No. 86-421
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1987
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS-
JACK JASON COX,
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t C o u r t of t h e F o u r t h 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 M i s s o u l a ,
The Honorable J a c k L. Green, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
C h r i s t o p h e r Daly, M i s s o u l a , 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 , Helena, Montana
John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana
S u b m i t t e d on B r i e f s : Jan. 1 5 , 1987
Decided: March 1 2 , 1 9 8 7
MAR 12 1987
Filed:
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant appeals the April 11, 1986, judgment of the
Fourth Judicial District Court finding defendant guilty of
aggravated burglary. We affirm.
At approximately 2 : 0 0 a.m. on November 17, 1985, Skip
Caluori noticed a station wagon drive by his home and pull
into a grassy driveway beside his neighbor's woodpile.
Caluori was suspicious as he had seen a similar car earlier
in the evening drive by his house slowly. Caluori and his
neighbor, Gene Nulliner, live on Cross Street in Piltzville,
Montana. Cross Street receives very little traffic.
After seeing two men emerge from the station wagon,
Caluori phoned Nulliner and told him he thought two prowlers
were by his woodpile. Nulliner turned on his outside lights
and he and Caluori approached the station wagon. Caluori's
sister phoned the sheriff's department concerning the
suspected prowlers.
Defendant and another man were crouching behind the
station wagon, apparently trying to hide. Nulliner told the
men to move away from the car and asked what they were doing.
Defendant stated they were fixing a flat tire. Caluori and
Nulliner saw no evidence of a flat tire and asked the men to
step onto the lighted driveway. At that point, Caluori and
Nulliner saw numerous tools and equipment lying on the ground
next to the station wagon. Defendant made an offer to trade
a gun in exchange for their release.
As they stood in the driveway waiting for the sheriff,
Nulliner noticed defendant inching his hand toward the inside
of his coat. Nulliner grabbed defendant's arm and reached
inside his coat and extracted a handgun. The gun was a
l o a d e d .38 semi-automatic r e v o l v e r . Law enforcement o f f i c e r s
arrived shortly thereafter.
N u l l i n e r o b s e r v e d t h e name o f h i s n e i g h b o r , Gene S p e r r y ,
on a power g e n e r a t o r l y i n g n e a r t h e c a r s o he went a c r o s s t h e
s t r e e t and r e t u r n e d w i t h S p e r r y . Sperry has a l a r g e garage
where he m a i n t a i n s a shop t o c o n d u c t h i s b u s i n e s s a s a pump
repairman. Sperry identified the equipment next to the
s t a t i o n wagon a s h i s , i n c l u d i n g a t o o l c h e s t i n t h e back o f
t h e s t a t i o n wagon. C a l u o r i and S p e r r y b o t h n o t i c e d a w e l l
b e a t e n p a t h between S p e r r y ' s g a r a g e and t h e s t a t i o n wagon.
There was frost on the ground and the t r a c k s were easily
seen. S p e r r y s t a t e d h i s equipment was i n t h e shop when he
c l o s e d up a t 1 0 p.m. b u t t h a t h e had n o t locked t h e d o o r .
The s t o l e n p r o p e r t y i n c l u d e d an a i r compressor, e l e c t r i c
welder, hand truck, power plant, two t o o l b o x e s , a trailer
house wheel and t i r e , a b o a t t r a i l e r wheel, and s e v e r a l o t h e r
tires. The equipment was v a l u e d a t $7000. Defendant was
d i s c o v e r e d t o be t h e owner o f t h e s t a t i o n wagon.
Defendant was c h a r g e d w i t h a g g r a v a t e d b u r g l a r y and t h e
case was consolidated with several other theft charges
pending against defendant. Defendant plead guilty on all
counts except t h e aggravated burglary count. A bench t r i a l
was conducted on A p r i l 1, 1 9 8 6 , a s t o t h e a g g r a v a t e d b u r g l a r y
charge. Defendant was found g u i l t y o f aggravated burglary
and s e n t e n c e d t o 30 y e a r s i n t h e Montana S t a t e P r i s o n w i t h 2 0
y e a r s suspended, i n a d d i t i o n t o h i s s e n t e n c e s on t h e o t h e r
counts. Defendant a p p e a l s and r a i s e s t h e f o l l o w i n g i s s u e :
1) Whether the evidence is sufficient to support
defendant's conviction for the offense of aggravated
burglary?
Aggravated burglary i s defined i n S 45-6-204(2), MCA:
(2) A person commits the offense of aggravated
burglary if he knowingly enters or remains
unlawfully in an occupied structure with the
purpose to commit a felony therein and:
(a) in effecting entry or in the course of
committing the offense or in immediate flight
thereafter, he or another participant in the
offense is armed with explosives or a weapon; or
(b) in effecting entry or in the course of
committing the offense or in immediate flight
thereafter, he purposely, knowingly, or negligently
inflicts or attempts to inflict bodily injury upon
anyone.
Defendant admits direct evidence was introduced proving the
garage is an occupied structure and that he was carrying a
weapon. However, defendant contends there is no direct
evidence that he knowingly entered the garage and remained
unlawfully with the intent to commit a felony therein.
Defendant further contends the circumstantial evidence is
insufficient to prove he was ever in the garage. Finally,
defendant argues there was inadequate time to transport all
the equipment from the garage to his car in the five minutes
from the time Caluori first saw the car park in the driveway.
Our duty is to review the record in a light most
favorable to the State and determine whether there is
substantial evidence supporting the conviction. State v.
Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040. We find
substantial credible evidence in the record to prove
defendant committed aggravated burglary.
Circumstantial evidence may be used to prove that
defendant entered the garage and committed a felony while
unlawfully within the structure. In State v. Kinghorn
(1939), 109 Mont. 22, 93 P.2d 964, we held that possession of
stolen property, accompanied by other incriminating
circumstances, and false or unreasonable explanation by the
suspect is sufficient to sustain a conviction of burglary.
In this instance, defendant was in possession of stolen
property. The equipment was lying next to his station wagon
in a deserted area at 2 a.m. A toolbox from the garage was
in the back of defendant's station wagon. When questioned by
Nulliner, defendant replied that the equipment was his and
that he worked in a body shop. Defendant's answer was
clearly false.
There were other incriminating circumstances surrounding
defendant's possession of the stolen property. The stolen
items had been removed between 1 0 p.m. and 2 a.m. and the
frost on the ground revealed a well-beaten path from the
garage to defendant's vehicle. After Caluori and Nulliner
appeared on the scene, defendant first lied that he was
fixing a tire and then attempted to reach for a gun.
Defendant also offered to trade the gun for his release.
The State was not required to show that defendant and
his accomplice were capable of removing all the stolen items
in a span of five minutes. Even if defendant did prove it
was impossible to move the items in five minutes which he did
not, a plausible explanation is that they moved the stolen
goods prior to driving the car to the location.
It is a rare case where "intent" is proven by direct
evidence. The existence of intent is a question for the
jury. State v. Jackson ( 1 9 7 9 ) , 1 8 0 Mont. 1 9 5 , 5 8 9 P.2d 1 0 0 9 .
In this case, there is substantial evidence from which to
infer defendant's intent to commit aggravated burglary. The
District Court is affirmed.
We Concur:
hfef 3ustice