State v. Jackson
| Decision Date | 24 January 1979 |
| Docket Number | No. 14143,14143 |
| Citation | 36 St.Rep. 169,180 Mont. 195,589 P.2d 1009 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. William E. JACKSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
Michael J. Whalen (argued), Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Sheri K. Sprigg, Asst. Atty. Gen. (argued), Helena, Harold F. Hanser, County Atty., Billings, C. David Gorton, Deputy County Atty. (argued), Billings, for plaintiff and respondent.
Defendant appeals from his conviction of felony theft, entered after a jury verdict, Thirteenth Judicial District, Yellowstone County. Defendant is currently serving a ten-year sentence in the state penitentiary at Deer Lodge.
The events leading to defendant's conviction began on August 11, 1977, when Sheila Jeszenka discovered that someone had broken into her Billings, Montana home. The intruder(s) entered the home while Mrs. Jeszenka was at work, stole a six-piece stereo, three pieces of turquoise jewelry, a woman's light colored coat and a bottle containing a coin collection.
On August 12, 1977, Donald Jeszenka (hereafter Jeszenka), Sheila's estranged husband, had a chance meeting with the defendant and a man named Frank Sosa Jr. During this meeting, Sosa offered to sell Jeszenka some turquoise jewelry, a woman's coat and a stereo system. This offer led Jeszenka to believe that Sosa and his friends were responsible for the break-in at the Jeszenka home.
Jeszenka, hoping to recover the property stolen from his home, arranged to meet Sosa at 6:00 p. m. in Tally's Place, a Billings bar. Sosa assured Jeszenka that the merchandise would be available for his inspection. Once his meeting with Sosa had ended, Jeszenka did two things: first, he persuaded his friend, John Holbrook, to accompany him to Tally's Place; second, he reported his plan to Officer William Garvin of the Billings Police Department. Officer Garvin approved Jeszenka's plan and arranged to keep the meeting under surveillance by means of a "stake out" and an electronic recording device. The recording device was concealed on the person of John Holbrook and was capable of transmitting Holbrook's conversations for a distance of two or three blocks.
Jeszenka and Holbrook arrived at Tally's Place shortly before 6:00 p. m. Frank Sosa was not present when they arrived, but the defendant informed Jeszenka "he might be able to take care of them." Defendant led Jeszenka and Holbrook out of the bar and into the parking lot behind Tally's Place. There, defendant produced three pieces of turquoise jewelry which had been stored in the glove compartment of a parked car. Defendant offered to sell the jewelry to Jeszenka for $100.00 an item. Jeszenka testified that the jewelry displayed by defendant had been stolen from his wife Sheila the previous day.
Jeszenka and Holbrook did not purchase the turquoise jewelry from defendant; they told him they were only interested in buying a stereo and/or a woman's coat. At this point, Frank Sosa Jr. emerged from Tally's Place and became involved in the transaction. Sosa told Jeszenka and Holbrook that he did not have the stereo or coat with him, but, if they would be patient, he could have the items by the end of the evening. He suggested Jeszenka and Holbrook return home and await his telephone call. Sosa and the defendant then left Tally's Place in Sosa's car.
At approximately 9:30 p. m., defendant telephoned Holbrook's home and asked Jeszenka and Holbrook to meet him at Tally's Place. When they arrived at Tally's Place, it was agreed that Holbrook would take a "short ride" with defendant, while Jeszenka was to remain at Tally's Place with Frank Sosa.
Defendant and Holbrook used Sosa's car to drive to Cobb Field, which is located on the north side of Billings. Defendant parked the car under a street light, opened the trunk, and revealed a six-piece stereo and a woman's white coat. Defendant told Holbrook the stereo could be purchased for $700.00 "Cash ".
Since Holbrook had only $350.00 in cash, he and the defendant returned to Tally's Place to rejoin Sosa and Jeszenka. Upon their arrival in Tally's parking lot, defendant reopened the trunk and offered the woman's coat to Jeszenka for $100.00. At this point, the Billings Police, who had been staked out across the street, moved in and arrested the parties. The police seized the turquoise jewelry, the stereo and the woman's coat. Later, after obtaining defendant's permission to search his personal automobile, the police also recovered the bottle and coin collection taken from the Jeszenka home.
An information was filed charging defendant with a violation of section 94-6-302(1), R.C.M.1947. The information alleged that defendant had exerted unauthorized control over the Jeszenka's six-piece stereo and Sheila Jeszenka's white coat.
Defendant was found guilty after a jury trial. He was sentenced by Judge Sande to ten years in the state penitentiary, without the possibility of parole.
The following issues were properly raised by defendant's appeal:
(1) Was venue proper in Yellowstone County?
(2) Did the District Court err by admitting evidence which showed defendant had committed wholly independent crimes?
(3) Did the prosecution establish defendant's guilt beyond all reasonable doubt?
(4) Did the District Court properly instruct the jury?
In addition to issues 1 through 4, defendant's counsel, during oral argument, asked the Court to determine whether State v. Brackman (1978), Mont., 582 P.2d 1216, 35 St.Rep. 1103, has any bearing on defendant's appeal. We will discuss this query before proceeding to defendant's other issues.
Assuming arguendo that defendant made a timely presentation of his constitutional issue, we hold that Brackman has no impact on the present appeal.
In Brackman, this Court was asked to review a District Court order which suppressed State evidence obtained through the use of an electronic surveillance device. We agreed with the District Court and held the "tape recordings and transcripts" were properly suppressed. Our decision was based on 1972 Mont.Const. Art. II, § 10.
In the present case the State did not introduce, or attempt to introduce, any evidence obtained through the use of the electronic surveillance unit. For this reason, the Brackman decision does not affect defendant's trial and conviction.
We will now discuss the four issues raised in defendant's original briefs. We begin our discussion with the venue issue. The applicable statute provides:
"When a person obtains property by theft, robbery or deceptive practices, He may be tried in any county in which he exerted control over such property." Section 95-408, R.C.M.1947.
This Court has recently held that venue, although not an element of the crime, is a jurisdictional fact that must be proved at the trial the same as any other material fact in a criminal prosecution. State v. Preite (1977), Mont., 564 P.2d 598, 34 St.Rep. 364, 369.
We have also held that:
State v. Campbell (1972), 160 Mont. 111, 118, 500 P.2d 801 (Citing, State v. Wardenberg (1968), 261 Iowa 1395, 158 N.W.2d 147).
While the prosecution at defendant's trial did not produce any testimony specifically directed to the venue issue, a reading of the transcript shows the only rational conclusion is that defendant exercised control over Jeszenka's property in Yellowstone County. Jeszenka, Holbrook, and the police officers all testified that defendant had the stolen property in his possession in Tally's parking lot. The bartender, Paz Rosalez, testified as follows:
When testimony establishes that an act took place in a particular city, this Court may take judicial notice of the county where the city is located. State v. Williams (1949), 122 Mont. 279, 202 P.2d 245. In the present case, it is clear that defendant exerted control over the Jeszenka's property in Tally's parking lot. Based on Paz Rosalez' testimony and State v. Williams, supra, we can take judicial notice that Tally's parking lot is located in Yellowstone County. Accordingly, venue for defendant's trial was properly established in Yellowstone County.
Defendant's second assignment of error questions the propriety of admitting certain testimony and demonstrative evidence. The prosecution, although only charging defendant with the theft of a six-piece stereo and a woman's coat, introduced testimony and evidence which related to a stolen coin collection and three pieces of turquoise jewelry. Defendant argues that all the testimony and evidence related to the jewelry and coin collection should have been excluded because it was evidence of "another wholly independent crime." We disagree.
We recognize the general rule that when a defendant is put on trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone. Evidence which in any manner shows, or tends to show, he has committed another crime Wholly independent, even though it is a crime of the same sort, is irrelevant and inadmissible, subject to exceptions not pertinent here. State v. Frates (1972), 160 Mont. 431, 436, ...
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