                            NO.    94-083
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
PETE GEORGE JOHNSTON,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Jennifer Wendt Bordy, Attorney at Law,
               Bozeman, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Cregg W. Coughlin, Assistant Attorney
               General, Helena, Montana
               Mike Salvagni, Gallatin County Attorney,
               Marty Lambert, Deputy County Attorney,
               Bozeman, Montana


                             Submitted on Briefs:      August 11, 1994
                                            Decided:   October 27, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Defendant Pete George Johnston was charged and convicted in

the Eighteenth Judicial District Court,                 Gallatin    County,      of

accountability    for    burglary,     in violation of 55 45-Z-302 and

45-6-204, MCA.    Johnston was sentenced to ten years in prison with

all time suspended, based on certain conditions.             Johnston       appeals

from the conviction.       We reverse.

     The issues on appeal are:

     1.   Did the District Court err when it admitted evidence of

a prior misdemeanor forgery conviction?

     2.   Is     the    evidence     sufficient to support              defendant's

conviction of accountability for burglary?
                            FACTUAL     BACKGROUND

     On May 29, 1993,       at     approximately 1:20    a.m.,     an    individual

heard glass breaking at the First Lutheran Church in Bozeman and
notified the Bozeman Police Department.         Police officers surrounded

the church and ordered anyone            inside the church to come out.

Daniel Maggard emerged and was arrested for burglary at                  2:02 a.m.

The officers sea:rched the church but did not find anyone else.

While searching Haggard, the officers found a vehicle key.

     One and one-half hours after the burglary was reported and

forty minutes after Maggard's arrest, while continuing their search

for possible suspects, police officers heard a car horn and saw a

flash of light.         Two police officers approached the car and
discovered Johnston sitting in the passenger seat with the lights

and motor off.     Johnston would not emerge when asked to do so by

                                        2
the officers,    and they had to open the car door and physically

remove him.    The officers stated that Johnston smelled strongly of

alcohol and emerged from the car in his socks.              The vehicle key

which Maqqard had been carrying fit this car's ignition.            Johnston

was arrested at 2~48 a.m.
     Officers later discovered that Maqqard had stolen some blank

checks from the First Lutheran Church,            and charged him with

burglary.     Johnston was charged by information on June 11, 1993,

with accountability for burglary in violation of 5s            45-2-302 and

45-6-204, MCA.

     At trial, Johnston testified that he passed out in the car

when Maqqard was driving and was awakened by the police officers.
Johnston stated that he became cold in the car and attempted to

turn on the dome light to search for the key to turn the car on and
must have accidently sounded the horn.

     On September 21, 1993, just nine days before trial, the State

provided    notice   pursuant to stateV.JUSt (1979), 184 Mont. 262, 602

P.2d 957, and Statev.Matt (1991),     249 Mont. 136, 814 P.2d 52, that it

would offer evidence of a prior conviction for misdemeanor forgery.

     The    State's     ht   notice   stated   that   it   would   offer   the

conviction for misdemeanor forgery for the following purposes:

          1.    Plan.
                ----A  The evidence is offered to show that
     defendant has, in the past, planned to pass checks stolen
     from Bozeman area churches with Maqqard.          It was
     defendant's plan to serve as a lookout for Maqqard when
     he committed the burglary of the First Lutheran Church on
     May 29, 1993.



                                       3
            2.   Knowledse:   The evidence is offered to prove
       that defendant was aware Maggard was committing a
       burglary of the First Lutheran Church on May 29, 1993
       when defendant was first discovered in Maggard's car
       parked near the church.
       Johnston objects to the   Just   notice, for the following reasons:

       1.   The State asserts in its        Just   notice that the evidence of

prior crimes is offered to show a plan that defendant had, in the
past, planned to pass stolen checks.           It does not establish that he
planned to actually commit the burglaries with Maggard, nor that he
planned to act as a lookout for Maggard while Maggard committed the
burglaries.
       2.   The State offers the evidence to prove defendant knew
that Maggard was burglarizing the First Lutheran Church.                 However,
"[t]he mere knowledge that a crime is about to be committed does
not make one an accomplice."       State% Nordahl (1984), 208 Mont. 513,

517, 679 P.2d 241, 243 (citing Statev.Harvey           (1979), 184 Mont. 423,

431,   603 P.2d 661, 666).       Furthermore,         "[m]ere presence at the
scene of the theft, or even failure to interfere with a theft which
someone is aware is taking place, is insufficient to hold one
accountable as a principal to the crime."               State v. Hart (1981),   191

Mont. 375, 390, 625 P.2d 21, 29 (citing PeopIev.Durham (Cal. 1969),

449 P.2d 198).    Thus, Johnston argues that even if he knew of the
crime, which he claims he did not, failure to prevent the crime is
insufficient to hold him accountable.
       3.   Johnston states that the evidence does not meet the
modified Just reguirement that the other crimes or acts must be

                                        4
similar to the crime charged.             He previously pled guilty to
misdemeanor forgery as a matter of convenience, and that offense is
not similar to felony burglary.
     4.      Johnston asserts that the probative value of the evidence
is substantially outweighed by its prejudice.          He pled guilty to
misdemeanor forgery because he was living in North Dakota at the
time and,    for   convenience,    decided not to pursue the matter to
trial.      The fact that he pled guilty, however, is extremely
prejudicial.
     The State, on the other hand, argues that the District Court
did not abuse its discretion by admitting evidence of Johnston's
prior misdemeanor forgery conviction.        The State argues that there
is   a    similarity     between    misdemeanor    forgery    and     felony
accountability for burglary.        The State claims that this Court has
held that a prior act need not be identical to the offense
committed, it must only be of sufficient similarity to warrant its
admission.     State v. Ramstead (1990) , 243 Mont. 162, 167, 793 P.2d 802,

805; Statev.Randall (1989), 237 Mont. 271, 274, 772 P.2d 868, 870.

                                   ISSUE 1
     Did the District Court err when it admitted evidence of a
prior misdemeanor forgery conviction?
     When we review whether a district court properly allowed
evidence of a prior conviction, we will uphold the district court
unless the district court abused its discretion.             State v. Gollehon




                                      5
(1993) I 262 Mont. 293, 301, 864 P.2d 1257, 1263 (citing                             &?teV.   &St


(1992) I   253 Mont. 442, 833 P.2d 1052).

     To insure that prior crimes                     are not used to prove a bad

character, this Court has established a four-part test to determine
the admissibility of evidence of other crimes or acts in criminal

prosecutions.       kfatt, 814   P.2d    at 56.      The four elements of that test

are: (1) the other crimes, wrongs, or acts must be similar: (2) the

other crimes, wrongs, or acts must not be remote in time:                               (3)   the

evidence    of    other    crimes,       wrongs,     or acts is not admissible to
prove the character of a person in order to show that he acted in

conformity       with   such     character: but may be admissible for other

purposes,        such     as     proof     of       motive,    opportunity,             intent,

preparation,       plan,    knowledge,      identity, or absence of mistake or

accident; (4) although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair

prejudice,        confusing        the    issues,       misleading         of    the       jury,
considerations of              undue delay,         waste     of    time,       or    needless

presentation      of    cumulative       evidence.      kktt. 814   P.2d   at        56.      This

rule modified the Just rule, which originally set forth the basis

for admission of other crimes, wrongs, or acts.
      The following procedural protections apply as part of the

modified kit rule::

      1.     Evidence of other crimes, wrongs, or acts may not be

received unless there has been written notice to the defendant that

such evidence is to be introduced.                     The notice to the defendant

                                                6
shall specify the other crimes, wrongs, or acts to be admitted, and
the specific rule 404(b) purpose or purposes for which it is to be

admitted.

     2.     At the time of the introduction of such evidence, the

trial court shall explain to the jury the purpose of the evidence

and shall admonish it to consider the evidence for only such

purposes.

     3.     In its final charge, the court shall instruct the jury in
unequivocal terms that such evidence was received only for the

limited purposes earlier stated and that the defendant is not being

tried and may not be convicted for any offense except that charged.

Mutt, 814 P.2d at 56.

     This case involves the prior crime of misdemeanor forgery.

According to § 45-6-325(l), MCA, a person commits the offense of

forgery when, with the purpose to defraud, the person knowingly:

           (4   without authority makes or alters any document
     or other object apparently capable of being used to
     defraud another in a manner that it purports to have been
     made by another or at another time or with different
     provisions or of different composition;
           (b)  issues or delivers the document or other object
     knowing it to have been thus made or altered;
           (c) possesses with the purpose of issuing or
     delivering any such document or other object knowing it
     to have been thus made or altered . . . .
On the other hand, § 45-6-204, MCA, provides that a person commits

the offense of burglary       if   he   knowingly   enters   or   remains
unlawfully in an occupied structure with the purpose to commit an

offense therein.    The crimes of burglary and forgery are distinct
and are quite different in their respective elements.         We held in


                                   7
Matt, 814 P.2d    at 57, that "[t]he linchpin for determining whether

a single instance of prior conduct is sufficient . . . is relevancy

based on similarity."          We held in Statev.Keys (1993),     258 Mont. 311,

316,    852 P.2d 621, 624, that "[t]he          determination      of   similarity

depends on whether the conduct has some relevance to place an issue

in dispute."       Here, misdemeanor     forgery   and   felony    accountability

for burglary are not similar, and as such, the prior crime was not

relevant.     We conclude that the prior misdemeanor forgery is not
sufficiently similar to the charge of accountability for burglary

to satisfy the first element of the modified Just rule and that the

District Court erred by admitting the evidence of a prior crime.
                                      ISSUE 2

        Was the evidence sufficient to support defendant's conviction

of accountability for burglary?

        When we review a conviction challenged on sufficiency of the

evidence, we will uphold the district court if, after reviewing the

evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.           Statev.Bower (1992), 254 Mont. 1, 6, 833

P.2d 1106, 1110 (citing Statev.Ri&y (1992), 252 Mont. 469, 830 P.2d

549).     In this case, we consider the record without evidence of

Johnston's prior :forgery conviction, which we have held should have

been excluded.

        Johnston contends that the evidence was not sufficient to

support     his   conviction    of   accountability   for   burglary    because   a

                                          8
rational trier of fact could not have found the essential elements

of the crime beyond a reasonable doubt.

       Under g 45-2-302(3), MCA, a person is legally accountable for

the conduct of another when

       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.

       There is no evidence that Johnston aided Maggard before,

during,    or after the burglary.     The driver's seat of the car was

positioned to suggest that Maggard had driven to the scene. Maggard

possessed the key, and Johnston was found on the passenger side of

the car.     Johnston did not abet Maggard during the burglary. He

briefly honked the horn and flashed the lights after Maggard was

already in custody.    The State fails to establish how this, in any

way,   aided or abetted Maggard in the commission of tt.e crime.

       The only thing that linked Johnston to the crime was the fact

that he was found near the scene of the crime.               The police

discovered Johnston across the street from the burglzrized        church

sitting in a parked car.     The State argues that the evidence was

sufficient to convict Johnston of accountability for burglary and

that any rational trier of fact could have found the essential

elements of accountability for burglary beyond a reasonable doubt.

       We have held that mere presence at the crime iscene       is not

enough to establ.ish   criminal responsibility.        "[WE: have] long
adhered to the principle that more than mere presence at the scene

of a crime is necessary to establish criminal responsibility." State

                                     9
exrel.Murphyv.McKinnon    (1976),   171    Mont. 120, 125, 556 P.2d 906,    909.

SeeakoStatev.Bradford    (1984),    210 Mont. 130, 683 P.2d 924: State% Hart

(1981) t 191 Mont. 375, 625 P.2d 21.             Furthermore,     mere knowledge
that a crime is about to be committed                  does not make one an

accomplice or accountable for that crime.               We held in Nordahl that

a true accomplice is

      'one who knowingly, voluntarily and with common intent
      with the principal offender unites in the commission of
      a crime . . . . One may become an accomplice by being
      present and joining in the criminal act, by aiding and
      abetting another in its commission, or not being present,
      by advising and encouraging its commission: but knowledge
      and voluntary actions are essential in order to impute
      guilt.'

Nordahl, 679 P.2d at 243 (quoting         Statev.Harmon (1959),   135 Mont. 227,

236, 340 P.2d 128, 132).

      We conclude that the evidence was not sufficient to support
the conviction of felony accountability for burglary.

      The judgment of the District Court is reversed and this case

is remanded for further proceedings consistent with this opinion.




                                                     us ice

We concur:
11
                                        October 27, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Jennifer Bordy
Attorney at Law
1822 West Lincoln, Suite B
Bozeman, MT 59715

Marty Lambert
Deputy County Attorney
615 So. 16th Avenue, Room 100
Bozeman, MT 59715

Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant
Justice Building
Helena. MT 59620



                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE IOF MONTANA
