the accomplice, Kelly, was insufficient to sustain a conviction, 

there is nothing in the record that disclosed a challenge to the 

sufficiency of the corroborative evidence, or the evidence as a 

whole, by way of either a motion for an acquittal or a motion for 

a directed verdict. We have noted in numerous opinions that this 

Court will not notice an allegation of error raised for the first 

time on appeal when the appellant had the opportunity to make such 

an objection at the trial level. See 5 46-2O-l04(2), MCA; State v. 

Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439. While Johnson did 

move the District Court to dismiss the charges on the ground that 

he had not been personally identified in court by Kelly, he did not 

move for a directed verdict or an acquittal based upon a claim of 

insufficiency of the evidence, either as a whole or as to evidence 

corroborating the accomplice testimony. We conclude that Johnson 

waived any claim that the accomplice testimony was insufficiently 

corroborated. 

Has Johnson waived any objection to the place of trial? 

On appeal, Johnson raises for the first time the issue that 

the State failed to sufficiently prove at trial that the burglary 

was committed in Dawson County. The question is one of venue, 

Although venue is not an element of the crime, it is a 

jurisdictional fact that must be proven at trial just as any other 

material element. State v. Preite (19771, 172 Mont. 318, 323, 564 
P.2d 598, 600-601. Unlike a claim that venue is improper, which 

must be raised before trial according to g 46-3-111, MCA, the issue 

of whether the State has satisfied its burden, may be raised for 

the first time on appeal. State v. Bad Horse (1980), 185 Mont. 

507, 515, 605 P.2d 1113, 1117. 

I11 

Was there sufficient evidence from which the jury could 

determine that the crime was committed in Dawson County? 

In a criminal case, venue must be proven beyond a reasonable 

doubt. State v. Bretz (l979), 185 Mont. 253, 285, 605 P.2d 974, 

993, cert. denied, 444 U.S. 994 (1979), reh'g denied, 444 U.S. 1104 

(1980). We find there was sufficient evidence presented to the 

jury by which it could have reasonably concluded that the offense 

was committed in Dawson County. First, the owner of Larry's Exxon, 

Larry Schlenz, testified that Larry's Interstate Exxon station was 

located on Highway 16, just north of the interstate on the Sidney 

highway. Next, Kelly testified that the station was close to the 

interstate on the Sidney highway. Finally, Johnson's common-law 

wife, Lori, agreed that the station was located "out at the Sidney 

highway on the interstate." 

Even Johnson acknowledges in raising this issue that direct 

testimony that the offense was committed in a specific county is 

not required to prove venue, noting several Montana cases wherein 

this Court determined that venue was sufficiently proven by 

witnesses' references to either a city or city streets. See, e.g., 

State v. Williams (1949), 122 Mont. 279, 202 P.2d 245; State v. 
Jackson (1979), 180 Mont. 195, 589 P.2d 1009. In the present case, 

three witnesses testified that Larry's Exxon station was on the 

Sidney highway (Highway 16) near the interstate. We note that 

these highways intersect in south-central Dawson County and that it 

is approximately twenty miles from that intersection to the county 

line. The jury heard sufficient evidence to determine that the 

offense occurred in Dawson County. We conclude that the jury 

properly determined that the crime was committed in Dawson County. 

IV 

Was Johnson waived any claim that the State improperly 

bolstered the credibility of its witness? 

Johnson argues that the District Court erred in permitting the 

State to question Terri about the threats made against her by 

Johnson after he was charged with the burglary. His only objection 

to her testimony at the time of trial was that it was irrelevant. 

Johnson, in order to preserve for appeal any objection he had at 

the trial court level must raise the issue before the ~istrict 

Court and may not address the issue on appeal if it was not raised 

below. "It is a well-settled rule that on appeal this Court will 

consider for review only those questions raised in the trial 

court.I1 State v. Campbell (1981), 191 Mont. 75, 79, 622 P.2d 200, 

202. We conclude that Johnson waived any claim that the State 

improperly bolstered the credibility of its witness. 

v 

Was Johnson provided effective assistance of counsel? 

Defendant contends that his counsel incorrectly failed to 
request a jury instruction providing that accomplice testimony must 

be viewed with distrust. Defendant relies on State v. Laubach 

(1982), 201 Mont. 226, 653 P.2d 844, in which this Court reversed 

Laubach's conviction because of the trial court's failure to 

instruct the jury "that accomplice testimony must be viewed with 

distrust.I1 Laubach, 653 P.2d at 847. The controlling statute 

referred to in Laubach is 5 26-1-303(4), MCA (1991), which states 

in pertinent part: 

Instructions to jury on how to evaluate evidence. The 

jury is to be instructed by the court on all proper 

occasions that: 

(4) the testimony of a person legally accountable 

for the acts of the accused ought to be viewed with 

distrust. [Emphasis supplied.] 

Laubach concluded that the language of the statute was mandatory 

and reversed the conviction, ordering retrial. 

As underscored, 5 26-1-303 (4) , MCA, provides that the jury is 

to be instructed on "all proper occasions." We conclude the facts 

in Laubach provided a proper occasion for the use of the jury 

instruction. However, we conclude that the Laubach holding was too 

broad. We conclude the holding should be limited by the wording of 

the statute. We hold that Laubach is overruled to the extent that 

it requires giving the instruction in all cases involving 

accomplice testimony. The record in this case disclosed 

significant accomplice testimony. If the defendant had requested 

an instruction on accomplice testimony, then under the statute such 

instruction should have been given. 
The issue before us, however, is whether it was ineffective 

assistance of counsel for defense counsel to fail to request such 

an instruction. In his presentation the defendant contended he was 

not present at the scene of the crime. An accomplice instruction 

could be considered inconsistent with that defense. It is clear 

that the giving of the instruction under the circumstances of this 

case involved a tactical decision on the part of counsel. We will 

not second guess such tactical choices. We conclude defendant has 

failed to demonstrate any error on the part of his counsel in 

failing to request the instruction. We hold defendant was provided 

effective assistance of counsel, even though counsel did not 

request the accomplice instruction. 

Af f irmed. 

We concur: -49 
March 2, 1993 

CERTIFICATE OF SERVICE 

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

named: 

WILLIAM F. HOOKS 

Appellate Defender Office 

208 North Montana, Suite 104 

Helena, MT 59620 

HON. MARC RACICOT, Attorncy General 

Cregg Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

Gerald J. Navratil 

Dawson County Attorney's Office 

P.O. Box 1307 

Glendive. MT 59330 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE QF MONTANA