MATTER OF McMASTER
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No. 12726 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1974 I N THE M T E O PATRICK J O H N McMASTER, ATR F A J u v e n i l e Delinquent. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , Honorable B. W. Thomas, Judge p r e s i d i n g . Counsel of Record : For Appellant : Oscar Hendrickson argued, Chinook, Montana For Respondent: Hon. Robert L. Woodahl, A t t o r n e y General, Helena, Montana Thomas J . Beers, A s s i s t a n t A t t o r n e y General, a r g u e d , Helena, Montana William Solem, County A t t o r n e y , argued, Chinook, Montana Submitted: Filed: DEC 2 - 6 1974 September 1 0 , 1974 M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal from a f i n a l judgment a f t e r a j u r y t r i a l i n t h e d i s t r i c t c o u r t , Blaine County, f i n d i n g a p p e l l a n t P a t r i c k John McMaster, g u i l t y of f i r s t degree burglary and adjudicated him a delinquent. The f a c t s a r e : Appellant and t h r e e of h i s acquaintances, Rod Olson, Mike Turbovitz and Johnny Johnson, w e r e stopped by a Chinook c i t y p o l i c e o f f i c e r , Robert Flynn, a t 3:00 a.m., 30, 1973. September When asked what they were doing parked where they were, they r e p l i e d they were j u s t s i t t i n g there. The o f f i c e r then followed t h e young men and observed them park t h e c a r a t Rod Olsonls grandmother's house and walk back t o town t o Rod Olson's apartment. Around 4:00 a.m., Robert Stanley, a mechanic, observed a p p e l l a n t and Mike Turbovitz walking down an a l l e y , which runs behind Martens Drug S t o r e , t h e b u r g l a r i z e d s t o r e . Stanley l a t e r saw a p p e l l a n t and Turbovitz climbing down from ~ o b ' s Drapery shop's r o o f , a b u i l d i n g l o c a t e d a few s t o r e s down from Martens Drug Store. A t t h a t time Stanley attempted t o c a l l t h e p o l i c e , b u t was unable t o reach them. Stanley t e s t i f i e d he l a t e r saw a p p e l l a n t and Turbovitz walk o u t of t h e a l l e y , c r o s s t h e s t r e e t , and go up t o a patch of weeds where Turbovitz deposited something i n t h e weeds. Stanley then t e s t i f i e d a p p e l l a n t and Turbovitz went t o a parked c a r . Turbovitz got i n t o t h e c a r ; a p p e l l a n t l i f t e d t h e hood of t h e c a r and began looking under i t when O f f i c e r Flynn approached them. O f f i c e r Flynn t e s t i f i e d t h a t when he approached a p p e l l a n t and Turbovitz a t t h e parked c a r , Turbovitz a t f i r s t claimed he owned t h e c a r , but l a t e r admitted t h a t n e i t h e r he nor a p p e l l a n t had any business being i n t h e c a r . H e then t e s t i f i e d t h a t Stanley waved f o r him t o come over t o t h e garage where Stanley was working. Flynn t o l d a p p e l l a n t and Turbovitz t o s t a y where they were, b u t when O f f i c e r Flynn drove o f f t o t a l k t o Stanley, they l e f t . Stanley then related to Flynn the actions of appellant and Turbovitz. Flynn proceeded to investigate the buildings down the alley where Stanley had observed appellant and Turbovitz walking and climbing on the roof. When Officer Flynn approached Martens Drug Store, Johnny Johnson stuck his head out the back door, saw Flynn, and fled out the front door. unable to apprehend him. Flynn pursued Johnson, but was Flynn then notified the county sheriff, a fellow police officer, and the owner of the drug store. The investigating officers found several sacks of drugs from the drug store in the approximate vicinity of the weeds where Stanley saw Turbovitz stash something. They also found a wastepaper basket half full of drugs, and a stack of records from the display rack at the front of the store were found at the back of the store. window in the front door had been broken. The The back door had no signs of being broken into, but was unlocked from the inside. Because of his previous companionship with Johnny Johnson; because of his close proximity to the drug store when he was observed by the mechanic. Stanley and Officer Flynn; and, because he was with Turbovitz when Stanley saw Rrr.bovitz stash something in the weeds, appellant was arrested and charged with first degree burglary. Although appellant makes four assignments of error the issues for consideration could more succinctly be stated as: ( ) Were 1 the exhibits and the testimony by the state's witnesses relevant and material and therefore admissible? (2) Was there sufficient circumstantial evidence to support the jury's guilty verdict? Considering the first issue---were the exhibits and testimony by the state's witnesses relevant and material? Appellant objected to the introduction of certain photographs of the scene of the burglary, paper sacks which were found containing drugs stolen during the burglary, and certain containers filled with drugs, into evidence on the grounds that there was no proper foundation laid, and that the material was irrelevant and immaterial and not connected in any way t o a p p e l l a n t . Appellant a l s o objected t o t h e testimony of one Larry Martens, owner of t h e b u r g l a r i z e d drug s t o r e , on t h e grounds t h e r e was no connection of t h e burglary of t h e premises t i e d t o appellant. A l l of t h e s e o b j e c t i o n s were overruled by t h e d i s t r i c t c o u r t and a l l t h e evidence and testimony was admitted. The d i s t r i c t c o u r t a c t e d c o r r e c t l y . A s s t a t e d i n S t a t e v. Sanders, 158 Mont. 113, 117, 118, 489 "A fundamental p r i n c i p l e a p p l i c a b l e t o a l l criminal proceedings i s t h a t 'evidence must be r e l e v a n t t o t h e f a c t s i n i s s u e i n t h e c a s e on t r i a l and tend t o prove o r disprove such f a c t s , evidence of c o l l a t e r a l o r o t h e r f a c t s which a r e incapable of a f f o r d i n g any reasonable presumption o r i n f e r e n c e a s t o a p r i n c i p a l f a c t o r matter i n d i s Ute, o r e v i d e n ~ e which i s too remote, i s 29 Am.Jur.2dY Evidence irrekevant an$ inadmissible. 5 298, p. 342. Evidence i s r e l e v a n t only i f i t ' n a t u r a l l y and l o g i c a l l y tends t o e s t a b l i s h a f a c t i n issue.' Brion v. Brown, 135 Mont. 356, 363, 340 P.2d 539, 543, quoting from 1 Jones on Evidence, 5 t h Ed., 5 151, p. 270." The f a c t of whether o r n o t a burglary had taken place was i n issue. The evidence and testimony objected t o by a p p e l l a n t e s - t a b l i s h e d t h e f a c t t h a t a burglary had taken place and t h e evidence w a s t h e r e f o r e r e l e v a n t and admissible. A p p e l l a n t ' s second i s s u e i s whether t h e r e was s u f f i c i e n t c i r c u m s t a n t i a l evidence t o support t h e g u i l t y v e r d i c t ? As t h i s Court s t a t e d i n S t a t e v. Cor, 144 Mont. 323, 326, 396 P.2d " c i r c u m s t a n t i a l evidence i s n o t always i n f e r i o r i n q u a l i t y nor i s i t n e c e s s a r i l y r e l e g a t e d t o a 'second c l a s s s t a t u s ' i n t h e c o n s i d e r a t i o n t o be given i t . The very f a c t i t i s c i r c u m s t a n t i a l i s n o t a s u f f i c i e n t a l l e g a t i o n t o j u s t i f y a r e v e r s a l of t h e judgment f o r such evidence may be and f r e q u e n t l y i s , most convincing and s a t i s f a c t o r y . I n any c r i m i n a l c a s e , evidence t h a t i s m a t e r i a l , r e l e v a n t and corn e t e n t w i l l be admitted, 'nothing more and nothing t e s t i s whether t h e f a c t s and circumstances a r e of such a q u a l i t y and q u a n t i t y as t o l e g a l l y j u s t i f y a j u r y i n determining g u i l t beyond a reasonable doubt. I f such be t h e c a s e , then t h e c o u r t should n o t , indeed cannot, set a s i d e t h e solemn f i n d i n g s of t h e trier of t h e f a c t s . " h Application of t h i s p r i n c i p l e t o t h e i n s t a n t case l e a d s d i r e c t l y and convincingly t o t h e conclusion t h a t a p p e l l a n t ' s g u i l t has been proven beyond reasonable doubt. This conclusion r e s u l t s from an examination of t h e e n t i r e record and from a c o n s i d e r a t i o n of a l l of t h e evidence: 1. Appellant was i d e n t i f i e d by O f f i c e r Flynn a s being with Johnny Johnson and two o t h e r men on t h e n i g h t t h e burglary took place. Johnny Johnson was caught i n s i d e Martens Drug S t o r e by O f f i c e r Flynn. 2. M r . Stanley t e s t i f i e d t o seeing a p p e l l a n t and Mike Turbovitz walking down t h e a l l e y behind Martens Drug Store. He a l s o t e s t i f i e d he saw t h e two men on t h e roof of ~ o b ' sDrapery, a s t o r e located a few s t o r e s down from Martens Drug Store. Mr. Stanley l a t e r saw a p p e l l a n t and Mike Turbovitz come o u t of t h e a l l e y , walk a c r o s s t h e s t r e e t t o a patch of weeds where Turbovitz stashed something i n t h e weeds. 3. When a p p e l l a n t and Turbovitz saw O f f i c e r Flynn, they quickly went t o a parked c a r . Turbovitz a t f i r s t claimed ownership of t h e c a r and then acknowledged t h a t n e i t h e r he nor a p p e l l a n t owned t h e c a r nor had any business being i n t h e c a r . They could o f f e r no explanation t o O f f i c e r Flynn f o r being i n t h e c a r o t h e r than t o check t h e o i l . 4. Appellant and Turbovitz were t o l d t o s t a y a t t h e c a r whenthe o f f i c e r went t o t a l k t o M r . Stanley; i n s t e a d they both f l e d . 5. Several sacks of drugs s t o l e n from Martens Drug S t o r e were found hidden i n t h e same v i c i n i t y t h a t Stanley s t a t e d Turbovitz stashed something. A l l of t h e above evidence i s n o t s u f f i c i e n t t o place a p p e l l a n t on t h e a c t u a l premises of Martens Drug S t o r e , which i s an e s s e n t i a l element of t h e crime of burglary. However, i t i s s u f f i c i e n t t o prove t h a t a p p e l l a n t aided and a b e t t e d i n t h e commission of t h e crime, thereby making a p p e l l a n t a p r i n c i p a l and g u i l t y of t h a t crime i t s e l f . 5 5 94-203, 94-204, R.C.M. 1947. The c o u r t i n i t s Z n s t r u c t i o n ~ b e r12 i n s t r u c t e d t h e j u r y a s t o a i d i n g and a b e t t i n g . Although objected t o by a p p e l l a n t on t h e grounds t h e r e was no evidence t h a t a p p e l l a n t aided o r a b e t t e d anyone i n t h e commission of t h e b u r g l a r y , we f e e l t h e o b j e c t i o n was properly overruled. A s w e have s t a t e d , t h e r e was ample evidence of a i d i n g and a b e t t i n g . Appellant a l s o objected t o t h e c o u r t ' s i n s t r u c t i o n on i n t e n t . W e f i n d t h e r e was s u f f i c i e n t evidence presented t o e s t a b l i s h i n t e n t , which would allow t h e c o u r t t o give I n s t r u c t i o n number 10 over a p p e l l a n t ' s o b j e c t i o n t h a t t h e r e was no such evidence. The judgment of t h e d i s t r i c t c o u r t i s affirmed. , W Concur: e -------------------------------Chief J u s t i c e Justice /
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