No. 86-435
TN THE SUPREME COURT OF THF STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JODY DUANE McDONALD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
O'Brien & Conrad; Barbara J. Conrad, Missoul-a,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana; Fred Van Valkenburg, Deputy County Attorney
Submitted on Briefs: Jan. 29, 1987
Decided: March 30, 1987
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal arises from a conviction entered in the
District Court of the Fourth Judicial District in and for
Missoula County. Following a jury trial, defendant was found
guilty of burglary and now appeals. We affirm.
On the evening of January 10, 1986, the defendant, Jody
McDonald, and his girlfriend, Maggi Stevens, visited a
Missoula bar with another couple, Albert Cannon and Kim
Cornelius. Because Miss Cornelius was under age and could
not remain in the bar, she told the others that she was going
to visit Tammy Sessions, a friend who was hosting a small,
informal party that evening. She left in Albert's car.
By 11:OO p.m., Albert Cannon had become concerned about
his girlfriend. He and Kim had previously agreed that Kim
would pick up Albert at the bar at 10:30, but she had not yet
returned. Albert also expressed some discomfort over the
presence of Rim's former boyfriend at Tammy Sessions' party.
Albert asked the defendant to drive him to Sessions' trailer.
They were accompanied by Miss Stevens and Tony Cannon,
Albert's brother who had joined them at the bar. At the
trailer, the Cannon brothers went to the front door while the
defendant and Miss Stevens waited in the car. Meanwhile,
those inside the trailer had switched the evening's
entertainment from drinking games to a game of strip poker
and were by then in various stages of loss.
What happened next is disputed. Apparently, when the
Cannon brothers were not granted immediate entry, one of them
kicked the door off its hinges. Inside, the unclad youths
ran for cover as the Cannons entered and demanded to know the
whereabouts of Kim. Tony Cannon soon discovered Kim hiding
in a back bedroom closet after he had ripped off its door.
Tony alerted his brother who proceeded to scuffle with his
girlfriend in the bedroom. Kim became hysterical and her
screams prompted a neighbor to phone the police. Tony
meanwhile r e t u r n e d t o t h e l i v i n g room where he punched two
y o u t h s , knocking one o u t .
Tony Cannon t h e n s h o u t e d from t h e t r a i l e r d o o r f o r t h e
defendant to come inside. The defendant responded by
entering the trailer through the broken door. Direct
t e s t i m o n y a t t r i a l s t a t e d t h a t once w i t h i n t h e t r a i l e r t h e
defendant assaulted at least four persons. Testimony was
a l s o p r e s e n t e d t h a t Tammy S e s s i o n s and h e r younger sister,
Raeann, asked t h e d e f e n d a n t t o l e a v e .
The d e f e n d a n t , Miss S t e v e n s and Tony Cannon l e f t t h e
trailer just before the authorities arrived. Sheriff 's
d e p u t i e s o r d e r e d a pick-up and h o l d f o r both t h e defendant
and Tony Cannon and the two were arrested after a short
search in the early morning of January 11, 1986. The
d e f e n d a n t was t r i e d b e f o r e a j u r y on t h e c h a r g e o f b u r g l a r y
and was found g u i l t y . He now a p p e a l s .
The f i r s t i s s u e r a i s e d on a p p e a l i s whether d e f e n d a n t ' s
b u r g l a r y c o n v i c t i o n i s s u p p o r t e d by s u f f i c i e n t e v i d e n c e . Our
standard of r e v i e w when p r e s e n t e d w i t h a challenge t o t h e
s u f f i c i e n c y of t h e evidence i s " [w] h e t h e r , a f t e r viewing t h e
e v i d e n c e i n t h e l i g h t most f a v o r a b l e t o t h e p r o s e c u t i o n , any
rational trier of fact could have found the essential
e l e m e n t s of t h e c r i m e beyond a r e a s o n a b l e doubt.'' Jackson v.
Virginia ( 1 9 7 9 ) , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560, 573; S t a t e v. Crumley (Mont. 1 9 8 6 ) , 725 P.2d
214, 215-16, 43 St.Rep. 1675, 1677; S t a t e v. McHugh (Mont.
1985), 697 P.2d 466, 469, 42 St.Rep. 371, 374; S t a t e v.
Kutnyak (Mont. 1 9 8 4 ) , 685 P.2d 901, 910, 4 1 St.Rep. 1277,
1289. "This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts i n the testimony, t o weigh t h e e v i d e n c e , and t o
draw reasonable inferences from basic facts to ultimate
facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61
L.Ed.2d a t 573.
The defendant was convicted of burglary pursuant to
§ 45-6-204(1), MCA, which provides:
A person commits the offense of burglary
if he knowingly enters or remains
unlawfully in an occupied structure with
the purpose to commit an offense therein.
From the evidence presented by the prosecution it is
obvious that appellant knowingly entered and remained
unlawfully in an occupied structure with the purpose to
commit an offense therein, at the very least a misdemeanor
offense. He witnessed the door being torn off its hinges,
entered thereafter and assaulted at least four persons. Why
the State did not charge him with the assault, and chose
instead the burglary statute, remains a mystery.
The specific issue we face on appeal is whether,
viewing the evidence in the light most favorable to the
State, a rational trier of fact could have concluded that the
defendant had the specific purpose to commit assault either
at the moment he entered the trailer or after he remained
unlawfully within the trailer.
It is by now well established that one's mental state
may be gleaned from circumstantial evidence. State v. Hardy
(1980), 185 Mont. 130, 137, 604 P.2d 792, 796.
In this case, the State presented the testimony of
Maggi Stevens, the defendant's girlfriend, who testified that
as she entered the trailer immediately in front of the
defendant, she could see, through the broken doorway, a fight
in progress in the living room. Nevertheless, Stevens
testified she and the defendant entered the trailer. The
State then produced testimony that the defendant, once within
the trailer, assaulted at least four different individuals.
Alternatively, a rational juror could have concluded
that the State satisfied the elements of burglary by
establishing that the defendant remained unlawfully within
the trailer with the purpose to commit assault. The State
elicited testimony that the defendant (1) remained in the
trailer after being asked to leave and (2) continued to
assault people within the trailer. Tammy and Raeann Sessions
testified that the defendant was asked to leave but did not
do so before assaulting others.
In short, viewing the evidence in the light most
favorable to the State, we cannot say that a rational jury
could not have found that the defendant had the purpose to
commit an assault either when he entered the trailer or
remained unlawfully therein. We therefore find no error.
The defendant also asserts that the trial court erred
in its failure to instruct the jury on the lesser included
offense of assault. Because we do not find assault to be a
lesser included offense of burglary, we disagree.
As defined herein, the offense of assault requires (1)
purposely or knowingly (2) causing bodily injury to another.
Section 45-5-201(1), MCA. The offense of burglary, however,
does not require any showing of bodily injury, so that one
may be convicted of burglary without any such showing.
Section 45-6-204 (I), MCA. As the Kansas Supreme Court
reasoned when a defendant requested in a burglary prosecution
a lesser included instruction on "criminal damage to
property":
The difficulty with this argument is that
the element of willfully injuring,
damaging, mutilating, defacing,
destroying or substantially impairing the
use of property is not an element of
burglary. It is entirely possible to
establish a burglary without proving
damage, and the mere fact there was
damage to the building in this case does
not make criminal damage to property a
lesser included offense. We conclude
that criminal damage to property is not a
lesser included offense of burglary, and
the trial court did not err in refusing
to instruct on that offense.
State v. Harper (Kan. 1984), 685 ~ . 2 d850, 856.