No. 13877
I N THE SUPREME COURT OF THE STATE O M N A A
F O T N
1978
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
FRANK DAVIS and D A E CLOSE,
U N
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t ? i c t ,
Honorable Arnold Olsen, Judge p r e s i d i n g .
C o u n s e l o f Record:
For Appellants:
Bryon W. Boggs a r g u e d , Anaconda, Montana
For Respondent:
Hon Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Denny Moreen, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
H e l e n a , Montana
James J. Masar, County A t t o r n e y , D e e r Lodge, Montana
Submitted: March 9 , 1978
Decided: -
APR 3 1978
Filed:
A
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Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Defendants were charged by information filed January
31, 1977 with the crimes of attempted escape and criminal
mischief, both felonies. Following a jury trial in District
Court, Powell County, defendants were convicted of both
offenses. They were subsequently found to be persistent felony
offenders and sentenced to ten years imprisonment at Montana
State Prison for attempted escape and five years imprisonment
for criminal mischief, the sentences to be served consecutively.
Defendants appeal the judgment and sentence.
The instant charges resulted from an attempted act of
escape on the part of defendants, while incarcerated in the
Powell County jail. Defendants were observed digging a hole
in the wall of the jail facility.
The arraignment of defendants was conducted before Hon.
John B. McClernan. Counsel for defendants orally moved for an
order requiring the State to elect between the two charges on
the ground they were multiplicious, in that they were based
upon the doing of one act. Judge McClernan thereupon ruled on
the motion as follows:
"The objection is overruled, but, the Court will
reserve the right to these Defendant (sic) to
compel the County Attorney to make an election
before these men go to trial."
Defendants entered pleas of "not guilty" to both charges.
Hon. Arnold Olsen later assumed jurisdiction of the
cause. The matter was tried before a jury on March 8, 1977.
As of the time of trial, the State had not elected between the
two charges. Prior to the commencement of trial, counsel for
defendants again moved that the State be required to elect be-
tween the charges. The motion was denied, and the trial ensued,
resulting in the conviction of both defendants on both felony
charges.
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The following issues are presented for review:
(1) Did Judge Olsen overrule a prior order of Judge
McClernan requiring the State to elect between the charges and,
if so, was it error to so overrule the order?
(2) Did the District Court err in permitting the trial
and conviction of defendants on both charges in violation of
the constitutional guaranty against double jeopardy?
(3) Did the District Court err in denying defendants'
motion to dismiss the felony criminal mischief charge on the
ground the State failed to establish a prima facie case that
the amount of damage exceeded $150?
Defendants first argue that Judge McClernan initially
granted the motion to force an election between the charges,
this becoming the "law of the case". It is maintained that
when Judge Olsen subsequently assumed jurisdiction and denied the
renewed motion to force an election, he thereby overruled the
"law of the case", and in so doing, abused his discretion as
district judge. We find no foundation in the record for such a
contention.
Rather, it is manifest that Judge McClernan, in ruling
on defendants' motion to force an election at the time of the
arraignment, denied said motion with the reservation of the
right to renew it prior to trial. By statute, a district judge
is empowered with the discretion to force the State to elect
between duplicitous charges. Section 95-1504(2), R.C.M. 1947.
However, Judge McClernan did not order such an election in this
case, but merely reserved the right to defendants to renew the
r~~otion
prior to trial. Ne find no abrogation of the doctrine
of "law of the case" in the subsequent denial of the renewed
motion by Judge Olsen.
Defendants' second argument relates directly to the
substance of the election issue. In this regard, defendants
contend the State charged and obtained convictions for two
separate offenses based upon proof of the same act. As such,
the Convictions on both charges placed defendants in double
jeopardy for the same offense in violation of the 1972 Montana
Constitution, Art. 11, Section 25. We conclude the constitutional
guaranty against double jeopardy is not relevant to the facts
of this case.
This Court has consistently quoted with approval the
following holding from the Massachusetts case of Morey v. Cornmon-
wealth, (1871), 108 Mass. 433, 434:
" * * * A single act may be an offense against
two statutes; and if each statute requires proof
of an additional fact which the other does not,
an acquittal or conviction under either statute
does not exempt the defendant from prosecution
and punishment under the other."
State v. Marchindo, (1923), 65 Mont. 431, 446, 211 P. 1093; State
v. Lagerquist, (1968), 152 Mont. 21, 30, 445 P.2d 910; State v.
McDonald, (1971), 158 Mont. 307, 310, 491 P.2d 711. See also
Blockburger v. United States, (1932), 254 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306; Gore v. United States, (19581, 357 U.S. 386,
78 S. Ct. 1280, 2 L ed 2d 1405.
It is plain that the statutes defining the offenses with
which defendants were charged have, in the ordinary situation,
no common elements. The statutes clearly set forth separate
and distinct criminal offenses, and are designed for the pro-
tection of completely different interests.
Criminal mischief is classified by the Montana Criminal
Code of 1973, sections 94-1-101 et seq., R.C.M. 1947, as an
offense against property. Section 94-6-102, R.C.M. 1947 provides
in relevant part:
"(1) A person commits the offense of criminal
mischief if he knowingly or purposely:
"(a) injures, damages or destroys any property of
another or public property without consent * * *".
Escape, in contrast, is an offense against public administration.
Under section 94-7-306, R.C.M. 1947, the offense of escape is
committed when:
"(2) A person subject to official detention * * *
knowingly or purposely removes himself from
official detention * * *."
Here, proof of the digging of the hole in the Powell County jail
establishes the requisite act in each offense. However, the
prosecution was obviously required to establish differing facts
in proving two distinct mental states or intents, and two separ-
ate criminal results.
We hold, therefore, the District Court did not err in
permitting defendants to be charged and convicted of both offenses.
Defendants also contend, however, the District Court
erred in denying their motion to dismiss the felony criminal
mischief charge following the State's casein-chief, on the ground
the State failed to establish a prima facie case that the amount
of property damage exceeded $150. We agree.
The State's proof of the value of the damage to the wall
of the Powell County jail consisted of the admission of two bills
totaling $169. On cross-examination, a State's witness, Powell
County Sheriff Callings, admitted the bills not only covered
the cost of repairing the hole dug in the jail wall by defen-
dants, but additional repairs to the wall around the door lock
and a plate adjoining a window in the jail visitor's room as
well. The witness testified that only a "very light" amount
of the $169 was attributable to the repair of the other holes.
No further proof was adduced tending to establish defendants
had caused the other holes.
The function of proof of the value of destroyed or injured
property under the Montana Criminal Mischief Statute, section
94-6-102, R.C.M. 1947, is essentially similar to that of the
analogous Illinois statute defining the offense of criminal
damage to property, 1 Ill.Rev,Stat.'65, Ch. 38, Section 21-1.
In both statutes, proof of value is not an element of the
offense. Rather, proof of value is to be considered by the
trial judge in the exercise of his sentencing discretion. See
(19751,
People v. Tidwe11,/33 Ill.App.3d 232, 338 N.E.2d 113; People
v. Vesley, (1967), 86 Ill.App.2d 283, 229 N.E.2d 886. Thus,
whether a defendant is sentenced for the offense of criminal
mischief as a felon or a misdemeanant, is directly contingent
upon whether the value of the damage or destruction is shown to
be greater or less than $150, respectively.
In the instant case, however, defendants were charged
with felony criminal mischief. It was thus incumbent upon the
State to establish that the amount of damages caused by defen-
dants exceeded $150. Section 94-6-102(2), R.C.M. 1947. This
the State failed to do. The record reveals that the State
proved the total damage to the jail was valued at $169. How-
ever, there was no direct proof that the cost of the repair of
the hole caused by defendants exceeded $150. We conclude defen-
dants' motion to dismiss the felony criminal mischief charge at
the close of the State's case should have been granted, for fail-
ure of proof of an amount of damage consistent with the felony
charge.
The State had the opportunity to offer to the jury an
instruction on the lesser included offense of misdemeanor crim-
inal mischief. It nevertheless elected not to do so. Thus, we
cannot permit defendants' conviction on the charge of felony
criminal mischief to stand.
The conviction and sentence for the offense of attempted
escape are affirmed. The conviction of the offense of criminal
mischief is reversed and the charge therefor dismissed. The
sentence entered pursuant to the conviction for criminal mischief
is hereby vacated.
Affirmed in part, reversed in part.
We concur:
.................................
chief/Justice
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Judge, s u i n g in the vacant
seat on the Court.