State v. Rodriguez

No. 87-187
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRANK RODRIGUEZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John L. Adams, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Donna Heffington, Deputy County Attorney, Billings
Submitted on Briefs: Aug. 27, 1987
Decided: October 22, 1987
Filed: O N 2 2 198X
& Clerk*,- 0
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
This is an appeal from the Thirteenth Judicial Dis-
trict, Yellowstone County, from a conviction of theft.
We affirm the District Court.
Defendant, Rodriquez, raises two issues on appeal:
1. Whether Art Walker's testimony was accomplice
testimony and subject to the requirements of corroborating
evidence.
2. Whether there was sufficient corroborating evidence
to support the alleged accomplice testimony.
Defendant, Frank Rodriguez, was charged and convicted
of the crime of felony theft. The alleged theft took place
on March 28, 1986, at a Billings electronic store called U.S.
Tech. Around 1:30 on that date, a woman and two men entered
the store and began browsing. Store personnel approached the
woman several times but offers of assistance were refused.
The woman carried a large white handbag on her shoulder. She
was seen by store employees talking to one of the two men
which she came in with. The woman looked mainly at
Camcorders, and the men showed interest in car stereos.
While in a part of the store away from the area displaying
Camcorders, the men occupied the attention of a clerk by
asking questions about various pieces of electronic equip-
ment. After about fifteen minutes, the woman left the store.
She returned in a few minutes with a black handbag. Shortly
thereafter, all three left the store.
At four o'clock that afternoon, a Camcorder valued at
$1156 was found to he missing. The theft was reported to the
police. From photo lineups, the woman and defendant were
identified by a store employee. The woman's name is Jillanne
Kittelson.
A pawn shop manager testified that one afternoon in
March 1986, Jillanne Kittelson brought a CamCorder into the
shop to try to sel.1 it. The manager knew Jillanne, as she is
the daughter of the owner of the pawnshop. He did not buy
the CamCorder, but did mistakenly leave a tape used for
testing in the camera. The tape was later identified by the
manager at the police station when the CamCorder was
recovered.
Two other witnesses, Art Walker and Curt Schlosser,
testified at trial. Walker apparently contacted Schlosser,
telling him he had a CamCorder for sale for $ 5 0 0 . Schlosser
bought the CamCorder and then discovered that it did not have
a battery. Schlosser called several stores, including U.S.
Tech, trying to find the correct battery. After describing
the camera to an employee at U. S. Tech, his name and phone
number were taken and a police officer was sent to
Schlosserls house to recover the camera. The store owner
identified the CamCorder as the one stolen from U.S. Tech.
Walker testified that he got the camera from Frank
Rodriguez and Jillanne Kittelson on March 29, 1986. Walker
was acquainted with the two and had mentioned to them that
Schlosser was interested in buying a CamCorder.
On March 29, Walker went to Kittelson's home, picked up
the camera and took it to Schlosser in exchange for $ 5 0 0 .
Walker kept $ 1 5 0 but gave $ 3 5 0 to Kittelson who gave the
money to defendant. Walker testified that he was unaware
that the camera was stolen until he went to Kittelsonls house
to pick it up. At that time, defendant and Kittelson bragged
about the theft to Walker, describing their actions at U.S.
Tech in detail.
A jury convicted defendant of felony theft. He was
sentenced to five years in prison with four years suspended.
Jillanne Kittelson disappeared before her trial date and is
still missing at this time. The record does not mention the
identity or whereabouts of the third person who seemingly
took part in the theft of the Camcorder.
The first issue raised by the defendant on appeal is
whether Art Walker's testimony was accomplice testimony and
subject to the requirements of corroborating evidence.
Defendant's issues are without merit. An accomplice is
one who knowingly, voluntarily and with common intent with 8
principal offender unites in the commission of a crime.
State v. Bad Horse (1980), 185 Mont. 507, 516-517, 605 P . 2 d
1113, 1118.
Defendant and Jillanne Kittelson were accomplices in
the theft of the Camcorder. Art Walker was not. Art Walker
testified that he learned that the camera was stolen when he
received it from Kittelson and defendant. There is nothing
on the record to indicate that Walker had anything to do with
planning the commission of the theft.
Walker knowingly received and sold stolen property.
This is an offense separate and distinct from the crime of
theft. A thief cannot be an accomplice of a receiver of
stolen property. State v. LaMere (Mont. 1983), 658 P.2d 376,
379, 40 St.Rep. 110, 114. Walker's testimony implicating the
defendant need not be corroborated with any other evidence.
As to the second issue of whether there was sufficient
corroborating evidence to support the alleged accomplice
testimony, we have found that Walker was not an accomplice of
defendant. The second issue is therefore rendered moot by
this decision.
The decision of the District Court is affirmed.
We Concur:
Chief Justice