State v. Harvey

No. 85-214

I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986

STATE O F MONTANA,

P l a i n t i f f and Respondent,

-vs-
WILLIAM E . HARVEY,

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 e . t i n ,
The H o n o r a b l e Thomas O l s o n , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

R i c h a r d J . C a r s t e n s e n , P.C., a r g u e d , B i l l i n g s , Nontana.

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
John P a u l s o n , A s s t . A t t y . G e n e r a l , H e l e n a
A . M i c h a e l S a l v a g n i , County A t t o r n e y , Bozeman, Montana
James D. PlcKenna a r g u e d , Deputy County A t t o r n e y ,
Bozeman, Montana

submitted: December 3 , 1 9 8 5

Decided: J a n u a r y 1 4 , 1986

Filed: JAN l s 1986

Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

Defendant was arrested on September 10, 1983, near the
Trailside Store in Belgrade, Montana. An Information was
filed on October 14, 1983, charging defendant with burglary,
attempt, and possession of burglary tools. Defendant
appeared and pled not guilty to all charges at his
arraignment in the Eighteenth Judicial District, Gallatin
County, on November 4, 1983.
Due to continuances, waivers of speedy trial, and
defendant's change of counsel, the case did. not come to trial
until August 13, 1984. The charge on possession of burglary
tools was dropped prior to trial. After hearing all the
evidence, the trial judge instructed the jury it could find
defendant guilty of criminal trespass to property. The jury
returned a verdict on August 15, 1984, finding defendant
guilty of criminal trespass to property. Defendant was
sentenced to 30 days in the Gallatin County Jail. After the
trial judge refused to grant a new trial, this appeal
followed.
We affirm.
The issues presented for review are:
1. Whether criminal trespass is a lesser included
offense to the offense of burglary.
2. Whether the State satisfied its burden on the
defendant's speedy trial claim.
3. Whether the State failed to prove venue of this
offense as occurring within Gal-l-atin
County, Montana.
4. Whether the defendant's pro se motions deprived the
District Court of jurisdiction.
 5. Whether the District Court's instructions as to the
elements of the offense and the definition of public versus
private access were erroneous.
6. Whether there was suffici-ent evidence for the jury
to find every material element of criminal trespass beyond a
reasonable doubt.
The affidavit of probable cause and leave to file
information alleged the following: that defendant had
entered the Trailside Store in Belgrade, Montana, and
requested to use the men's room; defendant was accompanied by
a woman, Patricia Bond, who remained in the front part of the
store; an employee of the store, DeWayne Westfall, entered
the store and walked back to the office to clock in; that
upon opening the door to the office Westfall saw defendant
crouching in front of the safe; upon seeing Westfall,
defendant cursed and left the office, remaining in another
part of the store momentarily before leaving; that Officer
Baughman, called in to investigate, found a 5" lock pick on a
shelf in the store, approximately where defendant had been
standing; and that pursuant to an authorized search, burglary
tools were seized from defendant's vehicle.
The defendant's version is that he went into the store
to use the telephone in the store's office. On a previous
occasion he had been all-owed to use the phone. He knew where
the phone was, the office was not locked., so he was in the
store office with permission for a valid purpose. The lock
pick found in the store would have been absolutely useless in
trying to open a combination safe. Additionally, defendant
is a locksmith, and it should not be incriminatory that he
has tools which are considered to be "burglar's tools."
The information was filed on October 14, 1983, charging
defendant on the following counts: 1) burglary, a felony,
2) attempt, theft, a misdemeanor, and 3) possession 02

burglary tools, a misdemeanor. Defense counsel, Jerome Cate,
filed a motion to quash information on October 27, 1983.
Defendant was arraigned on November 4, 1983, and plead not
guilty on all counts. An omnibus hearing was held on
December 23, 1983, and trial. was scheduled for January 1.6,
1984. The order denying the motion to quash was entered on
December 28, 1983. A suppression hearing was held on January
6, 1984, and the trial judge re-scheduled the trial for
February 27, 1984, since defendant had not obtained full
discovery.
The State filed for a continuance, based upon newly
discovered evidence, and trial was set for April 16, 1984.
Defendant filed a waiver of speedy trial for the period from
February 27, 1984 to April 16, 1984.
On April 13, 1984, defense counsel filed several
motions, including a waiver of speedy trial from April 16,
1984, to whenever the court re-scheduled the matter. In late
April, defendant became disillusi.oned with his counsel a.nd
started filing pro se motions and supporting briefs. This
resulted in counsel filing a motion to withdraw.
A hearing was held on June 4, 1984, addressing the
motions on file up to that point, including counsel's motion
to withdraw. Counsel was allowed to withdraw, and defendant
was given 14 days to retain new counsel. Defendant
repeatedly stated he did not wish to proceed pro se. The
trial judge informed defendant that his pro se motions would
not be considered unless they were re-submitted through his
counsel of record. The trial judge denied defendant's motion
for disqualification, pointing out it was untimely.
On June 18, 1984, another hearing was held. Defendant
not having retained new counsel, the trial judge assigned a
public defender to the case until defendant retained new

counsel. The j u d g e s c h e d u l e d a new omnibus h e a r i n g f o r J u l y

5, 1984, due t o new c o u n s e l b e i n g on t h e c a s e . Defendant

r e t a i n e d new c o u n s e l on J u l y 3 , 1984.

A t t h e h e a r i n g on J u l y 5 , 1984, t h e c o u r t re-affirmed

i t s r u l i n g s t h a t d e f e n d a n t ' s p r o se m o t i o n s were o u t o f o r d e r

and t h e d i s q u a l i f i c a t i o n motion was u n t i m e l y a n d s c h e d u l e d a

h e a r i n g on p r e - t r i a l m o t i o n s f o r August 3 , 1984. T r i a l was

s e t f o r August 1 3 , 1984.

Prior to trial, the trial judge denied all of the

defense motions, except t h e motion to suppress, which was

granted. The p o s s e s s i o n o f b u r g l a r y t o o l s c h a r g e was t h e n

d r o p p e d by t h e S t a t e .

The c a s e was h e a r d b e f o r e a j u r y on August 1 3 a n d 1 4 ,

1984. A f t e r a l l t h e e v i d e n c e had b e e n p r e s e n t e d , the t r i a l

judge d e t e r m i n e d d e f e n d a n t m i g h t b e found g u i l t y o f a lesser

included offense to the offense of burglary, criminal

trespass, s o an i n s t r u c t i o n t o t h a t e f f e c t was g i v e n . On

August 1 5 , 1 9 8 4 , t h e j u r y r e t u r n e d v e r d i c t s o f n o t g u i l t y o f

t h e b u r g l a r y and a t t e m p t c h a r g e s , b u t f o u n d d e f e n d a n t g u i l t y

of c r i m i n a l t r e s p a s s .

Defendant was sentenced to 30 days in the Gallatin

County D e t e n t i o n C e n t e r . D e f e n d a n t f i l e d a m o t i o n f o r new

trial, which was d e n i e d J a n u a r y 25, 1985. Defendant filed

t h i s a p p e a l on F e b r u a r y 1, 1985.

The f i r s t i s s u e i s w h e t h e r c r i m i n a l t r e s p a s s i s a l e s s e r

included offense t o t h e offense of burglary. A reading of

the crimina.1 t r e s p a s s and burglary statutes clearly shows

that criminal trespass is a lesser included offense of

burglary. Criminal t r e s p a s s i s "knowingly e n t e r s o r remains

unlawfully in an occupied structure," while burglary is

"knowingly enters or remains unlawfully in an occupied
structure with the purpose to commit an offense therein." To
commit burglary one has to commit a criminal trespass. See,
5 s 45-6-203 and 45-6-204, MCA.
Although criminal trespass is by definition a lesser
included offense to the offense of burglary, the evidence in
the record is determinative of whether a lesser included
offense instruction should be given. The trial court's
instructions must cover every theory having support in the
evidence. State v. Boslaugh (1978), 176 Mont. 78, 80, 576
P.2d 261, 262.
In this case, the tria.1 judge felt it would be
reversible error not to give a criminal trespass instruction,
even though neither side requested such. The information
filed in this case alleged, in part, "defendant committed the
offense of burglary when he knowingly entered or remained
unlawfully in an occupied structure, the office at the
Trailside Store. . . ." Defendant did not deny his presence
in the store office, rather he claimed he had permission to
use the telephone in the office. This evidence raises the
issue of criminal trespass and supports the trial judge's
instruction on criminal trespass.
This Court has explicitly recognized criminal trespass
is a lesser included offense to the offense of burglary.
State v. Radi (1978), 176 Mont. 451, 463, 578 F.2d 1169,
1177. We upheld the District Court's refusal to give an
instruction on criminal trespass in that case because the
defense was alibi and there was no evidence to suggest the
defendant could be guilty of criminal trespass but not
burglary. In the present case, there was evidence presented
upon which the jury could rationally conclude defendant had
committed a criminal trespass, but not burglary.
 Defendant a r g u e s t h a t he was e i t h e r g u i l t y o f b u r g l a r y

o r e n t i t l e d t o an a c q u i t t a l . The e v i d e n c e d o e s n o t s u p p o r t

his contention, because there was a dispute over whether

d e f e n d a n t was 1a.wfully i n t h e s t o r e ' s o f f i c e . W e hold t h a t

c r i m i n a l t r e s p a s s i s a l e s s e r included o f f e n s e t o t h e crime

of b u r g l a r y and i t was n o t e r r o r f o r t h e D i s t r i c t C o u r t t o

i n s t r u c t t h e j u r y on t h a t o f f e n s e .

The second issue i s whether the State satisfied its

burden on t h e d e f e n d a n t ' s speedy t r i a l c l a i m . The B a r k e r v .

VJi-ngo ( 1 9 7 2 ) , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101,

test f o c u s e s on: 1) length of delay; 2) reason for the

d e l a y , 3 ) d e f e n d a n t ' s a s s e r t i o n o f t h e r i g h t t o speedy t r i a l ;

and 4 ) p r e j u d i c e t o t h e d e f e n d a n t . In the present case, the

d e l a y i n g e t t i n g t o t r i a l was 1 months,
1 3 d a y s , which t h e

t r i a l judge c o r r e c t l y n o t e d was p r e s u m p t i v e l y p r e j u d i c i a l and

s h i f t e d t h e burden t o t h e S t a t e t o e x p l a i n t h e r e a s o n f o r

d e l a y and a b s e n c e o f p r e j u d i c e .

Defendant admits he i s chargeable f o r the delay from

F e b r u a r y 27, 1984, t o J u n e 4 , 1984, b e c a u s e h e s p e c i f i c a l l y

waived t h e r i g h t t o speedy t r i a l d u r i n g t h a t p e r i o d . The

point of c o n t e n t i o n i s whether d e f e n d a n t s h o u l d be c h a r g e d

w i t h t h e d e l a y from June 4 , 1984, t o August 1 3 , 1984, due t o

his substi.tution of counsel. The record shows t h e trial

judge granted extensions to allow defendant t o obtain new

c o u n s e l and s c h e d u l e d a new omnibus h e a r i n g once new d e f e n s e

c o u n s e l had been r e t a i n e d . I n S t a t e v. Royer (Mont. 19841,

676 P.2d 787, 4 1 St.Rep. 321, t h i s Court found t h a t del-ay

c a u s e d by d e f e n d a n t ' s s u b s t i t u t i o n o f c o u n s e l s h o u l d n o t be

charged a g a i n s t t h e S t a t e . Boyer, 676 P. 2d a t 790, h e l d t h e

d e f e n d a n t was n o t d e n i e d t h e r i g h t t o speedy t r i a l where t h e

d e f e n d a n t caused a s u b s t a n t i a l p a r t o f t h e d e l a y . This i s

t h e s i t u a t i o n i n t h e present case.
 Focusing on the defendant's assertion of the right, the
question is raised whether defendant desired a speedy trial.
In Boyer, this Court viewed the defendant's claim of denial
of a speedy trial with skepticism where the defendant had
substituted counsel and voiced no objection to a continuance.
Boyer, 676 P.2d at 789. In the present case, defendant
timely asserted his right to speedy trial, but this must be
balanced against his previous waivers of the right, filing of
a great number of motions and voluminous supporting briefs,
and substitution of counsel.
Defendant testified before the trial judge as to the
prejudice he had suffered resulting from the delay in getting
to trial, which essentially was that a key witness, his
alleged accomplice, was now in Nevada and not answering his
calls. The State pointed out that the key witness had not
been subpoenaed at any time, nor had defendant attempted to
depose her or preserve her testimony in any manner. The
trial judge found no significant prejudice to defendant,
reasoning that defendant made no effort to secure the
witness's testimony. We agree and hold that the State
satisfied its burden on the defendant's speedy trial claim.
The third issue is whether the State failed to prove
venue of this offense as occurring in Gallatin County,
Montana. The defendant argues that the State failed to
introduce any testimony that the offense occurred in Gallatin
County, Montana and this is a material element of the
offense, and defendant's motion to dismiss at the close of
the State's case should have been granted. Defendant argues
that Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39, holds that Fourteenth Amendment due
process requires that the State prove every element of a
criminal offense beyond a reasonable doubt, but at trial, the
only evidence submitted was that the offense occurred in
Belgrade, and, under Sandstrom, proof that the offense was
committed in Gallatin County must also be introduced--it is
improper to infer a material element or prove the element by
judicial notice as the court below did.
However, the State correctly argues that the trial court
noted that, since a witness had testified the offense
occurred in Belgrade, the court could infer the crime took
place in Ga-llatin County. In State v. Jackson (1979), 180
Mont. 195, 5 8 9 P. 2d 1009, and State v. Rad Horse (1980), 185
Mont. 507, 605 P.2d 1113, this Court recognized the rule that
where testimony establishes that an act took place in a
particular city, judicial notice may be taken of the county
where the city is located. These two opinions are
controlling and the trial court therefore acted correctly.
We hold that the State proved venue in this case.
The fourth issue is whether the defendant's pro se
motions deprived the District Court of jurisdiction.
Defendant contends that the trial court improperly refused to
address his pro se motions and that upon defendant's filing
of a disqualification motion the court was deprived of
jurisdiction. Defendant argues that the trial court erred in
ruling that defendant did not have the right to file pro se
motions while represented by counsel and in having the
motions placed in a separate file as there is no law,
statutory or otherwise, authorizing a district court to
refuse to file a motion by a defendant in a criminal
proceeding. It is argued that one of the pro se motions
requested the State to provide defendant with the names of
former employees of the store allegedly burglarized and this
information, never provided to defendant, was a vital part
of the defense because one of these former employees would
have corroborated defendant's story that he had been
previously allowed to use the phone in the store's office.
This discovery motion was never addressed by the court, even
though all of defendant's pro se motions were incorporated by
reference by present counsel's pre-trial moti-ons.
It is argued that the State's argument that defendant
does not have the right to act pro se while represented by
counsel ignores the fact that all of defendant's pro se
motions were filed during a period when defendant's first
counsel was in the process of withdrawing from the case, or
while defendant was represented by a public defender, whom
the trial judge had appointed without a request from
defendant, and, because defendant had ineffective assistance
of counsel during this period, pro se motions were the only
available method of protecting defendant's constitutional
rights. Defendant argues that he filed an affidavit and
motion for disqualification prior to trial, and it was error
for the district judge to remain on the case because upon the
filing of an affidavit alleging bias on the part of the
judge, 5 3-1-802, MCA, mandates removal of the judge from the
case.
The State notes that, at the hearing on the motion to
withd-raw filed by defendant ' s first counsel, defendant
repeatedly stated he did not wish to proceed pro se. In
response, the district judge pointed out that as long as
defendant was represented by counsel defendant could not act
pro se. This ruling is in accord with State v. Smith (Mont.
1983), 670 P.2d 96, 40 St.Rep. 1533 where the defendant
sought to personally interview two witnesses, even though his
counsel was allowed to do so. This Court adopted the
majority position, and held, "If a defendant is adequately
represented by counsel, he does not have the constitutional-
right to also represent himself." Smith, 670 P.2d at 101.
Defend.ant has been provided effective assistance of counsel
in this case and the district judge pointed out that the pro
se motions would be heard if defendant re-submitted the
motions through his new counsel. The District Court did not
err.
Concerning defendant's motion to disqualify the district
judge, a look a t the record clearly shows the motion was
.
untimely. Section 3-1-802, MCA, requires that a motion for
disqualification for cause and a supporting affidavit be
filed not later than 20 days before the original trial date.
The motions were filed May 25, 1984, which was only 10 days
prior to the re-scheduled trial date of June 4, 1984. The
district judge was correct in denying the motion. We hold
that defendant's pro se motions did not deprive the District
Court of jurisdiction.
The fifth issue is whether the District Court's
instructions as to the elements of the offense and the
definition of public versus private access were erroneous.
The defendant argues that the defense submitted instructions
taken exactly from the statutes defining burglary, occupied
structure, property, and premises. The trial judge refused
to give these instructions, rather the judge ga.ve his own

inst-ructions which permitted the jury to find defendant
guilty of criminal trespass or burglary without finding he
unlawfully entered an "occupied structure."
The State argues that this Court has repeatedly held
that a trial court need not deliver the instructions of the
parties, but may give its own instructions if they adequately
cover the facts and issues involved. The trial judge is not
obligated to give the exact wording of a statute--the
instruction is sufficient if it clearly defines the crime.
State v. Campbell (1972), 160 Mont. 111, 500 P.2d 801. In
this case, the trial judge properly determined that
definitions of " property," "premises," and "occupied
structure," would unnecessarily confuse the jury and chose to
use "any building suitable for the carrying on of business."
Defense counsel did not object at that time to the
instruction, and cannot now claim the trial court erred by
refusing to instruct the jury as to the statutory
definitions. In State v. Jones (1973), 161 Mont. 11.7, 505
P.2d 97, this Court held: "The giving or refusal of a
particular instruction in a given case must be determined in
the light of the evidence and issues in that case. . . "
Jones, 505 P.2d at 102. Clearly, the trial judge conformed
the jury instructions to the evidence presented at trial.
The instructions given by the trial judge covered the issues
presented to the jury. It is not necessary to give
repetitive instructions, which would have resulted had all of
defense counsel 's instructions been given. See State v.
Lukus (1967), 149 Mont.. 45, 423 P.2d 49, and State v. Lapp
(Mont. 1983), 658 P.2d 400, 40 St.Rep. 129. We hold that the
District Court's instructions were not erroneous.
The sixth issue is whether there was sufficient evidence
for the jury to find every material element of criminal
trespass beyond a reasonable doubt. The defendant is
precluded from even presenting this issue because he did not
order the trial transcript be included with the appeal.
Section 46-20-302(2), MCA, provi-des, "In all cases where the
appellant intends to urge insufficiency of the evidence to
support the verdict . . . it shall be the duty of the
appellant to order the entire transcript of the evidence."
Defendant has violated this provision, thus it is impossible
f o r t h i s Court t o r e v i e w s u f f i c i e n c y of t h e e v i d e n c e t o a s t o

a.ny e l e m e n t o f t h e c r i m e .

Defendant d i d n o t o r d e r t h e e n t i r e t r a n s c r i p t , which i s

r e q u i r e d by S 46-20-302 ( 2 ) i f i n s u f f i c i e n c y of t h e evidence

i s t o be a r g u e d on a p p e a l . Therefore, defendant i s precluded

from a s s e r t i n g t h e r e was a f a i l u r e o f p r o o f a s t o one e l e m e n t

of c r i m i n . a l t r e s p a s s .

Affirmed.

W Concur:
e /

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