No. 92-168
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
CHARLES D. PIERCE and
W I T N E Y H. FERDINAND,
Defendants and Appellants,
APPEAL FROM: District Court of the Tenth ~udicial~istrict,
In and for the County of Judith Basin,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Bradley 3 Parrish, Attorney at Law, Lewistown,
.
Montana
Craig R. Buehler, Attorney at Law, Lewistown,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Paul D.
Johnson, Assistant Attorney General, Helena,
Montana
James A. Hubble, Judith Basin County Attorney,
Stanford-,Montana
Submitted on Briefs: October 9, 1992
Decided: November 24, 1992
Fil
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
T h i s is an appeal f r o m the Tenth Judicial ~istrict, u d i t h
~
Basin County, the Honorable Peter L. Rapkoch presiding. Appellants
Charles Pierce (Pierce) and Whitney Ferdinand (Ferdinand) were
found guilty of felony burglary and felony theft after a bench
trial on September 9, 1991. Pierce and Ferdinand appeal on the
grounds that the ~iatrictCourt improperly denied their motion for
reduction of the burglary charge to criminal trespass and their
motion to dismiss the felony theft charge and replace it with a
misdemeanor theft charge. We affirm.
On ~ p r i l10, 1991, Pierce and Ferdinand were traveling west on
Montana Highway 87, en route from Billings to Kalispell. Pierce
was driving a pickup truck the pair had used to deliver a trailer
for Pierce's family business in Kalispell. At Windham they turned
off the highway onto an unpaved lane and drove about a quarter of
a mile into the yard of an old farmstead known locally as the Ray
place. It was 7:30 in the evening, still light enough for a
witness to see the pickup turn off the highway and park in the
farmyard. The witness was Ray Sherer, who leased the property and
lived in a trailer at the junction of the lane and the highway.
Sherer testified that he saw the truck stop near a bunkhouse.
He telephoned the property owner, John Tripp, who also lived at the
junction of the lane and the highway, and asked whether he had
given anyone permission to drive into the farmyard. T r i p p said he
had not, so Sherer called the sheriff . Then, watching through
binoculars, he saw a man, later identified as pierce, use an
2
eighteen-inch bar to break the padlock off the bunkhouse door.
By the time Undersheriff John Shilling arrived, five to ten
minutes later, Pierce and Ferdinand had removed several items from
the bunkhouse and placed them in the pickup. They had also broken
the padlock on the back door of the farmhouse, but before they
could remove anything from the house, Sherer and Shilling had
driven into the farmyard. Shilling testified that he looked into
the bed of the pickup truck at that time and saw an old school
desk, a box containing several miscellaneous items, and a wall
clock. He advised Pierce and Ferdinand of their rights and placed
them under arrest. After the sheriff arrived, Pierce acknowledged
that the items in the pickup truck, including two items in the cab,
had come from the bunkhouse.
Ferdinand's motion to sever her case from Pierce's was denied,
and the two were tried as co-defendants. The District Court heard
the evidence after the two defendants waived jury trial, and on the
same day Judge Rapkoch and the three attorneys visited the Ray
place. On the basis of the evidence presented at trial and his
personal observation, Judge Rapkoch found that the bunkhouse and
farmhouse Pierce and Ferdinand had broken into were "occupied
structuresu and ruled that their offense therefore was burglary
under § 45-6-204(1), MCA. He also ruled that the retail value of
$416 assigned to the stolen items by the State's expert witness was
the relevant value for determining whether the defendants were
guilty of misdemeanor theft or felony theft, and found them guilty
of felony theft under § 45-6-301(6), MCA.
Pierce, who had a prior burglary conviction and several DUI
convictions on his record, received a five-year suspended sentence
and was fined $500. Ferdinand, who had no prior criminal history,
received a two-year deferred sentence and was fined $250. Both
were ordered to pay costs, restitution, and a $20 surcharge.
The issues on appeal are:
1. Whether the State presented sufficient evidence that the
buildings Pierce and Ferdinand entered were "occupied structuresM
so as to support a burglary conviction.
2. Whether the State presented sufficient evidence of the
value of the stolen property to support a conviction of felony
theft.
I
When sufficiency of evidence is at issue on appeal, our
standard of review is whether, after reviewing the evidence in a
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. State v. Bower (Mont. 1992), 833 P.2d 1106,
1110, 49 St.Rep. 586, 588.
Burglary is a felony under 5 45-6-204, MCA, and occurs when a
person "knowingly enters or remains unlawfully in an occupied
structure with the purpose to commit an offense therein." The
first issue on appeal is whether the State presented sufficient
evidence that the buildings Pierce and Ferdinand entered were
lloccupied
~tructures.~~
Appellants argued that the buildings at the
Ray place were not occupied structures, and that their offense
therefore was merely criminal trespass, a misdemeanor under 5 45-6-
203, MCA. An occupied structure is defined in 5 45-2-101 (40), MCA,
any building, vehicle, or other place suitable for human
occupancy or night lodging of persons or for carrying on
business, whether or not a person is actually present.
Testimony at the trial established that no one had lived at
the Ray place since 1964; that neither the farmhouse nor the
bunkhouse had electricity, heat, or running water; and that the
house smelled strongly of wild animals and had a leaking roof.
Nevertheless, both Sherer and the sheriff testified that they had
seen people living in places "a lot worse."
Tripp, who had owned the Ray place since 1947, lived in the
house from 1948 to 1952 and now used both the farmhouse and the
bunkhouse to store old furniture and appliances. Sherer used the
bunkhouse to store fence posts. Tripp visited the house and
bunkhouse about once a month, sometimes to poison mice and
sometimes just to look around. No one had stayed overnight in the
house or in the bunkhouse since 1964.
In considering the defendants' motion to reduce the charge
against them to criminal trespass, Judge Rapkoch observed that the
bunkhouse was tight and of sound construction, though old, and was
suitable for storage and safekeeping of antique items. Such
buildings, he said, "have unique and personal value in themselves
or are used as natural places for the storage of property which
itself has real value to the owners. . . . The owners of such
'mini-ghost towns1 ... are entitled to have them respected."
Therefore, the court concluded, the bunkhouse was an occupied
structure at the time of the offenses charged.
Under the rule we established in State v. Sunday (1980), 187
Mont. 292, 609 P.2d 1188, a structure suitable for carrying on
business and used regularly for that purpose is an "occupied
structure," and wrongful entry thereto for the purpose of
committing an offense is burglary. Here, the bunkhouse was used
regularly by the lessee, Sherer, to store materials needed for his
farming business, and by the owner, Tripp, to store household
goods. It is an occupied structure, suitable for use in the
lessee's farming business, just as the tack shed in Sundav was an
occupied structure suitable for carrying on the owners* horse
rental business.
We hold that any rational trier of fact could have found the
essential elements of the crime of burglary in this instance. The
two defendants admitted that they had broken into the bunkhouse, an
occupied structure, for the purpose of finding and taking away
antique objects. The District Court properly found them guilty of
burglary under 5 45-6-204, MCA.
II
The second issue is whether the State presented sufficient
evidence to sustain a conviction of felony theft. A person commits
theft when he "purposely or knowingly obtains or exerts
unauthorized control over property of the owner and has the purpose
of depriving the owner of the property.'* Section 45-6-301(l), MCA.
If the property exceeds $300 in value, the theft is felony theft
under f 45-6-301(6)(b), MCA. The value of stolen property is the
market value at the time and place of the crime. Section 45-2-
101(69) (a), MCA.
Pierce and Ferdinand removed the following objects from
Tripp's bunkhouse:
Seth Thomas wall clock
Two photographs in leather cases
School desk
Oil lamp with chimney
Shaving mug with three brushes
Hand crank telephone
Wall mirror with thermometer
Square glass bottle with cork
Schilling spice can
Boraxo hand cleaner can
Car wash compound
At the trial the State called Patricia Lee Stoos, a school teacher
and part time antique dealer who had examined the stolen items in
May 1991. She testified that the retail value of these items was
$416, though she would pay only $219 if she were to buy them for
future resale. If the clock were restored, she said, it alone
would be worth $400, though in its present condition its retail
value was only $225.
Appellants argue that the relevant value of the stolen items
was the wholesale value, or $219, because the owner, Tripp, was not
a retail merchant. Appellants distinguish State v. Barker (1984),
211Mont. 452, 455-56, 685 P.2d 357, 359-60, in which we held that
the retail value of a pair of boots stolen from a clothing store
was the market value for the purpose of deciding whether the
defendant was guilty of felony theft:
It was not error to instruct that the market value of the
boots meant their retail price. . . . Certainly here the
wholesale price of the merchant could not be considered
their market value. . .
. The price at which the merchant
offers to sell his merchandise ordinarily is its market
value, though not always.
We have applied this rule to property stolen from nonmerchants like
Tripp as well as to property stolen from merchants. In State v.
Fox (1984), 212 Mont. 488, 689 P.2d 252, for example, we found that
testimony by the owner of a retail computer store was sufficient
evidence of the value of computer equipment stolen from an
apartment. See also State v. Dess (1984), 207 Mont. 468, 674 P.2d
502 (value of bicycles stolen from private owner was established by
testimony from retail bicycle shop owners).
The weight of the evidence and the credibility of the
witnesses are exclusively the province of the trier of fact. State
v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. When
conflicting evidence of value is presented, it is for the trier of
fact to determine which evidence is dispositive. State v. Ramstead
(1990), 243 Mont. 162, 170-71, 793 P.2d 802, 807. Here, any
rational trier of fact could have found that the retail value
assessed by a local antique dealer was in fact the market value of
the stolen goods. The District Court properly adopted that value
in denying the appellants' motion to dismiss the felony theft
charge.
AFFIRMED.
We c o n c u r :
November 24, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Bradley B. Parrish
Attorney at Law
209 Bank Electric Bldg.
Lewistown, MT 59457
Craig R. Buehler
Attorney at Law
505 West Main St., Ste. 210
Lewistown, MT 59457
Hon. Marc Racicot, Attorney General
Paul D. Johnson, Assistant
Justice Bldg.
Helena. MT 59620
James A. Hubble
Judith Basin County Attorney
P.O. Box 556
Stanford, MT 59479
ED SMITH
CLERK OF THE SUPREME COURT