NO. 95-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

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 

Thomas Esch, Flathead County Attorney, 

Ed Corrigan, Deputy Flathead County Attorney, 

Kalispell, Montana 

Filed: 

Submitted on Briefs: February 15, 1996 

Decided: May 14, 1996 
Justice Karla M. Gray delivered the Opinion of the Court 

Michael Daron Smith (Smith) appeals from the judgment and 

sentence entered by the Eleventh Judicial District Court, Flathead 

County, on a jury verdict finding him guilty of the offense of 

felony theft of stolen property. We affirm. 

We address 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 on theft of lost or mislaid property? 

4. Did Smith's sentence violate his constitutional right to 

due process? 

On May 22, 1994, David Ferree (Ferree) observed two juveniles 

riding a motorcycle and a "four-wheeler" all terrain vehicle 

(collectively, the bikes) in a mountainous area near Bowser Lake, 

northwest of Kalispell, Montana. Later that day, Ferree observed 

the juveniles drive away from the area in a pickup truck without 

the bikes. Ferree suspected the bikes had been stolen and then 

hidden in the area. 

Ferree told Smith about the bikes and where he thought they 

were hidden. The men discussed whether the bikes might be stolen 

property. They decided to retrieve the bikes and Smith borrowed 

money from his friend Ricky Burke to buy gasoline for that purpose. 

After retrieving the bikes, Smith and Ferree took them to Smith's 

residence, cleaned them and placed them in Smith's garage. 

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Smith and Ferree were certain that the bikes did not belong to 

the juveniles Ferree had seen riding them. They discussed whether 

to try to collect a reward for returning the bikes or sell them out 

of Montana. They checked Crimestoppers listings and the lost and 

found advertisements in the local newspaper and listened to the 

radio for any information regarding the bikes. Smith told Ferree 

that he had contacted the police, presumably to determine if the 

bikes were reported stolen. 

An acquaintance of Ferree's, Russell Geldrich, examined the 

bikes with the supposed purpose of purchasing them. Smith and 

Ferree quoted him a price and stated their preference that the 

bikes be taken where they could not be seen. 

The bikes had been reported stolen on May 11 and 15, 1994. 

Acting on a tip about their location, a detective from the Flathead 

County Sheriff's Department and a detective from the Kalispell 

Police Department went to Smith's residence on June 2, 1994. After 

gaining permission from Smith's wife to search the garage, the 

detectives recovered the bikes. 

The State of Montana (State) charged Smith by information with 

two counts of felony theft in violation of § 45-6-301(l), MCA. The 

information subsequently was amended to 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 and exercised his right to a jury trial. 

Smith's trial was held on February 16, 1995. The jury found 

Smith not guilty of felony theft of the bikes and guilty of felony 

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theft of stolen property. The District court subsequently 

sentenced Smith to the Montana Department of Corrections and Human 

Services for placement in an appropriate 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 and to plead guilty to any offense 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 and the discussions between 

himself and Smith. The District Court overruled the objection and 

Ferree testified that he and Smith discussed the ownership of the 

bikes and suspected the bikes were stolen; at one point, Ferree 

affirmatively stated that he and Smith were sure the bikes did not 

belong to the juveniles Ferree observed riding them. Ferree also 

testified that he and Smith discussed attempting to either collect 

a reward for the bikes or sell them and send them out of state. 

Smith argues generally that Ferree's testimony was 

inadmissible. More specifically, he argues that Ferree testified 

as a coconspirator and that, because the State did not first 

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establish the existence of a conspiracy between Smith and Ferree 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. We review a trial court's 

evidentiary rulings to determine whether the court abused its 

discretion. State v. Stringer (1995), 271Mont. 367, 374, 897 P.2d 

1063, 1067 (citation omitted). 

"A statement is not hearsay if: . . [tlhe statement is 

offered against a party and is . . a statement by a coconspirator 

of a party during the course and in furtherance of the conspiracy." 

Rule 801(d)(2) (E), M.R.Evid. Before a coconspirator's statement 

may be admitted under Rule 801(d) (2) (E), M.R.Evid., the State must 

establish a proper foundation, by a preponderance of the 

independent evidence, that a conspiracy exists. State v. Stever 

(1987), 225 Mont. 336, 342, 732 P.2d 853, 857. The State must show 

that a conspiracy exists, that the declarant coconspirator and the 

defendant were members of the conspiracy and that the declaration 

was made in furtherance of the conspiracy. Stever, 732 P.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 was admissible under 

other provisions of the Montana Rules of Evidence and, therefore, 

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that whether it met the foundational requirements for admission 

under Rule 801(d) (2) (E) is not relevant. 

We observe, 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), 663 F.2d 1381). Thus, if 

Ferree's testimony regarding his own statements to Smith and the 

discussions between the two is otherwise admissible, we need 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. 

We first address Smith's objection to the State's question to 

Ferree regarding what Ferree told Smith. The record reflects that, 

subsequent to the posing of the question and the District Court's 

indication--in response to Smith's objection--that the question did 

not appear to solicit hearsay, Ferree responded that he told Smith 

about the bikes and his 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 own statements and he was 

testifying at trial as to those statements. For these reasons, 
Ferree's testimony about his own statements did not come within 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. The State 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). We agree. 

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 own statements. 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), 239 Mont. 150, 158, 779 

P.2d 500, 505, Smith's statements were made by the party defendant 

in a criminal case and offered against the party, by the 

prosecution, through the testimony of the person to whom they were 

made. We conclude 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 and Smith's statements during their discussions 

was relevant under Rule 401, M.R.Evid., in that it related to 

Smith's knowledge and mental state both at the time he and Ferree 

obtained control over the bikes and at later times. The mental 

state element of the alternative offenses with which Smith was 

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

MCA. Generally, "[al 11 relevant evidence is admissible." Rule 

402, M.R.Evid. 

We conclude that Ferree's testimony about his own statements 

and Smith's statements to him was not hearsay and was relevant. 

Therefore, we further conclude that it was admissible under Rule 

402, M.R.Evid., without regard to the foundational requirements for 

admissibility under Rule 801(d) (2) (E), M.R.Evid. See Smith, 744 

F.2d at 1364-65. We hold, 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 whom Smith borrowed money 

for gas needed to retrieve the bikes, testified on Smith's behalf 

at trial. The State objected, on hearsay grounds, to questions of 

Burke about Smith's statements to him regarding Smith's purpose in 

borrowing gas money. Smith's counsel responded that, because Smith 

was a party 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. The District 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. On that basis, the court 

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precluded further testimony from Burke regarding Smith's statements 

to him. 

We observe at the outset that Smith does not contend on appeal 

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.; as set forth above, the 

basis on which the testimony was offered was Rule 801(d) (2) (A), 

M.R.Evid. 

"It is axiomatic that a party may not change the theory on 

appeal from that advanced in the district court." State v. 

Henderson (1994), 265 Mont. 454, 458, 877 P.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, he may not raise it in this Court. See State v. Johnson 

(1993) I 257 Mont. 157, 162, 848 P.2d 496, 499. We consider 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 on theft 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 

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included 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 and that the court's refusal to give them constituted 

error. 

A criminal defendant is entitled to a requested lesser 

included offense instruction where, based on the evidence, the jury 

rationally could be warranted in convicting on the lesser offense 

and acquitting on the greater offense. Section 46-16-607(2), MCA; 

State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. 

Thus, we first must determine whether, as a matter of law, theft of 

lost or mislaid property is a lesser included offense of theft of 

stolen property. If so, we then 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 one which "is established by proof of the 

same or less than all the facts required to establish the 

commission of the offense chargedr .I I1 Section 46-l-202(8) (a), MCA. 

The term "facts," as used in the statute, refers to the statutory 

elements of the offense and not the individual facts of each case. 

State v. Ritchson (1981), 193 Mont. 112, 116, 630 P.2d 234, 237. 

Section 46-l-202(8) (a), MCA, does not, by its terms, define a 

"lesser" included offense. The test we traditionally have applied 

in determining whether an offense is a lesser included offense of 

another offense was stated in Blockburger v. United States (1932), 

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284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309. See -I 

u, State v. Arlington (19941, 265 Mont. 127, 163, 875 P.2d 307, 

330; State v. Long (19861, 223 Mont. 502, 510, 726 P.2d 1364, 1369. 

In the context of a defendant'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 

do not." Lonq, 726 P.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 be of an insulting 

or provoking nature and no such proof is required for sexual 

assault. Lonq, 726 P.2d at 1369. 

The offense of theft of stolen property is committed when a 

person purposely or knowingly obtains control over stolen property, 

knowing the property to have been stolen by another, and has 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 by another person. 

The offense of theft of lost or mislaid property is committed 

when a person 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 a reasonable method of 

identifying the owner; 

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(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. To establish the offense of theft of lost 

or mislaid property, the State must prove--among other things--that 

the property was lost or mislaid; that the defendant knew or 

learned the owner's identity or learned of a reasonable 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 on a person 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 one offense, the State must prove that the property 

was stolen property while, for the other offense, the State must 

prove that the property was lost or mislaid property. Nor does the 

existence of a substantially 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 be offered to establish both offenses does not make one 

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offense a lesser 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 a lesser 

included offense of theft of stolen property. 

As we observed 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 we determine 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 on the offense of theft of lost or mislaid property. 

We hold, therefore, that the District Court did not err in refusing 

Smith's instructions. 

4. Did Smith's sentence violate his constitutional right to 

due process? 

Prior to trial, the State offered Smith a plea agreement under 

which it would recommend a probationary sentence, deferred or 

suspended depending on his prior record, in exchange for a guilty 

plea to the theft charge. Smith rejected the offer and exercised 

his right to a jury 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 and Human Services 

for placement in an appropriate institution or program for ten 

years. Smith contends that the sentence penalized him for 

exercising his right to a jury trial in violation of his right to 

due process. 

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District courts have broad discretion in sentencing defendants 

convicted of criminal offenses. State v. Lloyd (1984), 208 Mont. 

195, 199, 676 P.2d 229, 231. We generally 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. See State v. Almanza (1987), 229 Mont. 383, 386, 746 

P.2d 1089, 1091. There are, however, exceptions to these general 

rules. 

Punishing a person for exercising a constitutional right is a 

basic due process violation. State v. Baldwin (1981), 192 Mont. 

521, 525, 629 P.2d 222, 225 (citations omitted). Indeed, in 

Baldwin, we vacated and remanded for resentencing because we were 

unable to determine from the record whether the defendant was 

punished for exercising his right to a jury trial after rejecting 

a plea agreement. Baldwin, 629 P.2d at 226. 

In Baldwin, the trial court was directly involved in the 

unsuccessful plea negotiation process. The defendant 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 had offered in exchange for a guilty 

plea. Baldwin, 629 P.2d at 224. We held that a trial court which 

involves itself in an unsuccessful plea bargaining process and, 

thereafter, imposes a harsher sentence than was offered in exchange 

for a guilty plea, must expressly point out the factors which 

justify the increased sentence. Baldwin, 629 P.2d at 226. Because 

14 
the trial court had not done so, there was no assurance 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, 629 P.2d at 226. We followed Baldwin and 

remanded for resentencing on substantially similar facts in State 

v. Tate (1982), 196 Mont. 248, 639 P.2d 1149. 

Here, Smith concedes that the District Court was not involved 

in any way in the unsuccessful plea negotiations between himself 

and the State. Thus, Baldwin has no application here. 

Smith also concedes that the District Court specified the 

bases for the sentence it imposed, and he does not challenge any of 

those bases. Simply put, nothing on the record before us supports 

Smith's claim that his sentence was improperly increased because he 

exercised his right to a jury trial. We hold, therefore, that 

Smith's sentence did not violate his constitutional right to due 

process. 

Affirmed. 

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