No. 87-124 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOSEPH EUGENE OLIVER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Stephen C. Moses, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe Roberts, Asst. Atty. General, Helena, Montana 

Peter LaPanne, County Attorney, Roundup, Montana 

Submitted on Briefs: June 11, 1987 

Decided: September 11, 1987 

Filed: SEP 11 887 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Joseph Eugene Oliver appeals his conviction 

for burglary from the Fourteenth Judicial ~istrict, 

Musselshell County. Oliver was sentenced to eight years in 

the Montana State Prison with three years suspended. 

We affirm. 

Three issues are presented for our review: 

1. Did the District Court abuse its discretion when it 

denied defendant's motion in limine to prohibit testimony of 

events which occurred in Helena? 

2. Did the District Court abuse its discretion when it 

allowed Officer John Hitchcock to testify as an expert? 

3. Was there substantial credible evidence to support 

the jury's verdict? 

On August 20, 1986, defendant and appellant Joseph 

Eugene Oliver visited the residence of Robert Smith between 

1:00 and 2:00 p.m. The Smith residence is located approximately five miles from Roundup in Musselshell County. Oliver 

was accompanied by his stepfather, Everett Handvold, and both 

were friends and acquaintances of Robert Smith and his wife, 

LaDonna . 

Robert and LaDonna Smith were preparing to leave on a 

fishing trip, so the conversation took place in the driveway 

and on the front porch. The conversation ended in ten or 

fifteen minutes because Smith had loaded his car and was 

ready to leave on the fishing trip. 

Smith testified at trial the defendant was driving a 

green colored older model Ford LTD with a black vinyl top. 

Smith also stated, "[Joseph Oliver] is the only friend I have 

that comes to visit me and wears tennis shoes." 

Robert Smith owned several rifles which were displayed 

on a rack in his house. They were: a 1917 Winchester 
Enfield; a 7-mm Mauser (WWI German infantry rifle); a 

12-gauge Mossberg shotgun; a .22 semi-automatic Marlin; and a 

22.250 Remmington Model 788. 

Robert and LaDonna Smith testified that both doors to 

their residence were locked when they left to go fishing. 

They also testified that the doors were locked upon their 

return at approximately 10:OO p.m. At 11:30 p.m. the Smiths 

discovered that the rifles had been stolen. Since the doors 

were locked upon their return, it was apparent that someone 

had gained entry to the house by opening and climbing through 

a window. 

John Hitchcock, deputy sheriff of Musselshell County, 

arrived at the crime scene at approximately 11:45 p.m. 

Robert Smith and Deputy Hitchcock inspected all possible 

entrances into the home. They found an open window in the 

rear of the residence with a tennis shoe tread print on the 

ground below. Deputy Hitchcock photographed the tennis shoe 

tread print. He later matched the photograph to tennis shoes 

worn by the defendant. 

Sergeant Troy McGee of the Helena police department 

testified that he was contacted on August 21, 1986, by Chuck 

Lidman, manager of a Helena pawnshop called Alias Smith and 

Jones. Lidman reported that a man had been in the pawnshop 

trying to pawn some guns. Lidman described the man as nervous, fidgety and stated that the man refused to bring the 

guns into the store for inspection. The description of the 

guns given by the man matched the general description of the 

guns stolen from the Smith residence. 

Lidman described the man in the pawnshop as being over 

six feet tall, weighing approximately 225 pounds with red 

hair, arm tatoos and wearing a Harley Davidson tee-shirt with 

"takes guts" on it. Lidman testified the man in the pawnshop, whom he later identified as defendant, was driving an 
older model green Ford automobile with Illinois license plate 

number 505466. Pawnshop employee, Todd Stoos, also identified defendant as the man in Alias Smith & Jones Pawnshop on 

August 21, 1986. Stoos's testimony corroborated testimony of 

Chuck Lidman. 

On September 5, 1986, defendant was arrested. After 

defendant was "booked" into jail, Deputy Hitchcock obtained 

one of the tennis shoes he was wearing at the time of his 

arrest. Officer Hitchcock performed a detailed comparison of 

defendant's tennis shoe and the photograph of the tread print 

found outside the bedroom window of the Smith residence. He 

concluded the tread pattern of the print and defendant's 

tennis shoe were "similar, if not identical." 

George Eppers of the Montana Highway Patrol testified 

that on July 30, 1986, three weeks prior to the alleged 

burglary, he issued a speeding ticket to defendant Joe Oliver. Patrolman Eppers testified that defendant was driving 

an older model Ford, green in color, with a black vinyl top. 

Patrolman Eppers stated that defendant's license plate number 

was Illinois plate number 505606. However, cross-examination 

established that the actual number of defendant's license 

plate was Illinois license plate number 505466. 

Defendant did not testify at trial and called one 

witness. Debbie Ritterodt, a dispatcher at the sheriff's 

office, testified that when Robert Smith reported the burglary, he stated the defendant had lived with him for the two 

or three weeks prior to the crime. Robert Smith denied 

making this statement. Smith stated that defendant had 

parked his trailer for three or four days at the Smith residence when defendant first moved to Roundup. 
Issue 1 

Did the District Court abuse its discretion when it 

denied defendant's motion in limine to prohibit testimony of 

events which occurred in Helena? 

Defendant Oliver contends that evidence of his activities in Helena following the alleged burglary of the Smith 

residence are not relevant to the elements of the crime as 

charged. Defendant argues the evidence must be excluded 

because it does not conclusively prove that he committed the 

burglary. 

Relevancy is defined in Rule 401, M.R.Evid., which 

provides in pertinent part: 

Relevant evidence means evidence having 

any tendency to make the existence of 

any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence. 

In State v. Fitzpatrick (19801, 186 Mont. 187, 207, 606 

P.2d 1343, 1354, we adopted the Criminal Code Commission 

comments: 

The test of relevance is whether an item 

of evidence will have value, as determined by logic and experience, in proving the proposition for which it is 

offered. The standard used to measure 

this acceptable probative value is "any 

tendency to make the existence of any 

fact . . . more or less probable than it 

would be without the evidence." This 

standard rejects more stringent ones 

which call for evidence to make the fact 

or proposition for which it is offered 

more probable than any other. It is 

meant to allow wide admissibility of 

circumstantial evidence limited only by 

Rule 403 or other special relevancy 

rules in Article IV. 
Defendant does not raise Rule 403, M.R.Evid., or any other 

relevancy limitation. 

At trial, the State introduced undisputed evidence the 

defendant had the opportunity to commit the offense. He was 

at the Smith residence on the afternoon the guns were stolen 

and was aware the Smiths were leaving their residence for a 

fishing trip. Secondly, the State presented evidence that 

entrance to the Smith residence was gained through a rear 

bedroom window. Underneath the window, a tennis shoe print 

was found which matched defendant's tennis shoe prints. 

Defendant was wearing tennis shoes on the day of the burglary 

and was the only person known to the Smiths who had done so 

in the area of their house. 

The State then produced the evidence at issue: (1) 

that a person matching defendant's description and (2) driving an automobile which matched the description of defendant's automobile (3) attempted to sell guns of the same 

general description as those stolen from the Smiths to a 

Helena pawnshop. The above-mentioned testimony details 

motive, opportunity and evidence that defendant committed the 

crime as charged. The evidence in issue is circumstantial. 

Circumstantial evidence tends to establish a fact by proving 

another which, though true, does not of itself conclusively 

establish that fact but affords an inference or presumption 

of its existence, 5 26-1-102, MCA. We have approved the use 

of circumstantial evidence in criminal convictions. See 

State v. Shurtliff (1981), 195 Mont. 213, 218, 635 P.2d 1294, 

1297. 

Evidence is relevant when it naturally or logically 

tends to establish a fact in issue. State v. Fitzpatrick, 

186 Mont. at 207, 606 P.2d at 1354. The question of admissibility of evidence must be left to the sound discretion of 

the trial court, subject to review only in case of manifest 
abuse. Cech v. State (1979), 183 Mont. 75, 89, 604 P.2d 97, 

102. 

The evidence of defendant ' s activities in Helena naturally or logically establishes an additional fact which 

implicates defendant's guilt of the crime as charged. The 

trial court properly admitted the evidence. 

Issue 2 

Did the District Court abuse its discretion when it 

permitted Officer John Hitchcock to testify as an expert on 

footprints? 

Rule 702, M.R.Evid., provides: 

If scientific, technical or other specialized knowledge will assist the trier 

of fact to understand the evidence or to 

determine a fact in issue, a witness 

qualified as an expert by knowledge, 

skill, experience, training or education 

may testify thereto in the form of an 

opinion or otherwise. 

Previously, we recognized the need for expert testimony 

when identifying characteristics of shoe prints. See, State 

v. Smith (1986), 715 P.2d 1301, 1308, 43 St.Rep. 449, 457. 

In the issue at hand, Officer John Hitchcock testified 

that on August 20, 1986, he photographed the tread print of a 

tennis shoe found below an open window located in the rear of 

the Smith residence. Officer Hitchcock testified that the 

photograph of the tread print found below the Smith's open 

window was "similar if not identical" to the tread print of 

defendant's tennis shoes. Hitchcock's photographs were 

admitted into evidence at trial. 

After defendant objected to Officer Hitchcock's opinion 

testimony, the State laid a foundation to qualify Hitchcock 

as an expert witness. Hitchcock testified he was a 

seven-year veteran of the Musselshell County sheriff's 
department; that he had received special training in footprints and latent prints and that he attended both the Montana Law Enforcement Academy's basic and intermediate 

training sessions. Officer Hitchcock also stated he had 

received training in identifying and securing footprints and 

in the observation of individual characteristics of footprints. Finally, Hitchcock testified that he had participated in several criminal investigations "where the only 

physical evidence that was left at a crime scene was footprints" and that the evidence had supported arrests and 

convictions. 

We have long held the standard for determination of the 

qualification of an expert witness is "a matter largely 

within the discretion of the trial judge and in the absence 

of a showing of abuse, ordinarily will not be disturbed." 

Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 

369, citing Graham v. Richardson (1967), 150 Mont. 270, 285, 

435 P.2d 263, 271. The degree of a witness qualification 

affects the weight rather than the admissibility of the 

testimony. State v. Berg (Mont. 1985), 697 P.2d 1365, 1367, 

42 St.Rep. 518, 520. 

The State offered a witness with specialized training 

in footprints and with practical experience to apply his 

education. The District Court found Officer Hitchcock qualified to testify as an expert witness. We hold that the court 

did not abuse its discretion when it found Hitchcock qualified to testify as an expert. 

Issue 3 

Was there substantial credible evidence to support the 

jury's verdict? 

Defendant argues his conviction is not supported by 

substantial evidence because the State did not prove beyond a 
reasonable doubt that defendant knowingly entered an occupied 

structure with the purpose to commit an offense therein. 

Section 46-6-204(l), MCA. Defendant contends the State's 

presentation of circumstantial evidence merely shows that 

defendant had the opportunity to commit the burglary but 

fails to connect defendant to the crime. 

The standard for review of the sufficiency of the 

evidence is: "Whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. " Jackson v. Virginia (1979) , 443 

U. S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573. We 

defined substantial evidence as "such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion." State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41 

St.Rep. 1277, 1289, 

After reviewing the record, we hold that substantial 

credible evidence was presented to the jury. A summary of 

the evidence establishes that defendant was aware that Robert 

and LaDonna Smith would be away from their home on the afternoon of August 20, 1986. Earlier, defendant had expressed 

interest in a number of Robert Smith's rifles. Defendant had 

also indicated to Smith that he wanted to move from the 

Roundup area and needed money to do so. 

When the Smiths left to go fishing, the doors to their 

residence were locked. The doors were still locked when they 

returned. However, a window was ajar and a tennis shoe tread 

print was found below the opened window. The tread print 

matched that of defendant's tennis shoe. 

On the morning following the burglary, the manager of a 

Helena pawnshop, Chuck Lidman, and an employee, Todd Stoos, 

witnessed the defendant trying to sell guns which matched the 

general description of those stolen from the Smith residence. 
Stoos and Lidman identified defendant out of a photo lineup. 

They described defendant as nervous and fidgety and testified 

that defendant refused to bring the guns into the shop for 

inspection. Lidman described defendant's automobile as a 

green colored older model Ford with a black vinyl top and 

Illinois license plate number 505466. 

Finally, the State presented evidence that defendant 

had been issued a speeding citation three weeks prior to the 

burglary. Montana Highway Patrolman George Eppers testified 

that defendant was driving a green colored, older model Ford 

Galaxy with a black vinyl top and Illinois license plate 

number 505606. Although Patrolman Eppers incorrectly recorded defendant's license plate number, it is apparent the jury 

determined that both Chuck Lidman and Patrolman Eppers observed the same automobile. 

In conclusion, the evidence was primarily circumstantial, there being no witnesses to the actual burglary. 

However, when the evidence is viewed in a light most favorable to the State, it is clear that substantial credible 

evidence supports defendant's conviction for burglary. State 

v. Atlas (Mont. 1986), 728 P.2d 421, 423, 43 St.Rep. 2042, 

2044. 

Affirmed. 

We concur: