State v. Ramstead

• Decision Date: 25 May 1990
• Docket Number: No. 89-412,89-412
• Citation: 243 Mont. 162,793 P.2d 802
• Parties: STATE of Montana, Plaintiff and Respondent, v. David E. RAMSTEAD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 802

793 P.2d 802

243 Mont. 162

STATE of Montana, Plaintiff and Respondent, v. David E. RAMSTEAD, Defendant and Appellant.

No. 89-412.

Supreme Court of Montana.

Submitted on Briefs March 22, 1990.

Decided May 25, 1990.

Antonia P. Marra, Great Falls, for defendant-appellant.

Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., and Steven M. Hudspeth, Deputy County Atty., Great Falls, for plaintiff-respondent.

BARZ, Justice.

David Everrett Ramstead, defendant, was charged on November 2, 1988, with one count of felony theft and one count of misdemeanor theft pursuant to Sec. 45-6-301(1)(a), MCA. The case proceeded to trial on March 20, 1989. On March 21, 1989, the jury returned a guilty verdict for each offense charged. Defendant was sentenced to a term of three and one-half years' imprisonment, with six months suspended on the condition that he pay restitution in the amount of $32.43 and that he undergo alcohol and drug counseling. Defendant appeals from his conviction and judgment. We affirm.

The following issues were raised on appeal.

1. Whether the District Court erred in denying defendant's motion to dismiss, in which the defendant asserted that the information charging him with two counts of theft was not supported by probable cause.

2. Whether the District Court properly admitted evidence of defendant's prior criminal conduct.

3. Whether defendant's two theft convictions are supported by sufficient evidence.

4. Whether defendant's felony conviction should be reversed on the ground that the State failed to prove that the sundial's value exceeded $300.

On October 11, 1988, upon returning home from a trip to Wyoming, Charles Hill noticed that his sundial was missing from the front yard of his home in Great Falls, Montana. Hill's daughter, who had been checking on the house while her parents were gone, testified that the sundial was in place in the yard on the evening of October 10, 1988. Hill reported the theft on October 12, 1988.

The sundial was subsequently recovered by a Great Falls city police officer at Carl Weissman and Sons' recycling business in Great Falls. It was then discovered that defendant had sold the sundial to Weissman's at approximately 2:00 p.m. on October 11, 1988. The sundial was constructed of aluminum and had been cast at the former Anaconda foundry in Great Falls in 1972. The sundial, originally designed by Hill, was calibrated and built for the longitude and latitude of Great Falls and kept accurate time. Hill, who had evaluated aluminum items during his employment with the Anaconda Company, estimated the value of the sundial to be $2,000 at the time it was built. He further testified that the sundial presently was worth over $1,000. Jim Rowe, an expert witness on behalf of the State, further testified that he would charge approximately $1,500 to reproduce the sundial today.

On the same day that defendant brought in the sundial to Weissman's to sell--October 11, 1988--defendant also brought in a piece of stainless steel and sold it at the same time as the sundial. After defendant had left, Weissman's scrap yard manager discovered that the stainless steel item had belonged to Weissman's and had previously been sitting within the fenced yard. Defendant had neither purchased nor been given permission to take the scrap which he later sold back to Weissman's for approximately $8.00.

Defendant was subsequently convicted by a jury of Count One, a felony charge arising out of theft of the sundial from Charles Hill, and of Count Two, a misdemeanor charge arising out of theft of the stainless steel item from Weissman and Sons. Defendant appeals, raising four issues on appeal.

The first issue raised on appeal is whether the District Court erred in denying defendant's motion to dismiss, in which the defendant asserted that the information charging him with two counts of theft was not supported by probable cause.

Defendant filed a motion to dismiss on March 6, 1989, premised on the ground that the affidavit in support of the information failed to show probable cause that the defendant had committed the charged offenses of theft. Defense counsel asserted that the affidavit was deficient on both counts because it alleged only that defendant possessed the items, and that it did not demonstrate that defendant had taken either item from the owners.

Leave to file an information will be granted if it appears from the application that probable cause exists to indicate that an offense has been committed by the defendant. Section 46-11-201(1), MCA. In the affidavit, the State need only recite facts sufficient to indicate a probability that the named defendant committed an offense. Contrary to what defendant infers in his argument, the State does not need to demonstrate a prima facie case at this juncture. State v. Buckingham (Mont.1989), 783 P.2d 1331, 1334, 46 St.Rep. 2102, 2105; State v. Bradford (1984), 210 Mont. 130, 139, 683 P.2d 924, 928-29.

In reviewing an affidavit for a determination of probable cause, a district court may use common sense and draw permissible inferences. State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d 1273, 1278. On appeal, this Court's role is merely to determine whether a district court abused its discretion. Buckingham, 783 P.2d at 1334, 46 St.Rep. at 2105; Bradford, 210 Mont. at 139, 683 P.2d at 929.

The affidavit presented to the District Court in this case contained sufficient factual allegations to support a finding of probable cause as to each charge. With respect to Count One, the affidavit demonstrated that (1) a theft had occurred from the property of Charles Hill; (2) the property taken had a value exceeding $300; and (3) defendant had possession of the stolen property and sold it on the same day that the theft was discovered. With respect to Count Two, the affidavit described that (1) defendant possessed a stainless steel item and obtained money for its sale; (2) the item did not belong to defendant when he sold it; and (3) the item was owned by Carl Weissman and Sons and had been in Weissman's own scrap yard prior to its possession by defendant. In light of the above, the District Court did not err in denying defendant's motion to dismiss.

The second issue raised on appeal is whether the District Court properly admitted evidence of defendant's prior criminal conduct.

On December 23, 1988, the State filed notice that they intended to introduce evidence during trial of a prior crime, a misdemeanor theft, in which defendant had pled guilty. Defendant filed a motion in limine on March 10, 1989 requesting that the prior misdemeanor theft not be allowed into evidence. After a hearing, the District Court denied defendant's motion and allowed the State to introduce evidence of defendant's prior crime of misdemeanor theft.

The evidence that the State introduced regarding the prior misdemeanor theft was that on February 13, 1988, defendant and Tony Lopez sold four aluminum gas tanks to Pacific Hide and Fur, a Great Falls recycling business. The tanks were identified later the same day as having been stolen from Vic Brewer's yard. A subsequent investigation revealed that the tanks had been within the fenced yard area of Brewer's property, and tennis shoe tracks were left in the mud showing that someone had climbed the fence to get to the tanks' location. As a result of the investigation, Tony Lopez and defendant were arrested, and both admitted that they had gone over the fence to get to the tanks. Defendant was charged with felony theft and, pursuant to an agreement with the Cascade County Attorney's office, entered a plea of guilty to a charge of misdemeanor theft. Defendant argues that the admission of the evidence outlined above was improper in light of State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

Evidence that a defendant has committed other crimes is not admissible to prove character in order to show that a defendant acted in conformity therewith. Such evidence is admissible only if it is introduced "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Rule 404(b), M.R.Evid.

The four substantive factors that the State must demonstrate in order to introduce evidence of other crimes are that the other crimes are (1) similar in nature; (2) not remote in time; (3) tend to establish a common scheme, plan or system; and (4) that the probative value of the other crimes is not substantially outweighed by their prejudice to defendant. State v. Randall (Mont.1989), 772 P.2d 868, 869-70, 46 St.Rep. 794, 796; Just, 184 Mont. at 269, 602 P.2d at 961. After applying the four factors to the facts of this case, we hold that the District Court did not err in allowing the admission of the February 13, 1988 crime.

In satisfying the similarity of crimes factor, the prior crime does not need to be identical to the crime charged, so long as "sufficient similarity" exists in a defendant's actions on both occasions. Randall, 772 P.2d at 870, 46 St.Rep. at 797. In this case, defendant's prior crime was strikingly similar to the crimes with which he was charged in the present case. Each involved the theft of recyclable metal products from private property; each resulted in the sale of stolen items by defendant to a Great Falls recycling business for scrap value; each was committed while defendant was in the company of Tony Lopez; and on each occasion defendant claimed that he had "found" the stolen property, although he entered a guilty plea as a result of the first incident. The prior crime introduced by the State in this case involved a very specific instance of theft which was nearly identical to the theft charged. In light of the facts in this case, the first factor, that the crimes must be similar in nature, is satisfied.

The second factor that a court must consider is whether the prior crime is remote in time. As a general...