                                                                                            December 18 2012


                                           DA 11-0740

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 293



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHANNON DAVID McCOY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Mineral, Cause No. DC 10-21
                        Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Joseph P. Howard, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant
                        Attorney General, Helena, Montana

                        Marcia Boris, Mineral County Attorney, Superior, Montana


                                                       Submitted on Briefs: October 17, 2012
                                                                  Decided: December 18, 2012




Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Defendant Shannon David McCoy (“Shannon”) appeals his conviction of attempted

theft in the Fourth Judicial District Court, Mineral County. We affirm.

                                          ISSUE

¶2     We restate the sole issue on appeal as follows:

¶3     Whether the District Court abused its discretion by finding a sufficient chain of

custody for the admission of latent fingerprint evidence?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     Around 3:00 a.m. on August 4, 2010, Cara Schmeling (“Cara”), a cashier at the Travel

Center (“Center”) in St. Regis, Montana, heard the Center’s back door alarm sound. The

back doors are generally locked, and the alarm will trigger if they are opened without being

unlocked first. Cara immediately investigated the alarm but did not find anyone. Cara

returned to the front of the store and proceeded to write a note to Gary Bullock (“Gary”),

owner of the Travel Center, telling him to check the Center’s surveillance video in the

morning. Cara then received a call from an unknown man insisting, eventually even

screaming, that Cara should check the door to the office where the Center’s safes were

located. Cara, accompanied by the Center’s maintenance man, went to check the “money

room.” There, they found the door to the money room had been propped open with a

paperback book and one of the Center’s safes had been moved from its normal position on

the floor onto a chest freezer. The door to the money room has an automatic, keypad-

operated electronic lock, and only the Center’s employees had access to the code. Cara then
                                             2
attempted to call Gary but was only able to reach his wife, Muffy. Cara informed her that

someone had attempted to take a safe. After the call to Muffy, Cara called the police, and

Mineral County Undersheriff Mike Johnson (“Officer Johnson”) responded.

¶5     Upon his arrival at the Center, Cara showed Officer Johnson the money room.

Officer Johnson noted that the door to the money room did not appear to have been forced

open. Once inside the room, Officer Johnson observed that one of the safes had been moved

on top of a chest freezer. Cara opened the safe in Officer Johnson’s presence to verify the

money was still inside and Officer Johnson arranged to return later that morning to view

security camera tapes with Gary.

¶6     Both the hallway leading to the money room and the money room have security

cameras. The hallway video showed a man covering his face with his hands while propping

open a back door. After opening the door, the man entered the restroom and shortly

reemerged wearing a hood. The hallway video then showed the man enter the money room.

Inside the money room, the video showed the man lift a safe and place the safe on the chest

freezer after attempting to open the door. Despite the man’s attempts at concealing his face

with his hands and hood, his profile was at times visible.

¶7     Before Officer Johnson viewed the tape, Cara told him that she believed Shannon was

a suspect. Cara had viewed the tape with Gary, and she testified that she recognized

Shannon’s profile, posture, and walk on the surveillance video. Cara knew Shannon from a

previous job as a waitress, and she occasionally saw him when he would visit his girlfriend, a

former waitress at the Center. Gary also recognized Shannon in the surveillance tape, having
                                              3
become familiar with him when both his mother and girlfriend worked at the Center.

Importantly, Gary testified that Shannon’s girlfriend had known the code to the money room

when she worked at the Center, and testified that the code had not been changed since she

left.

¶8      Officer Johnson recognized Shannon’s profile in the tape as well, and testified that he

knew Shannon from prior encounters. Officer Johnson was also able to see that the person in

the tape was not wearing gloves, and he fingerprinted the safe where he observed the suspect

handle it. Officer Johnson used two hinged fingerprint cards to take the prints. This type of

card consists of two halves, one made of cardboard and one made of transparent adhesive

plastic. Once a print is lifted with the adhesive plastic half, it is folded over onto the

cardboard half, sealing the print in between. Officer Johnson testified that once this step is

complete, the print is locked in place and protected from being tampered with. He also

testified that after securing the prints, he generally marks the back of the card with the

corresponding location, time, date, and case number. However, the dates noted on the backs

of the cards conflicted. One card’s note indicated that the prints had been taken on August 6,

2010, while the other read August 4, 2010. Officer Johnson explained the notation of August

6, 2010, on one card as “just a mistake on my part,” and claimed he was “a hundred percent

certain” that he lifted both sets of fingerprints on August 4, 2010.

¶9      Officer Johnson also departed from his usual habit in his subsequent handling of the

fingerprint cards. After collecting the prints, Officer Johnson placed the cards in his

briefcase, which apparently stayed in his patrol car for several weeks. Officer Johnson
                                               4
testified he is “pretty religious” about locking the car and the cards remained there until

Officer Johnson logged them into evidence on August 20, 2010. However, Officer Johnson

logged the cards out of evidence immediately after logging them in, intending to send them

to the crime lab. Instead of sending them to the lab, Officer Johnson placed the cards on a

shelf in his office, the door to which automatically locks when closed. As with his patrol car,

Officer Johnson testified that he habitually closes his door, thereby locking it, whenever he

leaves the immediate area. That area of the sheriff’s office also requires a key to enter.

Officer Johnson testified that he eventually took the two cards to the state crime lab on either

September 22 or 23, 2010, where a latent fingerprint analysis was performed. Officer

Johnson further testified that the cards were in the same condition when he delivered them to

the crime lab as they had been when he collected them on August 4, 2010. The lab’s

subsequent analysis compared the recovered prints to Shannon’s and determined that they

matched.

¶10    At the State’s request, the court held a hearing on the morning of trial outside the

jury’s presence concerning Shannon’s objection that the State had failed to establish a secure

chain of custody for the print cards. There, Officer Johnson testified to the storage of the

cards in his locked patrol car and locked office, and asserted “[t]here is no way they [the

cards] were tampered with. Absolutely not.” Following brief argument, the court found that

the State had provided sufficient foundation for the print cards, citing State v. Bowser, 2005

MT 279, 329 Mont. 218, 123 P.3d 230; State v. DuBray, 2003 MT 255, 317 Mont. 377, 77

P.3d 247; and State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995). The court thereafter
                                               5
admitted the print cards into evidence at trial, overruling Shannon’s previous objections on

foundation. The jury subsequently found Shannon guilty of attempted theft, and the court

sentenced Shannon to a term of ten years at Montana State Prison. This appeal followed.

                               STANDARD OF REVIEW

¶11    This Court grants trial courts broad discretion on evidentiary matters, and “[t]he

determination of the adequacy of the foundation for the admission of evidence is within the

discretion of the trial court, and will not be overturned absent a clear abuse of discretion.”

Weeks, 270 Mont. at 75, 891 P.2d at 484.

                                      DISCUSSION

¶12    Whether the District Court abused its discretion by finding a sufficient chain of

custody for the admission of latent fingerprint evidence?

¶13    When establishing the chain of custody, “the State has the burden to make a prima

facie showing of a continuous chain of possession and that there was no substantial change

in the evidence while it was in its possession.” Weeks, 270 Mont. at 75, 891 P.2d at 484.

The State does not need to show that it possessed the evidence at all times, and it “need only

demonstrate to the court’s satisfaction that no substantial change occurred” from the time the

evidence was gathered to the time it was tested or offered. Bowser, ¶ 30. Importantly, we do

not require the State to prove that it would be impossible to tamper with the evidence, just

that there was no substantial change. State v. Wells, 202 Mont. 337, 356, 658 P.2d 381

(1983). Once the State makes the prima facie showing, the burden shifts to the defendant to

show that the evidence has been tampered with in the State’s custody. Bowser, ¶ 30.
                                              6
¶14    On appeal, Shannon contends the District Court erred in admitting the latent print

evidence and forensic analysis by claiming that the State failed to establish a sufficiently

secure chain of custody for the print cards. Shannon specifically takes issue with the

discrepancies between the dates on the back of the cards and their storage in Officer

Johnson’s patrol car and office. Because the cards were not stored in an evidence room,

Shannon claims that the State, through Officer Johnson’s testimony, could not establish that

the cards had not been tampered with. Shannon alternatively argues that even if the State

met its prima facie burden, he has cast sufficient doubt upon the integrity of the evidence to

justify remanding the case to the trial court.

¶15    Conversely, the State answers that testimony established there was no substantial

change in the print cards from the time the prints were lifted from the safe to the time the

cards were delivered to the crime lab. The State bases this assertion on Officer Johnson’s

testimony that the cards were kept in his locked patrol car and locked office, that the way in

which the cards sealed prevented tampering, and that the cards were in the same condition

when he took them to the crime lab as when he lifted them. The State argues that this

testimony established that there had been no substantial changes to the cards, meeting their

prima facie burden.

¶16    While the conduct of Officer Johnson may not have been ideal, we agree that his

testimony met the prima facie burden enunciated in Weeks, as it established both a

continuous chain of possession and that no substantial change in the cards’ condition had

occurred. Weeks, 270 Mont. at 75, 891 P.2d at 484. As noted, we will not require the State
                                                 7
to prove that it would have been impossible to tamper with the cards while they were stored

in Officer Johnson’s car or office, and we do not require that evidence be stored in an

evidence room. See State v. Grant, 221 Mont. 122, 134, 717 P.2d 562 (1986) (affirming the

trial court’s admission of bullets and cartridges stored in an undersheriff’s office before

being sent to the crime lab). The State must only show that the cards were in a substantially

similar condition when taken to the lab. Officer Johnson testified that they were, and the

District Court determined this was sufficient to meet the State’s burden. We agree.

¶17    This decision was a valid exercise of the court’s discretion, and once made, it shifted

the burden to Shannon to prove that the cards had been tampered with. Bowser, ¶ 30.

However, Shannon failed to offer any proof that the cards had been tampered with. Instead,

Shannon argued “that if this evidence had been tampered with, [Officer] Johnson would not

be aware of it.” The District Court rightly rejected Shannon’s argument as mere speculation.

Indeed, we have recognized that a defendant’s failure to produce any evidence “to show

actual or even potential tampering could have occurred” does not satisfy their burden, Grant,

221 Mont. at 134, and we require defendants “to show affirmatively that tampering [has]

taken place.” State v. Thomas, 166 Mont. 265, 268, 532 P.2d 405 (1975). Shannon did not

attempt to affirmatively show the print cards had been tampered with, instead arguing if they

had been, the State would not know. This was insufficient to meet his burden under Bowser

and Weeks, and the District Court’s finding that the State provided a sufficient foundation for

the print cards was not a clear abuse of discretion.



                                              8
¶18    Shannon’s speculations are insufficient to render the court’s decision to admit the

cards a clear abuse of discretion. The State offered Officer Johnson’s testimony that the

cards were not substantially changed while in his possession, and Shannon failed to

affirmatively rebut this with any actual evidence of tampering. Moreover, protestations

concerning discrepancies between dates written on the back of the cards or dates entered in

an evidence log book properly go “to the weight rather than the admissibility of the

evidence.” Grant, 221 Mont. at 134 (noting that defendant’s arguments attacking the

marking and identification of evidence went to the weight of the evidence).

                                      CONCLUSION

¶19    Because the State adequately established the print cards’ chain of custody, we find

that the District Court did not abuse its discretion by admitting the latent print evidence. We

accordingly affirm Shannon’s conviction.

                                                   /S/ MICHAEL E WHEAT



We Concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




                                              9
