No. 85-548 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff

### and Respondent,



### -vsPATRICK CAIN, Defendant

### and Appellant.

APPEAL FROM: DistrictCourt

### of the Seventh

### JudicialDistrict, 

### In and 

### forthe County

### of Dawson, The Honorable R. C. McDonough, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: LarryMansch, Missoula, 

### Montana

ForRespondent: Hon. Mike Greely, Attorney General, Helena, Montana DorothyMcCarter, Asst. Atty. General, Helena RichardA. Simonton, CountyAttorney, Glendive, Montana; Marvin L. Howe, Deputy CountyAttorney

Submitted

### on Briefs: March 21, 1986 Decided: May 15, 1986 

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## t1386 Filed.Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of theCourt. Defendant, Patrick Cain, appeals his conviction of the offense of theft following a jury trialinthe Seventh Judicial District Court, County of Dawson. We affirm the conviction. On November 15, 1984, defendant and Burl Keith Hunter

were arrested and charged with the theft of approximately $19,000 worth of drilling bits from Security Bits of Glendive, Montana. Hunter pled guilty. Cain pled not guilty, claiming that he was unaware of any criminal wrongdoing. Hunter was the state's key witness atCain's trial. He testified that he had known defendant for three or four years. He came toMiles City inNovember of 1984 tovisit with defendant and to "party". While inMiles City, Hunter drove a three-quarter ton Ford pickup truck belonging to Eastman Whipstock, an oil field company located in Casper, Wyoming. Hunter further testifiedthaton November 7, 1984, after drinking heavily, he and Cain attempted to steal some drilling bits from various drilling rigs. The plan failed. The next day the two went to Glendive, Montana, called Security Bits and arranged tomeet 

### its representative atthe shop in order toprocure some bits. Allan Swenson, sales manager for Security Bits, was out of town for the weekend. Melvin McDanold had agreed tobe "on call" for Swenson in the event someone wished tomake a purchase from the shop. McDanold and a friend, Danny Grigsby, met Hunter and defendant atthe shop. Hunter testified that he then "took charge". He told McDanold that his

name was Wayne Harther, he worked for an oil company out-of-state and he needed to purchase certain drill bits.Eight bitswere then selectedand loaded intoHunter's truck. Hunter signed an invoice forthebitsusing his assumed name, Wayne Harther. Thereafter, according to Hunter, he and defendant went to Gettysburg, South Dakota, where they sold the eightdrillbits for $1900. The money was divided equallybetween the two and they returned toMiles City. Other witnesses for the State substantiated most of Hunter's testimony. McDanold testified that a "Wayne Harther" (Hunter) had calledNovember 8, 1984, and statedhe worked atCoastal Oiland Gas and needed some drilling bits. Hunter and 

### a second individual (defendant) 

### met McDanold at the shop. Hunter introduced himself as Wayne Harther. McDanold was unsure whether defendant was present atthe

### time of the introduction but was fairly certain defendant could have heard the introduction. Hunter was definitely in charge. Defendant was l1just there". After the bits were located, Hunter signed the invoice as Wayne Harther and departed. Grigsby, McDanoldls friend who accompanied him to the shop, testified that he and defendant had primarily stood around and talked while Hunter and McDanold searched forthe bits. Hunter appeared tobe incharge. Grigsby also stated that he was unsure whether defendant had heard Hunter introduce himself asHarther asdefendant might have stillbeen in the truck. After Hunter stated he was from Casper, Grigsby inquired of defendant whether he knew some of Grigsby's friends in Casper. Defendant stated that he had just moved from Oklahoma.and didnot know anyone. The remainder of the relevant testimony came from a law officer. Highway Patrolman Warren Schiffer testified that after stopping Hunter on November 10, 1984, for a speeding violation, he discovered the truck had been reported stolen by Eastman Whipstock. Hunter and defendant 

### were both

### arrested. Defendantwas subsequently released. At the time of arrest,Hunter had six $100bills on hisperson and defendant had largebills totaling at least $250. At the close of the State's case-in-chief, defendant's attorney moved for a directed verdict on two grounds: 1) the State failed toprove its casebeyond a reasonabledoubt; and insufficient corroboration of the accomplice, Hunter testimony. The motion was denied and the trial continued. Defendant was convicted of theft and received an eight-year suspended sentence. On appeal, defendant raises the following issue: Whether the trial judge erred, pursuant to § 

### 46-16-213, MCA, in denying defendant's motion for a directed verdict at the close of the State's case? Section 46-16-213,MCA, states: Testimony ofperson legally accountable. 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 commission of the offense or the circumstancesthereof. Whether evidence is sufficientto corroborate the testimony of an accomplice is a question of law. The evidence must showmore than the fact that a crimewas committed. It must raise more than a suspicion concerning defendant's involvement in the crime. However, it need not be sufficient, on its face, to support a prima facie case against defendant. State v. Kemp (19791,182Mont. 383, 386 

## - 3871 597 P.2d 96, 99. The evidence need only "tend to connect" defendant with the crime. State v. Mitchell (Mont. 1981),

the evidence may be circumstantial and it may come from the

### defendant or hiswitnesses. Kemp, 182Mont. at 387, 597 P.2d at 99. Hunter's testimony implicating defendantwas corroborated by testimony indicating that defendant knew Hunter was using an alias and testimony suggesting that defendant told Grigsby he was residing in Casper,Wyoming. Further, it is undisputed that defendant was at Security Bits at the time the bits were stolen. Finally, defendant was arrested with

over $200 cash in his pocket on the road between South Dakota and Miles City two days after the theft. This is consistent with Hunter's testimony that he and defendant sold the drill bits in SouthDakota for $1900 cash. The testimony against defendant is circumstantial. But,

as amatter of law, it is not insufficient to corroborate the accomplice's testimony. The testimony might also be, as defendant contends, consistent with innocent conduct on the part of defendant. Defendant

## 's mother might have provided him with money for a job-hunting expedition to South Dakota. Defendant might not have heard Hunter introduce himself as Wayne Harther. However,these are factualquestions,properly resolvedby the jury. Statev. Anderson (1982), 197Mont. 374, 378, 643 P.2d 564, 566. The trial judge did not err when he refused to grant defendant's motion for a directed verdict. Affirmed.

We concur: 

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