                                                                                                03/07/2017


                                          DA 16-0067
                                                                                            Case Number: DA 16-0067

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 46N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JAMES RAND HERNVALL,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Sanders, Cause No. DC-15-19
                        Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul M. Leisher, Paoli Law Firm, P.C., Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Robert Zimmerman, Sanders County Attorney, Thompson Falls, Montana



                                                    Submitted on Briefs: January 18, 2017

                                                               Decided: March 7, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court:

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     James Rand Hernvall appeals his jury conviction and judgment in the Twentieth

Judicial District Court, Sanders County, for one count of theft, in violation of § 45-6-301,

MCA, and for two counts of burglary, in violation of § 45-6-204, MCA. We address:

(1) whether Hernvall’s ineffective assistance of counsel claim is proper on direct appeal,

and (2) whether there was sufficient evidence to convict Hernvall of theft of a truck and

of accountability for the two burglaries. We affirm.

¶3     On the evening of March 19, 2015, Sanders County Deputy Robyn Largent

discovered Hernvall and Jessica Pullan trespassing on Shawn Ballard’s vacant property

located on Four Wheel Drive Road in Trout Creek, Montana. Largent initially concealed

himself to surreptitiously observe Hernvall and Pullan. Before revealing his presence to

Hernvall and Pullan, Largent heard Hernvall say, “Let’s get this done,” as Hernvall and

Pullan got out of a blue Mitsubishi coupe and walked towards a black Dodge Ram truck

that was stuck in the mud. After revealing himself, Largent arrested Hernvall and Pullan.

Police seized the cars that were on Ballard’s property and towed them to the Sanders

County impound yard.



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¶4     Ballard, who lives in Wenatchee, Washington, inspected his property after the

arrests. He testified that his yard was torn up by vehicles, a replacement part for a Polaris

Ranger kept in his shop had been moved to his barn on the property, a wheelbarrow and

two shovels kept in his barn were found near where one vehicle was stuck in the mud,

and items from Brian Jensen’s nearby residence were found in his barn. On March 20,

2015, Jensen discovered signs that his house—which was for sale at the time—had been

burglarized, and Deputy Noah Hathorne was dispatched to investigate. Hathorne testified

that two days before Hernvall and Pullan were arrested, Jensen told him he had left the

house in neat condition. Upon inspecting the house the day after the arrests, Jensen told

Hathorne that he found doors and cabinets inside the house were opened, a welder kept in

his garage had been moved outside, and his son’s motorcycle was missing from his

garage. The motorcycle tire tracks led from Jensen’s property to Ballard’s property

where the motorcycle was recovered.

¶5     Near the tire tracks on Jensen’s property, officers found a piece of a car’s bumper

that was later matched to the Mitsubishi. Officers also recovered various stolen items in

Ballard’s barn, including Jensen’s chainsaw and a plastic tub containing Jensen’s son’s

graduation gifts. The Mitsubishi contained, among other things, Jensen’s collection of

license plates, as well as three rifles and a shotgun that had been reported stolen from a

Thompson Falls storage unit nine days earlier. The Dodge Ram, which also contained

items stolen from Jensen’s property, was reported stolen from Polson in December 2014.

¶6     On May 19, 2015, the State charged Hernvall by amended information with the

following counts:     (I) possession of a dangerous drug; (II) possession of drug

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paraphernalia; (III) theft of a black 2006 Dodge Ram truck of value more than $1,500;

(IV) possession of property subject to criminal forfeiture; (V) burglary of a storage unit

rented by Leslie Gingerly; (VI) burglary of a residence owned by Brian Jensen; (VII)

burglary of a residence owned by Shawn Ballard. Hernvall pleaded not guilty to all

charges. On June 29, 2015, the District Court granted the State’s motion to dismiss the

possession charges. On July 22, 2015, a jury convicted Hernvall on Count III, theft of the

Dodge Ram, Count VI, burglary of the Jensen residence, and Count VII, burglary of the

Ballard residence. On December 1, 2015, the District Court entered its final judgment

and sentenced Hernvall to the Department of Corrections for ten years with five years

suspended for theft, and to the Department of Corrections for twenty years with fifteen

years suspended for each of the two counts of burglary, with all sentences to run

concurrently.

¶7    Hernvall contends that his trial counsel was ineffective because he failed to call

Pullan as a witness. Hernvall contends Pullan’s testimony could have exculpated him.

Pullan allegedly made statements to law enforcement before trial that implicated others in

the burglaries but did not implicate Hernvall. Hernvall argues that had Pullan been called

as a witness, she could have provided the jury with an explanation as to why Hernvall

was present on property that did not belong to him in the presence of a stolen truck and a

bunch of stolen items from multiple burglaries.

¶8    Claims of ineffective assistance of counsel (IAC) are mixed questions of law and

fact we review de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d

886. However, before reaching the merits of an IAC claim, we must determine whether

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the allegations are properly before us. State v. Gunderson, 2010 MT 166, ¶ 70, 357

Mont. 142, 237 P.3d 74. In general, “[t]he test to determine if an ineffective assistance

claim is properly brought on direct appeal is whether the record contains the answer as to

‘why’ counsel took, or failed to take, action in providing a defense.” State v. Upshaw,

2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d 579 (citing State v. White, 2001 MT 149,

¶ 20, 306 Mont. 58, 30 P.3d 340). If the record on appeal explains why trial counsel

acted as he or she did, we will address the issue on appeal. If, however, the claim is

based on matters outside the record on appeal, we may refuse to address the issue on

appeal and allow the defendant to file a postconviction proceeding in order to develop a

record as to “why” counsel acted as alleged, thus allowing the court to determine whether

counsel’s performance was ineffective or merely a tactical decision. Gunderson, ¶ 71.

¶9     In this case, the answer as to why Hernvall’s counsel opted not to call Pullan as a

witness is not apparent from the record. The record is silent as to whether Pullan would

have actually testified as Hernvall contends, as well as whether trial counsel may have

had legitimate tactical reasons for not calling her as a witness even if she so testified.

Therefore, Hernvall’s IAC claims are not properly the subject of a direct appeal.

¶10    Hernvall next argues that the State introduced no evidence that he knew or should

have known the truck was stolen, or that his purpose was to deprive the truck’s owner of

the truck.   Hernvall also argues the State introduced no direct evidence, such as

fingerprints, that he entered the burglarized residences, and that a conviction based solely

on circumstantial evidence is only justified when the facts and circumstances are entirely



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consistent with the theory of guilt and inconsistent with any other rational conclusion.

See State v. Miller, 231 Mont. 497, 512, 757 P.2d 1275, 1284 (1988).

¶11    Hernvall also contends that a person is only accountable when he assists either

before or during the commission of the offense and not after, and that the State produced

no evidence that gave rise to a reasonable inference that Hernvall did anything in

particular before or during the burglaries.

¶12    The State responds that a rational juror could conclude that Hernvall committed or

assisted in both burglaries and the theft of the truck based on the circumstantial evidence

presented at trial, and that the jury was entitled to make reasonable inferences based on

the totality of the circumstances. We agree.

¶13    We review de novo whether sufficient evidence exists to convict a defendant.

Gunderson, ¶ 58. In viewing the evidence in a light most favorable to the prosecution,

we determine whether any rational trier of fact could have found the essential elements of

a crime beyond a reasonable doubt. Gunderson, ¶ 58.

¶14    For a theft conviction, the jury must determine beyond a reasonable doubt that the

defendant (1) purposely or knowingly obtains or exerts control over the property of

another and (2) has the purpose of depriving the owner of the property.            Section

45-6-301(1)(a), MCA. For a burglary conviction, the jury must determine beyond a

reasonable doubt that the defendant (1) knowingly enters or remains unlawfully in an

occupied structure (2) with the purpose to commit an offense therein.              Section

45-6-204(a), MCA. A person is legally accountable for the conduct of another when

either before or during the commission of an offense and with the purpose to promote or

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facilitate such commission the person solicits, aids, abets, agrees or attempts to aid such

other person in the planning or commission of the offense. Section 45-2-302(3), MCA.

¶15    We have repeatedly held circumstantial evidence alone is sufficient to obtain a

conviction. State v. Bowen, 2015 MT 246, ¶ 30, 380 Mont. 433, 356 P.3d 449; State v.

Hall, 1999 MT 297, ¶ 22, 297 Mont. 111, 991 P.2d 929; State v. Southern, 1999 MT 94,

¶ 92, 294 Mont. 225, 980 P.2d 3. “[W]hen circumstantial evidence is susceptible to two

interpretations, one which supports guilt and the other which supports innocence, the trier

of fact determines which is most reasonable.” Hall, ¶ 22 (citing State v. Arthun, 274

Mont. 82, 91, 906 P.2d 216, 221 (1995)). Furthermore, the credibility and weight of

testimony are within the exclusive province of the jury, and conflicting testimony does

not render evidence insufficient to support a conviction. State v. Wood, 2008 MT 298,

¶ 43, 345 Mont. 487, 191 P.3d 463. The jury has the discretion to determine whether the

alternative theory is reasonable. State v. Lucero, 214 Mont. 334, 339, 693 P.2d 511, 514

(1984). The “unauthorized control or possession of property belonging to another is a

circumstance from which the jury may draw an inference and find that the person in

possession committed the theft of the property, if such an inference is warranted by the

evidence as a whole.” State v. Kelley, 2005 MT 200, ¶ 21, 328 Mont. 187, 119 P.3d 67

(citing State v. Kramp, 200 Mont. 383, 397, 651 P.2d 614, 621-22 (1982)). Moreover, it

is the jury’s exclusive province to determine whether the evidence warrants such an

inference. Kelley, ¶ 21 (citing Kramp, 200 Mont. at 397, 651 P.2d at 622). We will not

disturb a jury’s conclusion if the state produces sufficient evidence to justify a jury’s

findings, unless there was a clear misunderstanding by the jury or there was a

                                            7
misrepresentation to the jury. Lucero, 214 Mont. at 338, 693 P.2d at 513-14 (citing State

v. Swazio, 173 Mont. 440, 445, 568 P.2d 124, 127 (1997)).

¶16    From the record it is apparent that the State produced sufficient evidence to justify

the jury’s findings and that the jury made reasonable inferences based on a totality of the

evidence.   Hernvall and Pullan were discovered trespassing after dark on Ballard’s

recently burglarized property. The Mitsubishi they were sitting in contained items stolen

from Jensen’s property. Other items stolen from both properties were found in Ballard’s

barn. Tire tracks from Jensen’s stolen motorcycle led from Jensen’s property to Ballard’s

property where the stolen items, Hernvall, and Pullan were found. Although Hernvall

argues he was just “in the wrong place at the wrong time” and alleges Pullan made

out-of-court statements that implicated others and exculpated him, there was sufficient

evidence for a rational juror to conclude beyond a reasonable doubt that Hernvall

committed the burglaries and the theft for which he was convicted.

¶17    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. Hernvall’s IAC claims must be raised in

postconviction relief because his assertions are not based on facts in the record. The

State presented sufficient evidence for a rational trier of fact to find each element of theft,

burglary, and accountability beyond a reasonable doubt.

¶18    Affirmed.



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                           /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE




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