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: WilliamF, Hooks,Appellate ~efender office, 

### Helena, Montana For Respondent: Hon. MarcRacicot,AttorneyGeneral; CreggCoughlin, Assistant Attorney General, Helena, Montana GeraldJ. Navratil

## ,DawsonCountyAttorney

### 'sOffice, Glendive, Montana 

# D MAR 

## 21993. Submitted on ~riefs:November 12, 1992Justice 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 themorning 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 Terrilsboyfriend, Dave. Prior to the burglary Terry Kelly (Kelly) had resided with Johnson,but 2at the time of the burglary Kelly was living in another house in Glendive with Daryl Thies (Thies)and Theresa Upchurch. Kellywas picked upby theGlendivepolice afterhehad gotten into a fight in town and he was eventually bussed out of town following the affair. At the timeKelly waspicked up, the police asked him whether hehad anything to do with the Exxon burglary;he denied any involvement. In January 1992, Kelly was arrested in Great Falls, Montana, and afterbeing returned to Glendivehe 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, Johnsonand Thies were drinkingbeer 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 andJohnson 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 "talkingaboutwhat they had justdone 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 foundJohnsonguilty of burglary and not guilty of an unrelated charge of theft. I Has Johnsonwaived 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. Hepled guilty to that offense and was sentencedby 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. WhileJohnsonarguesthatevidencecorroboratingthetestimony of the accomplice,Kelly, was insufficientto sustaina 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 appellanthad the opportunity to make such

an objectionat the trial level. See 

### 5 46-2O-l04(2), MCA; Statev. Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439. While Johnson did

move the District Court to dismiss the charges on the ground that hehad not been personally identified in courtby Kelly,hedid 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 testimonywas 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 tosufficiently 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 thatmust be proven at trial just as any other material element. State

### v. Preite (19771, 172 Mont. 318, 323, 564P.2d 598, 600-601. Unlike a claim that venue is improper, which must be raised before trial accordingto 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, 444U.S. 994 (1979),reh'gdenied, 444U.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 stationwas 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), 180Mont. 195, 589 P.2d 1009. In thepresent 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? Johnsonargues that theDistrictCourt erred 

### inpermitting the State to question Terri about the threats made against her by Johnson after he was charged with theburglary. 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 Statev. Campbell (1981), 191Mont. 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 torequest a jury instructionproviding thataccomplice 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 "allproper occasions." We conclude the facts in Laubach provided a proper occasion for the use of the jury instruction. However,we conclude that theLaubach holdingwas too broad. We conclude theholding shouldbe limited by thewording 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 instructiononaccomplice 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. Inhispresentationthedefendant contendedhewas 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 thepart of counsel. We will not second guess such tactical choices. We concludedefendant has failed to demonstrate any error on the part of his counsel in failingto request the instruction. We hold defendantwasprovided effective assistance of counsel, even though counsel did not request the accomplice instruction. Affirmed.

We concur: 

## -49March2, 1993 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwassentbyUnited States mail,prepaid,tothefollowing named:

WILLIAMF.HOOKS Appellate Defender Office 208North Montana, Suite104 Helena,MT 59620 HON.MARC RACICOT,AttorncyGeneral Cregg Coughlin,Assistant JusticeBldg. Helena,MT59620 GeraldJ.Navratil Dawson County Attorney's Office P.O. Box 1307 Glendive.MT59330 EDSMITH CLERKOFTHE SUPREME COURT STATEQFMONTANA