NO. 83-230 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTIMOTHY E. DESS and RONALD X. HAAS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John Keith, Great Falls (Dess) 

Ralph T. Randono, Great Falls, Montana (Haas) 

For Respondent : 

Iion. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Submitted on Briefs: November 3, 1983 

Decided: January 12, 1984 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendants Timothy E. Dess (Dess) and Ronald E. Haas 

(Haas) appeal their convictions for felony theft by iury 

trial in the Eighth Judicial District Court, Cascade County. 

We affirm. 

On September 7, 1982, a witness observed two ten-speed 

bicycles parked on the sidewalk, leaning against the window 

of a cafe. The bicycles had been left there earlier by two 

teenage girls who were inside the cafe. The witness heard a 

male voice ,yelling "steal the bikes." The voice came from 

the direction of the alley where the Driftwood Bar was 

located. The witness observed a young man, later identified 

as Travis Owens, and another man, later identified as 

defendant Haas, take the bikes and ride away. Both men rode 

off in the same direction, north towards Great Falls. They 

were followed by a white station wagon driven by a man later 

identified as defendant Dess, accompanied by a young woman 

later identified as Yvette Rambo. Yvette Rambo and Travis 

Owens testified that they had been in the Driftwood Bar with 

Dess and Haas. Susan Pettit, the owner of the bikes, 

reported the theft and described the bikes to the Cascade 

Marshal. 

A local rancher, Chester Brown, was in the cafe with two 

other gentlemen when they heard about the theft and the 

involvement of a white station wagon. The three men drove 

northwest on their way out of town and noticed a white 

station wagon parked near the stockyards. As they approached 

the station wagon, it began to drive off. The men observed a 

red bicycle in the back of the car. Mr. Brown drove around 

the vehicle to stop it, and a conversation ensued between him 

and the three occupants of the car. 
The driver, defendant Dess, seemed to be speaking on 

behalf of the occupants of the station wagon. When Mr. Brown 

asked about the bicycle, he was told that a hitchhiker left 

his bike in the car and then ran away. Defendant Dess said 

for the men to "take the bike and leave us alone." 

Eventually, the bike was put in Mr. Brown's truck and the two 

vehicles headed back into town. 

About 200 yards down the road, another bike was lying in 

the ditch. Defendant Haas was near this bicycle. The second 

bicvcle and Haas were picked up on the wav back to town. The 

two vehicles were then taken into town to the city hall where 

the marshal was attending a meeting. Susan Pettit identified 

the bicycles as hers. 

Susan Pettit stated that both of the bikes were used 

when she received them from her brothers. One bicycle was a 

red Schwinn Traveler, approximately two to three years old. 

The other bicycle was a purple or maroon Gamble's model, 

approximately four or five years old. The red Schwinn model 

would have cost $195.95 at the time it was purchased. The 

value of the bicycles is at issue on appeal. 

Sherry Yeagley, part owner of the Isler's Keys and 

Cyclery, had two years of experience in buying and selling 

new and used bicycles. Based upon her examination of the 

bicycles, Ms. Yeagley considered the current market value of 

the red Schwinn to be $120-$125, and the current market value 

of the Gamble's bike to be $40-$60, if the person sold them, 

as is, independently of a dealer. She further stated she had 

sold two bikes similar to the Gamble's bike for $75. 

Reed Jorgenson, manager of Coast-to-Coast Hardware in 

Great Falls, also testified as to the value of the bikes 

after he had examined them for the defense. Mr. Jorgenson 

had eleven years of experience at the hardware store and five 
years nonprofessional experience repairing bicycles. His 

Coast-to-Coast store buys and sells used bikes. Mr. 

Jorgenson said that the Schwinn Traveler was in very 

marketable shape and needed a new seat, costing about $7, 

plus some basic adjustments in the cables. The Gamble's 

bicycle was not as marketable in his opinion, and it needed a 

little more adjustment than the Schwinn, plus a shift cable 

and handle bar tape. 

After doing the repairs, he stated he could sell the 

Schwinn for $125 and the Gamble's for $60. If a person were 

to sell the bikes independentlv, he thought a "fair asking 

price" for the Schwinn was $75-$90, and for the Gamble's 

about $40, as is. When asked what value he would report if 

the bicycles were repaired and stolen from his store, he 

stated he would report $125 for the Schwinn and $60 for the 

Gamble's. He then testified: 

"But if they were sitting in our back room and they 

had not been fixed yet, I feel that I would still 

have to report what I would sell them for, because, 

you know, that's definitely what they are worth." 

The jury was instructed according to the accountability 

statute, section 45-2-302, MCA with respect to defendant 

Dess. 

The District Court denied a pre-trial motion for 

separate trials after hearing and filing of briefs. The jury 

was instructed that each defendant is entitled to have his 

guilt or innocence determined as if he were being tried 

separately. 

Following a jury trial, the defendants Ronald Haas and 

Timothy Dess were convicted of the offense of felony theft 

under section 45-6-301 (1) (a) , MCA. This appeal follows. 

The following issues are raised on appeal. 
(1) Whether the jury could rationally find that there 

was no reasonable doubt that the value of the stolen property 

exceeded $150? 

(2) Whether there was sufficient evidence upon which 

the jury could infer that Defendant Dess aided in the 

commission of the theft of the two bicycles? 

(3) Whether the trial court erred in denying Defendant 

Dess' motion for a separate trial? 

(4) Whether the prosecutor improperly commented on 

defendant's failure to testify during closing arguments? 

At the time of the offense, Montana law distinguished 

felony theft from misdemeanor theft by the standard of a $150 

valuation for the stolen property. Section 45-6-301 (5) , MCA 

(1981). Valuation for this purpose is the market value of 

the property. State v. McComas (1931), 89 Mont. 187, 295 

P.X 1011. 

Dkfendants argue that the evidence does not support a 

valuation in excess of $150 beyond a reasonable doubt. We 

disagree. 

This Court must determine whether there is substantial 

evidence supporting the conviction when the evidence is 

viewed in the light most favorable to the State. State v. 

Austad (Mont. 1982), 641 P.2d 1373, 1389, 39 St.Rep. 356, 

376; State v. Wilson (Mont. 1981), 631 P.2d 1273, 1278, 38 

St.Rep. 1040, 1047. 

In this case the jury was confronted with several values 

for the bicycles. It is solely within the province of the 

jury to weigh these figures and consider the weight to be 

given to the testimony of each of the experts. It is not 

unreasonable, given a well supported range of values of $115 

to $185, that the jury should find the value to be in excess 

of $150. 
Nor can we assume the jury failed to find that value 

beyond a reasonable doubt. The jury was separately 

instructed that, in addition to all the other elements of the 

crime, it must find "beyond a reasonable doubt that the bikes 

were of a value of more than $150.00" in order to convict 

defendants of felony theft. 

Defendant Dess challenges the sufficiency of the 

evidence to support his conviction for aiding and abetting or 

joining with another in a common design or purpose. We find 

the following facts to be sufficient evidence, when viewed in 

a light most favorable to the State, to support an inference 

of both aiding and abetting, and joining in common design or 

purpose to commit the offense: 

1. Dess was in the company of Haas and Owens 

immediately before the theft. 

2. Dess was in his white station wagon at the time of 

the theft from where one could see the stealing of the 

bicycles. 

3. A white station wagon was seen following the stolen 

bicycles. 

4. Dess was found driving his white station wagon, with 

one of the bicycles in the back, stopped only 200 yards past 

the other bicycle. 

There may be insufficient evidence to demonstrate that 

Dess exerted physical control over the bikes personally. 

Nevertheless, the jury would be warranted in inferring from 

these facts that Dess was actively participating in flight 

from the scene and/or promoting or participating in the 

entire plan or scheme. 

Defendant Dess also complains that he was prejudiced by 

the District Court's failure to separate his trial from 
defendant Haas'. Dess claims that Haas' testimony was 

"essential" to his defense. 

In order to demonstrate prejudice by the failure to 

separate trials, a defendant must show that the 

co-defendant's testimony is exculpatory. Byrd v. Wainwright 

(5th Cir. 1970), 428 F.2d 1017. At the hearing on the motion 

for separate trials, no testimony was presented regarding 

what Haas might say that would be exculpatory. There was no 

showing that Haas' testimony would be any different from that 

of witness Owens. 

On the other hand the expedition of the administration 

of iustice, the conservation of judicial time, and the 

minimization of burdens for jurors and witnesses is well 

served by the joinder of the two defendants. State v. Strain 

(Mont. 1980), 618 P.2d 331, 337-338, 37 St.Rep. 1763, 1769. 

Finally, defendant Dess a.rgues that the prosecutor 

improperly commented on defendant's failure to testify by 

making the following statement during closing argument: 

"Now if this then is the theory, what evidence has 

been introduced for you to support this line of 

defense? And here is where the questions start to 

come. If you are to accept the defendant's theory 

of the case, you must accept naturally the 

defendant's testimony. In this case, that is the 

witnesses who testified for the defendants. That's 

the only way you can accept the defendants' theory, 

the only way is to buy what they said on the 

stand. " 

The test of the propriety of the prosecutor's comments 

is "whether the languaqe used was manifestly intended or was 

of such a character that the jury would naturally and 

necessarily take it to be a comment on the failure of the 

accused to testify." State v. Anderson (1970), 156 Mont. 

122, 125, 476 P. 2d 780, 782; State v. Armstrong (1976) , 170 

Mont. 256, 261, 552 P.2d 616, 619. 
When read in the context of the prosecutor's argument, 

it is clear that the statement refers to the credibility of 

the defense witnesses. Even if the jury were to draw the 

remote inference regarding defendant's failure to testify, 

any prejudice would be well overcome by the following jury 

instruction: 

"You are instructed that a Defendant in a criminal 

proceeding need not testify and the jury is not 

permitted to draw any inference from his failure to 

do so. A juror would violate his oath of office if 

he would permit his judgment to be influenced by 

any inference he may draw from a Defendant's 

failure to testify." 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice