                            NO.    91-085

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991




APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Randi M. Hood, Public Defender's Office, Helena,
               Montana
          For Respondent:
               Hon. MarcRacicot, Attorney General, Helena, Montana
               John Paulson, Assistant Attorney General, Helena,
               Montana
               Mike McGrath, Lewis and Clark County Attorney,
               Helena, Montana


                           Submitted on Briefs:   May 23, 1991
                                         Decided: June 18, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.


     ~ichael James Koontz appeals from the December 11, 1990,
verdict of a jury sitting in the District Court of the First
Judicial ~istrict,~ e w i sand Clark County, Montana, finding him
guilty of robbery by accountability, a felony, in violation of $ 5
45-2-302 and 45-5-401(1)(b),   MCA.   We affirm.
     The issue is whether sufficient evidence corroborates the
testimony of defendant's alleged accomplice in the robbery of a
convenience store for the jury to find defendant guilty of robbery
by accountability.
                                  I
     On February 24, 1990 at approximately 6:00 p.m., Broadwater
Market in Helena, Montana, was robbed by Eddi Jo Howard. Howard
entered the market, pointed a gun at the clerk, and demanded money.
According to the testimony of the store clerk, she was dressed in
a white coat and had a pair of nylon pantyhose on her head, but not
pulled down over her face.     After the clerk handed over all the
money in the cash drawer, Howard told him to check underneath the
food stamps for more cash. No money was under the food stamps, and
Howard then instructed the clerk to give her all the money
underneath the till. The clerk took the checks from under the till
and spread them out to show Howard that no bills were among them.
When he looked up, Howard was already out the door.
     The clerk caught a glimpse of a blue car with a white top,
which he thought was perhaps a Chevrolet Monte Carlo, leaving the
market's parking lot at a high rate of speed, but could not see who

                                  2
was driving or how many people were in the car.
     At   approximately   8:00    the   same   evening, Helena    Police
Department officers stopped a car matching the description given
by the convenience store clerk.      Defendant was a passenger in the
car driven by Howard, who consented to a search of the car by
police officers.    When officers found nothing pertaining to the
robbery in the car, including the trunk of the car, Howard and
defendant were released.
     Howard continued working at her regular job in Helena for the
next two months before leaving the city in April 1990 to visit her
mother in Tacoma, Washington.
     In July 1990, defendant was detained by officers of the
Federal Bureau of Investigation in Denver, Colorado.             He gave
F.B.I. agents a statement implicating Howard in the Broadwater
Market robbery.    Because of the information defendant had provided
to the F.B.I., law enforcement officers arrested Howard on August
10, 1990, in Tacoma.
     Howard pled guilty to robbery and was sentenced to fifteen
years with ten years suspended plus a sentence enhancement of two
years for use of a weapon.       A condition of Howard's sentence was
that she testify against defendant.
     Since defendant's statement to the F.B. I. and testimony of the
principal witnesses are crucial evidence, we briefly summarize each
witness' version of events surrounding the robbery.
Defendant's Statement to F.B.I. Officers
     The F.B.I. report, admitted into evidence at trial, contained
defendant s freely given statement that he was driving Howard1s

                                    3
car when the robbery was committed. According to defendant, Howard
had asked him to go for a ride in her car.        On their way out of
town, Howard asked him to stop at Broadwater Market because she
wanted to buy some cigarettes. Howard went into the store and came
out in less than a minute, saying that her father, with whom she
was on unfriendly terms, was in the store and that she wanted to
go home, change her clothes, and go out for the evening.
     Defendant drove H o w a r d t o her home, w h e r e she changed her
clothes while defendant waited in the car.      They then went to the
Gold Bar and played gambling machines. After leaving the Gold Bar,
on their way to another bar, Howard and defendant were stopped by
police who searched Howard's car.       Finding nothing in the car,
police released the couple.    As the couple continued on their way
to GinnyTsCasino, defendant began to question Howard about whether
she had robbed Broadwater Market.      Howard at first denied having
committed the robbery.    But a f t e r retrieving a revolver from the
trunk of her car, Howard admitted that she had robbed Broadway
Market.
     Defendant and Howard then went into Ginnyfs Casino where
Howard gave defendant $50 for gambling while she gambled away four
or five times that amount.      After defendant left Ginnyrs Casino
without Howard, he went to the residence of his girlfriend, Hannah
Gibson, and told her that Howard had robbed Broadwater Market.        He
left the next day with Gibson to visit her children in Denver.
Howard's Testimony
     Howard's account of the robbery differed markedly             from
defendant's statement.     Howard said that she was depressed and
contemplating suicide because of $800 worth of bad checks she had
written to cover gambling debts.       On the afternoon of the robbery,
Howard and defendant had been drinking for three or four hours at
a local bar when he suggested, to solve her financial difficulties,
robbing a convenience store on the west side of town because no
stores had    been   robbed   in that area of Helena.        Defendant
instructed Howard to disguise herself by pulling a nylon down over
her face, which she forgot to do while she was committing the
robbery.    In addition, defendant suggested that Howard order the
convenience store clerk to lie down on the floor.
       Defendant drove Howard to Broadwater Market, and she went
inside to buy a pack of cigarettes.         After leaving the market,
Howard cut the legs from a pair of pantyhose that she had in the
car.    She had hidden a .44 caliber handgun in the car under the
seat. Defendant again drove Howard to Broadwater Market and waited
outside while she robbed the store.
       After leaving the parking lot of Broadwater Market, Howard
gave defendant $100 of the $405 she recovered in the robbery.
Defendant directed Howard to dispose of her coat and change her
clothes in order that she not be recognized. Howard threw out her
pantyhose, and defendant drove Howard to her residence where she
left the gun and changed her clothes. After throwing Howard's coat
into a garbage container outside a restaurant, Howard and defendant
went to the Gold Bar.    In the Gold Bar, Howard gave defendant some
more of the stolen money for gambling and in less than half an hour
Howard gambled away the remainder of the money she had stolen.
       After Howard and defendant left the Gold Bar, around 8:00

                                   5
p.m., they were stopped by police.        By this time, Howard had
disposed of the pantyhose, the gun, her clothes, and the money.
After being released by police, she and defendant drove to Ginnyis
Casino.   Howard did not have further contact with defendant after
he left the casino.


     Hannah Gibson, defendant's girlfriend, appeared as a witness
for the State and testified that she had seen both Howard and
defendant, who were talking about being stopped by police, in
Ginny's Casino on the night of the robbery.
     About    a   week   later defendant described   to   Gibson   his
involvement in the robbery.       Defendant told Gibson that he and
Howard were in a bar on the afternoon of February 24, 1990, and
that Howard   was   planning to commit a robbery with a gun she had.
Defendant declined Howard's request to help her with the robbery
and saw Howard leave by the back door of the bar.    When Howard came
back to the bar with the money, defendant threatened to call police
unless Howard gave him some of the money.       Gibson did not know
whether or not Howard had given defendant any of the money.
     After the State rested, defendant moved to dismiss the charge
of robbery by accountability against defendant on the ground that
the State had not presented a prima facie case.      Defendant argued
that the State, as required by statute, had not introduced evidence
corroborating Howard's testimony and showing that defendant had
aided Howard before or during commission of the robbery. The court
denied the motion.
     The defense had earlier stipulated that defendant's statement

                                   6
to F. B. I. officers would be admitted into evidence if the defendant
did not testify. When defendant decided not to take the stand, the
District Court allowed the State to reopen its case and enter the
F.B.I.    report into evidence. After deliberating for approximately
three hours, the jury returned a guilty verdict.
         The District Court sentenced defendant to thirty years in
prison for robbery by accountability.


         Defendant contends that corroboration of Howard's testimony,
as required by 5 46-16-213, MCA, was insufficient to support the
jury's verdict that he was guilty of robbery by accountability.
         In deciding whether a person is legally accountable for an
offense committed by another, a jury cannot rely exclusively on the
testimony of an alleged accomplice because without corroborative
evidence an innocent person may be convicted by the             "   'testimony of
one      with    a    strong   motive   for   seeing   that   such    conviction
occurred.       IT   State v. Conrad (1990), 241 Mont. 1, 5, 785 P.2d 185,
187 (citing State v . Warren (l98l), 192 Mont. 436, 439, 628 P.2d



         By statute, the testimony of an alleged accomplice must be
corroborated by independent evidence:
            A conviction cannot be had on the testimony of one
         responsible or legally accountable for the same offense,
         . .  . 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.
Section 46-16-213, MCA,           To summarize, the statute sets out three
requirements for corroborative evidence, which must:        (1) be
independent; (2) tend to connect the defendant with the commission
of the offense; and (3) show more than the commission of an offense
or the circumstances under which the offense was committed.
       Other criteria for evaluating evidence corroborating an
alleged accomplice's testimony have been established by case law.
Corroborative evidence must raise more than a suspicion that
defendant was involved in, or had an opportunity to commit, the
crime.   State V. Warren (1981), 192 Mont. 436, 441, 628 P.2d 292,
295.     Corroborative evidence, in and of itself, need not be
sufficient to make out a prima facie case against defendant and
need not extend to every fact to which the alleged accomplice
testifies.   State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795
P.2d 439, 441-42. Corroborative evidence may be circumstantial and
may come from the defendant or his witnesses. Kaczmarek, 243 Mont.
at 460, 795 P.2d at 441.
       Since the jury must decide the factual question of whether
corroborative evidence of an alleged accomplice's testimony is
sufficient for a conviction, we a p p l y the sufficiency of the
evidence test.   State v. Downing (1989), 240 Mont. 215, 217, 783
P.2d 412, 414. This Court, after viewing the evidence in the light
most favorable to the prosecution, must decide whether any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.   Downinq, 240 Mont. at 217, 783 P.2d at
414.
       Commission of a crime by accountability consists of four
elements.    Defendant is legally accountable for the conduct of

                                 8
another when (1) either before or during (2) the commission of an
offense (3) with the purpose to promote or               facilitate such
commission (4) defendant solicits, aids, abets, agrees, or attempts
to aid such other person in the planning or commission of the
crime.   Section 45-2-302(3), MCA; Downinq, 240 Mont. at 217, 783
P.2d at 414.
     We now turn to the facts of this case to determine whether
sufficient evidence corroborated Howard's testimony. First, Howard
testified that while she and defendant were drinking in a bar two
or three hours before the robbery, defendant advanced the idea of
robbing a convenience store on the west side of Helena and helped
plan the robbery.    Defendant's admission to Hannah Gibson that he
was in a bar with Howard prior to the robbery and that Howard had
a gun and planned to commit a robbery tends to corroborate Howard's
testimony.
     Second, defendant admitted that he was driving the car at the
time of the robbery.      As we noted in State v. Case (1980), 190
Mont. 450, 454-55, 621 P.2d 1066, 1069, "the ensuing flight is
considered part and parcel of a robbery until such time as the
criminal purpose, including carrying away of the spoils of the
crime, is completed."        Defendant's statements to the F.B. I. are
independent corroboration that he drove the get-away car which
constituted part of the crime.
     Although defendant claimed in his statement that he had no
knowledge before     or   during   the   robbery   of   the     crime being
committed,     defendant's    version    of   events    makes    his   claim
questionable.     Defendant stated in the F.B.I.        report that after

                                     9
Howard requested him to stop at Broadwater Market for cigarettes,
Howard entered the store and I1cameout of t h e market in less than
a rninute.I1 ~ccordingto defendant, approximately two hours after
leaving Broadwater Market and after the police had           searched
Howard's car, h e    first learned    of   the robbery when    Howard
"retrieved a gun from the trunk of the vehicle."
     The jury had cause to doubt defendant's assertion that he had
no knowledge that Howard was committing a robbery while he waited
outside Broadwater Market.    Defendant did not explain how Howard,
without defendant's knowledge, could have exited the car with a gun
which Howard said was hidden under the front seat-        Nor does h e
reveal how Howard could have forced the store clerk to turn over
the money, concealed the money, as well as the pantyhose, and
deposited the gun in the trunk of the car without defendant's
noticing, all in "less than a minute.      Finally, defendant does not
explain why police failed to find the gun in the car trunk, even
though, as a police officer testified, the officers searched the
trunk of the car carefully.
     In addition to acknowledging that he had driven the get-away
vehicle and that he knew at some point of the robbery, defendant
admitted to the F.B.I. that he had taken Howard to her residence
to change clothes.   While he waited in the car, Howard "was in the
house less than three minutes.It Defendant also admitted that he
had taken money from Howard after the robbery.       These statements
corroborate Howard's testimony about the events which occurred
after the robbery.
     Lastly, police discovered defendant and Howard in a car

                                 10
matching the description of the vehicle seen at the scene of the
robbery less than two hours after the robbery.         Independent
evidence "tends to connect the defendant with the commission of the
~ffense,~' shows more than the mere "commission of the offense
        and
or the circumstances thereof."    We hold that the evidence was
sufficient for the jury to conclude that defendant was guilty of
robbery by accountability.
     Affirmed   .
                                                  June 1 8 , 1 9 9 1


                                 CERTIFICATE O SERVICE
                                              F

I h e r e b y c e r t i f y t h a t t h e f o o l o w i n g o r d e r s were s e n t by U n i t e d S t a t e s m a i l ,
p r e p a i d , t o t h e f o l l o w i n g named:




Randi M. Hood
A t t o r n e y a t Law
22 8 Broadway, C o u r t h o u s e
Helena,         MT 59601




Hon. Marc R a c i c o t , A t t o r n e y General
                              ,Assistant
J u s t i c e Bu?lding
Helena, M      T 59620               $@''lr&




Mike McGrath
County A t t o r n e y
County C o u r t h o u s e
Helena,   MT 59601




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