State v. Johnson

• Decision Date: 25 March 1993
• Docket Number: No. 92-328,92-328
• Citation: 848 P.2d 496,257 Mont. 157
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dale Lee JOHNSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 496

848 P.2d 496

257 Mont. 157

STATE of Montana, Plaintiff and Respondent, v. Dale Lee JOHNSON, Defendant and Appellant.

No. 92-328.

Supreme Court of Montana.

Submitted on Briefs Nov. 12, 1992.

Decided March 2, 1993.

Rehearing Denied March 25, 1993.

William F. Hooks, Appellate Defender Office, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Cregg Coughlin, Asst. Atty. Gen., Helena, Gerald J. Navratil, Dawson County Atty. Office, Glendive, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a jury verdict finding the appellant, Dale Lee Johnson (Johnson), guilty of the crime of burglary. This appeal is from the Seventh Judicial District of the State of Montana, in and for the County of Dawson, the Honorable Dale Cox presiding. We affirm.

The following are the restated issues on appeal:

1. Has Johnson waived any claim that testimony of the accomplice was insufficiently corroborated?

2. Has Johnson waived any objection to the place of trial?

3. Was there sufficient evidence from which the jury could determine that the crime was committed in Dawson County?

4. Has Johnson waived any claim that the State improperly bolstered the credibility of its witness?

5. Was Johnson provided effective assistance of counsel?

During the evening of September 27 or the morning of September 28, 1991, Larry's Interstate Exxon in Glendive, Montana, was burglarized. The owner of the gas station testified that he found a window at the rear of his station had been damaged, and the entire plate glass in the front door to the business knocked out. The owner testified that cigarettes, jerky, beer and coins were stolen from the business.

At the time of the burglary in September, 1991, Johnson and his common-law wife, Lori, were sharing their home with several people: Terri; her son, Beau; and Terri's boyfriend, Dave. Prior to the burglary Terry Kelly (Kelly) had resided with Johnson, but at the time of the burglary Kelly was living in another house in Glendive with Daryl Thies (Thies) and Theresa Upchurch.

Kelly was picked up by the Glendive police after he had gotten into a fight in town and he was eventually bussed out of town following the affair. At the time Kelly was picked up, the police asked him whether he had anything to do with the Exxon burglary; he denied any involvement. In January 1992, Kelly was arrested in Great Falls, Montana, and after being returned to Glendive he gave the authorities a statement as to what had happened during the evening of September 27, 1991.

During the trial, Kelly stated that on the evening of September 27, 1991, he, Johnson and Thies were drinking beer at the house Kelly shared with Thies and Upchurch. Kelly testified that Johnson, who was a former employee of Larry's Interstate Exxon, knew of a place that "would be easy to knock ... off." Kelly testified that he did not think it was such a good idea, but he went along with the plan due to being "drunk" at the time. According to Kelly, he and Johnson left on a motorcycle for Johnson's house where they retrieved plastic bags and a pillowcase before driving to the Exxon station. They parked the motorcycle off the road in some trees. Kelly testified that while Johnson went to the rear of the building Kelly attempted to kick in the front window; he eventually knocked the front window out with a large piece of wood. Once inside, Kelly grabbed a jar of coins totalling approximately $50 and he took cigarettes from the station's freezer; Johnson took jerky from the counter. Kelly and Johnson left the station and went to Johnson's house where they divided the coins, cigarettes and jerky.

Testimony at trial included that of one of Johnson's house guests, Terri, who testified that she awoke around 3:30 to 4:00 a.m. on the morning of September 28, 1991. Terri testified that after she entered the kitchen she saw Kelly and Johnson at the kitchen table which was strewn with beer, cartons of cigarettes, and jerky. Terri testified that the two were drinking beer and "talking about what they had just done at Larry's Exxon." She also saw other cartons of cigarettes and containers of jerky in the freezer. From what she observed and heard from Kelly and Johnson, Terri testified that she got the impression that both Kelly and Johnson had participated in the commission of the burglary on Larry's Interstate Exxon.

The jury found Johnson guilty of burglary and not guilty of an unrelated charge of theft.

I

Has Johnson waived any claim that testimony of the accomplice was insufficiently corroborated?

It is Johnson's position that the testimony of Kelly, an accomplice, was insufficiently corroborated. Kelly was an accomplice to the burglary and was charged with the burglary along with Johnson. He pled guilty to that offense and was sentenced by the District Court in Dawson County. There is no question that Kelly was responsible or legally accountable for the burglary, therefore, under Sec. 46-16-213, MCA, his testimony, standing alone, would not have been sufficient to convict Johnson.

While Johnson argues that evidence corroborating the testimony of the accomplice, Kelly, was insufficient to sustain a conviction, there is nothing in the record that disclosed a challenge to the sufficiency of the corroborative evidence, or the evidence as a whole, by way of either a motion for an acquittal or a motion for a directed verdict. We have noted in numerous opinions that this Court will not notice an allegation of error raised for the first time on appeal when the appellant had the opportunity to make such an objection at the trial level. See Sec. 46-20-104(2), MCA; State v. Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439. While Johnson did move the District Court to dismiss the charges on the ground that he had not been personally identified in court by Kelly, he did not move for a directed verdict or an acquittal based upon a claim of insufficiency of the evidence, either as a whole or as to evidence corroborating the accomplice testimony. We conclude that Johnson waived any claim that the accomplice testimony was insufficiently corroborated.

II

Has Johnson waived any objection to the place of trial?

On appeal, Johnson raises for the first time the issue that the State failed to sufficiently prove at trial that the burglary was committed in Dawson County. The question is one of venue. Although venue is not an element of the crime, it is a jurisdictional fact that must be proven at trial just as any other material element. State v. Preite (1977), 172 Mont. 318, 323, 564 P.2d 598, 600-601. Unlike a claim that venue is improper, which must be raised before trial according to Sec. 46-3-111, MCA, the issue of whether the State has satisfied its burden, may be raised for the first time on appeal. State v. Bad Horse (1980), 185 Mont. 507, 515, 605 P.2d 1113, 1117.

III

Was there sufficient evidence from which the jury could determine that the crime was committed in Dawson County?

In a criminal case, venue must be proven beyond a reasonable doubt. State v. Bretz (1979), 185 Mont. 253, 285, 605 P.2d 974, 993, cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979), reh'g denied, 444 U.S. 1104, 100 S.Ct. 1073, 62 L.Ed.2d 791 (1980). We find there was sufficient evidence presented to the jury by which it could have reasonably concluded that the offense was committed in Dawson County. First, the owner of Larry's Exxon, Larry Schlenz, testified that Larry's Interstate Exxon station was located on Highway 16, just north of the interstate on the Sidney highway. Next, Kelly testified that the station was close to the interstate on the Sidney highway. Finally, Johnson's common-law wife, Lori, agreed that the...