State v. McColley

No. 8 9 - 1 8 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
KURT McCOLLEY,
Defendant an Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial D k s
In and for the County of Yellowstone, o z
x
The Honorable Russell Fillner, Judge presidpg.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth S. Baker, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Teresa M. OIConnor,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: Sept. 7, 1 9 8 9
Decided : October 2 4 , 1989
Filed:
j Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Kurt McColley, was charged with one count of
felony criminal sale of dangerous drugs in the District Court
for the Thirteenth Judicial District, Yellowstone County.
The jury found defendant guilty as charged. He was sentenced
to 20 years in the Montana State Prison, with 10 years sus-
pended. Defendant appeals. We affirm.
The sole issue on appeal is whether the conviction may
stand when only one of the two sales charged as one offense
has been proved by sufficient evidence?
Tim Martin, an undercover detective of the Yellowstone
County Sheriff's Office, made arrangements with Matt Andre to
purchase one-half gram of cocaine on April 1, 1988. Andre
and Martin went to the residence of defendant in Billings,
Montana. Andre entered the house alone, came out, and in-
formed Martin that he had spoken with "Kurt," who said he
would supply the cocaine. Martin and Andre then left defen-
dant's home. Later that same day, Martin returned to Andre's
house and picked up a bindle containing one-half gram of
cocaine.
Several weeks later, Martin arranged with Andre to
purchase more cocaine. On April 28, the two men again went
to the home of defendant. Surveillance of defendant's resi-
dence was conducted by other officers. Martin himself never
entered defendant's residence, but during the course of the
day Andre was observed entering defendant's house several
times. Finally, later that afternoon, Andre returned to his
own residence and gave Martin a bindle of cocaine. The
bindle was examined for fingerprints. Five fingerprints
belonging to defendant were identified. Martin testified,
t h a t upon h i s a r r e s t , Andre s a i d t h a t h e o b t a i n e d t h e c o c a i n e
from d e f e n d a n t .
At trial, Andre denied that the cocaine from either
p u r c h a s e came from d e f e n d a n t . A t t h e c l o s e of t h e S t a t e ' s
c a s e , d e f e n d a n t moved f o r d i r e c t e d v e r d i c t on t h e ground t h a t
t h e r e was i n s u f f i c i e n t e v i d e n c e c o n n e c t i n g t h e d e f e n d a n t t o
t h e A p r i l 1st s a l e . Defendant argued t h a t s i n c e Andre was an
accomplice in the drug transaction, as a matter of law,
defendant could not be convicted s o l e l y upon the evidence
g a i n e d from t h e p o l i c e . The motion was d e n i e d .
Defendant t e s t i f i e d t h a t a l t h o u g h Andre d i d v i s i t him a t
h i s home on A p r i l 28, h e d i d n o t s e l l any c o c a i n e t o Andre on
t h a t d a t e o r a t any o t h e r t i m e . The S t a t e c a l l e d no o t h e r
witnesses, and defendant was found guilty of the charged
offense. He s u b s e q u e n t l y f i l e d a Motion f o r Judgment Not-
withstanding t h e Verdict (Judgment N . O.V. ) o r f o r New T r i a l
p u r s u a n t t o 5 46-16-702, MCA, b a s e d on t h e same grounds a s
the Motion for Directed Verdict. The motion was denied.
Defendant m a i n t a i n s t h a t s i n c e h e was charged w i t h one
o f f e n s e o f c r i m i n a l s a l e o f dangerous d r u g s , committed on two
s e p a r a t e o c c a s i o n s , t h e S t a t e must p r o v e h i s c o n n e c t i o n w i t h
both sales. He c o n t e n d s t h a t t h e r e i s n o t s u f f i c i e n t e v i -
dence t o s u p p o r t h i s c o n v i c t i o n due t o t h e S t a t e ' s f a i l u r e t o
p r o v e h i s c o n n e c t i o n w i t h t h e c o c a i n e s a l e o f A p r i l 1, 1988.
Defendant a r g u e s t h a t b e c a u s e Andre o n l y named him on a r r e s t
but denied his involvement at trial, the evidence is
insufficient. He c l a i m s t h a t t h e r e i s no e v i d e n c e t o c o r r o b -
o r a t e Andre's s t a t e m e n t s upon arrest that he received the
c o c a i n e from d e f e n d a n t . F u r t h e r m o r e , h e c o n t e n d s t h a t Andre
was an accomplice t o t h e t r a n s a c t i o n , and under S 46-16-213,
MCA, a conviction based on t h e testimony of a n accomplice
cannot stand unless corroborated. Defendant r e l i e s on t h e
c a s e o f S t a t e v . Warren (Mont. 1 9 8 1 ) , 628 P.2d 292, 38 St.Rep
773, in which this Court concluded that testimony of an
accomplice must be supported by corroborating evidence or
acquittal is the only remedy.
The State contends it is immaterial to defendant's
conviction whether or not there was sufficient evidence to
prove defendant was involved in both sales, citing the stead-
fast rule that "superfluity in an Information does not viti-
ate." State v. Board (1959), 135 Mont. 139, 143, 337 P.2d
924, 927. They argue that the conviction must stand because
the April 28th sale is supported by substantial evidence.
The State relies on United States v. Bruno (5th Cir. 1987),
809 F.2d 1097, in which the Court held that "the government
need not prove all the charges contained in the indictment,
but only a sufficient number of charges in each count so as
to make out a violation of the statute relied upon." We
agree and expressly adopt this holding.
We hold it is unnecessary to prove independently defen-
dant's involvement in both sales when proof of either sale is
sufficient to satisfy a prima facie case. Every charge in
the information need not be proved to convict defendant of
the offense for which he is charged. Corroboration of the
April 1st sale is unnecessary when the April 28th sale was
proven by sufficient independent evidence. We conclude the
District Court was correct in denying defendant's Motions for
Directed Verdict and his Motion for Judgment N.O.V. or a New
Trial.
Affirmed.
We concur: