No. 13709 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,

LESLIE CAMPBELL,Defendant and Appellant.

Appeal from: DistrictCourt of the Second Judicial District, Honorable James D. Freebourn, Judqe presiding. Counsel of Record: For Appellant: J. Brian Tierney argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Allen B. Chronister argued, AssistantAttorney General,

Helena, Montana John G. Winston, County Attorney, Butte, Montana Craig Phillips argued, Deputy County Attorney, Butte,

Montana

Submitted: May1

### , 1978 Decided: 

## JUL26 

## 1Y/eMr. Justice Daniel J. Shea delivered the Opinion of the Court.

The defendantwas tried for the crime of theft by a jury in Silver Bow County, Judge Freebournpresiding. From

a verdict of guilty and the court's admission of certain hearsay evidence,he appeals. On February 2, 1976,Butte police officers entered a residence at 1112 South Main Street in Butte pursuant to a search warrant based on information supplied by DaleNix. Nix, an informant for the police, was the lessee of the residence at the address named in the searchwarrant. No

onewas at home at the time the police entered the residence, but the defendant's wife, Cindy and sister,Barbara Campbell Nix arrived and werepresent during the search. The police seized numerous items of property traced to 

### a series of burglaries in the Butte area during the preceding October and November. Later, the police arrested thedefendant on February 20, 1976 and charged him with felony theft under section 94-6-302 (1) (a),R.C.M. 1947. During the trial,Nix did not testify as a witness,but statements made by him to police officers were admitted through testimony of police officers. These statements included alleged participation of the defendant in the burglaries. Also produced at trial was evidence showing that Nix had been paying rent and residing at the searched residence from August 1975 through January 1976. Around January 26, 1976, Nix was severely burned in an accident and hospitalized. During Nix's hospitalization, the landlord of the premiseswent to the house to collect rent and received onemonth's payment from defendantwho was there at the time.Three city officers testified concerning the defendant's occupancy of the searched residence. Officer James Lunney stated he had seen "all the Campbell's" at the residence at various times along with numerous other individuals, but he could not say exactly when and how long prior to the search he had seen the defendant there. He stated he "knew basically who was there just from stopping and talking" with the individualswho allegedly resided at the house. The officer admitted, however, defendant "could have been" living next door in the largehome of his mother. Another officer, Pat Burns, also stated he "had seen (thedefendant) there." This officer pointed out that the driving records of the defendant indicated that both inNovember, 1975 and February, 1976,defendanthad used the address of the residence in connection with a traffic violation and an application to renew his drivers license. Finally, Officer Dan Hollis testified he had spoken with the defendant at the residence around October 29, 1975. We find two of the issues raised to be dispositive:

(1) Whether the evidencewas legally sufficient to support the verdict, and (2) Whether the Court erred in allowing the jury to consider certain hearsay evidence. Sincewe agree with defendant's contentionsboth as to the legal insufficiency of the evidence and the inadmissibility of the hearsay evidence considered, the other issues cited on appeal will not be addressed. The crime with which defendantwas charged is defined in section 94-6-302

### (1)(a)

### ,R.C.M. 1947: "Theft. (1)A person commits the offense of theftwhen he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a)has the purpose of depriving the owner of the property; 

## * * 

## *." (Emphasisadded) -3-thereto aswell as the accused, it cannot be said that the property was in the accused's exclusive possession and the circumstancewould not be evidence of his guilt." (Emphasisadded). Peoplev. Davis (1966), 69 Ill.App.2d 120, 216

While it is true that exclusive possessionmay be sharedwith others,possession must stillbe proved. As stated in Davis, supra: 

### " 

## * * * Mere association with a stolen article is not necessarily thepossession of that article,and before any inference of guilt can arise from the circumstance itmust be shown that the accused was in possession." (Emphasisadded). 216 N.E.2d at 493. Clearly, the State showed nomore than "mere association" of the defendantwith the stolen goods; thus it failed to prove the essential element of control over the stolen property required for conviction of the crime. The only evidence linking the defendant to the stolen goods was certain statements allegedly made by the informer Nix to the police officers. The officers testified that Nix told them defendant participated in the burglaries. Had Nix testified, his testimony would have to be corroborated to establish an element of the crime. Section 94-2-107(3),R.C.M. 1947. But Nix did not testify. The testimony of the officers

as to what Nix told themwas hearsay. Itwas an out-of-court statement introduced for the truth of the matter stated,with neither inherent guarantee of trustworthinessnor a satisfactory showing of declarant's unavailability. The exclusionary hearsay rule is intended toprotect against the infirmities of statementsmade without the safeguards of an oath, confrontation,and cross-examination to test the credibility of the out-of-court declarant. None of these safeguards are present here.We find unconvincing the State's argument that by questioning the officers as to the informant's name and involvement in theControl over the property of another is an essential element of the offense and is generally defined in section 94-2-101(33),R.C.M. 1947: "'Obtainsor exerts control' includes but is not limited to the taking, carrying away, or sale,conveyance, transfer of title to, interest in, or possession of property." (Emphasisadded) The State contends that control over the stolen goods

was established by showing defendant's regular occupancy of the residence inwhich the stolen property was seized. The evidence offered on thepoint however,was inconclusive. The fact of defendant's continuing occupancy of the residence searched rests on circumstantialevidence,the testimony of the three police officers and the fact that the defendant once paid rent for the premises. While the testimony showsdefendantmay have been present at the house on certain occasions, itdoes not conclusively prove his regular occupancy of or his control over the premises and its contents during the period in which the burglaries occurred or prior to the search. Likewise, the fact that the defendant at one time paid rent for the premises while Nix, the lessee,was hospitalized does not justify the conclusion that defendant actually resided at or had control over the house and its contents. Montana's theft statute is derived from and is substantially the same as Ill. Crim. Code Chptr. 38, section 16-1. In construing that provision their Courts hold: 

### " 

## * * * possession of stolen goodsmay be proved by circumstantialevidence. (Citation omitted). However, in order that recent possession be evidence of guilt itmust be exclusive in the accused. The possession must be such as to indicate that the accused and not someone else took theproperty. If the placewhere the property is found is such that another person could have had accessburglaries, defense counsel "opened the door" to testimony regarding defendant'sparticipation in the burglaries. The issues are separate. The so-called "completenessdoctrine" relied on by the State in this regard is a rule of evidence distinct from the hearsay rule. The rule is contained in section 93-401-11,R.C.M. 1947 (and is substantially the

same in Rule 106 of M.R.Evid.). The doctrine stems from elementary principles restricting the scope of cross-examination. Generally,cross-examination of awitnessmust be limited to matters testified to on direct examination. The doctrine of completeness is an offshoot of this rudimentary principle. Itpermits examination of the balance or portions of the same document, correspondence,

or conversation only where suchportions on balance "are relevant and throw light upon parts already admitted;"U.S.

v. Littwin (6Cir. 1964), 338 F.2d 141, 146; or bear "on the

same subject;"State v. Collett (1946),118Mont. 473, 479, 167 P.2d 584, 587. To say that here, defendant's line of inquiry "opened the door" to all hearsay communications between the officers and the informer under the completeness doctrine is to misapply the doctrine. The testimony of the officers regardingwhat Nix told them was a classic example of inadmissible hearsay. Theprejudice is patent. The conviction is reversed and the case ordered dismissed.

We Concur:
Chief Justice



# L'

--. 

### - Justices