NO. 95-181 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996

APPEALFROM: District Court of the Eleventh Judicial District,

In andfor the County of Flathead, TheHonorable Ted0. Lympus, Judge presiding.

COUNSELOFRECORD:

For Appellant: Patrick D. Sherlock; Sherlock &Nardi, Kalispell, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass't Attorney General, Helena, Montana ThomasEsch, Flathead County Attorney, EdCorrigan, Deputy Flathead County Attorney, Kalispell, Montana

Filed: Submitted onBriefs: February 15, 1996 Decided: May14, 1996Justice Karla M.Gray delivered the Opinion of the Court

Michael Daron Smith (Smith) appeals from the judgment and sentence entered bythe Eleventh Judicial District Court, Flathead County, on ajury verdict finding him guilty of the offense of felony theft of stolen property. Weaffirm. Weaddress the following dispositive issues: 1. Did the District Court abuse its discretion in admitting David Ferree's testimony regarding his discussions with Smith? 2. Did the District Court abuse its discretion in excluding Ricky Burke's testimony regarding Smith's statements to him? 3. Did the District Court err in refusing Smith's proposed jury instructions ontheft of lost or mislaid property? 4. Did Smith's sentence violate his constitutional right to dueprocess? OnMay22, 1994, David Ferree (Ferree) observed twojuveniles riding a motorcycle and a "four-wheeler" all terrain vehicle (collectively, the bikes) in amountainous area near Bowser Lake, northwest of Kalispell, Montana. Later that day, Ferree observed the juveniles drive awayfrom the area in apickup truck without the bikes. Ferree suspected the bikes had been stolen and then hidden in the area. Ferree told Smith about the bikes andwhere he thought they

were hidden. Themendiscussed whether the bikes might bestolen property. They decided to retrieve the bikes and Smith borrowed moneyfrom his friend Ricky Burke to buygasoline for that purpose. After retrieving the bikes, Smith andFerree took them to Smith's residence, cleaned them andplaced them in Smith's garage.

2Smith andFerree were certain that the bikes did not belong to

the juveniles Ferree hadseenriding them. Theydiscussed whether to try to collect areward for returning the bikes or sell themout of Montana. They checked Crimestoppers listings andthe lost and found advertisements in the local newspaper and listened to the radio for any information regarding the bikes. Smith told Ferree that hehad contacted the police, presumably to determine if the bikes were reported stolen. Anacquaintance of Ferree's, Russell Geldrich, examined the bikes with the supposed purpose of purchasing them. Smith and Ferree quoted him aprice and stated their preference that the bikes betaken where they could not beseen. Thebikes had been reported stolen onMay 11and 15, 1994. Acting onatip about their location, adetective from the Flathead County Sheriff's Department and a detective from the Kalispell Police Department went to Smith's residence onJune2, 1994. After gaining permission from Smith's wife to search the garage, the detectives recovered the bikes. TheState of Montana (State) charged Smith byinformation with two counts of felony theft inviolation of §45-6-301(l), MCA. The information subsequently wasamendedto charge Smith with felony theft of the bikes or, in the alternative, with felony theft of stolen property under § 45-6-301(3), MCA. Smith rejected an offered plea bargain andexercised his right to ajury trial. Smith's trial washeld onFebruary 16, 1995. Thejury found Smith not guilty of felony theft of the bikes andguilty of felony

3theft of stolen property. The District court subsequently

sentenced Smith to the Montana Department of Corrections andHuman Services for placement in anappropriate correctional institution

or program for ten years. Smith appeals. 1. Did the District Court abuse its discretion in admitting David Ferree's testimony regarding his discussions with Smith? In addition to charging Smith, the State also charged Ferree with felony theft of the bikes. Ferree agreed to testify against Smith andto plead guilty to anyoffense of which Smith ultimately

was convicted. In anticipation of Ferree's testimony on the State's behalf, Smith filed a pretrial memorandum addressing coconspirator testimony. During the State's direct examination of Ferree, the State questioned him regarding his statements to Smith and their discussions about the bikes. Based on the arguments in his pretrial memorandum, Smith objected to Ferree's testimony concerning both his statements to Smith andthe discussions between himself andSmith. TheDistrict Court overruled the objection and Ferree testified that heandSmith discussed the ownership of the bikes and suspected the bikes were stolen; at one point, Ferree affirmatively stated that heandSmith were sure the bikes did not belong to the juveniles Ferree observed riding them. Ferree also testified that heandSmith discussed attempting to either collect

areward for the bikes or sell them andsend them out of state. Smith argues generally that Ferree's testimony was inadmissible. More specifically, heargues that Ferree testified

as a coconspirator and that, because the State did not first 4establish the existence of aconspiracy between Smith andFerree by

independent evidence, Ferree's testimony regarding his discussions with Smith and anything Smith said to him was not admissible pursuant to Rule 801(d) (2)(E), M.R.Evid. Wereview atrial court's evidentiary rulings to determine whether the court abused its discretion. State v. Stringer (1995), 271Mont. 367, 374, 897P.2d 1063, 1067 (citation omitted). "A statement is not hearsay if:

. . [tlhe statement is offered against aparty andis

. .astatement byacoconspirator of aparty during the course andin furtherance of the conspiracy." Rule 801(d)(2) (E), M.R.Evid. Before acoconspirator's statement maybeadmitted under Rule 801(d) (2)(E), M.R.Evid., the State must establish a proper foundation, by a preponderance of the independent evidence, that aconspiracy exists. State v. Stever (1987), 225Mont. 336, 342, 732P.2d 853, 857. TheState must show that aconspiracy exists, that the declarant coconspirator andthe defendant were membersof the conspiracy andthat the declaration

wasmadein furtherance of the conspiracy. Stever, 732P.2d at 857 (citations omitted). Smith contends that the State failed to meet the foundational requirements of Stever and, therefore, that the District Court abused its discretion in admitting Ferree's testimony. The State does not assert that it established the requisite foundation for admission under Rule 801(d) (2)(E), M.R.Evid. It argues that Ferree's testimony wasadmissible under other provisions of the Montana Rules of Evidence and, therefore,

5that whether it met the foundational requirements for admission

under Rule 801(d) (2)(E) is not relevant. Weobserve, at the outset, that if evidence is admissible under one provision of the rules of evidence, it is admissible regardless of inadmissibility under another rule. a, u, Smith

v. Updegraff (8th Cir. 1984), 744 F.2d 1354, 1364-65 n.5 (citing United States v. Hewitt (5th Cir. 1981), 663F.2d 1381). Thus, if Ferree's testimony regarding his ownstatements to Smith and the discussions between the two is otherwise admissible, weneed not address Smith's contention that it was inadmissible under Rule 801(d) (2)(E), M.R.Evid., because the Stever requirements were not met. Wefirst address Smith's objection to the State's question to Ferree regarding what Ferree told Smith. Therecord reflects that, subsequent to the posing of the question andthe District Court's indication--in response toSmith's objection--that the question did not appear to solicit hearsay, Ferree responded that hetold Smith about the bikes andhis feelings about the ownership of the bikes. A witness may testify to facts within that witness' personal knowledge. Rule 602, M.R.Evid. Here, Ferree testified to facts that were within his own personal knowledge, namely his own statements. Moreover, Ferree himself was the "declarant" under Rule 801(b), M.R.Evid., with regard to his ownstatements and he was testifying at trial as to those statements. For these reasons,Ferree's testimony about his ownstatements did not comewithin the

definition of hearsay contained in Rule 801(c), M.R.Evid. We next address Smith's objection to Ferree's alleged coconspirator testimony concerning his discussions with Smith and Smith's statements during those conversations. TheState argues that Smith's statements in these conversations were admissions under Rule 801(d) (2)(A), M.R.Evid., and, therefore, "not hearsay" pursuant to the express language of Rule 801(d). Weagree. An "admission by party-opponent" under Rule 801(d) (2)(A), M.R.Evid., is a statement which is "the party's own statement" offered against the party. Here, Smith is the party defendant. Smith's statements during discussions with Ferree obviously were Smith's ownstatements. Moreover, those statements of Smith's were offered against Smith, via Ferree's testimony, by the State. As

was the case in State v. Ottwell (1989), 239Mont. 150, 158, 779 P.2d 500, 505, Smith's statements weremadebythe party defendant in a criminal case and offered against the party, by the prosecution, through the testimony of the person to whomthey were made. Weconclude that Smith's statements to Ferree were "not hearsay" under Rule 801(d) (2)(A), M.R.Evid. Finally, it is clear that Ferree's testimony about his statements to Smith andSmith's statements during their discussions

was relevant under Rule 401, M.R.Evid., in that it related to Smith's knowledge andmental state both at the time heand Ferree obtained control over the bikes and at later times. Themental state element of the alternative offenses with which Smith was

7charged is "purposely or knowingly." See§§45-6-301(l) and (3),

MCA. Generally, "[al 11 relevant evidence is admissible." Rule 402, M.R.Evid. Weconclude that Ferree's testimony about his ownstatements and Smith's statements to him wasnot hearsay and was relevant. Therefore, wefurther conclude that it wasadmissible under Rule 402, M.R.Evid., without regard to the foundational requirements for admissibility under Rule 801(d) (2)(E), M.R.Evid. SeeSmith, 744 F.2d at 1364-65. Wehold, therefore, that the District Court did not abuse its discretion in admitting Ferree's testimony concerning his discussions with Smith or Smith's statements to him. 2. Did the District Court abuse its discretion in excluding Ricky Burke's testimony regarding Smith's statements to him? Ricky Burke (Burke), the friend from whomSmith borrowed money for gas needed to retrieve the bikes, testified onSmith's behalf at trial. TheState objected, onhearsay grounds, to questions of Burke about Smith's statements to him regarding Smith's purpose in borrowing gasmoney. Smith's counsel responded that, because Smith

wasaparty to the case, his statements to Burke were declarations by a party and, therefore, admissible. The District Court expressed doubts, but overruled the State's objection. Burke's testimony concerning Smith's statements to him continued. TheDistrict Court subsequently reversed its earlier ruling and determined that Smith's statements to Burke were not admissions under Rule 801(d) (2)(A), M.R.Evid., presumably because they were not offered against Smith. Onthat basis, the court

8precluded further testimony from Burke regarding Smith's statements

to him. Weobserve at the outset that Smith doesnot contend onappeal that the District Court abused its discretion in determining that Smith's statements to Burke were not admissions under Rule 801(d) (2)(A), M.R.Evid. Instead, Smith argues that his statements to Burke were admissible under the hearsay exception for thenexisting state of mind set forth in Rule 803(3), M.R.Evid. However, Smith did not offer Burke's testimony to the District Court pursuant to Rule 803(3), M.R.Evid.; asset forth above, the basis on which the testimony was offered was Rule 801(d) (2)(A), M.R.Evid. "It is axiomatic that aparty maynot change the theory on appeal from that advanced in the district court." State v. Henderson (1994), 265Mont. 454, 458, 877P.2d 1013, 1016 (citation omitted). Smith having failed to raise the admissibility of Burke's testimony under Rule 803(3), M.R.Evid., in the District Court, hemaynot raise it in this Court. SeeState v. Johnson (1993)I 257Mont. 157, 162, 848 P.2d 496, 499. Weconsider for review only those questions raised in the trial court (Johnson, 848 P.2d at 499) and, therefore, we decline to address the admissibility of Burke's testimony under Rule 803(3), M.R.Evid. 3. Did the District Court err in refusing Smith's proposed jury instructions ontheft of lost or mislaid property? Faced with alternative charges of felony theft and felony theft of stolen property, Smith filed a pretrial memorandum addressing what he denominated as the §45-6-302, MCA, "lesser 9included offensetl of theft of lost or mislaid property, a

misdemeanor. He also submitted a series of proposed jury instructions on that offense, all of which were refused by the District Court. Smith argues that he was entitled to the instructions andthat the court's refusal to give them constituted

error.A criminal defendant is entitled to a requested lesser included offense instruction where, basedonthe evidence, the jury rationally could bewarranted in convicting onthe lesser offense andacquitting onthe greater offense. Section 46-16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. Thus, wefirst must determine whether, asamatter of law, theft of lost or mislaid property is alesser included offense of theft of stolen property. If so, wethen must determine whether Smith's proposed instructions were supported by the evidence. Insofar as it is relevant here, an "included offense" is statutorily defined as onewhich "is established by proof of the

same or less than all the facts required to establish the commission of the offense chargedr .II1Section 46-l-202(8) (a), MCA. Theterm "facts," asused in the statute, refers to the statutory elements of the offense andnot the individual facts of eachcase. State v. Ritchson (1981), 193Mont. 112, 116, 630P.2d 234, 237. Section 46-l-202(8) (a), MCA,doesnot, byits terms, define a "lesser" included offense. Thetest wetraditionally have applied in determining whether anoffense is alesser included offense of another offense wasstated in Blockburger v. United States (1932),

10284U.S. 299, 304, 52S.Ct. 180, 182, 76L.Ed.2d 306, 309. See -I u, State v. Arlington (19941, 265Mont. 127, 163, 875P.2d 307, 330; State v. Long (19861, 223Mont. 502, 510, 726P.2d 1364, 1369. In the context of adefendant's entitlement to jury instructions on

an alleged lesser included offense, we have characterized the Blockburser test as stating that "separate distinct offenses require proof of additional facts, where lesser included offenses donot." Lonq, 726P.2d at 1369. Applying that test in Lonq, we concluded that "the statutes defining misdemeanor assault and sexual assault clearly indicate that misdemeanor assault is not a lesser included offense of sexual assault" because misdemeanor assault requires proof that the physical contact beof aninsulting

or provoking nature and no such proof is required for sexual assault. Lonq, 726P.2d at 1369. Theoffense of theft of stolen property is committed whena person purposely orknowingly obtains control over stolen property, knowing the property to have been stolen by another, andhas the purpose of depriving the owner of the property. Section 45-6- 301(3) (a), MCA. Thus, to establish the offense of theft of stolen property, the State must prove--among other things--that the property was stolen and that the defendant knew the property was stolen byanother person. Theoffense of theft of lost or mislaid property is committed whenaperson obtains control over lost or mislaid property and:

(a) knows or learns the identity of the owner or knows, is aware of, or learns of areasonable method of identifying the owner;

11(b) fails to take reasonable measures to restore the

property to the owner; and Cc) has the purpose of depriving the owner permanently of the use or benefit of the property. Section 45-6-302, MCA. Toestablish the offense of theft of lost

ormislaid property, the State mustprove--among other things--that the property was lost or mislaid; that the defendant knew or learned the owner's identity or learned of areasonable method of identifying the owner; and that the defendant failed to take reasonable measures to return the property. It is clear from this limited comparison of the elements of the offenses of theft of stolen property and theft of lost or mislaid property that these are distinct offenses, each of which requires proof of at least one "fact" that the other does not. While both offenses are premised onaperson obtaining control over property belonging to another, the very nature of the property at the time control is obtained is markedly different in the two offenses: for oneoffense, the State must prove that the property

was stolen property while, for the other offense, the State must prove that the property waslost ormislaid property. Nor doesthe existence of asubstantially similar element in the two offenses-- "has the purpose of depriving the owner of the property" in the offense of theft of stolen property and "has the purpose of depriving the owner permanently of the use or benefit of the property" in theft of lost or mislaid property (see §§45-G 301(3) (a) and 45-6-302(c), MCA)--render the latter a lesser included offense of the former. Substantial overlap in the proof which would beoffered to establish both offenses doesnot makeone 12offense alesser included offense of another where each requires

proof of different facts. Arlinqton, 875 P.Zd at 330. Thus, we conclude that theft of lost or mislaid property is not alesser included offense of theft of stolen property. Asweobserved at the outset of our discussion of this issue,

we need only reach the secondary question of whether evidence supported Smith's proposed instructions regarding theft of lost or mislaid property if wedetermine that that offense is a lesser included offense of theft of stolen property. Having concluded otherwise, no amount of evidence could have entitled Smith to instructions onthe offense of theft of lost or mislaid property. Wehold, therefore, that the District Court did not err in refusing Smith's instructions. 4. Did Smith's sentence violate his constitutional right to dueprocess? Prior to trial, the State offered Smith aplea agreement under which it would recommend a probationary sentence, deferred or suspended depending onhis prior record, in exchange for aguilty plea to the theft charge. Smith rejected the offer andexercised his right to ajury trial. After the jury found Smith guilty of the offense of felony theft of stolen property, the District Court sentenced Smith to the Department of Corrections andHumanServices for placement in an appropriate institution or program for ten years. Smith contends that the sentence penalized him for exercising his right to ajury trial in violation of his right to dueprocess.

13District courts havebroad discretion in sentencing defendants

convicted of criminal offenses. State v. Lloyd (1984), 208Mont. 195, 199, 676 P.2d 229, 231. Wegenerally review a criminal sentence only for legality--that is, to determine whether it is within the statutory parameters established by the legislature; where a sentence is within those parameters, we generally will affirm it. SeeState v. Almanza (1987), 229Mont. 383, 386, 746 P.2d 1089, 1091. There are, however, exceptions to these general rules.Punishing aperson for exercising aconstitutional right is a basic dueprocess violation. State v. Baldwin (1981), 192Mont. 521, 525, 629 P.2d 222, 225 (citations omitted). Indeed, in Baldwin, wevacated and remanded for resentencing because wewere unable to determine from the record whether the defendant was punished for exercising his right to ajury trial after rejecting

aplea agreement. Baldwin, 629P.2d at 226. In Baldwin, the trial court was directly involved in the unsuccessful plea negotiation process. Thedefendant chose not to plead guilty and the case proceeded to trial. After the defendant's conviction, the trial court imposed a much harsher sentence than it originally hadoffered in exchange for aguilty plea. Baldwin, 629P.2d at 224. Weheld that atrial court which involves itself in anunsuccessful plea bargaining process and, thereafter, imposes aharsher sentence than wasoffered in exchange for a guilty plea, must expressly point out the factors which justify the increased sentence. Baldwin, 629P.2d at 226. Because

14the trial court hadnot done so, there wasnoassurance that the

sentence was not increased in retaliation for the defendant's insistence on a jury trial; on that basis, we remanded for resentencing. Baldwin, 629P.2d at 226. Wefollowed Baldwin and remanded for resentencing onsubstantially similar facts in State

v. Tate (1982), 196Mont. 248, 639P.2d 1149. Here, Smith concedes that the District Court wasnot involved in anyway in the unsuccessful plea negotiations between himself andthe State. Thus, Baldwin has noapplication here. Smith also concedes that the District Court specified the bases for the sentence it imposed, andhedoesnot challenge anyof those bases. Simply put, nothing onthe record before ussupports Smith's claim that his sentence wasimproperly increased because he exercised his right to ajury trial. Wehold, therefore, that Smith's sentence did not violate his constitutional right to due process. Affirmed.

15