No. 81-281
I N THE SUPREME C U T O F THE STATE O M N A A
O R F OTN
1982
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS .
WILLIE JAMES JOHNSON,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G a l l a t i n
Honorable W. W. L e s s l e y , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
McKinley Anderson, Bozeman, Montana
F o r 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
Donald White, County A t t o r n e y , Bozeman, Montana
S u b m i t t e d on b r i e f s : March 25, 1982
Decided: J u n e 1 0 , 1982
Filed:
JUk' 1 0 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the
Court.
~ollowinga jury trial, defendant Willie James Johnson,
Jr,, was found guilty on December 29, 1980, of theft, a
felony, in violation of section 45-6-301(1)(a), NCA, 1978.
Pursuant to that verdict, the Eighteenth Judicial District
Court issued a sentence and judgment on January 12, 1981,
ordering defendant to serve ten years at the Montana State
Prison, Deer Lodge, Montana, and designating defendant a
non-dangerous offender. Defendant now appeals from that
verdict, judgment and sentence. We affirm.
While traveling from California to Oklahoma to spend
Christmas with his family, Johnson "hitched" a ride to
Bozeman, Montana. He rented a room for two nights at the
Baxter Hotel, at a cost of $10.00 per night. When he began
his journey to Oklahoma, defendant had $200.00. After
paying for his room in Bozeman, Johnson had $20.00.
On November 29, 1980, Johnson went to the Main Mall in
Bozeman. He testified that he entered the Jensen Jewelry
Store to look for a Black Hills gold ring to match the Black
Hills gold pendant he was wearing. Upon noticing that it
was time for him to meet a new acquaintance, Sherry, at the
Woolco Store, defendant hurried out of Jensen's.
When Sherry was not at Woolco, defendant stated he left
the mall and began to run toward the Baxter Hotel. While
running, allegedly a common activity for defendant, he
realized that a group of people were chasing him. He became
scared and continued to run. At trial, defendant stated:
"I seen all these white people with sticks running at me.
You know, I thought, 'Hey, what's happening, am I in ~ississippi
or something'. . ." Defendant, a black man, was apprehended
in a trailer park shortly after noticing his pursuers.
The prosecution presented several employees and customers
of Jensen Jewelry Store as witnesses. Their testimonies
were generally consistent, but varied greatly from that of
defendant.
Lisa Pribsnic is a part-time clerk at Jensen's. On
November 29, 1980, she assisted a blonde woman looking at
wedding rings. A black man, sitting next to the blonde
woman, asked to see Black Hills gold rings to match the
Black Hills gold pendant he was wearing. "He was tall,
about six foot, black. He had string tied in his hair; very
short, curly hair. He was wearing some sort of a vest. I
don't remember what color it was. He was very nervous. His
eyes were red and they wouldn't look directly at somebody.
His speech was very slow." The witness identified the
defendant as the black man who was in the store and defendant's
pendant, State's Exhibit No. 2, as being the pendant shown
her by him.
Ms. Pribsnic stated that she returned all the rings she
had been showing the two customers to their respective cases
and locked the cases before going to the back room. When
she returned, the black man was examining a store mailer.
She left to gift wrap a package for another customer and the
theft occurred.
According to her testimony, Ms. Pribsnic, while waiting
on the blonde woman, had not entered the case from which the
rings were stolen. She also stated that the lock on that
case was malfunctioning. The automatic lock often did not
work, thereby requiring a key in order to adequately lock
the case.
Thomas H. Campbell and his wife were looking at cigarette
lighters in the window of Jensen Jewelry Store around 1:30
P.M., November 29, 1980. As Mr. Campbell entered the store,
he saw "a young black man behind and to the left of the
counter" with "his hands in the display glass," holding a
tray of some sort. He did not see what, if anything, was in
the tray. Mr. Campbell went to the main counter to seek a
sales person, turned and saw the young black man "rapidly
leaving the store."
Although Campbell could not positively identify defendant
as the young black man in Jensen's, he described the man as
follows: "He was young, black; as I recall he had something
funny in his hair. It was pleated or braided or something
like that and I think he was wearing a green jacket or
garment of some kind." He identified defendant's vest as
looking familiar to him, similar to what the black man in
Jensen's was wearing.
Donald Floth and his girlfriend, Sue Whiting, were in
Jensen Jewelry Store on November 29, 1980. A man came over
to them and started talking. According to Floth, "[hle
was tall, slim, black. He had a small beard, and he talked
really different, slowly. . . He told me that he was going
to make a 'quick buck' and that you had to do something to
make a buck in this world." Floth testified at trial :
"Q. Where was this man whom you saw at that
point in time?
"A. He was at the far case against the wall,
and he was looking over it with his rear end
to the wall, looking over it.
"Q. And what did you see him do?
"A. I saw him take out a tray.
"Q. And what did you see him do after he took
it out?
"A. I didn't see him dump the tray, but I
saw his wrist turn.
"Q. And what happened after his wrist turned?
"A. He put the case back in and closed the
door.
"Q. Then what happened?
"A. Then he bundled up his gloves and his hat
together and started to walk out. Meanwhile,
my girlfriend and I were talking to the per-
sonnel."
Later in his testimony, Floth further described the
man.
"A. He was tall, black. He had a small beard.
It wasn't a bushy beard. It was tight and it
was small, and --
"Q. Do you remember anything about his hair?
"A. Yeah. He had a piece of string hanging
off it. It wasn't tied in or anything, it was
just hanging there.
"Q. Did he have -- was he wearing any jewelry
that you noticed?
"A. He had a pendant on. I noticed his vest
and pants. He had baggy pants on, kind of a
tweed.
"Q. Do you recall what kind of vest it was?
"A. It was green.
"Q. Do you recognize State's Exhibit No. 'l'?
"A. Yeah.
"Q. What is it?
"A. It looks like the vest he was wearing."
Mr. Froth was, however, unable to identify the State's
Exhibit No. "2" as the pendant worn by the man in the store.
Diane Murray Willard was the sales clerk to whom the
theft was reported. After the report, she walked over to
the case area, saw the empty tray and saw "a tall, thin,
black guy. He had a maroon sweater and a green down vest
and some string in his hair." She identified the defendant
as that man.
Next, Ms. Willard went to the assistant manager, Brad
siege1 and told him of the theft. The suspect left the
store rapidly while the two were talking. Mr. Siegel testified
that upon hearing of the theft, he ran to the case, verified
that the tray was empty and then ran out of the store after
the suspect.
Mr. Siegel pursued the suspect down the mall corridor,
across the parking lot, over the interstate and through a
field. Siegel received assistance from four young men he
passed during the chase. They apprehended the suspect in a
trailer park where they then awaited the arrival of the
police. Johnson was out of Siegel's sight three times:
when Siegel first gave chase; when Johnson rounded a corner
in the mall; and while Siegel attempted to cross the interstate.
The police took Mr. Siegel's statement, then placed
defendant under arrest. When he was arrested, defendant was
wearing a green vest, a Black Hills gold pendant and he had
string in his hair. A pat-down search was conducted, but no
rings were found in defendant's possession. Later searches
of the path of pursuit, the trailer park area, the roof of
the mall, the trash from the mall and the police car in
which defendant was transported produced nothing. The rings
have never been found.
Based upon the above facts presented at trial, the
defendant was found guilty of the theft of seven wedding
ring sets from the Jensen Jewelry Store in the Main Mall,
Bozeman, Montana. In appealing that conviction, defendant
presents the following issues to this Court:
(1) Whether the evidence presented by the State was
sufficient to sustain a conviction, namely:
(a) Whether the State adequately proved Jensen ~ewelers
owned the rings taken in the theft.
(b) Whether the State proved the defendant exercised
unauthorized control over the property of another.
(2) Whether the District Court erred in giving Instruction
No. 11 and in refusing to give defendant's offered Instruction
No. 2.
Defendant contends that the State did not adequately
prove Jensen Jewelers to be the owner of the rings taken in
the theft. This contention is founded upon Illinois law
that includes the existence of a corporation as an element
of the crime to be proven when theft from a corporation has
been alleged.
An article at 88 A.L.R. 485 discusses the necessity of
alleging and proving in a charge of theft that the owner of
the stolen property, if a corporation, is incorporated.
There are two views, the oldest being that followed by
Illinois. The more modern view is that such allegation and
proof is not necessary. We agree with the modern viewpoint.
In a theft charge, the identity of the owner of the
stolen property has been considered essential for several
reasons. The prosecution must show that the stolen property
does not belong to the accused. Stewart v. State (Ala.
1968), 438 P.2d 387. The accused must be made fully aware
of the charges so that he might prepare a full and adequate
defense. State v. Morrow (Tenn. 1975), 530 S.W.2d 60;
Martin v. State (Okl. 1950), 222 P.2d 534. The property
must be adequately identified, including ownership, so as to
protect the accused from any further prosecution involving
the theft of that same property. State v. Morrow, supra.
None of these reasons are served by proving the legal existence
of the corporate owner. Martin v. State, supra; Stewart v.
State, supra; State v. Hume (1950), 145 Me. 5, 70 A.2d 543;
State v. Morrow, supra.
In Montana, proof of possession suffices to prove
ownership for purposes of theft. Section 45-2-101(46), MCA;
State v* Dolan (1980), 37 St.Rep. 1860, 620 P.2d 355. This
is true whether an individual or a corporation is the owner
of the property. Determining ownership by proving possession
of property: (1) will adequately identify the property so as
to prove that it does not belong to the accused; (2) allow
the accused to prepare a full and adequate defense; and (3)
prevent further theft charges against the accused regarding
the same property.
The prosecution proved through the testimony of Michael
Brad Siegel, as well as other store employees, that Jensen
Jewelry Store was in possession of the wedding ring sets
before they were stolen. Proof of possession is adequate in
this context. See State v. Dolan, supra.
Defendant next contends that a conviction of theft
cannot be sustained as the State never proved the defendant
exercised unauthorized control over the rings. This contention
is based on defendant's assertion that the testimony never
showed him to have been in actual possession of the wedding
ring sets.
Although no witness actually saw the rings in the
defendant's possession, several employees and customers of
Jensen Jewelry Store saw defendant behind the counter where
the ring case was kept, with his hand inside the case where
the rings were, holding the tray the rings were in and
rapidly leaving the store shortly thereafter. The tray
contained rings ten minutes prior to defendant's exit, he
tray was found to be empty immediately after his departure.
Instruction No. 8 was taken directly from section 45-2-
101(39), MCA: "You are instructed that 'obtains or exerts
control' includes but is not limited to the taking, carrying
away, or sale, conveyance, or transfer of title to, interest
in, or possession of property." After applying the evidence
presented at trial to the above instruction, the jury found
the defendant to have obtained or exerted unauthorized
control over the rings and found him guilty of theft. There
is substantial credible evidence to support the jury's
findings and verdict. We will not overturn it. "Given a
certain legal minimum of evidence, this Court will not
substitute its judgment for that of the jury." State v.
Martinez (1980), 37 St.Rep. 982, 989, 613 P.2d 974, 980.
See also State v. Pendergrass (1980), 37 St.Rep. 1370, 615
P.2d 201; and State v. Merseal (1974), 167 Mont. 409, 538
P.2d 1364.
The second issue raised in this appeal concerns the
adequacy of the jury instructions given by the District
Court. Defendant first contends that the District Court
erred by giving Instruction No. 11 rather than giving his
offered Instruction No. 7. Instruction No. 11 states in
statutory language: I.
' .. [t]he term 'deprive' means to
withhold property of another, to dispose of the property and
use or deal with the property so as to make it unlikely that
the owner will recover it." Section 45-2-101(19)(d), MCA.
Defendant proposed the definition of "deprive" found at 45-
2-101(19)(a), MCA: "'Deprive' means to withhold property of
another permanently."
These definitions are alternative definitions. The one
chosen to be used in this instance adequately defines the
word "deprive" as it applies to these facts. Here, defendant
denied asserting any control. There was no issue as to
permanency. The Court properly gave Instruction No. 11 as
opposed to Defendant's offered Instruction "To. 7.
Defendant also objects to the trial judge's failure to
give defendant's offered Instruction No. 2: "You are instructed
that 'possession' is the knowing control of anything for a
sufficient time to be able to terminate control." The trial
judge chose instead to give Instruction No. 8 concerning the
definition of "obtains or exerts control." The definition
of theft found in section 45-6-301(1)(a) does not refer to
the "possession" of goods; rather, it refers to obtaining or
exerting unauthorized control over goods. Therefore, it was
proper for the trial judge to instruct the jury regarding
"obtaining and exerting control" rather than "possession."
This Court must look at jury instructions as a whole to
determine if they fully and fairly present the applicable
law of the case. State v. Farnes (1976), 171 Mont. 368,
375, 558 P.2d 472, 476; State v. Higley (1980), 37 St.Rep.
1942, 1953, 621 P.2d 1043, 1054. The instructions given to
the jury in the instant case fully and fairly present the
law of theft as it applies to defendant Johnson.
We affirm the judgment of the District Court.
We Concur: