I N THE SUPREME COURT OF THE STATE O F MONTANA
STATE O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-vs-
LARRY DUANE CHRISTOFFERSON,
D e f e n d a n t and A p p e l l a n t .
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APPEAL FROM: D i s t r i c t C o u r t of t h e ~ i g h t h u d i c i a l i s t r i c t , " . ~ M
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I n and f o r t h e C o u n t y of C a s c a d e , : o
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T h e H o n o r a b l e John M c C a r v e l , Judge p r e s i d i n g . 2; vi
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COUNSEL O F RECORD:
For A p p e l l a n t :
B e l l & M a r r a ; B a r b a r a E. Bell, Great Falls, Montana
For R e s p o n d e n t :
H o n . M a r c ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
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
p a t r i c k L. P a u l , C o u n t y A t t o r n e y , G r e a t F a l l s , M o n t a n a
S t e p h e n Hudspeth, D e p u t y C o u n t y A t t o r n e y , G r e a t Falls
S u b m i t t e d on B r i e f s : J u n e 1, 1 9 8 9
Decided: June 2 7 , 1 9 8 9
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
Defendant was found guilty by jury trial in District Court,
Eighth Judicial District, Cascade County, of the offenses of felony
burglary, in violation of section 45-6-204(1), MCA, and felony
sexual intercourse without consent, in violation of section 45-5-
503(1), MCA. Defendant was sentenced on November 9, 1988, to the
Montana State Prison to concurrent terms of ten years for each
offense with five years suspended on each offense. Christofferson
appeals only the issue of the burglary charge. We affirm.
The issue here is whether the District Court erred in denying
defendant's motion to dismiss the burglary charge at the close of
the State's evidence.
In December 1987 D.F. was residing in a split level home with
her three children, daughter K.F., daughter R.F., and son, M.F.
Also living in the house was G.T., who attended vocational school
in Great Falls.
Defendant was an acquaintance of D.F., and he had been over
to her house on several occasions. On Friday, December 4, 1987,
D.F. left Great Falls for the weekend. She took R.F. and M.F. with
her and left K.F. and G.T. at home. Defendant and D.F. had a
conversation before she left for Livingston. The evidence was
disputed, but defendant claims that he volunteered to check on the
children in Great Falls. According to him, D.F. did not say yes
or no. D.F., on the other hand, stated that she told him not to
bother checking on the children.
Defendant came from the bars in the Great Falls area to the
residence in the early hours of Saturday morning. G.T. and several
friends were watching television in the downstairs family room when
Christofferson came calling. G.T. testified that he recognized
defendant from his previous visits and defendant told G.T. that he
was checking on them because D.F. had sent him.
Defendant stayed for nearly an hour, started to leave and then
dropped a beer bottle on the floor. He cleaned up the spill, and
G.T. testified that defendant stated he was leaving and went
upstairs. G.T. heard the front door close.
G.T. came upstairs about one-half hour later and found
defendant still in the house. G.T. asked defendant what he was
doing and Christofferson assured G.T. that he was going to finish
his beer and then leave. G.T. left to go to the grocery store and
when he returned he did not see defendant. He returned downstairs
to the family room and was shortly thereafter alarmed by a loud
crash. K.F. ran downstairs calling for his help. G.T. went
upstairs and saw defendant in the yard with his pants unzipped.
K.F. had been upstairs watching television. After friends of
hers left, she changed into her pajamas (a tee shirt and underwear)
and went to lie on the couch and watch television before falling
asleep. She testified that she woke up when she felt someone's
hand in her underwear. She felt a finger penetrate her vagina.
She was turned on her back and the male figure performed oral sex
on her.
K.T. knew that it was a male and she could smell alcohol, but
it was too dark to see who the person was. When the male committed
oral sex, she kicked him and knocked him down and into a table.
At that point, she got up and ran downstairs toward G.T.
The only issue which challenges the decision of the District
Court is whether the District Court erred in denying defendant's
motion to dismiss the burglary charge at the close of the State's
case-in-chief.
On appeal, defendant does not contend that there was insuffi-
cient evidence to support his conviction of sexual intercourse
without consent. He does, however, appeal the decision of the
District Court that there was sufficient evidence regarding the
burglary charge to go to the jury for its consideration.
The standard of review is: #'The decision whether to dismiss
the charge or direct a verdict of acquittal lies within the sound
discretion of the trial court and will be disturbed on appeal only
when abuse is shown." State v. Just (1979), 184 Mont. 262, 277,
602 P.2d 957, 965; cited in State v. Goltz (1982), 197 Mont. 361,
372, 642 P.2d 1079, 1085; State v. Keil (Mont. 1988), 751 P.2d 680,
45 St.Rep. 532; State v. Matson (Mont. 1987), 736 P.2d 971, 44
St.Rep. 874. Based upon section 46-16-403, MCA, which states that
the District Court may dismiss an action and discharge the
defendant, [w] hen, at the close of the state's evidence ... the
evidence is insufficient to support a finding or verdict of
guiltyIgt have said that a verdict of acquittal may be directed
we
in favor of the defendant only if no evidence exists upon which to
base a guilty verdict. State v. Courville (Mont. 1989), 769 P.2d
44, 46 St.Rep. 338; State v. Matson, supra.
The evidence presented by the State to prove the burglary
charge was established through the testimony of G.T. G.T.
testified that when defendant appeared at the residence, he gained
entry by telling G.T. that D.F. had told him (defendant) to check
in on G.T. and K.F. D.F., however, stated that she told him not
to bother. Defendant acknowledged at trial that D.F. did not tell
him to go to the house. The defendant gained entry into the house
by deceit.
After being in the house, defendant twice told G.T. that he
was leaving. The first time Christofferson went upstairs, and G.T.
heard the front door close. The second time was when G.T. found
Christofferson still in the house some time later, asked him what
he was doing there, and was told by defendant that he was on his
way out.
Even after this, defendant continued to stay, committing the
act of sexual intercourse without consent upon K.F.
Burglary is defined in section 46-6-204, MCA, and provides:
(1) 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.
In the recently-decided case of State v. Courville, supra, we
were faced with a situation similar to that here. In Courville,
it was disputed whether defendant was invited or entered unlawful-
ly. The victim did not remember inviting defendant into her house
but testified that she did not mind if he stayed to sleep on the
couch. The victim went upstairs to her room and was later choked
and sexually assaulted by the defendant.
This Court, in Courville, pointed out that the burglary
statute was written in the disjunctive, that is, a person commits
the offense of burglary if he "enters or remains ~nlawfully.~~
Defendant contends that he was initially invited into the house.
Although this jurisdiction has not had previous opportunity to
consider whether entry by fraud, deceit, or pretense is an "unlaw-
ful entry, other jurisdictions have. The Kansas Supreme Court
held in State v. Maxwell (Kan. 1983), 672 P.2d 590, that entry into
a dwelling obtained by fraud, deceit, or pretense is an unautho-
rized entry for the purposes of burglary. We hold that the
defendant entered by deceit and was properly found guilty of
burglary.
Regardless of whether Christofferson entered unlawfully, there
was sufficient evidence to show that he remained unlawfully. In
Courville, we looked to State v. Watkins (1974), 163 Mont. 491, 518
P.2d 259, and State v. Mathie (1982), 197 Mont. 56, 641 P.2d 454,
where we stated: "when a person exceeds the limits of his privilege
by remaining on the premises longer than is permitted, he thereby
transforms his originally invited presence into a trespass that can
form the basis of a burglary charge."
The record establishes that defendant did not have the
privilege of entering D.F. Is residence on December 4, 1987, but,
even if he had entered with the privilege of doing so, he remained
unlawfully in the house when he committed the offense of sexual
intercourse without consent upon the person of K.F.
We hold that there was no abuse of discretion by the
District Court in denying defendant's motion for a directed verdict
regarding the burglary charge. There was sufficient evidence to
support the submission of the charge of burglary to the jury for
its determination.
Affirmed . <
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thief Justice
We concur: 1