                                              No.    82-472

                  I N THE SUPREME COURT OF THE STATE OF FONTANA

                                                     1983




TIIE STATE OF MONTANA,

                    P l a i n t i f f and Respondent,



CHARLES PRESTON M !M N ,
                      A' O S
                         I
a / k / a C.P. HAMJlONS,

                    D e f e n d a n t and A p p e l l a n t .




Appeal from:        District Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                    I n a n d f o r t h e County o f L i n c o l n , The H o n o r a b l e
                    Robert & H o l t e r , Judge p r e s i d i n g .
                                  I.


C o u n s e l o f Record:

        For Appellant:

                   S v e r d r u p & S p e n c e r , L i b b y , Xontana


        For Respondent:

                   Eon. !.like G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Islontana
                   W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , ilgontana




                                             S u b m i t t e d on B r i e f s :   !larch 1 0 , 1 9 8 3

                                                                 Decided:         J u n e 9 , 1983




                                             Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
      Defendant appeals from a conviction by a jury in Lincoln
County,   Montana,    of     theft,   a   felony.       We   affirm    the
conviction.
      During the     night    of   February   28    -   March   1, 1982,
defendant and four other persons were drinking and riding
around the Libby area of Lincoln County.                 Robert DeWayne
Anderson was driving his pickup.              Tracy Anderson, James
Hammons, Lisa Gostnell, and the defendant, C.P. Hammons, were
passengers.   Tracy Anderson suggested that they go to the
"Buck" Jordan residence to steal old car batteries to sell
for beer and gasoline money.
      When they arrived at the Jordan residence, which is
located in an isolated area near Libby, Robert Anderson and
James Hammons headed for the house.           Tracy Anderson and the
defendant started up the hill where the batteries were.
While Tracy and defendant were on the hill trying to steal
the batteries and      "goofing around with         the dog," Robert
Anderson and James Hammons entered the residence through a
kitchen window and began to remove numerous items from the
house.    The defendant admitted seeing Robert Anderson and
James Hammons going through the window of the house.                  Lisa
Gostnell stayed outside, but helped load some of the property
removed by Robert Anderson and James Hammons into the truck.
      Defendant denied going into the house himself.                   He
testified that the plan to steal the batteries was abandoned
when Tracy Anderson and he discovered that they were too
heavy to bring down the hill to Robert Anderson's pickup.
Defendant admitted seeing someone put deer horns into the
truck and seeing Tracy Anderson put some brass into the back
of   the pickup.      Both Robert Anderson and James Hammons
testified that they saw the defendant in the bedroom of the
house.
       Norman "Buck" Jordan testified that, among other things,
two "Old Timer" pocket knives were stolen in the burglary.
One was turned over to a Sheriff's Deputy by James Hammons.
The other pocket knife was in defendant's possession when he
was arrested on the evening following the burglary.                Jordan
testified that the knife found in the defendant's possession
was stolen from a gun rack in the bedroom of his home.                The
defendant testified that he got the knife from the dashboard
of Robert Anderson's pickup after the burglary had been
completed.
       It is undisputed that Robert Anderson and James Hammons
took    numerous      items   from   the   house,   including    pistols,
knives, tools, a knapsack, and some relatively rare currency.
The aggregate value of the stolen property far exceeds $150.
       The State prosecuted the defendant for theft on the
theory    that   he    either   obtained    or   exerted    unauthorized
control over this property or was accountable for the conduct
of Robert Anderson and James Hammons.               James Hammons, the
defendant's brother, testified against defendant under the
terms of a deferred prosecution agreement.                 Lisa Gostnell
testified under a grant of immunity from prosecution.              Robert
Anderson received no favors in exchange for his testimony.
       The court submitted the case to the jury on charges            of
burglary, felony theft, and misdemeanor theft.                  The jury
acquitted the defendant of the burglary charge, but found him
guilty of the offense of theft, a felony.             He was sentenced
to four years imprisonment at the State Prison.                 From this
verdict, the defendant appeals.
       The issues presented on appeal are:
     1.     Was the accomplice testimony of Robert Anderson,
James Hammons , and Lisa Gostnell adequately corroborated by
independent evidence?
     2.       Was    the       felony   theft     conviction    sufficiently
supported by the evidence?
     Appellant argues that there are only two pieces of
evidence that the jury could consider corroborative:                  his own
testimony that he attempted to carry some batteries down the
hill and the fact that Buck Jordan's knife was found in his
possession.       He argues that neither supplies corroboration
for the accomplice testimony since (1) defendant was charged
with theft of numerous other items, not battery theft or
attempted     battery      theft;          (2)    defendant    provided     an
explanation for possessing the knife; and ( 3 ) his acquittal
of the burglary charge establishes that the jury believed his
testimony as        to   how    he   got    the    knife.     The   defendant
testified that he got the knife from the dashboard of Robert
Anderson's pickup and that he was not aware that any knives
were taken from the Jordan place.
    Accomplices Robert Anderson and James Hammons testified
that the defendant participated                  in the burglary and the
theft.     Robert Anderson testified that he and James Hammons
ransacked the Jordan house, that James Hammons unlocked the
back door of the house to let the defendant in, and that he
saw the defendant in the bedroom of the house.
     James Hammons testified that he took one "Old Timer"
pocket knife and         one large Bowie knife from the Jordan
residence, and that he saw the defendant in the bedroom
during the burglary.
    Lisa Gostnell testified that all four men (the Hammons
brothers    and     the Anderson brothers)           participated     in   the
decision to steal Jordan's property.                   She stated that in
execution of that plan, Robert Anderson and James Hammons
entered the house while the defendant and Tracy Anderson went
up a nearby hill to get car batteries.
       Since Lisa Gostnell, Robert Hammons and James Anderson
all participated in removal of property from Jordan's house,
they are accomplices in the offense of theft.               To support
defendant's conviction, their testimony must be corroborated
by other evidence. Section 46-16-213, MCA, states:
       "A conviction cannot be had on the testimony of one
       responsible or legally accountable for the same
       offense, as defined in 45-2-301, unless the
       testimony is corroborated by other evidence which
       in itself and without the aid of the testimony of
       the one responsible or legally accountable for the
       same offense tends to connect the defendant with
       the commission of the offense. The corroboration
       is not sufficient if it merely shows the commission
       of the offense or the circumstances thereof."
       The   quantum    and. character   of      proof    required   to
corroborate accomplice testimony was summarized in State v.
Kemp (1979), 182 Mont. 383, 387, 597 ~ . 2 d
                                           96, 99:
       "To be sufficient, corroborating evidence must show
       more than that a crime was in fact committed or the
       circumstances of its commission. State v. Keckonen
       (1938). 107 Mont. 253, 263, 84 P.2d 31  4;   345. It
       must raise more than a. suspicion of the defendant's
       involvement in, or opportunity to commit, the crime
       charged. State v. Gangner (1957), 130 Mont. 533,
       535, 305 P.2d 3839
                      3,3.        But corroborative evidence
       need not be sufficient, by itself, to support a
       defendant's conviction or even to make out a prima
       facie case against him.     State - -
                                         v. Ritz (1922), 65
       Mont. 180, 186, 211 P. 298, 300; State - Stevenson
                                                v.
       (1902), 26 Mont. 332, 334, 67 P. 1001, 1002.
       Corroborating evidence may be circumstantial (State
       - Harmon (1959), 135 Mont. 227, 233, 340 P.2d 128,
       v.
       131) and can come from the defendant or his
       witnesses.   State v. Phillips (1953), 127 Mont.
       381, 387, 264 P.2d 1 m 9 , 1012."
As stated more recently in State v. Forsyth (1982),
Mont   .     ,   642 P.2d 1035, 1039, 39 St.Rep. 540, 544, quoted
in State v. Lamere (19831,            Mont   .       ,   658 P.2d 376,


       "Under section 46-16-213, MCA, it must be evidence
       which in itself and without the aid of the
       testimony of the one responsible or legally
     accountable for the same offense tends to connect
     the defendant with the commission of the offense."
Corroborative      evidence    "need       only       tend     to    connect     the
defendant with the commission of the offense."                          State v.
Morigeau    (19821,           Mont   .          ,    656 P.2d       185, 187, 39
St.Rep. 2311, 2314.
    With      these   principles           in       mind,    we      examine     the
corroborative      evidence      that           supports       the     accomplice
testimony.      Defendant, by his own testimony, corroborated
his accomplices' statements.              He admitted knowledge of the
p1a.n "to go get some batteries" from the Jordan place.                           He
saw Robert Anderson and James Hammons climbing through the
window into the Jordan residence.                    He saw stolen property
being loaded into the back of the pickup.                     He abandoned his
own efforts to steal batteries after he discovered they were
too heavy     to bring    down       the hill.          He admitted having
possession    of    the   stolen         knife.        These      admissions     by
defendant tend to connect the defendant with the commission
of the offense of theft.
    Buck Jordan also corroborated Anderson's and Hammons'
testimony that the defendant participated in the burglary and
the theft.      Jordan testified that two "Old Timer" pocket
knives were taken from his house and that the knife that the
defendant possessed at the time of his arrest was stolen from
a gun rack in Jordan's bedroom.
    The     strongest corroborating evidence was defendant's
possession of the stolen pocket knife.                       Possession of the
"Old Timer" knife certainly connected the defendant to the
crime.     It constituted circumstantial evidence that the jury
had a right to consider.       State v. Laubach (1982),                        Mont   .
    ,    653 P.2d 844, 846, 39 St.Rep 2074, 2076.                     Defendant's
possession of the stolen knife was sufficient as a matter of
law to corroborate the accomplice testimony.                     "Whether the
defendant's explanation was sufficient to explain away the
possession was a factual question for the jury."                       State v.
Rose (1980),            Mont   .     ,   608 P.2d 1074, 1078, 37 St.Rep.
642, 647.
       We hold that there was sufficient, independent evidence
to satisfy the statutory requirements and to corroborate the
testimony of Anderson, Hammons and Gostnell.
       Defendant's next contention is that the evidence does
not sufficiently support his conviction of felony theft.
Section 45-6-301, MCA defines theft and related offenses.
That statute defines four ways the offense of theft can be
committed, including an actual taking (section 45-6-301 ( I - ) ,
MCA) and possession of stolen property (section 45-6-301 (3),
MCA)   .
       The    amended     information     charged      the    defendant      with
alternative counts of felony burglary and theft.                        All the
items      taken   from the Jordan residence, outbuildings and
property were listed on the information.                   There is no dispute
that defendant's brother and companion burglarized the Jordan
residence and that the property taken exceeded $150 in value.
       Defendant    was    charged       and    prosecuted      for    theft    on
alternate theories that he either took the property himself
or     was    legally     accountable          for   the     conduct    of     his
accomplices.        Section 45-2-302, MCA, provides in part that:
       "A person is Legally accountable for the conduct of
       another when:


       " ( 3 ) either before or during the commission of an
       offense with the purpose to promote or facilitate
       such commission, he solicits, aids, abets, agrees,
       or attempts to aid such other person in the
       planning or commission of the offense."
       We must therefore assess the sufficiency of the evidence
to show whether or not defendant aided, agreed, or attempted
to aid his brother and Robert Anderson in the planning or
commission of the theft.           In assessing the sufficiency of the
evidence, this Court must give it all of the probative effect
toward conviction that it will support.             State v. Fitzpatrick
(1973), 163 Mont. 220, 227, 516 P.2d 605, 610.
       We have long adhered to the principle that more than
mere        presence    is    necessary     to      establish      criminal
responsibility.        State v. McComas (1929), 85 Mont. 428, 433,
278 P. 993, 995.        A reasonable juror could be convinced of
defendant's guilt by evidence other than the mere fact that
he    was    present   at    the   Jordan   place    when    the   offenses
occurred.       The defendant agreed with the other three men to
steal Jordan's property.           He may or may not have entered the
house, but he definitely received a fruit of the crime.
Robert Anderson testified that while they were in jail, the
defendant told him that "of all the stuff that we took out of
the house, all he had gotten was a knife. "                 This statement
after arrest strongly suggests more than mere presence at the
scene of the crime.
       The evidence supports the conclusion that the defendant
was part of the common criminal enterprise, which resulted in
felony theft.       The fact that he abandoned his specific intent
to steal Jordan's batteries does not vitiate his attempts to
aid in the planning or commission of the theft.                    The fact
that the weight of the batteries caused appellant to abort
his attempt to steal them before his companions finished
ransacking the house does not nullify his participation in
the commission of the offense of theft.             The fact that he did
not    enjoy    a   proportionate share of          the   spoils is also
unconvincing.
       In State ex rel. Murphy v. McKinnon (1976), 171 Mont.
120, 556       P.2d    906, we      stated   that     failure to       restrain
companions who were committing a crime within defendant's
presence was not sufficient evidence of defendant's criminal
design and encouragement of the offense.                   We noted that a
more active role was necessary in order for a person to be
charged    under the accountability statute.
       In State v. Lamere (1983),                   Mont   .      ,   658 P.2d
376, 40 St.Rep. 110, appellant was not permitted to transfer
legal    accountability        for his    crimes to a          companion who
received property stolen by appellant from a hardware store.
Appellant had         gained   entry to the store by            driving his
companion's car through a large window.                 We concluded that
where there was no evidence that the companion had any prior
knowledge or involvement with appellant's actions, he was not
responsible for the acts of appellant.                 Since the companion
did not know about the appellant's plan when he relinquished
the car to him, he did not cause the appellant to commit the
crimes, nor did he aid or abet the appellant to facilitate
commission of the crimes.                Lamere, 658 P.2d        at 379, 40
St.Rep. at 113.
       Here, appellant had prior knowledge of the group's plan
to     steal   Jordan ' s    property.       With     knowledge       that   his
companions were in the process of burglarizing the residence,
appellant      attempted       to    steal    the      batteries.            This
affirmative conduct on appellant's part constitutes more than
mere     presence.          Appellant's      active    participation         and
attempts to aid in the effectuation of the group's plan
exceeded negative acquiescence or mere failure to restrain.
       We find the evidence sufficient to hold the appellant
legally accountable for the actions of his companions in
crime.        When viewed i n a l i g h t most f a v o r a b l e t o t h e S t a t e ,

t h e e v i d e n c e shows t h a t t h e d e f e n d a n t i s l e g a l l y a c c o u n t a b l e

under      section         45-2-302(3),           MCA,      for     the     conduct        of    his

brother       and R o b e r t Anderson.                Both      before      and d u r i n g t h e

commission          of      the      theft,        defendant          aided,       agreed        and

attempted         to     aid      his     brother        and     Anderson        in    both      the

p l a n n i n g and commission of t h e o f f e n s e of t h e f t .

        The d e f e n d a n t a r g u e s t h a t h i s a c q u i t t a l o f t h e b u r g l a r y

charge      implies t h a t         the     j u r y must have concluded t h a t h i s

p o s s e s s i o n of t h e k n i f e was i n n o c e n t .      The d e f e n d a n t need n o t

have been         found t o have p e r s o n a l l y            taken      the knife         t o be

guilty       of     theft.            The      jury      could      have       entertained          a
r e a s o n a b l e doubt a s t o whether t h e d e f e n d a n t a c t u a l l y e n t e r e d

the building,            t h e r e b y a c q u i t t i n g him o f t h e b u r g l a r y c h a r g e ,

and y e t a l s o have concluded t h a t t h e d e f e n d a n t was g u i l t y of t h e f t

b e c a u s e he was a c c o u n t a b l e f o r t h e c o n d u c t of h i s b r o t h e r and

Anderson.

        The judgment of t h e D i s t r i c




W concur:
 e


 ?4.&-&4
Chief J u s t i c k
