No. 89-525
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1990
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
ANGEL0 MORENO,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t o f t h e Second 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 S i l v e r BOW,
The Honorable Mark P. S u l l i v a n , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Brad L . B e l k e , B u t t e , Montana
F o r Respondent:
Hon. Marc R 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 , 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 M. McCarthy, County A t t o r n e y ; Brad Nenman,
Deputy, B u t t e , Montana
S u b m i t t e d on B r i e f s : Jan. 11, 1990
Decided: F e b r u a r y 1 4 , 1990
Filed: .&
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Angelo Moreno was convicted of felony burglary in the District
Court of the Second Judicial District, Silver Bow County. He
appeals. We affirm.
The sole issue on appeal is whether the evidence is sufficient
to support the jury's verdict of guilty.
On November 11, 1988, between 7:30 and 9:00 p.m., Karen
Barclay1s home in Butte, Montana, was burglarized. Barclay
reported the burglary, and the police took an inventory of the
missing property, which included a color TV, a compact disc player,
a VCR, and numerous items of jewelry. One week later, a gold Seiko
watch matching the description of one taken in the Barclay burglary
was located at a Butte pawnshop.
Barclay identified the watch in the pawnshop as hers. The
pawn receipt was in the name of Cheryl Fleischaker. Fleischaker
told the police that she had received the watch as a gift from
Terri Sullivan May. When May was contacted, she told the police
officer that she had received the watch from defendant's wife on
November 11, 1988, as payment for babysitting.
May then gave a statement to police that she was at the Moreno
house on November 11, 1988, at approximately 10:OO p.m. She stated
that Moreno and another man entered the house and went into the
bathroom, along with Moreno1s wife. May said that when Moreno1s
wife came out of the bathroom, she showed May numerous items of
jewelry and gave May the watch and a necklace. May also stated
that the men said, "That is the house we just hit,'' when a police
scanner in the house gave the address of the Barclay burglary.
May produced the necklace Moreno1s wife had given her, and
Barclay identified it as hers. A search warrant was obtained for
Moreno1s house and a piece of a silver chain was found on a
bookshelf in the house. Barclay identified the chain as hers.
Barclay, Fleischaker, May, and two police officers testified
at trial for the State. Moreno produced five witnesses. All
relatives of his, they testified that Moreno had been at a family
birthday party at Pizza Hut from 7:00 p.m. to 10:OO p.m. on
November 11, 1988. Moreno1s brother and sister-in-law testified
that Moreno had been at their house most of the day on November 11,
1988, and that they had given him a ride from their home to the
birthday party. Moreno took the stand and gave testimony consis-
tent with that of his family, denying any connection with the
burglary.
Is the evidence sufficient to support the jury's verdict of
guilty?
Moreno asserts that the State failed to meet its burden of
proving that he was ever at or inside the Barclay residence or that
he had possession or control of any of the missing property. He
also argues that the testimony of May, the State's chief witness,
should have been viewed with distrust. He asserts that she should
be treated as an accomplice because if her testimony is to be
believed she knowingly received stolen property.
This Court's function on review of the sufficiency of the
evidence for a criminal conviction is to determine whether any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia (1979),
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573, first
cited by this Court in State v. Rodriguez (Mont. 1981), 628 P.2d
280, 283, 38 St.Rep. 578F, 5781.
An accomplice is one who unites with the principal offender
in the commission of a crime, and a receiver of stolen property is
not an accomplice of the thief of that property. State v.
Rodriguez (1987), 228 Mont. 522, 524, 744 P.2d 875, 876-77. There
is nothing in the record to indicate that May had anything to do
with the commission of the burglary. Therefore we conclude that
there was no need for the jury to be instructed that May's
testimony must be viewed with distrust.
There is a definite conflict in the evidence between the
testimony of May about Moreno's whereabouts and activities on the
evening of November 11, 1988, and the testimony of Moreno and his
family members on the same subject. The credibility of witnesses
and the weight to be assigned to their testimony are to be
determined by the trier of fact, and disputed questions of fact and
credibility will not be disturbed on appeal. State v. Green
(1984), 212 Mont. 20, 23, 685 P.2d 370, 371-72.
Viewed in the light most favorable to the State, the evidence
in this case showed that the Barclay residence was burglarized
between 7:30 and 9:00 p.m. on November 11, 1988; that Moreno was
not authorized to be in the Barclay residence; that later that
night Moreno and a companion arrived at Moreno1s house and went
into the bathroom with Moreno1s wife, who then came out and gave
two pieces of jewelry stolen from Barclay1s house to May; that
Morenols companion commented that Barclay1s address heard on a
police scanner I1is the house we just hit;" that several weeks
later, during a search of Moreno1s home pursuant to a search
warrant, a third piece of jewelry stolen in the Barclay burglary
was found on a bookshelf. Moreno concedes that circumstantial
evidence may be sufficient as a matter of law to support a criminal
conviction. We hold that, based on the facts adduced at trial, a
rational trier of fact could have found Moreno guilty of the
essential elements of burglary beyond a reasonable doubt.
Affirmed.
We concur: