No. 13709 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

LESLIE CAMPBELL, 

Defendant and Appellant. 

Appeal from: District Court 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, Assistant Attorney General, 

Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Craig Phillips argued, Deputy County Attorney, Butte, 

Montana 

Submitted: May1 , 1978 

Decided : JUL 26 1Y/e 
Mr. Justice Daniel J. Shea delivered the Opinion of 

the Court. 

The defendant was tried for the crime of theft by a 

jury in Silver Bow County, Judge Freebourn presiding. 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 Dale Nix. 

Nix, an informant for the police, was the lessee of the 

residence at the address named in the search warrant. No 

one was at home at the time the police entered the residence, 

but the defendant's wife, Cindy and sister, Barbara Campbell 

Nix arrived and were present 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 the defendant 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 premises went 

to the house to collect rent and received one month's payment 

from defendant who 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 individuals who allegedly resided at the house. The officer admitted, 

however, defendant "could have been" living next door in the 

large home of his mother. Another officer, Pat Burns, also 

stated he "had seen (the defendant) there." This officer 

pointed out that the driving records of the defendant indicated 

that both in November, 1975 and February, 1976, defendant had 

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 evidence was legally sufficient to 

support the verdict, and 

(2) Whether the Court erred in allowing the jury to 

consider certain hearsay evidence. 

Since we agree with defendant's contentions both 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 defendant was charged is defined 

in section 94-6-302 (1) (a) , R.C.M. 1947 : 

"Theft. (1) A person commits the offense 

of theft when 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; * * *." (Emphasis added) 

-3- 
thereto as well as the accused, it cannot 

be said that the property was in the 

accused's exclusive possession and the 

circumstance would not be evidence of 

his guilt." (Emphasis added). People v. 

Davis (1966), 69 Ill.App.2d 120, 216 

While it is true that exclusive possession may be 

shared with others, possession must still be proved. As 

stated in Davis, supra: 

" * * * Mere association with a stolen article is 

not necessarily the possession of that 

article, and before any inference of guilt 

can arise from the circumstance it must be 

shown that the accused was in possession." 

(Emphasis added). 216 N.E.2d at 493. 

Clearly, the State showed no more than "mere association" 

of the defendant with 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 them was hearsay. It was an out-of-court 

statement introduced for the truth of the matter stated, with 

neither inherent guarantee of trustworthiness nor a satisfactory showing of declarant's unavailability. The exclusionary 

hearsay rule is intended to protect against the infirmities 

of statements made 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 the 
Control 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: 

"'Obtains or 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." (Emphasis added) 

The State contends that control over the stolen goods 

was established by showing defendant's regular occupancy of 

the residence in which the stolen property was seized. The 

evidence offered on the point however, was inconclusive. 

The fact of defendant's continuing occupancy of the 

residence searched rests on circumstantial evidence, the 

testimony of the three police officers and the fact that the 

defendant once paid rent for the premises. While the testimony 

shows defendant may have been present at the house on certain 

occasions, it does 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 goods may be 

proved by circumstantial evidence. (Citation 

omitted). However, in order that recent 

possession be evidence of guilt it must be 

exclusive in the accused. The possession 

must be such as to indicate that the accused 

and not someone else took the property. If 

the place where the property is found is such 

that another person could have had access 
burglaries, defense counsel "opened the door" to testimony 

regarding defendant's participation in the burglaries. The 

issues are separate. The so-called "completeness doctrine" 

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 a witness must be limited to matters testified to on 

direct examination. The doctrine of completeness is an 

offshoot of this rudimentary principle. It permits examination 

of the balance or portions of the same document, correspondence, 

or conversation only where such portions on balance "are 

relevant and throw light upon parts already admitted;" U.S. 

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

same subject;" State v. Collett (1946), 118 Mont. 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 

regarding what Nix told them was a classic example of inadmissible hearsay. The prejudice is patent. 

The conviction is reversed and the case ordered dismissed. 

We Concur: 

Chief Justice 

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Justices