No. 80-38 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

HAROLD W. MITCHELL, JR., 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake. 

Honorable John McCarvel, Judge presiding. 

Counsel of Record: 

For Appellant: 

Datsopoulos, MacDonald and Lind, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

Submitted on briefs: December 30, 1980 

Decided: APR 1 19@ 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Harold W. Mitchell, Jr., appeals his 

convictions of felony criminal mischief and solicitation 

entered in the Lake County District Court, the Honorable 

John M. McCarvel presiding. 

Early in the morning of October 30, 1977, the 

defendant's mobile home and its contents were destroyed by 

fire. The property was located in a rural subdivision near 

St. Ignatius, Montana. The next day a juvenile, John T. 

Hammond, contacted the Lake County sheriff's office and told 

them that Mitchell had recently purchased a $25,000 fire 

insurance policy on the trailer home. Hammond further 

stated that defendant had removed most of the valuable items 

in the trailer to an adjacent shop building and to another 

trailer home owned by JoAnn Roske. Hammond also stated that 

he helped in replacing the removed furniture with 

furnishings of an inferior quality. 

On November 2, 1977, Hammond informed the sheriff's 

office, in a tape recorded statement, that he in fact had 

set the fire after Mitchell offered him $500 and a car to 

burn the trailer while Mitchell was out of town for the 

weekend. Hammond indicated he set the fire by placing 

gasoline-soaked rags around the trailer's furnace and 

lighting them with a cigarette lighter. 

On October 31, 1977, defendant Mitchell filed a claim 

to collect on the fire insurance policy. The insurance 

agent, upon receiving the claim and after being advised by 

the county sheriff that the fire was under investigation, 

asked defendant to make a list describing the personal 

property destroyed and its value. This information was 
needed before payment of the claim could be remitted. The 

sheriff's office also expressed an interest in obtaining 

this list once it was received by the agent. 

Defendant responded to the request with a handwritten 

inventory which was submitted unsigned. At the request of 

the sheriff's off ice, the insurance agent typed the 

inventory and asked defendant to sign it and then have it 

certified. In a letter the agent also made an invitation 

for the defendant to add an addendum should he wish to 

include additional property. Defendant signed the typed 

list, certified it, and returned it with additional property 

listed in an addendum as being destroyed. 

The insurance agent forwarded the signed list to the 

county sheriff. This list was then shown to Hammond who 

indicated which items had been moved to Roske's trailer. 

As a result of this information, a search warrant was 

issued, and various items were seized from the Roske trailer 

that corresponded with items on the list. 

Mitchell was arrested on December 16, 1977, and 

charged with solicitation and criminal mischief. The first 

offense was based on an allegation that Mitchell commanded, 

encouraged, or facilitated the commission of the crime of 

criminal mischief by requesting Hammond to burn his trailer 

home. The second offense, criminal mischief, was based on a 

charge that he knowingly or purposely destroyed the trailer 

with the purpose to defraud an insurer by means of fire set 

by another whom he had solicited, aided and abetted. 

During trial, Hammond was presented as the 

prosecution's key witness. He testified to helping 

defendant move various items out of the trailer to the Roske 
residence and related how he burned the trailer after being 

approached by Mitchell. Hammond also revealed that the 

night before the fire, while defendant was out of town, he 

had a party in defendant's trailer. Hammond stated the 

party was attended by about twenty-five people but that no 

significant damage was done to the trailer. According to a 

neighbor, however, who was disturbed by the noise and 

investigated, the trailer was in a considerable mess as a 

result of the party. 

Mitchell denied having induced Hammond to set the 

fire. He further testified that he and Roske had recently 

separated after living together for several years and that 

the furniture and other personal property moved out of his 

trailer belonged to Roske. According to defendant, these 

were not the items included on the list as being destroyed 

in the fire. 

The deputy fire marshal1 who investigated the fire 

could not determine its cause. He was unable to find the 

presence of hydrocarbons at the scene which would have 

indicated that the fire had an incendiary origin. He did 

testify, however, that the evidence was consistent with 

Hammond's statement that he had set the fire. 

Following trial, defendant was convicted of both 

solicitation and criminal mischief. The court sentenced 

him to eight years' imprisonment with six years suspended on 

each count, the sentences to run concurrently. Defendant 

now appeals. 

The first issue is whether the testimony of Hammond, 

as an accomplice, was corroborated by sufficient independent 

evidence. 
The statutory requirements for corroboration are set 

forth in section 46-16-213, MCA: 

"A conviction cannot be had on the testimony 

of one responsible or legally accountable for 

the same offense, as defined in 45-2-301, 

unless the testimony is corroborated by other 

evidence which in itself and without the aid 

of the testimony of the one responsible or 

legally accountable for the same offense 

tends to connect the defendant with the 

commission of the offense. The corroboration 

is not sufficient if it merely shows the commissison of the offense or the circumstances 

thereof. " 

Montana case law concerning corroboration is well 

settled. It provides that the corroborating evidence may be 

supplied by the defendant or his witnesses; it may be 

circumstantial evidence; it need not be sufficient to 

sustain a conviction or establish a prima facie case of 

guilt; and, it need only tend to connect the defendant with 

the crime as charged. Where the claimed corroboration, 

however, shows no more than an opportunity to commit a 

crime, simply proves suspicion, or is equally consonant with 

a reasonable explanation pointing toward innocent conduct on 

part of the defendant, the evidence is to be deemed 

insufficient. See State v. Kemp (1979), Mont. , 

597 P.2d 96, 36 St.Rep. 1215; State v. Owens (1979), 

Mont. , 597 P.2d 72, 36 St.Rep. 1182; State v. Coleman 

(1978)t Mont. , 579 P.2d 732, 35 St.Rep. 560; State 

v. Jones (1933), 95 Mont. 317, 26 P.2d 341; State v. Cobb 

(1926), 76 Mont. 89, 245 P. 265. 

The State maintains that Hammond's testimony is 

sufficiently corroborated by the following: defendant's 

testimony that his trailer was not insured until shortly 

before the fire; testimony of defendant and Roske that 

numerous items of personal property belonging to Roske were 
moved from the premises to Roske's trailer; the various 

items seized in Roske's trailer which corresponded with 

items listed on defendant's insurance claim as destroyed in 

the fire; the testimony of Gladys Orr that upon visiting 

Roske's trailer shortly before the fire she viewed various 

pieces of furniture and other personal property which again 

corresponded with items listed by defendant as destroyed; 

and, the testimony of Bud Castor and Butch Pierce that 

Hammond told them prior to the actual fire that defendant 

offered him cash and a car to set fire to the trailer. 

In determining the sufficiency of the offered 

evidence, we must first reject the State's inclusion of the 

testimony by Castor and Pierce. Even though this testimony 

was offered to rebut defendant's charge of subsequent 

fabrication and, thus, was admissible as nonhearsay under 

Rule 801(d)(l)(B), Mont.R.Evid. (see State v. Mackie (1981), 

Mont . , 622 P.2d 673, 38 St.Rep. 86), its use as 

corroborating evidence is improper. 

The State has cited State v. Dolan (1980), Mont. 

, 620 P.2d 355, 37 St.Rep. 1860, in support of using 

this testimony. This case is easily distinguishable. In 

Dolan the prosecution introduced evidence that the defendant 

had admitted the offense to a bartender who later testified 

to the conversation at trial. The court held that the 

bartender's testimony was nonhearsay and substantive 

evidence sufficient to corroborate the testimony of an 

accomplice. 

Here, however, the State is attempting to use, not a 

previous statement by the defendant to corroborate an 

accomplice, but a previous statement of the accomplice. 
Consequently, if we were to allow the testimony to be used 

as corroborating evidence, we would in effect be allowing a 

prior statement made by an accomplice to corroborate his own 

testimony. Such a result would frustrate the purpose of the 

statute and will not be permitted. 

Being unable to make use of the testimony of Castor 

and Pierce, the State, in an attempt to corroborate 

Hammond's testimony, is left with evidence showing the 

purchase of the insurance by defendant, the transfer of 

various items from defendant's trailer to Roske's trailer, 

and items seized after the fire and viewed in Roske's 

trailer shortly before the fire which correspond to items 

listed on an insurance claim as being destroyed. Upon 

reviewing this evidence, we find that it is sufficient 

corroboration of Hammond's testimony. The total sum of the 

evidence does more than create a mere suspicion of guilt. 

It is consistent with the State's theory of culpability and 

is supportive of a finding that the evidence tends to 

connect defendant with the criminal activity at issue. 

We acknowledge that the evidence presented does not 

establish a prima facie case of culpability; however, such a 

finding is not a necessary requirement for corroboration. 

The evidence can be circumstantial and need only ". . . 

tend to connect the defendant with the commission of the 

criminal offense." Section 46-16-213, MCA. The evidence in 

this regard is deemed sufficient. 

The second issue raised by defendant concerns his 

contention that a conviction of both solicitation and 

criminal mischief is barred by section 46-11-502(2), MCA, 

which provides: 
"When the same transaction may establish the 

commission of more than one offense, a person 

charged with such conduct may be prosecuted 

for each such offense. He may not, however, 

be convicted of more than one offense if: 

"(2) one offense consists only of a 

conspiracy or other form of preparation to 

commit the other; " 

Under the facts of this case, we must agree with 

defendant's position. Count I1 of the information, as 

filed, alleged that defendant was guilty of criminal 

mischief solely on the theory of accountability because he 

"solicited . . . aided and abetted" Hammond. The actual 

solicitation of Hammond, as charged in Count I, was thus a 

necessary - preparatory ---- act to the offense of criminal 

mischief, and a conviction on both counts was improper. 

The State concedes that a conviction on both charges 

was improper. It argues, however, that since defendant 

failed to object at trial to the submission of both counts 

to the jury, he is precluded from raising this issue on 

appeal. In rejecting this argument, we need only note that 

the error did not occur when the charges were presented to 

the jury but arose only after the District Court rendered a 

final judgment of conviction on both counts. See sections 

46-11-502 and 46-1-201(2), MCA. The error at trial being 

predicated solely on an assertion that the final judgment of 

conviction was improperly entered, defendant's failure to 

object prior to conviction does not preclude review by this 

Court . 

The fact that this issue is decided in favor of the 

defendant does not mean, however, that defendant is now 

entitled to a new trial or a dismissal of all charges. As 
previously stated, the trial court erred in entering 

judgment of conviction on both counts, not in submitting 

those charges to the jury. Consequently, if any prejudice 

to defendant resulted from the District Court's error, it 

arose solely in the sentencing process which was conducted 

on the basis of an improper conviction of both solicitation 

and criminal mischief. Prejudice to defendant in this 

regard can be cured by remanding the cause for resentencing. 

The judgment of conviction for solicitation is 

vacated and dismissed. The judgment of conviction for 

criminal mischief is affirmed, and the cause is remanded for 

resentencing . 

We concur: 

@~4 , Chief Justice