03/07/2017
DA 16-0067
Case Number: DA 16-0067
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 46N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES RAND HERNVALL,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DC-15-19
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Paul M. Leisher, Paoli Law Firm, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Robert Zimmerman, Sanders County Attorney, Thompson Falls, Montana
Submitted on Briefs: January 18, 2017
Decided: March 7, 2017
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court:
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 James Rand Hernvall appeals his jury conviction and judgment in the Twentieth
Judicial District Court, Sanders County, for one count of theft, in violation of § 45-6-301,
MCA, and for two counts of burglary, in violation of § 45-6-204, MCA. We address:
(1) whether Hernvall’s ineffective assistance of counsel claim is proper on direct appeal,
and (2) whether there was sufficient evidence to convict Hernvall of theft of a truck and
of accountability for the two burglaries. We affirm.
¶3 On the evening of March 19, 2015, Sanders County Deputy Robyn Largent
discovered Hernvall and Jessica Pullan trespassing on Shawn Ballard’s vacant property
located on Four Wheel Drive Road in Trout Creek, Montana. Largent initially concealed
himself to surreptitiously observe Hernvall and Pullan. Before revealing his presence to
Hernvall and Pullan, Largent heard Hernvall say, “Let’s get this done,” as Hernvall and
Pullan got out of a blue Mitsubishi coupe and walked towards a black Dodge Ram truck
that was stuck in the mud. After revealing himself, Largent arrested Hernvall and Pullan.
Police seized the cars that were on Ballard’s property and towed them to the Sanders
County impound yard.
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¶4 Ballard, who lives in Wenatchee, Washington, inspected his property after the
arrests. He testified that his yard was torn up by vehicles, a replacement part for a Polaris
Ranger kept in his shop had been moved to his barn on the property, a wheelbarrow and
two shovels kept in his barn were found near where one vehicle was stuck in the mud,
and items from Brian Jensen’s nearby residence were found in his barn. On March 20,
2015, Jensen discovered signs that his house—which was for sale at the time—had been
burglarized, and Deputy Noah Hathorne was dispatched to investigate. Hathorne testified
that two days before Hernvall and Pullan were arrested, Jensen told him he had left the
house in neat condition. Upon inspecting the house the day after the arrests, Jensen told
Hathorne that he found doors and cabinets inside the house were opened, a welder kept in
his garage had been moved outside, and his son’s motorcycle was missing from his
garage. The motorcycle tire tracks led from Jensen’s property to Ballard’s property
where the motorcycle was recovered.
¶5 Near the tire tracks on Jensen’s property, officers found a piece of a car’s bumper
that was later matched to the Mitsubishi. Officers also recovered various stolen items in
Ballard’s barn, including Jensen’s chainsaw and a plastic tub containing Jensen’s son’s
graduation gifts. The Mitsubishi contained, among other things, Jensen’s collection of
license plates, as well as three rifles and a shotgun that had been reported stolen from a
Thompson Falls storage unit nine days earlier. The Dodge Ram, which also contained
items stolen from Jensen’s property, was reported stolen from Polson in December 2014.
¶6 On May 19, 2015, the State charged Hernvall by amended information with the
following counts: (I) possession of a dangerous drug; (II) possession of drug
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paraphernalia; (III) theft of a black 2006 Dodge Ram truck of value more than $1,500;
(IV) possession of property subject to criminal forfeiture; (V) burglary of a storage unit
rented by Leslie Gingerly; (VI) burglary of a residence owned by Brian Jensen; (VII)
burglary of a residence owned by Shawn Ballard. Hernvall pleaded not guilty to all
charges. On June 29, 2015, the District Court granted the State’s motion to dismiss the
possession charges. On July 22, 2015, a jury convicted Hernvall on Count III, theft of the
Dodge Ram, Count VI, burglary of the Jensen residence, and Count VII, burglary of the
Ballard residence. On December 1, 2015, the District Court entered its final judgment
and sentenced Hernvall to the Department of Corrections for ten years with five years
suspended for theft, and to the Department of Corrections for twenty years with fifteen
years suspended for each of the two counts of burglary, with all sentences to run
concurrently.
¶7 Hernvall contends that his trial counsel was ineffective because he failed to call
Pullan as a witness. Hernvall contends Pullan’s testimony could have exculpated him.
Pullan allegedly made statements to law enforcement before trial that implicated others in
the burglaries but did not implicate Hernvall. Hernvall argues that had Pullan been called
as a witness, she could have provided the jury with an explanation as to why Hernvall
was present on property that did not belong to him in the presence of a stolen truck and a
bunch of stolen items from multiple burglaries.
¶8 Claims of ineffective assistance of counsel (IAC) are mixed questions of law and
fact we review de novo. St. Germain v. State, 2012 MT 86, ¶ 7,
364 Mont. 494,
276 P.3d
886. However, before reaching the merits of an IAC claim, we must determine whether
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the allegations are properly before us. State v. Gunderson, 2010 MT 166, ¶ 70,
357
Mont. 142,
237 P.3d 74. In general, “[t]he test to determine if an ineffective assistance
claim is properly brought on direct appeal is whether the record contains the answer as to
‘why’ counsel took, or failed to take, action in providing a defense.” State v. Upshaw,
2006 MT 341, ¶ 33,
335 Mont. 162,
153 P.3d 579 (citing State v. White,
2001 MT 149,
¶ 20,
306 Mont. 58,
30 P.3d 340). If the record on appeal explains why trial counsel
acted as he or she did, we will address the issue on appeal. If, however, the claim is
based on matters outside the record on appeal, we may refuse to address the issue on
appeal and allow the defendant to file a postconviction proceeding in order to develop a
record as to “why” counsel acted as alleged, thus allowing the court to determine whether
counsel’s performance was ineffective or merely a tactical decision. Gunderson, ¶ 71.
¶9 In this case, the answer as to why Hernvall’s counsel opted not to call Pullan as a
witness is not apparent from the record. The record is silent as to whether Pullan would
have actually testified as Hernvall contends, as well as whether trial counsel may have
had legitimate tactical reasons for not calling her as a witness even if she so testified.
Therefore, Hernvall’s IAC claims are not properly the subject of a direct appeal.
¶10 Hernvall next argues that the State introduced no evidence that he knew or should
have known the truck was stolen, or that his purpose was to deprive the truck’s owner of
the truck. Hernvall also argues the State introduced no direct evidence, such as
fingerprints, that he entered the burglarized residences, and that a conviction based solely
on circumstantial evidence is only justified when the facts and circumstances are entirely
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consistent with the theory of guilt and inconsistent with any other rational conclusion.
See State v. Miller, 231 Mont. 497, 512,
757 P.2d 1275, 1284 (1988).
¶11 Hernvall also contends that a person is only accountable when he assists either
before or during the commission of the offense and not after, and that the State produced
no evidence that gave rise to a reasonable inference that Hernvall did anything in
particular before or during the burglaries.
¶12 The State responds that a rational juror could conclude that Hernvall committed or
assisted in both burglaries and the theft of the truck based on the circumstantial evidence
presented at trial, and that the jury was entitled to make reasonable inferences based on
the totality of the circumstances. We agree.
¶13 We review de novo whether sufficient evidence exists to convict a defendant.
Gunderson, ¶ 58. In viewing the evidence in a light most favorable to the prosecution,
we determine whether any rational trier of fact could have found the essential elements of
a crime beyond a reasonable doubt. Gunderson, ¶ 58.
¶14 For a theft conviction, the jury must determine beyond a reasonable doubt that the
defendant (1) purposely or knowingly obtains or exerts control over the property of
another and (2) has the purpose of depriving the owner of the property. Section
45-6-301(1)(a), MCA. For a burglary conviction, the jury must determine beyond a
reasonable doubt that the defendant (1) knowingly enters or remains unlawfully in an
occupied structure (2) with the purpose to commit an offense therein. Section
45-6-204(a), MCA. A person is legally accountable for the conduct of another when
either before or during the commission of an offense and with the purpose to promote or
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facilitate such commission the person solicits, aids, abets, agrees or attempts to aid such
other person in the planning or commission of the offense. Section 45-2-302(3), MCA.
¶15 We have repeatedly held circumstantial evidence alone is sufficient to obtain a
conviction. State v. Bowen, 2015 MT 246, ¶ 30,
380 Mont. 433,
356 P.3d 449; State v.
Hall,
1999 MT 297, ¶ 22,
297 Mont. 111,
991 P.2d 929; State v. Southern,
1999 MT 94,
¶ 92,
294 Mont. 225,
980 P.2d 3. “[W]hen circumstantial evidence is susceptible to two
interpretations, one which supports guilt and the other which supports innocence, the trier
of fact determines which is most reasonable.” Hall, ¶ 22 (citing State v. Arthun,
274
Mont. 82, 91,
906 P.2d 216, 221 (1995)). Furthermore, the credibility and weight of
testimony are within the exclusive province of the jury, and conflicting testimony does
not render evidence insufficient to support a conviction. State v. Wood,
2008 MT 298,
¶ 43,
345 Mont. 487,
191 P.3d 463. The jury has the discretion to determine whether the
alternative theory is reasonable. State v. Lucero,
214 Mont. 334, 339,
693 P.2d 511, 514
(1984). The “unauthorized control or possession of property belonging to another is a
circumstance from which the jury may draw an inference and find that the person in
possession committed the theft of the property, if such an inference is warranted by the
evidence as a whole.” State v. Kelley,
2005 MT 200, ¶ 21,
328 Mont. 187,
119 P.3d 67
(citing State v. Kramp,
200 Mont. 383, 397,
651 P.2d 614, 621-22 (1982)). Moreover, it
is the jury’s exclusive province to determine whether the evidence warrants such an
inference. Kelley, ¶ 21 (citing Kramp,
200 Mont. at 397,
651 P.2d at 622). We will not
disturb a jury’s conclusion if the state produces sufficient evidence to justify a jury’s
findings, unless there was a clear misunderstanding by the jury or there was a
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misrepresentation to the jury. Lucero, 214 Mont. at 338,
693 P.2d at 513-14 (citing State
v. Swazio,
173 Mont. 440, 445,
568 P.2d 124, 127 (1997)).
¶16 From the record it is apparent that the State produced sufficient evidence to justify
the jury’s findings and that the jury made reasonable inferences based on a totality of the
evidence. Hernvall and Pullan were discovered trespassing after dark on Ballard’s
recently burglarized property. The Mitsubishi they were sitting in contained items stolen
from Jensen’s property. Other items stolen from both properties were found in Ballard’s
barn. Tire tracks from Jensen’s stolen motorcycle led from Jensen’s property to Ballard’s
property where the stolen items, Hernvall, and Pullan were found. Although Hernvall
argues he was just “in the wrong place at the wrong time” and alleges Pullan made
out-of-court statements that implicated others and exculpated him, there was sufficient
evidence for a rational juror to conclude beyond a reasonable doubt that Hernvall
committed the burglaries and the theft for which he was convicted.
¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. Hernvall’s IAC claims must be raised in
postconviction relief because his assertions are not based on facts in the record. The
State presented sufficient evidence for a rational trier of fact to find each element of theft,
burglary, and accountability beyond a reasonable doubt.
¶18 Affirmed.
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/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE
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