Matter of E.B.G

No. 92-304

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF E.B.G.,
a Youth,
Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe E. Hegel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Mark S. Werner, Attorney at Law,
Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General;
Micheal S. Wellenstein, Assistant Attorney
General, Helena, Montana; John S. Forsythe,
Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: October 2 9 , 1 9 9 2
Decided: April 2 9 , 1993
Justice R. C. McDonough delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District Court,
Rosebud County, of a conviction of a minor for possession of stolen
property. We affirm.
The sole issue on appeal is whether there was sufficient
evidence to support the conviction under 5 45-6-301(3), MCA.
On September 27, 1991, the State filed a petition for a youth
hearing alleging that the minor, E.B.G., was a delinquent youth
because he violated 5 45-6-301(3), MCA, by committing the offense
of possession of stolen property. The petition alleged that he
Itknowinglyobtained control over stolen property, No. 1 and No. 2
copper wire, of a value of more than $300 owned by Prince Inc.,
knowing the property to have been stolen by another and used,
concealed or abandoned the property in such a manner as to deprive
the owner of the property." The youth denied the charge and a
trial was held. E.B.G. was found guilty by a jury and was later
found to be a serious juvenile offender by the District Court
judge. He was ordered committed to Pine Hills School and ordered
to pay restitution in the amount of $7,047, the replacement cost of
the wire.
Sometime between Monday, August 12, 1991, and Friday, August
16, 1991, David Quenzer (Quenzer) discovered that a large amount of
wire was missing from his place of business, Prince Inc. Quenzer
had seen the wire on Monday, August 12, but on Friday, August 16,
he saw two empty pallets leaning against a boxcar used for storage
of wire. He could see patterns of dust rings on the empty pallet
2
empty pallet where the wire had been. Quenzer called the police.
He then started to call people in the recycling business and upon
calling Border Steel, a recycling center in Glendive, Montana,
Quenzer learned that they had received wire on the previous day
that was similar to the wire which had been stolen.
The wire received at Border Steel on Thursday, August 15,
1991, was brought in by E.B.G. of ENT Recycling in Forsyth,
Montana. Bret Smelser, part owner and manager of Border Steel,
stated during trial that either E.B.G. or D.H., a youth assisting
E.B.G., told him that the wire had been brought into ENT on
Wednesday, August 14. E.B.G. told Smelser that he and his friend,
D.H., burned the copper wire Wednesday night and early Thursday
morning in South Dakota and then drove to Border Steel in Glendive.
Smelser bought most of the wire brought in by E.B.G., but did
not accept some wire which was unburned and some clamps and
connectors. E.B.G. told Smelser that he would clean those items
and sell them to Border Steel at a later date, so they were placed
back in the ENT truck.
Officer Skillen, a deputy sheriff with Rosebud County
Sheriff's Department, investigated the case. He went to Border
Steel where he interviewed Mr. Smelser and examined some wire from
their storage area. Skillen examined No. 1 and No. 2 wire which
were identified as wire brought in by E.B.G., as well as some
connectors. The officer took several samples of wire and a Hubbel
connector that had been brought in by E.B.G.
The investigating officer also examined the scene of the theft
and took photographs of the area. He found an area within the
boxcar, where wire was stored, that contained multiple footprints.
The footprints appeared fresh and there were "three relatively
different types of prints." The officer stated that he was led to
believe that the area was the same as it had been since the theft.
officer skillen also applied for a search warrant to search
ENT, E.B.G.'s place of business. The search of ENT involved
Officer Skillen, Sergeant McComb and Quenzer, and occurred on
August 21. The search yielded some wire, which Quenzer stated
looked like wire taken from Prince Inc., some brass clamps and some
connectors. Smelser had previously told Officer Skillen about t h e
wire, connectors and clamps which had been rejected by Smelser and
returned to E.B.G. This information formed the basis of the
search. Officer Skillen took several samples of the wire as well
as two couplers during the course of his search.

officer Skillen also learned t h a t the wire "had been brought
in by Justin Smith within a relatively short period of time." The
officer asked for a receipt for the wire purchased by ENT from
Smith and he was led to believe that the receipt should not be hard
to locate because Smith had recently brought the wire into ENT.
E.B.G.Is father, t h e manager of ENT, was going to locate t h e
receipt and bring it to Skillen but it was never brought to him.
As another step in Officer Skillen's investigation of the
stolen wire, he took statements from E.B.G. and E.B.G.Is father on
August 23, 1991. E.B.G. stated that he understood that Justin
Smith brought in a lot of wire and he had borrowed E.B.G.'s
father's truck to haul the wire. E.B.G also stated that his dad
told him that Justin received the wire from Justin's dad. When
asked what time E.B.G. left from Forsyth to Glendive, he stated
that it was around 12:30 or 1:00 and he drove right to Glendive.
When pressed by the detective as to where the wire came from,
E.B.G. stated that:
Well, we got, like I said, that one pile Justin smith
brought in quite a bit back there, but I was in school
and I just, I never seen what the weight was and stuff.
And he worked out -- he worked for us for awhile so --
and we had him cutting tanks out there and stuff and
that's the time that he took it.
The officer asked: "At princes'^?^^ and E.B.G. stated that they were
cutting iron out there. Then the officer asked if E.B.G. knew that
Justin took it from Prince's and E.B.G. replied that "He said his
dad gave it to him. I'm not familiar where his dad lives or
anything." Officer Skillen asked whether the wire was in the same
condition when Smith brought it in as when E.B.G. took it to
Glendive or if he had to clean it. E.B.G. answered "Most of it,
like the No. 1, we had some No. 1 that we had to clean up." Q.

That you stripped; it wasn't burned?" "Yes", answered E.B.G.
When Mr. G., E.B.G.'s father, was interviewed, he stated that
he and his wife kept the business records. He further stated that
Justin Smith had brought in a large supply of wire but he did not
specify to the officers when the wire was brought in. He explained
that when he called Smelser (Border Steel) to negotiate on the
price of the wire on August 15 and he told Smelser the wire had
come in on the previous day, he meant that "it was loaded up onto
my vehicle to be finished prepared." He said that although E.B.G.
5
owned the business, Mr. G. controlled the money and E.B.G. He also
later reported that Justin Smith brought the wire in on November
20, 1990. He also related that E.B.G. cashed the check for the
wire in Glendive, put some gas in the car and bought food for
himself and D.H., who had assisted E.B.G. E.B.G. turned the
remainder of the money over to Mr. G. upon his return to Forsyth.
Justin Smith testified that he had never brought in a large
amount of copper wire but that he had helped Rob Watson bring in
about 20 pounds at one time. He stated that he helped bring in
that wire in November of 1990. He further related that he had
borrowed Mr. G. Is pickup truck at one time but had never used it to
pick up wire. Finally, he stated that he could not have delivered
wire to ENT in July or August of 1991 because he was working from
April 27 to August 23 or 24 of 1991 on the Colorado River in
Arizona.
Our standard of review is "[wlhether, after reviewing the
evidence in the 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. Brown (1989), 239
Mont. 453, 456-57, 781 P.2d 281, 284. (Citation omitted.)
Section 45-6-301(3), MCA, the statute at issue, reads:
(3) A person commits the offense of theft when he
purposely or knowingly obtains control over stolen
property knowing the property to have been stolen by
another and:
(a) has the purpose of depriving the owner of the
property;
(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to deprive the
owner of the property; or
(c) uses, conceals, or abandons the property knowing
 such use, concealment, or abandonment probably will
deprive the owner of the property.
E.B.G. argues that there was no proof that the wire had been
stolen by another and there was no proof that the youth knew that
the wire was stolen at the time he received the property. Each of
these arguments will be taken in turn.
First, the State has provided sufficient evidence for a jury
to conclude that E.B.G. knew that the wire was stolen. E.B.G.
contends that "[tlhere is absolutely no evidence in the record to
show that at any period between August 12 and August 15, when the
youth would have had physical possession of the wire, that he knew
that it was stolen." The State counters that he would not have
burned the insulated copper wire and sold it as scrap unless it was
stolen. According to Dave Quenzer, the wire, if insulated, would
be worth three to six dollars per foot and he estimated that the
wire which was stolen was worth $5000 to $6000. Bret Smelser
stated that he bought most of the wire that E.B.G. brought him but
did not accept some of the wire because it was not completely
burned. E.B.G. told Smelser that he would clean the unburned
copper later and sell it to Smelser. In total, Smelser purchased
784 pounds of No. 1 wire and 986 pounds of No. 2 wire for a total

of $1,318.80. The burning of the insulated copper wire to sell for
scrap at a much lower price is evidence that could lead a jury to
determine that E.B.G. knew the wire was stolen and therefore tried
to change its appearance.
Further, E.B.G.'s inconsistent statements may have damaged his
credibility before the jury. Bret Smelser said that E.B.G. told
7
him that he and D.H. had burned the wire in South Dakota on
Wednesday night and early Thursday morning and then they drove from
South Dakota to Glendive. However, when E.B.G. was interviewed by
Officer Skillen, he stated that he drove straight to Glendive after
leaving Forsyth between 12:30 and 1:OO. He did not mention burning
the wire and told Officer skillen that the wire had been stripped,
not burned. E.B.G.'s companion, D.H. testified at trial that they
took the wire to Buffalo, South Dakota, to burn on Thursday, August
15. They left at about seven or eight o'clock that morning and
then drove to Glendive, Montana, to Border Steel after burning the
wire.
E.B.G. also made contradictory statements about how ENT had
acquired the copper wire. When Officer Skillen asked E.B.G. during
the taped interview where the wire he sold to Border Steel had come
from the following discussion took place:
Okay. Well, I guess where we're at is this.
Prince's had about 2000 pounds of wire stolen in
August. They'be identified the connectors and
they've identified the wire as being theirs.
Yes.
Okay. You brought that wire to Glendive?
Yeah, I did.
So the bottom line is where did you get the wire
from?
We've had a lot of wire held up for a long time.
You see what I'm saying, if that amount of wire was
taken, No. 1 and No. 2, it was insulated?
Yes.
Two thousand pounds approximately sometime the
second week of August, maybe the first or second
week of August it was noticed; so those connectors
and stingers and leads were all on that wire when
it was in Glendive and it was identified, okay? So
some of that wire, if not all, had to have come
from Prince1 s.
Yes.
So what I need from you is a logical explanation of
 where you got the wire from?
A. Well, we got, like I said, that one pile Justin
Smith brought in quite a bit back there, but I was
in school and I just, I never seen what the weight
wasand stuff. And he worked out --
he worked for
us for a while so -- and we had him cutting tanks
out there and stuff and that's the time that he
took it.
Q. At Princes's?
A. Yeah, when we were cutting iron out there.
Q. Do you know that he took it from Prince's?
A. He said his dad gave it to him. I'm not familiar
where his dad lives or anything.
"This Court has recognized that 'possession of stolen
property, accompanied by other incriminating circumstances, and
false or unreasonable explanation by the suspect is sufficient to
sustain a conviction.. . ' " State v. Ramstead (1990), 243 Mont. 162,
170, 793 P.2d 802, 807. (Citation omitted.)
Second, the State has provided sufficient evidence for a jury
to conclude that the wire was stolen by another. E.B.G., himself,
stated during his taped interview with Officer Skillen, that Justin
Smith had taken the wire when he was working for ENT cutting up
scrap iron at Prince, the scene of the theft.
"The weight of the evidence and credibility of the witnesses
is exclusively the province of the trier of fact. If the evidence
conflicts, it is within the province of the trier of fact to
determine which shall prevail." Brown, 781 P.2d at 284. (Citation
omitted.) In the instant case, there was sufficient evidence for
the jury to determine that the State proved all elements of 5 45-6-
3Ol(3), MCA. Affirmed.

We Concur:
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. I would reverse the
judgment of the District Court for the reason that there was
insufficient evidence to support a conviction under 5 45-6-301(3),
MCA .
Under the above statute, the youth in this case was charged
with theft for obtaining control over stolen property knowing the
property to have been stolen by another. However, there was no
evidence that the copper wire which the youth was accused of having
illegally received was stolen by another. According to our prior
case law, the absence of that proof was fatal to the State's case.
In Statev. Hernandez (1984), 213 Mont. 221, 224, 689 P.2d 1261,

1262, we held that to sustain a conviction under the statute with
which this youth was charged "requires proof that the property must
have been stolen by someone other than the receiver. "

Here there was no evidence of who stole the copper wire. In
fact, during his closing argument the prosecutor argued that:
[I]f he [E.B.G.] stole the wire he is guilty of theft.
And another does not mean that if he stole the wire he is
not guilty of this offense, that there was anyone else
involved in it[,] he is just as guilty of this offense.
However, that argument was incorrect as a matter of law. If
the youth in this case actually participated in the theft of the
wire, then he was, in effect, convicted of receiving the wire from
himself. In Hernandez, we ruled out that scenario when we held that:

Here the charge essentially was that defendant received
stolen property from himself. Defendant was charged with
 . . purposely or knowingly obtaining control over
...
'I.

stolen property knowing the property to have been
...
stolen by Matt Hernandez ."
[the defendant here] In
Peoplev. B e e (1968), 91 Ill. App. 2d 166, 234 N.E.2d 400,
the Illinois court set forth the elements to prove
receipt of stolen property, one of them being a
requirement that the property was stolen by a person
other than the one charged with receiving the property.
Applied here, the defendant could not be convicted of
stealing the coins, and later be convicted of receiving
those coins from himself.
Hernandez, 689 P.2d at 1262-63.

The State argues on appeal that this case is distinguishable
from Hernandez since in that case there was actual proof that the

defendant had stolen the coins, and in this case, the State offered
no proof that E.B.G. participated in the actual theft of the copper
wire. However, the fact that the State did not attempt to disprove
its case did not relieve it of the obligation to offer proof on
each element of the crime with which E.B.G. was charged. To
sustain a conviction, the State has the burden of proving that
every element of the crime occurred beyond a reasonable doubt. In
this case, one such element is that the property was received by
the youth from another.
The State also argues that based on the number of footprints
found at the scene of the crime, and the weight and length of the
wire that was stolen, there was evidence that more than one person
participated in the theft of the wire. However, the mere fact that
several people participated in the theft of the wire does nothing
to suggest that E.B.G. was not among those several people. If he
was, he was just as guilty of theft under S 45-6-301(1), MCA, as
the others who participated, and according to Hernandez, could not

be subject to criminal conviction for stealing the wire and later
be convicted of receiving the wire from himself.
Finally, the State argues, and the majority seems to accept,
that since E.B.G. stated in a tape recorded interview with the
investigating officer that he had in fact received the wire from
Justin Smith, that statement was sufficient to prove that he
received the wire from another. However, both the State and the
majority are selective about the weight they chose to give to
E.B.G.'s statement about Smith.
When discussing the credibility of that statement for other
purposes, the State referred to it as an "incredible explanation of
how E.B.G. acquired the wire." In its brief, the State pointed out
that:
E.B.G. told Skillen that ENT had accumulated some of the
wire and Justin Smith had brought in "quite a bit" of the
wire. E.B.G. then explained that Smith stole the wire
from Prince when Smith was cutting steel for ENT at
Prince's. Tony, after giving various accounts prior to
trial of when Smith had brought the wire to ENT,
testified that Smith brought the copper wire to ENT on
November 20, 1990. The time frame of the theft and
Smith's employment with ENT made it impossible for him to
have stolen the insulated copper wire from Prince's when
cutting up steel there for ENT. Smith had worked for ENT
for two months in the fall of 1990. In October 1990,
while working for ENT, Smith cut up steel at Prince, Inc.
The theft of the insulated copper wire occurred sometime
between August 12 and August 16, 1991. Accordingly, it
was impossible for Smith to steal the wire from Prince
while he was salvaging steel there for ENT, because the
theft had not yet occurred, and would not occur for
approximately a year. Also, Smith could not have stolen
the wire in August 1991 because he was working in Arizona
at that time. Furthermore, Smith denied that he had
brought in a large amount of wire to ENT. The jury, as
 trier of fact, clearly did not believe E.B.G. 's
incredible and impossible explanation of how ENT acquired
the copper wire.
Brief of Respondent, pp. 11-12.
Likewise, the majority opinion points out that the wire was
stolen sometime between August 12, 1991, and August 16, 1991. The
majority refers to E. B.G. 's statement that he received this wire
from Smith in November 1990 as an example of why he had poor
credibility before the jury, and then turns around later in the
same opinion and uses that same statement as the only basis for
supporting the jury's finding that the wire was in fact received
from another.
The fact is that the wire could not have been stolen by Smith
because it was not taken during the time that Smith was working on
Prince's property, and Smith was out of state at the time that the
wire was taken.
There was absolutely no evidence that the wire stolen from
Prince, Inc. , was stolen by anyone other than E. B. G. E.B. G. cannot
be convicted under 5 45-6-301(3), MCA, of receiving stolen property
that he himself stole. Since there was not substantial evidence
for each element of the crime with which the youth was charged, I
would reverse his conviction and dismiss the complaint against him.

Justice Karla M. Gray co

Justice William E. Hunt,
,