No. 88-173
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
PATRICK MARK TRACY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COIJNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Paul D. Johnson, Assistant Attorney General, Helena
Mike McGrath, County Attorney, Helena, Montana
Leo Gallagher, Deputy County Attorney, Helena
Submitted on Briefs: Aug. 4, 1988
Decided: September 13, 1988
Filed : SEP 1 3 1988'
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Patrick Mark Tracy appeals from a judgment of the
District Court of the First Judicial District, Lewis and
Clark County. The judgment was entered pursuant to a jury
verdict finding Tracy guilty of the crime of theft (common
scheme), a felony. We affirm.
Tracy presents two issues for review:
1. Whether the evidence was sufficient to sustain the
jury's verdict convicting Tracy of felony theft (common
scheme) .
2. Whether the District Court properly imposed a minimum
10-year sentence on Tracy as a persistent felony offender
under § 46-18-502 (2), MCA.
A summary of the facts is as follows: Tracy was hired
as a janitor by Universal Floor Maintenance on September 8,
1987. Part of his job was to clean the Thriftway North store
in Helena. A manager and checker at the store, Bob Day,
testified at trial that on the evening of September 27, 1987,
Tracy cashed over 30 winning Montana lottery tickets at Day's
checkstand and another checkstand.
The fact that Tracy cashed so many winning tickets on
the same day and the fact that he did so in separate
transactions struck Day as odd. He notified his employer,
Thriftway President Frank Capps, about his concern. Capps in
turn contacted Montana State Lottery Security Director John
Onstad. Onstad also received reports that Tracy had cashed
30 other winning tickets at State Lottery Headquarters as of
September 29, 1987, all of which were stamped "Thriftway
North. "
Capps and Onstad investigated. They began keeping track
of the numbers on the beginning and ending lottery tickets in
t h e s t o r e ' s d i s p e n s e r s a t t h e end o f e a c h b u s i n e s s day. The
numbers were then rechecked each morning when the store
opened t o s e e i f any t i c k e t s were m i s s i n g . They a l s o began
nighttime s u r v e i l l a n c e of t h e s t o r e when j a n i t o r s would be
working.
On t h e e v e n i n g o f October 3 , 1987, Capps and Onstad h i d
t h e m s e l v e s i n t h e s t o r e and o b s e r v e d Tracy a s he a r r i v e d f o r
work. After s t o r e p e r s o n n e l had left, Tracy came to the
f r o n t of t h e s t o r e and a p p e a r e d t o wave a t someone o u t s i d e
the store. He t h e n t o o k a shopping c a r t t o t h e c i g a r e t t e
rack and loaded it with an estimated 50-70 cartons of
cigarettes. Onstad t o o k a photograph of Tracy w h i l e he was
loading the cigarettes onto the cart. Tracy took the
c a r t - l o a d o f c i g a r e t t e s t o t h e back o f t h e s t o r e , and t h e two
h i d d e n men h e a r d i t p a s s t h r o u g h t h e swinging m e t a l d o o r s
that separate the shopping a r e a from s t o r a g e a r e a s i n the
r e a r of t h e s t o r e . A few m i n u t e s l a t e r , Tracy r e t u r n e d w i t h
t h e c a r t , which was t h e n empty.
Tracy t h e n began t o go a b o u t h i s work. While he was
d o i n g s o , Capps went t o t h e r e a r of t h e s t o r e t o l o o k f o r t h e
cigarettes. He was u n a b l e t o f i n d them, and r e t u r n e d t o h i s
hiding place. A s h o r t t i m e l a t e r , t h e two men o b s e r v e d Tracy
removing l o t t e r y t i c k e t s from t h e d i s p e n s e r s and p l a c i n g them
inside h i s pants. He t h e n t u r n e d o u t t h e l i g h t s and l e f t t h e
store.
Capps and Onstad l e f t t h e i r h i d i n g p l a c e and i n t e r c e p t e d
Tracy. They b r o u g h t him back i n t o t h e s t o r e and n o t i f i e d t h e
police. A Helena police officer testified that when he
a r r i v e d , h e s e a r c h e d Tracy and found two b u n d l e s o f l o t t e r y
tickets ( a t o t a l of 213 t i c k e t s ) s t u f f e d down t h e f r o n t of
h i s pants. A search of t h e r e a r of t h e s t o r e a t t h a t point
a l s o f a i l e d t o r e v e a l t h e missing c i g a r e t t e s . Tracy was t h e n
p l a c e d under a r r e s t . Subsequent s e a r c h e s of t h e s t o r e f o r
the missing cigarettes were likewise unsuccessful, but Capps
did discover that the locking mechanism on one of the rear
doors could be manipulated to enable someone to open it far
enough to pass items outside.
Onstad testified that lottery tickets are sold to
merchants for 95C apiece and resold for one dollar. The
tickets found on Tracy's person thus had a wholesale value of
$202.35, and a retail value of $213.00. Capps testified that
the missing cigarettes had a wholesale value of $576.20, and
a retail value of $634.10. Capps also testified that since
Tracy's arrest, Thriftway had experienced no problems with
lottery tickets.
The jury returned a verdict of guilty on December 2,
1987. At the sentencing hearing held January 20, 1988, Tracy
was sentenced to ten years in prison for felony theft and 50
years of imprisonment as a persistent felony offender, with
40 years of that sentence suspended. This appeal followed.
I.
Tracy was charged under 5 45-6-301, MCA. Under
S 45-6-301(6), MCA, theft is a felony if the value of the
property involved is at least $300. Tracy admits to bein9
guilty of misdemeanor theft in connection with the lottery
tickets found. on him when he was arrested. However, he
argues that the evidence was insufficient to prove that he
exercised control over other lottery tickets and cigarettes
of sufficient value to constitute a felony. He argues that
the evidence introduced at trial connecting him to the theft
of these additional items was based on "conjecture,
probability or suspicion."
The test applied by this Court to determine whether the
evidence is sufficient to support a criminal conviction is
whether, after reviewing the evidence in the light most
favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. State v. McHugh (Mont. 1985), 697 P.2d 466, 42
St.Rep. 371. If the evidence conflicts, it is for the trier
of fact to determine which evidence is dispositive. State v.
Oman (Mont. 1985), 707 P.2d 1117, 42 St.Rep. 1565.
The statutory definition of theft used in charging Tracy
reads as follows:
(1) A person commits the offense of theft when he
purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and :
.. .
(c) uses, conceals, or abandons the property
knowing such use, concealment, or abandonment
probably will deprive the owner of the property.
Section 45-6-301(1) (c), MCA. In addition to the 213 lottery
tickets found on Tracy's person, the record contains
testimony by two witnesses that Tracy cashed a total of 64
tickets marked "Thriftway North" under circumstances that
aroused their suspicion. Tracy was employed as a night
janitor at the store when he cashed those tickets. Capps and
Onstad testified to having observed Tracy removing lottery
tickets from store dispensers while in the store for the
purpose of cleaning. Capps further testified that his audit
showed tickets with a total value of $1,000 to be missing,
and that after Tracy's arrest, the ticket thefts ceased.
Capps and Onstad also testified to having observed Tracy
remove between 50 and 70 cartons of cigarettes from a rack at
the front of the store. Onstad photographed Tracy in the
course of this activity. Capps testified that Tracy did not
have permission to exercise control over the cigarettes.
Both men testified that when Tracy returned from the storage
area at the back of the store, the shopping cart into which
he had placed the cigarettes was empty. Roth men also
testified that repeated searches failed to locate the
cigarettes. The value of the cigarettes was placed at over
From this evidence, a reasonable trier of fact could
conclude that Tracy obtained unauthorized control over
property valued at over $300 belonging to Thriftway, and
concealed or used it knowing that his actions would deprive
Triftway of the property. We conclude the evidence
introduced at trial was sufficient to sustain Tracy's
conviction.
II.
Tracy also argues that he was improperly sentenced as a
persistent felony offender. Tracy admits that he was
properly designated a persistent felony offender, but
disputes the court's imposition of a 50-year sentence with 40
years suspended. Section 46-18-502, MCA, provides the
criteria for sentencing a persistent felony offender:
(1) Except as provided in subsection (2), a
persistent felony offender shall be imprisoned in
the state prison for a term of not less that 5
years or more than 100 years or shall be fined an
amount not to exceed $50,000, or both, if he was 21
years of age or older at the time of the commission
of the present offense.
(2) If the offender was a persistent felony
offender, as defined in 46-18-501, at the time of
his previous felony conviction ... he shall be
imprisoned in the state prison for a term of not
less than 10 years or more than 100 years or shall
be fined an amount not to exceed $50,000, or both.
According to Tracy, the court incorrectly based its sentence
on subsection (2) of the statute. Tracy argues the court's
sentence amounts to imposing the minimum of 10 years for a
defendant who was a persistent felony offender at the time of
his previous conviction. Tracy was not designated a
persistent felony offender in his previous conviction, and he
argues that he should have received a sentence of only 5
years under subsection (1).
The State counters that Tracy could have been designated
a persistent felony offender in his previous conviction based
on his record at that time. The State argues that the
language of the statute does not require that the defendant
actually be designated a persistent felony offender in his
previous conviction in order to come under subsection (2).
A judge is vested with wide discretion when imposing a
sentence on a convicted defendant. If the sentence imposed
is within the limits provided by statute, it is not an abuse
of discretion. State v. Garrido (Mont. 1981), 621 P.2d 1105,
38 St.Rep. 78. Section 46-18-502(1), MCA, grants the judge
discretion to sentence a persistent felony offender to not
less than 5 or more than 100 years in prison. The sentence
imposed by the judge in this case is within the range
authorized by the statute. The judge did not abuse his
discretion in imposing a 50-year sentence with 40 years
suspended based on Tracy's designation as a persistent felony
offender.
We affirm the decision of the District Court.
&///.%-
Chief Justice
. A