State v. Mitchell

• Decision Date: 01 April 1981
• Docket Number: No. 80-38,80-38
• Citation: 192 Mont. 16,38 St.Rep. 487,625 P.2d 1155
• Parties: STATE of Montana, Plaintiff and Respondent, v. Harold W. MITCHELL, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 1155

625 P.2d 1155

192 Mont. 16

STATE of Montana, Plaintiff and Respondent, v. Harold W. MITCHELL, Jr., Defendant and Appellant.

No. 80-38.

Supreme Court of Montana.

Submitted on Briefs Dec. 30, 1980.

Decided April 1, 1981.

Datsopoulos, MacDonald & Lind, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard P. Heinz, County Atty., Polson, for plaintiff and respondent.

DALY, Justice.

Defendant, Harold W. Mitchell, Jr., appeals his convictions of felony criminal mischief and solicitation entered in the Lake County District Court, the Honorable John M. McCarvel presiding.

Early in the morning of October 30, 1977, the defendant's mobile home and its contents were destroyed by fire. The property was located in a rural subdivision near St. Ignatius, Montana. The next day a juvenile, John T. Hammond, contacted the Lake County sheriff's office and told them that Mitchell had recently purchased a $25,000 fire insurance policy on the trailer home. Hammond further stated that defendant had removed most of the valuable items in the trailer to an adjacent shop building and to another trailer home owned by JoAnn Roske. Hammond also stated that he helped in replacing the removed furniture with furnishings of an inferior quality.

On November 2, 1977, Hammond informed the sheriff's office, in a tape recorded statement, that he in fact had set the fire after Mitchell offered him $500 and a car to burn the trailer while Mitchell was out of town for the weekend. Hammond indicated he set the fire by placing gasoline-soaked rags around the trailer's furnace and lighting them with a cigarette lighter.

On October 31, 1977, defendant Mitchell filed a claim to collect on the fire insurance policy. The insurance agent, upon receiving the claim and after being advised by the county sheriff that the fire was under investigation, asked defendant to make a list describing the personal property destroyed and its value. This information was needed before payment of the claim could be remitted. The sheriff's office also expressed an interest in obtaining this list once it was received by the agent.

Defendant responded to the request with a handwritten inventory which was submitted unsigned. At the request of the sheriff's office, the insurance agent typed the inventory and asked defendant to sign it and then have it certified. In a letter the agent also made an invitation for the defendant to add an addendum should he wish to include additional property. Defendant signed the typed list, certified it, and returned it with additional property listed in an addendum as being destroyed.

The insurance agent forwarded the signed list to the county sheriff. This list was then shown to Hammond who indicated which items had been moved to Roske's trailer. As a result of this information, a search warrant was issued, and various items were seized from the Roske trailer that corresponded with items on the list.

Mitchell was arrested on December 16, 1977, and charged with solicitation and criminal mischief. The first offense was based on an allegation that Mitchell commanded, encouraged, or facilitated the commission of the crime of criminal mischief by requesting Hammond to burn his trailer home. The second offense, criminal mischief, was based on a charge that he knowingly or purposely destroyed the trailer with the purpose to defraud an insurer by means of fire set by another whom he had solicited, aided and abetted.

During trial, Hammond was presented as the prosecution's key witness. He testified to helping defendant move various items out of the trailer to the Roske residence and related how he burned the trailer after being approached by Mitchell. Hammond also revealed that the night before the fire, while defendant was out of town, he had a party in defendant's trailer. Hammond stated the party was attended by about twenty-five people but that no significant damage was done to the trailer. According to a neighbor, however, who was disturbed by the noise and investigated, the trailer was in a considerable mess as a result of the party.

Mitchell denied having induced Hammond to set the fire. He further testified that he and Roske had recently separated after living together for several years and that the furniture and other personal property moved out of his trailer belonged to Roske. According to defendant, these were not the items included on the list as being destroyed in the fire.

The deputy fire marshall who investigated the fire could not determine its cause. He was unable to find the presence of hydrocarbons at the scene which would have indicated that the fire had an incendiary origin. He did testify, however, that the evidence was consistent with Hammond's statement that he had set the fire.

Following trial, defendant was convicted of both solicitation and criminal mischief. The court sentenced him to eight years' imprisonment with six years suspended on each count, the sentences to run concurrently. Defendant now appeals.

The first issue is whether the testimony of Hammond, as an accomplice, was corroborated by sufficient independent evidence.

The statutory requirements for corroboration are set forth in section 46-16-213, MCA:

"A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."

Montana case law concerning corroboration is well settled. It provides that the corroborating evidence may be supplied by the defendant or his witnesses; it may be circumstantial evidence; it need not be sufficient to sustain a conviction or establish a prima facie case of guilt; and, it need only tend to connect the defendant with the crime as charged. Where the claimed corroboration, however, shows no more than an opportunity to commit a crime, simply proves suspicion, or is equally consonant with a reasonable explanation pointing toward innocent conduct on part of the defendant, the evidence is to be deemed insufficient. See State v. Kemp (1979), Mont., 597 P.2d 96, 36 St.Rep. 1215; State v. Owens (1979), Mont., 597 P.2d 72, 36 St.Rep. 1182; State v. Coleman (1978), Mont., 579 P.2d 732, 35 St.Rep. 560; State v. Jones (1933), 95 Mont. 317, 26 P.2d 341; State v. Cobb (1926), ...