State v. Weaver

No. 81-89 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 THE STATE OF MONTANA, Plaintiff and Respondent, VS . DAN D W A L WEAVER, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Felt and Martin, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Submitted on briefs: October 15, 1981 Decided: Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. T h i s i s a n a p p e a l from a c o n v i c t i o n o f f e l o n y t h e f t in a case tried in the Thirteenth Judicial District, State o f Montana, i n a n d f o r t h e County o f Y e l l o w s t o n e . The c a s e was t r i e d t o a j u r y and a p p e l l a n t a p p e a l s h i s c o n v i c t i o n . In this case the appellant was charged with four counts: Count I, theft, a felony; Count 11, criminal mischief, a felony; Count 111, a n a t t e m p t ; and C o u n t IV, deceptive practices, a felony. A t a p r e t r i a l h e a r i n g Count I1 was d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and a t t h e same t i m e a p p e l l a n t was g r a n t e d s e p a r a t e t r i a l s on e a c h o f the counts. A p p e l l a n t was t r i e d on J u n e 1 4 , 1 9 8 0 , on C o u n t I11 and a f t e r n i n e h o u r s o f c o n s i d e r a t i o n t h e j u r y was u n a b l e t o reach a verdict. On J u l y 1 7 , 1 9 8 0 , a t t h e t i m e o f t h e S t a t e ' s m o t i o n t o s e t a t r i a l d a t e f o r Count I , t h e t r i a l c o u r t g r a n t e d a r e q u e s t f o r a continuance because of allegedly prejudicial a r t i c l e s i n the B i l l i n g s Gazette. S e v e r a l c o n t i n u a n c e s were granted, and t h e c a s e went t o t r i a l on O c t o b e r 7 , 1980, a t which t i m e o t h e r c o u n t s a g a i n s t t h e a p p e l l a n t were e x c l u d e d from t h e t r i a l . Following h i s c o n v i c t i o n of felony t h e f t the District Court, on motion of the county attorney, d i s m i s s e d C o u n t s I11 a n d I V o f t h e amended information i n v i e w of t h e f a c t he had b e e n c o n v i c t e d o f Count I . On S e p t e m b e r 2 1 , 1 9 7 9 , M i c h a e l W a t t s , a t r u c k d r i v e r , reported t o the B i l l i n g s police t h a t h i s flat-bed trailer, loaded with 6,072 eight-foot, 2 x 4 studs, with the Bur k l a n d Lumber Company of Livingston, Montana, m a r k s on same, had been stolen from the Billings East Parkway truckstop. Watts had loaded this lumber a t Livingston, Montana, a n d had d r i v e n it t o B i l l i n g s on t h e e v e n i n g o f September 1 9 . H e parked i t a t t h e E a s t Parkway T r u c k s t o p t h a t e v e n i n g and went t o h i s home. The f o l l o w i n g d a y h e c h e c k e d and f o u n d t h e t r u c k i n p l a c e and t h e d a y a f t e r , t h e 2 1 s t , when h e went o u t t o g e t h i s f l a t - b e d t r a i l e r , he found it m i s s i n g . The trailer, equipped with fold-down grain sides, traps, t a i l b o a r d , headboard, and t a r p s , was owned by W a t t s who had b e e n h i r e d t o h a u l t h e B u r k l a n d lumber t o Winona, Minnesota. The lumber had b e e n l o a d e d a c c o r d i n g t o s t a n d a r d B u r k l a n d Lumber p r o c e d u r e s i n steel-banded b u n d l e s and was w o r t h a b o u t one d o l l a r a b o a r d w h o l e s a l e o r a t o t a l o f a b o u t $6,135 a t m i l l p r i c e . Each b o a r d o f wood b o r e a d i s t i n c t i v e B u r k l a n d m i l l s t a m p on b o t h e n d s , and e a c h was s t a m p e d w i t h an e x c l u s i v e Burkland mill number, 161. Watts testified t h a t a t t h e t i m e t h e t i m b e r was l o a d e d it was s e c u r e d w i t h red t a r p s , which b e l o n g e d t o him and w e r e t i e d down w i t h yellow nylon rope. The W a t t s stolen trailer was recovered twenty-five d a y s l a t e r , f i f t e e n o r t w e n t y m i l e s f r o m B i l l i n g s i n what i s known as the Pryor Creek area. At the time it was recovered, i t was m i s s i n g t h e lumber, a tailboard, tarps, and o t h e r e q u i p m e n t . S e v e r a l weeks later i n October 1979, while in the c o u r s e o f i n v e s t i g a t i n g a f i r e on t h e p r e m i s e s of a p p e l l a n t , officers of the Yellowstone County Sheriff's Department observed large quantities of new lumber stacked on the p r o p e r t y of t h e a p p e l l a n t ' s Dry C r e e k m e a t packing p l a n t . The lumber was a l l e i g h t - f o o t , 2 x 4 s t u d s , each bearing t h e d i s t i n c t i v e B u r k l a n d Lumber m a r k i n g s and s t a m p e d w i t h the Burkland mill stamp, 161. When asked by Deputy Sheriff George Jensen on October 25, 1979, about the lumber that was stacked on his property, appellant told Jensen that some of the stacked lumber was his and some of it belonged to a friend. He told the deputy that he was using the stacked lumber for remodeling his sausage shop in Billings and his meat packing plant in Lockwood. Upon later investigation Mike Boyett, a detective with the sheriff 's department who was aware of the theft of the lumber, thought that the lumber on the Dry Creek property might be the lumber which had been reported stolen. The Burkland stamps, the mill number 161 on each stud, identified Burkland as the place of manufacture and this had been reported stolen approximately a month earlier. An investigation by Detective Boyett revealed that according to Ed Carroll, Burkland's superintendent, Burkland had not sold any lumber in Montana to any Montana retail outlet during the period of time involved herein and that the last lumber sold by Burkland to a Montana retail outlet had been in January 1977. Carroll told Boyett also that he was unaware of any retail purchases in small quantities from the mill by any Montana buyer during August or September 1979. The appellant testified that he had no idea that the Burkland lumber was stolen. His story was that on the evening of September 20, 1979, he received an anonymous phone call from someone asking to store lumber on his property. He testified that he thought he recognized the voice on the phone but on reflection realized he did not. When asked about the lumber by Boyett he said that he agreed to store the lumber for a fee. Later he testified at the t r i a l t h a t h e a g r e e d t o s t o r e t h e lumber a s a f a v o r f o r t h e mysterious caller, but that he did not discuss with the mysterious c a l l e r t h e q u e s t i o n of t h e f e e f o r s t o r a g e . Weaver t e s t i f i e d t h a t sometime on S e p t e m b e r 2 1 , 1 9 7 9 , a semi-trailer load of e i g h t - f o o t , 2 x 4 s t u d s appeared i n h i s y a r d a t t h e m e a t p a c k i n g p l a n t j u s t s o u t h o f Lockwood. An u n s e e n t r a c t o r brought it t h e r e and an unseen tractor would h a u l t h e empty t r a i l e r away l a t e r t h a t d a y . Appellant t e s t i f i e d t h a t when h e went t o work t h e m o r n i n g o f S e p t e m b e r 21, he was s u r p r i s e d t o s e e t h e amount o f lumber t h a t was stored. H e s a i d when h e l o o k e d a t t h e l o a d , h e n o t i c e d f i v e o r s i x b o a r d s were wedged o u t from t h e t r a i l e r i n t h e f r o n t p a r t o f t h e l o a d and when h e a t t e m p t e d t o p u s h t h e o f f e n d i n g b o a r d s i n t o a l i g n m e n t , t h e r e s t r a i n i n g s t r a p b r o k e and some o f t h e lumber f e l l t o t h e g r o u n d . I t t h e n was n e c e s s a r y t o unload the lumber remaining on the trailer and have it stacked. By t h e e n d o f t h e day on t h e 2 1 s t , t h e r e were about nine stacks of lumber on the property, carefully cross-hatched, behind o r near t h e a p p e l l a n t ' s loading dock. A p p e l l a n t t e s t i f i e d h e removed t h e m a j o r i t y o f t h e wood f r o m t h e t r a i l e r by u s i n g a f r o n t - e n d l o a d e r and i n a d d i t i o n p a i d six persons to help stack the wood. The individuals employed t o d o t h i s w e r e t o l d t o work f a s t and t h e y would be paid well. They were p a i d more t h a n t h e going rate for t h e i r a f t e r n o o n ' s work. Sometime d u r i n g t h a t d a y R o b e r t Young, an a s s o c i a t e of appellant, came i n t o t h e yard and h e l p e d himself with a p p e l l a n t ' s blessings t o a pickup load of 2 x 4 s t u d s f o r a h o u s e a p p e l l a n t was b u i l d i n g f o r Young. No payment was made by Young t o a p p e l l a n t f o r t h i s amount o f wood. Appellant t e s t i f i e d t h a t sometime d u r i n g t h e d a y a f t e r u n l o a d i n g t h e trailer and s t a c k i n g t h e l u m b e r , he r e c e i v e d a m y s t e r i o u s phone call from t h e p e r s o n who had called him the night before. He t e s t i f i e d t h a t no a r r a n g e m e n t s f o r r e m o v a l o f t h e t r a i l e r were made n o r was t h e r e a n y t h i n g s a i d a b o u t t h e s a f e k e e p i n g of t h e lumber. I n a d d i t i o n , no s e r v i c e f e e was discussed. H e t e s t i f i e d t h a t he was t o l d t o s e l l t h e lumber a t a p r i c e b e t w e e n s i x t y - f i v e and e i g h t y c e n t s p e r b o a r d t o u n s p e c i f i e d p e r s o n s who would p i c k up t h e wood and t o a n y o n e appellant knew who might be interested. Appellant's t e s t i m o n y was t h a t a s a b u i l d e r h e was a w a r e t h a t t h e r e t a i l p r i c e o f a 2 x 4 s t u d was i n e x c e s s o f o n e d o l l a r p e r b o a r d . According t o appellant, h e was t o l d to keep a record of s a l e s and a f t e r a t h r e e o r f o u r m i n u t e c o n v e r s a t i o n t h e c a l l t e r m i n a t e d and he never h e a r d from t h e c a l l e r a g a i n . D u r i n g t h e n e x t two months t h e a p p e l l a n t d i s p o s e d o f t h e lumber by s e l l i n g i t ; by g i v i n g i t t o h i s e m p l o y e e s i n l i e u of wages; and by t a k i n g i t t o k e e p f o r h i m s e l f . He sold an undetermined q u a n t i t y of lumber t o persons whose "names were c a l l e d t o him" and whom h e d i d n o t know. He further testified that he collected no money from the purchases because the alleged mysterious caller had not i n s t r u c t e d him on t h i s d e t a i l . A p p e l l a n t s o l d some o f t h e lumber t o R o b e r t Young a t eighty-five cents per board, which was taken t o the Bull Mountains and u s e d t o build Young's house. There is no showing t h a t h e c o l l e c t e d a n y money f o r t h e s e p u r c h a s e s . According to the appellant he allowed a Tracy Standifer and J e f f Moll to t a k e some o f t h e lumber. In Moll's case, a p p e l l a n t t e s t i f i e d t h a t n e i t h e r he n o r Young wanted to pay Moll for his labor on Young's house, and to resolve this dispute, appellant told Moll to take his wages out in lumber from the stacks of 2 x 4 studs and sell it for whatever he could get. Moll sold about 200 studs under this arrangement . According to his testimony, appellant thought that 1 perhaps the owner or someone else might pick up the lumber at the meat packing plant without his knowledge and that as a result he would have nothing to show for the time and money he had expended in storing the lumber. He therefore took 230 of the studs for himself, storing them in his garage and sausage shop to protect his interest. During the investigation, when it was determined by the sheriff's department that perhaps this was the stolen Burkland lumber, Deputy Sheriff Boyett removed a total of 3,144 of the studs from the meat packing yard. A total of 1,684 studs were taken from stacks on three locations in the yard. During that period of time, a neighbor informed the deputy there was more lumber in a shed where it could not be seen on the property, and the deputy and an assistant removed 1,460 studs on November 28 and 29. In addition to the Burkland lumber recovered by the sheriff's department at the Dry Creek plant, a detective, Robert Hirschi of the Billings police department, recovered some 500 of the studs from other locations in and around Billings. This included 63 studs from the residence of Jeff Moll, an employee of appellant; 137 studs from the garage of appellant's Billings residence; 97 studs from inside the appellant's sausage shop in Billings. After obtaining a search warrant later in December, Detective Hirschi r e c o v e r e d a s t a c k o f 230 s t u d s f r o m t h e r e s i d e n c e o f R o b e r t Young, who lived i n t h e B u l l Mountains s o u t h of Roundup, Montana. He o b s e r v e d a t t h e t i m e he g o t t h e s e s t u d s t h a t a deck, a shed, and t h e f r a m i n g o f t h e upper p o r t i o n s of a house b e i n g b u i l t a t t h e B u l l Mountain s i t e was entirely c o n s t r u c t e d of t h e B u r k l a n d 2 x 4 s t u d s , and h e p h o t o g r a p h e d a l l of t h i s . These photographs were submitted a t t h e time of t r i a l . During the investigation Hirschi discovered on December 13, 1979, p o r t i o n s of t h e t a i l b o a r d and the red tarps between a loading dock and a holding pen on the appellant's Dry Creek property. This property was i d e n t i f i e d by W a t t s , t h e t r u c k d r i v e r , a s h i s t a i l b o a r d a n d t a r p s and a s t h e e q u i p m e n t u s e d by him on t h e t r a i l e r t h a t was l o a d e d w i t h t h e B u r k l a n d s t u d s which had been stolen from t h e B i l l i n g s t r u c k s t o p . T r i a l commenced o n O c t o b e r 7 , 1 9 8 0 , and t h e f o l l o w i n g day, t h e B i l l i n g s G a z e t t e , t h e l o c a l newspaper, p r i n t e d t h e following article concerning the background of the appellant: "BUSINESSMAN RETURNS TO COURT "Dan Weaver was n e v e r c h a r g e d w i t h a r s o n f o r t h e f i r e t h a t d e s t r o y e d Dry C r e e k Meat Co. l a s t O c t . 25. The law s a y s t h a t a man c a n n o t be c h a r g e d w i t h a r s o n f o r s e t t i n g a f i r e h i s own p r o p e r t y . " I n s t e a d , h e was c h a r g e d w i t h c r i m i n a l m i s - chief i n connection with the blaze t h a t d e s t r o y e d h i s meat p a c k i n g b u s i n e s s . Those c h a r g e s were d r o p p e d f o r l a c k o f s u f f i c i e n t e v i d e n c e l i n k i n g him t o t h e c r i m e . " L a s t summer h e was t r i e d f o r a t t e m p t e d t h e f t , accused of t r y i n g t o defraud h i s i n s u r a n c e company by c l a i m i n g f i r e - l o s s e s r e s u l t i n g from t h e i n c i d e n t t h a t he d i d n ' t deserve. A f t e r n i n e d a y s o f t e s t i m o n y and a 10-hour d e l i b e r a t i o n t h e j u r y d e c l a r e d i t s e l f hung. Informed s o u r c e s s a y that case may [be] t o o expensive t o r e - t r y . "Weaver, h o w e v e r , f o u n d h i m s e l f b a c k i n c o u r t t h i s week t h i s time charged with possessing 3,400 p i e c e s of s t o l e n lumber, i n i t i a l l y f o u n d by i n v e s t i g a t o r s n e a r t h e b u r n e d m e a t packing p l a n t . "County P r o s e c u t o r David Gor t o n t o l d t h e j u r y Tuesday t h a t he w o u l d n 't a t t e m p t t o p r o v e t h a t 3 4 - y e a r - o l d Weaver s t o l e t h e two-by-four b o a r d s , v a l u e d a t one d o l l a r a p i e c e , from a f ully-loaded s e m i - t r a i l e r t r u c k parked a t a H e i g h t s t r u c k s t o p S e p t . 21, 1979. " B u t Weaver knew t h e lumber was s t o l e n G o r t o n t o l d t h e j u r y i n h i s o p e n i n g r e m a r k s , and h e a t t e m p t e d t o c o n c e a l t h e lumber a t a number o f l o c a t i o n s i n c l u d i n g Dry C r e e k Meat, a s a u s a g e s h o p h e had n o t y e t opened and h i s E l d o r a d o D r i v e home. " A t t o r n e y Ken F r a z i e r t o l d t h e j u r y t h a t h i s c l i e n t , whom he d e s c r i b e d a s a n ' u n s o p h i s t i - c a t e d b u s i n e s s m a n ' , r e c e i v e d a n anonymous phone c a l l l a t e l a s t S e p t e m b e r f r o m a man a s k i n g him t o s t o r e some lumber f o r him. Weaver, he s a i d , was n o n c o m m i t t a l b u t t h e f o l l o w i n g morning d i s c o v e r e d a f u l l y - l o a d e d s e m i - t r a i l e r a t Dry C r e e k Meat, 2752 Highway 87. "When t h e b u s i n e s s m a n n o t i c e d t h a t t h e lumber was l o o s e l y s t a c k e d and a t t e m p t e d t o t i g h t e n t h e b a n d s , h a l f o f t h e t r u c k l o a d f e l l on t h e ground. H e l a t e r asked s e v e r a l of h i s e m p l o y e e s t o h e l p him s t a c k t h e lumber n e a r t h e b u i l d i n g and i n a s t o r a g e s h e d n e a r b y , h i s lawyer s a i d . "The f o l l o w i n g n i g h t Weaver g o t a n o t h e r phone c a l l a s k i n g him t o s e l l some o f t h e l u m b e r , which he d i d . P a r t o f t h e l o a d was h a u l e d t o t h e home o f W i l l i a m R o b e r t Young s o u t h o f Roundup, which Weaver was h e l p i n g t o b u i l d . "Young i s e x p e c t e d t o t e s t i f y today when Weaver's c a s e c o n t i n u e s . " At t h e c o n c l u s i o n of t h e S t a t e ' s c a s e on O c t o b e r 8 , 1979, appellant moved for a mistrial on the grounds of possible prejudice created by t h e a r t i c l e and t h i s m o t i o n was d e n i e d . Two i s s u e s a r e p r e s e n t e d f o r r e v i e w : 1. Was a p p e l l a n t d e n i e d a f a i r t r i a l because of a newspaper a r t i c l e p u b l i s h e d t h e s e c o n d d a y o f t h e t r i a l ? 2. Did t h e S t a t e f a i l t o p r o d u c e s u f f i c i e n t e v i d e n c e to establish appellant's knowledge that the property was stolen? A p p e l l a n t a r g u e s h i s r i g h t t o a f a i r t r i a l , which i s guaranteed by the Sixth Amendment of the United States C o n s t i t u t i o n and by A r t i c l e 11, S e c t i o n 4 , of t h e Montana Constitution, was violated in this criminal proceeding. Estes v. Texas (1965), 3 8 1 U.S. 532, 85 S . C t . 1628, 14 L.Ed.2d 543; I r v i n v. Dowd ( 1 9 6 1 ) , 366 U.S. 717, 722, 81 In denying the appellant's counsel's motion for a mistrial the court indicated that it f e l t i t was b e s t t o admonish t h e j u r y and a c c o r d i n g l y , t h i s was done j u s t p r i o r t o t h e e v e n i n g r e c e s s on O c t o b e r 8 , 1980: "THE COURT: L a d i e s a n d G e n t l e m e n , you w i l l r e c e s s a t t h i s time. L e t me caution very s t r o n g l y t h a t you a r e t o r e f r a i n f r o m r e a d i n g t h e B i l l i n g s G a z e t t e , now u n t i l you t a k e t h i s matter for deliberation. I want you t o r e f r a i n from l i s t e n i n g t o t h e t e l e v i s i o n b r o a d c a s t s b e c a u s e I d o n ' t want you t o i n a d v e r t e n t l y be e x p o s e d t o any a c c o u n t s t h a t may be on t h e news c o n c e r n i n g t h i s c a s e . I d o n ' t want you t o be i n f l u e n c e d i n any way by a n y m a t t e r o t h e r t h a n what you s e e and h e a r i n t h i s courtroom d u r i n g t h i s t r i a l . There h a v e b e e n r e p o r t e r s p r e s e n t f r o m time t o t i m e during t h i s case. They h a v e n o t been h e r e c o n t i n u o u s l y l i k e you h a v e . You a r e t h e o n e s t h a t know more a b o u t t h i s c a s e t h a n a n y o n e e l s e a t t h i s time and I d o n ' t want you t o be i n f l u e n c e d by news a c c o u n t s o r a n y t h i n g e l s e until after you have this case for d e l i b e r a t i o n and make y o u r own d e l i b e r a t i o n on i t , s o p l e a s e r e f r a i n from exposing y o u r s e l f i n a d v e r t e n t l y t o any a c c o u n t s t h a t may o r may n o t o c c u r on t e l e v i s i o n o r i n t h e n e w s p a p e r s u n t i l you a r e t h r o u g h w i t h y o u r deliberations. W w i l l r e c e s s now u n t i l e 10:OO tomorrow m o r n i n g and I a n t i c i p a t e t h a t the case w i l l be given to you for d e l i b e r a t i o n sometime a r o u n d noon tomorrow. So you c a n p r e p a r e your p r i v a t e d o i n g s accordingly. You w i l l be i n d e l i b e r a t i o n tomorrow a f t e r n o o n . W e w i l l r e c e s s now u n t i l 10:OO tomorrow m o r n i n g . " Appellant argues t h a t the t r i a l court erred in its f a i l u r e t o g r a n t a m i s t r i a l ; and i n t h e v e r y l e a s t , t h a t t h e court should have interrogated the members of the jury concerning their exposure to the inflammatory and prejudicial newspaper article published by the Billings G a z e t t e on t h e s e c o n d d a y o f t r i a l . T h i s Court h a s n o t gone a s f a r as the case relied upon by appellant and urged for adoption in this case, Margoles v. United States (7th Cir. 1969), 407 F.2d 727, cert. denied, ( 1 9 6 9 ) , 396 U.S. 833, wherein t h e c o u r t s e t down t h e r u l e f o r t h a t c i r c u i t i n h o l d i n g : ". . . t h e p r o c e d u r e r e q u i r e d by t h i s C i r c u i t where p r e j u d i c i a l p u b l i c i t y i s b r o u g h t t o t h e c o u r t ' s a t t e n t i o n d u r i n g a t r i a l is t h a t t h e c o u r t must a s c e r t a i n i f a n y j u r o r s who had been e x p o s e d t o s u c h p u b l i c i t y had r e a d o r h e a r d t h e same. Such j u r o r s who r e s p o n d a f f i r m a t i v e l y m u s t t h e n be e x a m i n e d , i n d i v i - d u a l l y and o u t s i d e t h e p r e s e n c e o f t h e o t h e r jurors, t o determine t h e e f f e c t of t h e publicity." 407 F . 2 d a t 735. S e e a l s o , U n i t e d S t a t e s v . H a n k i s h ( 4 t h C i r . 1 9 7 4 ) , 502 F.2d 71; United S t a t e s v. Jones (4th Cir. 1 9 7 6 ) , 542 F.2d 186, cert. denied, (1976), 426 U.S. 922; S t a t e v. Keliiholokai ( 1 9 7 7 ) , 58 Haw. 3 5 6 , 569 P.2d 8 9 1 . T h i s C o u r t r e c e n t l y i n S t a t e v. K i r k l a n d ( 1 9 7 9 ) , Mont. , 602 P.2d 586, 36 S t . R e p . 1963, sustained the conviction against the defendant's assertion that the t r i a l c o u r t had e r r e d i n n o t a l l o w i n g him t o i n t e r r o g a t e members of the jury concerning their exposure to allegedly i n f l a m a t o r y and p r e j u d i c i a l news releases. We refused to a d o p t t h e r u l e p r e v i o u s l y m e n t i o n e d which r e q u i r e d t h e t r i a l judge, i n e v e r y c a s e where p r e j u d i c i a l news r e l e a s e s w e r e brought t o h i s attention during the t r i a l , t o examine t h e jurors to determine whether any of them had read the prejudicial news release, and if so, the effect of the publicity. W held t h a t e ". . . we prefer t o leave t h a t t o the trial judge's judgment and d i s c r e t i o n , subject t o h i s later r e v i e w a f t e r v e r d i c t on a p p r o p r i a t e m o t i o n , and o u r r e v i e w on a p p e a l . " I n Kirkland w e noted t h a t t h e abuse of d i s c r e t i o n s t a n d a r d had b e e n c l e a r l y s e t f o r t h i n numerous c a s e s d e a l i n g w i t h a change of venue i s s u e . Such m a t t e r s a r e a d d r e s s e d t o t h e sound d i s c r e t i o n of the t r i a l court, and u n l e s s t h e r e h a s b e e n a c l e a r a b u s e o f d i s c r e t i o n , i t s r u l i n g w i l l n o t be d i s t u r b e d . See a l s o S t a t e v. Williams ( 1979 I - Mont . , 604 P.2d 1224, 36 St.Rep. 2328; S t a t e v . Hoffman ( 1 9 3 3 ) , 94 Mont. 5 7 3 , 23 P.2d 972; S t a t e v . L e w i s ( 1 9 7 6 ) , 169 Mont. 2 9 0 , 546 P.2d 5 1 8 . A p p e l l a n t a r g u e s t h a t e v e n u n d e r t h e r u l e s e t down i n K i r k l a n d t h e r e was h e r e a c l e a r a b u s e o f d i s c r e t i o n i n t h a t under t h e c i r c u m s t a n c e s , t h e c o u r t should have i n t e r r o g a t e d the jurors. He argues t h a t in the instant case (1) t h e trial c o u r t had p r o p e r l y c o n t i n u e d the t r i a l d a t e due to previous prejudicial news reports and therefore was c o g n i z a n t of the potentially prejudicial possibilities of f u r t h e r news r e p o r t s ; ( 2 ) t h a t t h e r e s p o n s e f r o m some o f t h e veniremen during voir dire indicated that the publicity surrounding the appellant was known to some of the p r o s p e c t i v e j u r o r s and o n e had b e e n e x c u s e d f o r c a u s e ; (3) t h e d e f e n s e c o u n s e l had s p e c i f i c a l l y r e q u e s t e d p r i o r t o t h e t r i a l t h a t no m e n t i o n be made o f the appellant's previous criminal charges; (4) the court admonished the jury to refrain from exposing themselves to the reports on only one occasion which was late in the afternoon of the day the article was published; and (5) contrary to Kirkland, the record in this case indicates continuous and massive publicity in the community. On the record in this case the appellant was convicted of a felony theft following a fair trial by an impartial jury. There are no indications on the record that the appellant's right of fair trial was in peril at any stage by a massive publicity pervading the entire community and there are no specific instances of failure of the jurors' impartiality. The United States Supreme Court has held that in order to reverse a conviction on the ground of prejudicial publicity there must be an inherent lack of due process in the proceedings. Estes, supra, 381 U.S. at 532; Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Or, there must be a showing by the defendant of "the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality." Murphy v. Florida (1975), 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595; Irvin v. D o w ~ ,supra, 366 U.S. at 723. In Marshall v. United States (1959), 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, the Supreme Court of the United States held: "A bare fear respecting the true state of the juror's mind has no place here. Error will not be presumed; after verdict the defendant has the laboring oar. " This has long been the law in Montana. Kirkland, supra. Here the appellant has failed to make the requisite showing of a prejudice on record. In addition we note that the sole existence of the publicity--that i s , t h e a r t i c l e o f O c t o b e r 8 which r e f e r s t o two p r e v i o u s c h a r g e s b r o u g h t against appellant--also notes t h a t t h e d i s p o s i t i o n o f t h o s e c h a r g e s was i n h i s f a v o r . The issues of the trial on t h e f t were then in process. The article is a single, factual, noneditorialized account a p p e a r i n g i n t h e m i d d l e of page B-1 of the paper; nothing distinguishes it from reports of other court cases that a p p e a r on t h a t p a g e . The a r t i c l e s t a t e d f a c t s f a v o r a b l e t o the appellant, that is, one of the charges had been d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and t h e o t h e r was t r i e d r e s u l t i n g i n a hung j u r y . T h i s Court observed long ago i n S t a t e v . J a c k s o n ( 1 8 9 0 ) , 9 Mont. 508, 523, 24 P. 2 1 3 , 217: "The d a y h a s p a s s e d when b l a n k i g n o r a n c e and s t u p i d i t y i n a juryman were h i s b e s t q u a l i f i - cations for service. T h e r e i s more i n t e l l i - g e n c e on t h e modern j u r y ; and i n t e l l i g e n t persons, t h e s t a t u t e contemplates, a r e able t o r e a d contemporary h i s t o r y , and s t i l l p r e s e r v e t h e i r mental balance. On t h e t r i a l of a c a s e , h i g h l y i m p r o p e r and i n c o m p e t e n t t e s t i m o n y may a c c i d e n t a l l y f a l l f r o m t h e l i p s o f a sworn w i t n e s s on t h e s t a n d . This occurs i n nearly every t r i a l . Such e v i d e n c e is s t r i c k e n o u t by t h e c o u r t , and t h e j u r y i n s t r u c t e d t o d i s r e g a r d i t . The c o u r t h e r e i n had e q u a l o p p o r t u n i t y t o c o r r e c t a n y p o s s i b l e e v i l i n f l u e n c e of t h e newspapers." In a later case, S t a t e v. Board ( 1 9 5 9 ) , 1 3 5 Mont. 139, 143, 337 P.2d 924, 927, the Court considered the c o n t e n t of a n a r t i c l e which d i d n o t r e v e a l a p r e j u d i c e s o g r a v e a s t o d e n y t h e d e f e n d a n t a f a i r t r i a l by i t s e f f e c t s . The article was not one capable of arousing community f e e l i n g s o r e s t a b l i s h i n g a community o p i n i o n . Applying t h i s r a t i o n a l e t o t h e e x t e n s i v e p u b l i c i t y on r e c o r d i n t h e c a s e o f S t a t e v . Armstrong ( 1 9 8 0 ) , Mont. , 616 P.2d 3 4 1 , 350, 37 St.Rep. 1563, 1572, t h i s Court noted: "We h a v e no indication here that the published accounts were so passionate as to excite undue prejudice against the defendant. S t a t e v. Logan ( 1 9 7 0 ) , 1 5 6 Mont. 48, 473 P.2d 833." We have previously found that newspaper publicity which is n o t e d i t o r i a l i z e d , which a p p e a r s t o be f a c t u a l l y d o n e , a n d which d o e s n o t c o n t a i n i n f l a m a t o r y s t a t e m e n t s w i l l n o t c o n s t i t u t e a showing o f p r e j u d i c e upon which t o b a s e a n abuse of the trial court's discretion. State v. Bashor (1980)1 - Mont . , 614 P.2d 470, 475, 37 S t . R e p . 1098, 1 1 0 2 ; S t a t e v . B i s c h e r t ( 1 9 5 7 ) , 1 3 1 Mont. 1 5 2 , 1 5 6 , 308 P.2d 969, 971. As previously noted, absent any indication on the r e c o r d o f p r e j u d i c e t o a p p e l l a n t s o g r a v e a s t o d e n y him a f a i r t r i a l , w e f i n d t h e c o u r t below p r o p e r l y e x e r c i s e d i t s d i s c r e t i o n by d e n y i n g t h e m o t i o n f o r a m i s t r i a l . Here t h e admonition to the jury was sufficient to correct any damaging i n f l u e n c e o n e news a r t i c l e m i g h t h a v e had u n d e r t h e circumstances. The second issue is directed at the question of whether t h e r e was s u f f i c i e n t e v i d e n c e upon w h i c h t h e j u r y could reach a v e r d i c t convicting t h e appellant of t h e f t , a f e l o n y , p u r s u a n t t o s e c t i o n 4 5 - 6 - 3 0 1 ( 3 ) ( c ) , MCA. The amended information charges that the appellant "purposely or knowingly obtained control over stolen property, to-wit: 3 , 4 0 0 2 " x 4 " wood s t u d s , o f a v a l u e o f more t h a n $150.00, owned by B u r k l a n d S t u d s , I n c . , and/or Lampert Lumber Co., and/or Western Trucking Company, knowing the p r o p e r t y t o have b e e n s t o l e n by a n o t h e r and u s e d , c o n c e a l e d o r abandoned t h e p r o p e r t y knowing s u c h u s e , concealment o r abandonment p r o b a b l y would d e p r i v e t h e owner o f t h e p r o p e r t y A p p e l l a n t a r g u e s t h a t d u r i n g t h e t r i a l t h e S t a t e made a c o n c e r t e d e f f o r t t o i n t r o d u c e a s much e v i d e n c e a s p o s s i b l e tending to show t h a t the a p p e l l a n t had possession of the a l l e g e d l y s t o l e n lumber and t h a t he u s e d o r concealed the lumber. H e argues t h a t i n reviewing t h e record the State failed to correctly i d e n t i f y t h e elements of t h e crime of theft as charged by neglecting to produce any evidence, direct or circumstantial, showing that appellant knew t h e lumber had b e e n s t o l e n a t t h e t i m e h e t o o k p o s s e s s i o n . Appellant a r g u e s t h a t he t e s t i f i e d how he came i n t o possession of the allegedly stolen lumber and never knew that it was stolen until after the police came out to investigate the f i r e a t h i s plant. Appellant argues t h a t the State had t h e burden of proving, beyond a reasonable doubt, t h a t a p p e l l a n t knew t h e p r o p e r t y was s t o l e n a t t h e t i m e h e r e c e i v e d it and t h a t i t f a i l e d t o c a r r y t h a t b u r d e n . A p p e l l a n t r e l i e s on t h e f a c t t h a t mere p o s s e s s i o n o f s t o l e n p r o p e r t y i s n o t i n and o f i t s e l f a c r i m i n a l o f f e n s e . State v. Peters ( 1 9 6 5 ) , 146 Mont. 188, 405 P.2d 642; State v. J i m i s o n ( 1 9 7 5 ) , 1 6 8 Mont. 1 8 , 540 P.2d 3 1 5 . As to the knowledge element of the offense the State's burden is s e t f o r t h i n s e c t i o n 45-2-101(27), MCA, which s t a t e s : "Knowingly -- a p e r s o n a c t s k n o w i n g l y w i t h respect t o conduct or t o circumstance d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e when h e i s a w a r e o f h i s c o n d u c t o r t h a t t h e c i r c u m s t a n c e e x i s t s . A p e r s o n a c t s knowingly with r e s p e c t t o t h e r e s u l t of conduct d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e when h e i s a w a r e t h a t i t is h i g h l y p r o b a b l e t h a t s u c h r e s u l t w i l l b e c a u s e d by h i s conduct. When knowledge o f t h e e x i s t e n c e o f a p a r t i c u l a r f a c t is an element of an o f f e n s e , s u c h knowledge i s e s t a b l i s h e d i f a person is aware of a high probability of its existence. Equivalent terms such as ' knowing' or ' with knowledge' have the same meaning. " To reach the verdict, the trier of fact had to conclude that appellant knowingly obtained control of the stolen lumber, knowing it to be stolen by another, and that he used, concealed or abandoned the lumber knowing that the owner would thereby probably be deprived of the lumber. Here there existed substantial credible evidence, consistent with appellant's guilt and inconsistent with his innocence, which persons of reasonable minds might accept as adequate to support their conclusions. See State v. Armstrong (19801, - Mont . , 616 P.2d 341, 346, 37 St.Rep. 1563. In this case, the State first had to establish that appellant "knowingly" obtained control of the lumber. Under the statute above cited, this element was proved by establishing that he "was aware of his conduct in doing the act." Secondly, the State had to establish that he obtained control "knowing" the property to have been stolen. Under the statute this element was established by showing that appellant was "aware of a high probability" that the wood was stolen. Last, the State had to establish that appellant used the lumber "knowing" his use would probably deprive the owner of the property. This element was proved by showing that it was "highly probable that the result caused by his conduct" would deprive the owner of his property. All of these elements were clearly proved in this case. Intent may be inferred by the jury from what the defendant says and does and from all the facts and circumstances involved in the transaction. State v. Jackson (19791, - Mont . -, 589 P.2d 1009, 36 St.Rep. 169, 176; State v. Hardy (1980), - Mont . , 604 P.2d 792, 37 St.Rep. 1. The facts and circumstances here established by the State are inconsistent with any conclusion other than the appellant was fully aware that he was exerting control over obviously stolen property and disposing of it in such a manner as to deprive the rightful owner of its use. The appellant erroneously contends his denial of knowledge and his explanation were unrefuted, and that as a consequence, the evidence supporting the requisite element of knowledge amounts only to suspicious circumstances insufficient to sustain the verdict are in error. Here, appellant's explanations were not unrefuted. The testimony of witnesses and the testimony of appellant himself placed in evidence an abundance of facts and circumstances which contradicted all explanations given by him. Whether appellant's explanations were more credible than the evidence to the contrary, or whether they were merely incredible, was a question of fact for the jury to determine. The credibility of witnesses and the weight of their testimony are solely matters for the jury to determine. State v. Hart (1981), - Mont . -, 625 P.2d 21, 27, 38 St.Rep. 133, 138. With respect to the elements of knowledge, the evidence here is circumstantial. Circumstantial evidence need not be regarded as inferior evidence; if it is of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt, circumstantial evidence is sufficient to sustain a conviction. State v. Cor (1964), 144 Mont. 323, 326, 396 P.2d 86, 88; State v. Proctor (1969), 153 Mont. 90, 94, 454 P.2d 616, 618. In determining the sufficiency of circumstantial evidence to make a case for the jury and to sustain a conviction all of the facts and circumstances must be taken into consideration collectively. State v. DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d 1065, 1067. We find under the circumstances here that there are facts consistent with appellant's guilt and inconsistent with his innocence. Accordingly, the evidence is sufficient to sustain the appellant's conviction. Affirmed. We concur: Chief Justice