No. 92-342 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

WILLIAM JOHN RODGERS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks, Appellate Defender Office, 

Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, 

Patricia J. Jordan, Assistant Attorney General, 

Helena, Montana; Robert Slomski, Sanders 

County Attorney, Thompson Falls, Montana 

Submitted on Briefs: November 24, 1992 

Decided: March 30, 1993 

Filed: N!ApL 3 fi 7993 
Justice Terry N, Trieweiler delivered the opinion of the Court. 

Defendant William John Rodgers was convicted by a jury in the 

Twentieth Judicial District Court, Sanders County, Montana, of 

felony theft for the unauthorized taking of property valued in 

excess of $300 from Burtch Construction with the intent to 

permanently deprive the owner of his property. Rodgers appeals his 

conviction. We af f im. 

There are four issues on appeal: 

1. Was there sufficient evidence presented at trial to 

support a finding that Burtch owned the property that Rodgers was 

charged with stealing? 

2. Is the issue of prosecutorial misconduct barred by the 

contemporaneous objection rule? 

3. Was there an illegal search of the defendant's home? 

4. Was defendant denied his constitutional right to 

effective assistance of counsel? 

In February 1990, Richard L. Burtch, owner and operator of 

Burtch Construction, and William J. Rodgers orally agreed to become 

partners in a secondhand store business. The two men planned to 

construct a new building to house the store and to locate it on 

Burtch Construction property. As his contribution to the 

partnership, Burtch furnished the land, construction materials, 

laborers, and money for the secondhand store building (referred to 

as Shop 2). Rodgers supplied his labor. 

From February 1990 to April 1991, Rodgers worked on the 

construction of Shop 2. With Burtch's permission, Rodgers used 
tools and supplies owned by Burtch Construction to build the store. 

Rodgers had a key and unlimited access to tbe Burtch Construction 

property and tools. 

In late April 1991, Rodgers stopped working on the building 

and quit the partnership. The day after Rodgers withdrew, Burtch 

and his foreman went to Shop 2 and noticed there were numerous 

tools missing. Burtch contacted the sanders County Sheriff's 

Office to report the missing items. In accordance with the 

sheriff s instructions, the Burtchs ' began to develop a list of 

missing items. 

In late August 1991, Burtchts daughter, Tina, went to Rodgers' 

home to inquire about a green washer and dryer set that she had 

been promised by her parents and that had been stored in Shop 2. 

~uring her visit, Tina observed a green washer and dryer set at 

Rodgerss residence. When asked if he knew where her parentss 

washer and dryer set was, Rodgers told Tina that he had disposed of 

it at a junk pile on Burtch Construction property. Tina and her 

father could not find the set in the junk pile. 

In September 1991, Tina reported the missing washer and dryer 

to the sheriff's office. Based on Tina's information, Deputy 

Sheriff Perry Mock determined he had probable cause to search 

Rodgerst residence. The sheriff was unable to obtain a search 

warrant at this time because the county attorney was on vacation. 

Therefore, the sheriff asked Rodgers directly for permission to 

search his house. Rodgers gave his consent to Deputy Mock. 
In his search of Rodgersl house, Deputy Mock discovered 

several items which he was able to identify as property which 

belonged to Burtch. When Deputy Mock opened a cabinet drawer and 

found a staple gun with the name ltBurtchll stamped on its surface, 

he arrested Rodgers for theft. 

Deputy Mock enlisted the assistance of Burtch and his family 

in an effort to identify more of their property. The Burtch family 

and one Burtch Construction employee arrived to help. Deputy Mock 

advised the group not to remove any items, but to find items 

allegedly belonging to them for the deputy to photograph and 

catalog. 

The search team moved to the residence of Lloyd Mikkelson, 

Rodgersl brother-in-law. Mikkelson gave the group permission to 

search his woodshed. Deputy Mock found several tools in the shed 

with the name "Burtchtl engraved on them. In total, Deputy Mock 

seized two pickup loads of tools, materials, and appliances from 

the Rodgers and Mikkelson properties. The value of the two loads 

was in excess of $300. 

On November 21, 1991, Rodgers was charged by information with 

the crime of felony theft in violation of 5 45-6-301(1) (a), MCA. 

At trial, Burtch, his family, Burtch Construction employees, and an 

appliance repairman identified many of the 60 exhibits introduced 

as belonging to Burtch. When Burtch could not positively identify 

a tool or material as his own, he emphasized that he knew he "had 

one like it," but that it was now missing. 
Rodgers' son, Keith Rodgers, testified on behalf of his father 

at trial. During the State's closing argument, the Prosecutor 

characterized Keith's testimony as a deliberate lie. The 

Prosecutor also told the jurors that defendant Rodgers lied to 

their faces. Defense counsel for Rodgers did not object to the 

Prosecutor's comments during closing arguments. On March 3, 1992, 

the jury found Rodgers guilty of felony theft. 

I. 

Was there sufficient evidence presented at trial to support a 

finding that Burtch owned the property that Rodgers was charged 

with stealing? 

On appeal, Rodgers asserts the State failed to prove that he 

possessed property owned by Burtch with a value greater than $300, 

and therefore, the State failed to prove a necessary statutory 

element for a felony theft charge, pursuant to 5 45-6-301(6) (b) , 

MCA. Rodgers contends that Burtch's failure to positively identify 

some items was evidence that Burtch was not the owner of those 

items. We disagree and conclude that there was sufficient evidence 

presented at trial to support a finding that Burtch was the owner 

of stolen property valued in excess of $300. 

Burtch was asked if the washer and dryer exhibit at trial was 

his washer and dryer. Burtch was unable to recall the brand name 

of his washer and dryer and to say with certainty that the washer 

and dryer set presented at trial was his; however, he testified 

that he owned a washer and dryer set worth $200 and that he stored 

it in Shop 2 on his property prior to the time it was discovered 
missing. An appliance repairman testified that he had worked on a 

washer and dryer set that was owned by Burtch and located in Shop 

2. The repairman testified that the serial numbers of the washer 

and dryer exhibit at trial matched the serial numbers of the washer 

and dryer on his work order. 

At trial, ten tools were introduced into evidence without 

objection. Each of the ten tools was engraved with the name 

I1Burtch" on its surface and was positively identified as the 

property of the Burtchs' or Burtch Construction. These tools 

included a ratchet and torque wrench, staple gun, wheel barrow, 

crescent wrench, radio, screw driver, nipper or nibbler, crimping 

tool, tin snipers, and a 10-inch saw blade. The combined value of 

these tools was $175. 

We conclude there is sufficient evidence in the record to 

establish that Burtch owned the washer and dryer and the ten tools. 

Together, the washer and dryer set valued at $200 and the ten tools 

valued at $175 were worth $375. Therefore, we conclude Burtch 

owned stolen property sufficient to satisfy the $300 statutory 

minimum for a felony theft charge. We need not discuss any of the 

other allegedly stolen items for purposes of affirming Rodgersl 

conviction. 

11. 

Is the issue of prosecutorial misconduct barred by the 

contemporaneous objection rule? 

Rodgers asserts that the State engaged in prosecutorial 

misconduct when the Prosecutor called the defendant and his son 

6 
liars during closing argument, argued facts in closing that were 

not in evidence, and mischaracterized Rodgers' testimony to infer 

Rodgersf guilt. Defense counsel for Rodgers did not object to the 

Prosecutor's comments during closing argument. Despite the failure 

to raise any objections, Rodgers asserts our Court should take 

notice of the Prosecutorfs improper argument on appeal. Rodgers 

asserts such prosecutorial misconduct denied him his right to a 

fair trial as guaranteed by the Sixth Amendment of the United 

States Constitution and ~rticle 11, Section 24, of the Montana 

Constitution. 

This Court has held that it is highly improper for an 

attorney, in closing argument, to characterize the testimony of a 

witness as lies, or to identify the party or a witness as a liar. 

State v. Musgrove (1978) , 178 Mont. 162, 172, 582 P. 2d 1246, 1253. We 

restate our strong disapproval of such conduct. However, the 

contemporaneous objection rule at 5 46-20-104, MCA, precludes this 

court from considering an alleged error unless a timely objection 

was made at trial or unless certain statutory criteria are met. 

According to Section 46-20-104(2), MCA: 

Upon appeal from a judgment, the court may review 

the verdict or decision and any alleged error objected to 

which involves the merits or necessarily affects the 

judgement. Failure to make a timely objection during 

trial constitutes a waiver of the objection except as 

provided in 5 46-20-701(2), MCA. 

Section 5 46-20-701(2), MCA, provides: 

No claim alleging an error affecting jurisdictional or 

constitutional rights may be noticed on appeal, if the 

alleged error was not objected to as provided in 

46-20-104, unless the defendant establishes that the 
error was prejudicial as to his guilt or punishment and 

that: 

(a) the right asserted in the claim did not exist 

at the time of the trial and has been determined 

retroactive in its application; 

(b) the prosecutor, the judge, or a law enforcement 

agency suppressed evidence from the defendant or his 

attorney that prevented the claim from being raised and 

disposed of; or 

(c) material and controlling facts upon which the 

claim is predicated were not known to the defendant or 

his attorney and could not have been ascertained by the 

exercise of reasonable diligence. [~mphasis added.] 

We conclude that Rodgers does not meet any of the three 

requirements listed in § 46-20-701 (2) (a) - (c) , MCA. Because Rodgers 

has not met any of these requirements, his failure to object at 

trial constitutes a waiver of his constitutional claim. Section 

46-20-104, MCA. 

Our decision in the present case is supported by the United 

States Supreme Court decision in Estelle v. HG1liarn.s (1976) , 425 U. S . 

501, 96 S. Ct. 1691, 48 L. Ed. 2d 126. In Estelle, an accused stood 

trial before a jury while wearing a prison uniform. The accused 

made no objection during the trial regarding his having to stand 

trial in the prison uniform; consequently, the objection was not 

allowed to be raised on appeal. In Estelle, the United States Supreme 

Court explained the reasoning behind the rule that failure to raise 

an objection at trial constitutes waiver of one's constitutional 

claim. "[Ilf the defendant has an objection, there is an 

obligation to call the matter to the court's attention so the trial 
judge will have an opportunity to remedy the situation." Estelle, 425 

U.S. at 508, n.3. 

We have addressed the issue of a defendant raising objections 

for the first time on appeal in a previous Montana case. See State v. 

Cain (1986), 220 Mont. 509, 717 p.2d 15. In Cain, we stated: "The 

District Court was never given an opportunity to rule on admission 

of the statements or to correct itself if admission was not proper. 

We will not put the trial court in error where it has not been 

given such a chance. 'I Cain, 717 P. 2d at 19 (citing State v. Weinberger 

(1983), 204 Mont. 278, 304, 665 P.2d 202, 216). 

Rodgers urges this Court to exercise the discretionary powers 

of the "plain error doctrineu to prevent a manifest injustice in 

this case. We have stated that the power of discretionary review 

is only to be used in exceptional cases. Statev. Voegek (1990), 243 

Mont. 222, 224, 793 P.2d 832, 834. 

We have refused to invoke the plain error doctrine in previous 

cases in Montana when objections to a prosecutor's closing 

arguments were made for the first time on appeal. SeeStatev. Laverdure 

(lggo), 241 Mont. 135, 785 P.2d 718; State v. Smith (l988), 232 Mont. 

156, 755 P.2d 569; Statev.Pease (1986), 222 Mont. 455, 724 P.2d 153. 

Although we do not foreclose the option to invoke the plain error 

doctrine in a future case involving prosecutorial misconduct, we 

decline to invoke the doctrine under the circumstances of this 

case. 
111. 

Was there an illegal search of the defendant's home? 

Rodgers contends that the search of his home was illegal. He 

contends that the voluntary consent form which he signed only 

granted permission for Deputy Mock to search his home, and that it 

did not extend to the Burtch family and their employees who 

assisted Deputy Mock in the search. Rodgers asserts that the 

search violated his Fourth Amendment right to be free from 

unreasonable searches and that the search violated his right of 

privacy under Article 11, Section 10, of the Montana Constitution. 

We hold that the search of Rodgers' home was legal and was not 

in violation of either constitutional provision. Although the 

consent form provides that Deputy Mock was authorized to search 

Rodgers' premises, it does not prohibit Deputy Mock, either 

expressly or by implication, from requesting assistance in the 

search. We conclude that when Rodgers gave consent to Deputy Mock 

to search his home, Rodgers waived any reasonable expectation of 

privacy in his home, including any limitation on the authority of 

Deputy Mock to request assistance in the search of Rodgers' home. 

See State v. Lerch (Or. Ct. App. 1983), 666 P.2d 840, 845, affld, 

(Or. 1984) 677 P.2d 678. 

In a previous Montana case, Statev. Yoss (1965), 146 Mont. 508, 

409 P.2d 452, the owners of burglarized property accompanied and 

assisted the police in the search for their possessions, despite 

the fact that they were not listed on defendant's voluntary consent 
form as parties who were given permission to search his premises. 

We held that the presence of the owners did not make the search 

illegal in the absence of a showing of any prejudice to the 

defendant. We explained in Yoss: 

We find no merit to defendant's contention that the fact 

[the owners] Mr. and Mrs. Maupin accompanied the officers 

at the time of the search, but were not listed on the 

voluntary statement given by him[, ] would make the search 

illegal. There is no showing of any prejudice arising 

from their being present. 

Yoss, 409 P.2d at 455. 

Similarly, there was no prejudice to Rodgers when the Burtch 

family and a Burtch Construction employee assisted Deputy Mock in 

identifying stolen items on Rodgers' premises. We conclude that 

the search was not illegal. 

IV. 

Was defendant denied his constitutional right to effective 

assistance of counsel? 

Based on his assertion that the search of his home was 

illegal, Rodgers contends that his defense counsel's failure to 

move to suppress the evidence seized from the search denied him 

effective assistance of counsel. We conclude that because the 

search was legal, defense counsel's failure to object to the items 

seized at the search is of no consequence. 

When evaluating a claim of ineffective assistance of counsel, 

this Court applies the two-pronged test set forth in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. 
First, counsel's performance must be deficient. To 

assess deficient performance, this Court employs the 

"'reasonably effective assistance' test of whether a 

defendant's counsel acted within the range of competence 

demanded of attorneys in criminal cases. I' Second, 

counsel's deficient performance must have so prejudiced 

the defendant as to deprive the defendant of a fair 

trial. The standard for evaluating prejudice is whether 

a reasonable probability exists that but for counsel's 

deficient performance, the trial's outcome would have 

been different. [Citations omitted.] 

Statev. Coates (1990), 241 Mont. 331, 337, 786 p.2d 1182, 1185. 

We hold that the second part of the test set forth in Strickland 

is not satisfied in this case. If defense counsel had moved to 

suppress the evidence seized from the search of Rodgers' home (as 

Rodgers suggests he should have), the motion would not have changed 

the outcome of the case. Because the search was legal, the fruits 

of the search would have been allowed into evidence over the 

objection of defense counsel, and the result would have been the 

same. Rodgers has not shown that he was prejudiced by his defense 

counsel's failure to object to the evidence seized during the legal 

search. Therefore, we conclude that he was not denied effective 

assistance of counsel. The judgment of the District Court is 

affirmed. 
We concur: