State v. Hall

• Decision Date: 26 May 1983
• Docket Number: No. 82-232,82-232
• Citation: 40 St.Rep. 621,662 P.2d 1306,203 Mont. 528
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kevin D. HALL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1306

662 P.2d 1306

203 Mont. 528

STATE of Montana, Plaintiff and Respondent, v. Kevin D. HALL, Defendant and Appellant.

No. 82-232.

Supreme Court of Montana.

Submitted on Briefs March 17, 1983.

Decided May 5, 1983.

Rehearing Denied May 26, 1983.

Thomas E. Boland, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, J. Fred Bourdeau, County Attorney, Great Falls, for plaintiff and respondent.

HARRISON, Justice.

Kevin Hall was charged with the crime of felony theft in the Eighth Judicial District, County of Cascade. An information, filed on January 11, 1982, alleged that Hall purposely or knowingly obtained control over a 1964 Chevrolet 3/4 ton pickup truck, knowing that the truck had been stolen by another, and purposely or knowingly used, concealed or abandoned the property in such a manner as to deprive the owner. These allegations, if supported, would establish commission of the offense of theft pursuant to section 45-6-301(3)(b), MCA. The defendant pled not guilty and the case was presented to a jury. The jury returned a verdict of guilty. The defendant was released on his own recognizance pending imposition of sentence. Prior to sentencing, defendant filed a motion for a new trial. Hearing on the motion was held May 7, 1982. The court denied the motion. Thereafter, on May 10, 1982, defendant was sentenced to ten years imprisonment as a persistent felony offender and five years imprisonment for the crime of theft. The five-year sentence was suspended. At the sentencing hearing, defendant made known his intentions to seek review in this Court, and in connection therewith made an oral motion to stay the execution of sentence pending appeal. The written motion and the notice of appeal were filed on that same day. The court denied the stay of execution, and defendant was sent to the state prison at Deer Lodge.

On August 31, 1982, the defendant filed a motion in this Court to stay the appeal and to remand the case to the District Court. Defendant's motion was based upon the claim of newly-discovered evidence. On September 3, 1982, this Court granted defendant's motion and the case was again before the District Court for a determination of whether a new trial should be granted because of the new evidence. On November 15, 1982, the District Court heard arguments [203 Mon

The defendant has raised three issues for our review; (1) whether there is substantial evidence to support the verdict of guilty, (2) whether the trial court erred by not granting a new trial, and (3) whether there was a denial of effective assistance of counsel at trial. We have carefully reviewed the record and find no merit in appellant's contentions, therefore the District Court's judgment and sentence is affirmed.

On or about November 13, 1980, a black-colored 1964 Chevrolet 3/4 ton pickup was reported stolen from Lucky Motors in Great Falls. The pickup was not seen again until more than a year later when Wayne Thody spotted it in the parking lot of a Great Falls restaurant. Thody had owned the truck prior to transferring it to Lucky Motors. Thody knew that Chuck Plant, the owner of Lucky Motors, had reported the truck stolen. Thody telephoned Plant who in turn telephoned the police department. Thody had the foresight to relay the license plate number, which was 2T-41247.

The police investigated. The license plate number belonged to a 1963 green GMC pickup truck owned by Mr. Fladstol, the defendant's stepfather. A police ficer contacted Mrs. Fladstol concerning the license plate. Mrs. Fladstol showed the officer a vehicle registration, confirming that the number 2T-41247 was registered for a 1963 GMC pickup. Mrs. Fladstol also informed the officer that the GMC truck had recently been involved in an accident in which her son, the defendant, was the driver. The officer who investigated the accident noted that the license plate number of the GMC was 2T-41247; taken from the front license plate on the vehicle. The officer did not notice whether the vehicle had a rear license plate.

At this point, the police were confused. They had received a report that a stolen 1964 Chevrolet pickup was seen bearing the same license plate number as a 1963 GMC pickup which had recently been involved in an accident. The police thought that Thody had incorrectly relayed the number on the stolen 1964 Chevrolet. However, the police would soon learn that no mistake was made.

Dave Richardson called the police and informed them that he thought his recently acquired 1964 black Chevrolet pickup truck was a stolen vehicle. About two weeks earlier, Richardson acquired the 1964 Chevrolet, without title or keys, from the defendant, Kevin Hall. With this information, the police contacted Chuck Plant who positively identified the truck as the one that was stolen from his used car lot. The police then impounded the vehicle.

When the police first viewed the stolen truck it had no license plates. However, when questioned about the matter, Richardson retrieved from the garbage a license plate with the number 2T-41247, which should have been on the 1963 GMC owned by Mr. Fladstol. Richardson had removed the plate at the urging of the defendant. Richardson testified at trial that when he got the truck from the defendant the plate was on the vehicle; apparently an arrangement whereby the truck could be driven on the streets.

According to the state's version of the facts, the defendant began to worry when he learned that the police had contacted his mother concerning the license plate. The defendant then contacted Richardson and told him that he should remove the license plate and throw it away, and that he should disguise the truck by painting it with gray primer paint because the truck was stolen. It was after learning these things that Richardson contacted the police.

The defendant admits that he transferred a pickup truck to Richardson in exchange for an air compressor and a wheel balancer. However, the defendant claims that the stolen 1964 Chevrolet was not the pickup involved. He claims that he gave Richardson another pickup, a 1962 Chevrolet half-ton. Concerning the license plate, defendant contends that Richardson must have removed the plate from the 1963 GMC when it had been towed to a wrecking yard after the accident. He further admits that he contacted Richardson, not to tell him the truck was stolen, but to question him about the license plate that he suspected Richardson had taken.

The jury did not believe defendant's version of the facts and returned a verdict of guilty. Defendant argues that the verdict is not supported by substantial evidence. We disagree.

In determining whether substantial evidence exists to support the verdict, we will view the evidence in a light most favorable to the prevailing party. The evidence may be inherently weak and it may conflict with other evidence yet still be deemed substantial. Gunnels v. Hoyt (1981), Mont., 633 P.2d 1187, 38 St.Rep. 1492.

Appellant argues that the only evidence against him comes from the testimony of Dave Richardson, the person who was in possession of the stolen truck when the police began their investigation. Apparently, the appellant sees a relationship between the definition of substantial evidence and Richardson's questionable actions in this case. Richardson admitted during direct examination that he accepted the 1964 Chevrolet without a title and without keys. Also, upon learning that the vehicle did not have a VIN (vehicle identification number) plate, Richardson admitted that he installed a fake number plate and obtained a fake title to match. Nonetheless, Richardson maintained that he did not know the truck was stolen until after the defendant told him so.

Regardless of Richardson's actions, conclusions drawn about his veracity are questions for the jury. As we said in Gunnels, Mont., 633 P.2d at 1191, 38 St.Rep. at 1495, where the record contains conflicting evidence, "the credibility and weight given to such conflicting evidence is the province of the jury and not this Court."

While Richardson's testimony was important to the state's case, it cannot be said that it was the only evidence against defendant. Michael Barsotti testified that the defendant told him that the pickup was stolen and that he (Barsotti) should tell Richardson to get some paint to cover the original color. Barsotti also testified that the defendant said he had lent the license plate to Richardson so the truck could be driven on the streets.

We find substantial evidence to support the verdict of guilty.

Next, we consider whether the court erred in denying defendant's motion for a new trial. This issue concerns the first motion, not the motion made while arguing for newly-discovered evidence. Appellant's argument is two-fold. First, appellant claims that the court did not recognize its inherent discretion, and as a result, failed to exercise discretion. Second, appellant argues that the court erred by not specifying its reasons for denying the motion. These contentions will be dealt with in turn.

We find it difficult to imagine how the court could deny the motion without exercising discretion. Appellant cites the following comment by the District Court judge:

"Well, I have some personal doubts in my own mind about this case. It is not up to me to decide the credibility of the witnesses, that is for the jury to decide. The testimony of one witness who is entitled to full credit is sufficient for the proof of any fact. And, of course, twelve people in the jury decided the credibility of the witnesses, so I can't see how I can turn around now and try to say their judgment of credibility was wrong. So, therefore, I'm going to deny the Motion for new trial."

We do not see the above as a judicial denial of its own discretionary power, rather it shows that the court was well aware of the limits of its discretion. As we said in Lyndes v. Scofield (1979), 180 Mont. 177, 180, 589 P.2d...