No. 87-124

IN THE SUPREMECOURT OF THE STATE OF MONTANA
1987

STATEOF MONTANA, Plaintiffand Respondent,-vsJOSEPH EUGENE OLIVER, Defendant andAppellant.

APPEAL FROM: District Court of the Fourteenth JudicialDistrict, In and for the County ofMusselshell, The HonorableRoy Rodeghiero,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Moses Law Firm; StephenC. Moses, Billings,Montana
For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana JoeRoberts,Asst. Atty. General,Helena,Montana Peter LaPanne,CountyAttorney, Roundup,Montana

Submitted on Briefs: June 11, 1987 Decided: September 11, 1987

Filed: 

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## 11887Mr. 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 arepresented forour review: 1. Did the DistrictCourt abuse its discretion when it denied defendant's motion in limine to prohibit testimony of eventswhich occurred in Helena? 2. Did the District Court abuse its discretionwhen it allowed OfficerJohnHitchcock 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 fivemiles fromRoundup in MusselshellCounty. Oliver

was accompanied by his stepfather,Everett Handvold, and both
were friends and acquaintancesof Robert Smith and hiswife, 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 leaveon 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 Ihave that comes tovisitme andwears tennis shoes." Robert Smith owned several rifleswhichwere displayed

on a rack in his house. They were: a 1917 WinchesterEnfield; a 7-mm Mauser (WWI German infantry rifle); a 12-gaugeMossberg shotgun;a .22 semi-automaticMarlin; and a 22.250 RemmingtonModel 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 houseby opening and climbing through

awindow. 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 residencewith 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

wornby thedefendant. Sergeant Troy McGee of the Helena police department testified that he was contacted onAugust 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 themanmatched the general description of the guns stolen from the Smith residence. Lidman described the man in the pawnshop asbeing over six feet tall, weighing approximately 225 pounds with red hair,arm tatoos andwearing aHarley Davidson tee-shirtwith "takes guts" on it. Lidman testified the man in the pawnshop, whom he later identified as defendant,was driving anoldermodel green Ford automobilewith Illinois licenseplate number 505466. Pawnshop employee, Todd Stoos,also identified defendant as the man inAlias 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 Hitchcockperformed adetailed comparisonof defendant's tennis shoeand thephotograph 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,ifnot 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 oldermodel Ford,green in color,with a black vinyl top. Patrolman Eppers stated thatdefendant's licenseplate number
was Illinoisplate number 505606. However,cross-examination established that the actual number of defendant's license platewas Illinois licenseplate 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 defendanthad livedwith 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 residencewhen defendant firstmoved to Roundup.Issue 1 Did the District Court abuse its discretion when it denied defendant's motion in limine to prohibit testimony of eventswhich occurred inHelena? 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 inpertinent 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 Statev. Fitzpatrick (19801,186Mont. 187, 207, 606 P.2d 1343, 1354, we adopted the Criminal Code Commission comments: The test of relevance iswhether 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

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# ..more or less probable than it would be without the evidence." This standard rejects more stringent ones which call for evidence tomake 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 inArticle 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 gunswere stolen and was aware the Smithswere 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. Defendantwaswearing tennis shoeson the day of theburglary and was the only person known to the Smiths who had done so in the area of theirhouse. 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, opportunityand evidence that defendant committed the crime as charged. The evidence in issue is circumstantial. Circumstantial evidence tends to establish a factby 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 Statev. Shurtliff (1981),195Mont. 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, 186Mont. at 207, 606P.2d at 1354. The questionof admissibility of evidence must be left to the sound discretion of the trial court, subject to review only in case ofmanifestabuse. Cechv. 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 courtproperly 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 knowledgewill assist the trier of fact tounderstand 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 onAugust 20, 1986, hephotographed the tread print of a tennis shoe foundbelow an openwindow 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 defendantobjected 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'sdepartment; 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 footprintsand in the observation of individual characteristics of footprints. Finally,Hitchcock testified thathe 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 fordeterminationof 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), 150Mont. 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 DistrictCourt found Officer Hitchcock qualified to testify as an expertwitness. 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 provebeyond areasonabledoubt thatdefendant 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.

### " Jacksonv. Virginia (1979)

## , 443 U. S. 307, 319, 99 S.Ct. 2781, 2787, 61L.Ed.2d 560, 573. We defined substantial evidence as "such relevant evidence as a reasonablemind might accept as adequate to support a conclusion." Statev. 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 defendantwas 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 anumber ofRobert Smith's rifles. Defendanthad 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. Thedoorswere still lockedwhen they returned. However, a windowwas ajar and a tennis shoe tread print was found below the opened window. The tread print matched that of defendant's tennis shoe. On themorning following the burglary,the manager of a Helena pawnshop, Chuck Lidman, and an employee, Todd Stoos, witnessed thedefendant trying to sell guns which matched the general descriptionof those stolen from the Smith residence.Stoos and Lidman identified defendant out of a photo lineup. They described defendant as nervous and fidgetyand 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 licenseplate 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, oldermodel 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 supportsdefendant's conviction forburglary. State

v. Atlas (Mont. 1986), 728 P.2d 421, 423, 43 St.Rep. 2042, 2044. Affirmed.

We concur: