No. 94-390
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jock B. West, West, Patten, Bekkedahl & Green,
Billings, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
John Bohlman, Musselshell County Attorney, Roundup,
Montana
Submitted on Briefs: October 19, 1995
Decided: January 18, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
On October 5, 1993, Ronald Treible, Jr. was found guilty by a
jury of felony theft in the Fourteenth Judicial District Court,
Musselshell County and was sentenced to two years deferred.
Defendant appeals his conviction.
We affirm.
The sole issue on appeal is whether, following the completion
of the trial, the District Court erred in denying defendant's
motion for a directed verdict for failure to prove elements of
felony theft.
FACTS
On January 23, 1993, the owners of the Melstone Bar and
Cafe, Melvin and Judy Metzger, called the police to report their
bar had been broken into and that there were several missing items,
including chewing tobacco, cigarettes, hard liquor, a bottle of
champagne, several cases of beer, five pounds of hamburger, and a
bag of shrimp. The day after the break-in Melvin Metzger received
an anonymous phone call that a bottle of liquor taken from the Bar
could be found at the Murnion shop, a local garage. Mr. Metzger
called the information to Deputy Sheriff Fischer, the investigating
officer.
Deputy Fischer went to the Murnion shop and asked to look
around. While there, he observed a bottle of Crown Royal on the
shop bench. Knowing this was one of the items missing from the
Bar, the Deputy asked to search the adjoining trailer house. At
the time, defendant was renting a room at the Murnion trailer.
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After searching the Murnion trailer, Fischer seized almost two
cases of bottled beer, an empty champagne bottle, unopened
cigarettes, a piece of plastic wrap, two pieces of waxed paper, and
several empty beer boxes and bottles. Fischer then questioned
B.J. Murnion who told Fischer the names of the people who had
attended a party in the trailer the previous evening. Fischer
contacted these people for statements.
Upon learning that J.B. Benson was one of the people present
at the party, Fischer obtained permission to search Benson's
trailer. In that search, the Deputy seized chewing tobacco,
another bottle of Crown Royal, a fifth of Jim Beam, a bottle of
Jack Daniels, close to three cases of beer, forty lottery tickets,
cigarettes, and several empty beer bottles and cans.
According to the testimony provided at trial, several people
had attended a party at the Murnion trailer on the night of the
break-in at the Bar. Sometime after 2:00 a.m., J.B. Benson, Barry
DeJaegher and defendant left the party and later returned with
several cases of beer.
Following the investigation J.B. Benson, Barry DeJaegher and
defendant were charged with burglary of the Melstone Bar and Cafe.
A trial was conducted on October 4, 1993. The jury found defendant
guilty of felony theft on the basis of a lesser included offense
instruction offered by the State.
The sole issue on appeal is whether, following the completion
of the trial, the District Court erred in denying defendant's
3
motion for a directed verdict for failure to prove elements of
felony theft.
Defendant does not challenge the validity of the lesser
included offense instruction on felony theft, but rather challenges
the sufficiency of the evidence to sustain the jury's verdict.
The standard of review for a District Court's decision on a
motion for a directed verdict is the same standard that applies to
a decision on a motion to dismiss due to insufficient evidence.
State v. Downing (1989), 240 Mont. 215; 217, 783 P.2d 412, 414.
The motion should only be granted when there is no evidence upon
which a trier of fact could render a verdict. State v. Lyons
(1992), 254 Mont. 360, 363, 838 P.2d 397, 399.
Felony theft is defined by 5 45-6-301, MCA (1993), set forth
in part as follows:
(1) A person commits the offense of theft when the person
purposely or knowingly obtains or exerts unauthorized
control over property of the owner and:
(a) has the purpose of depriving the owner of the
property;
. . .
(b) A person convicted of the offense of theft of
property exceeding $300 in value or theft of any commonly
domesticated hoofed animal shall be fined not to exceed
$50,000 or be imprisoned in the state prison for any term
not to exceed 10 years, or both.
Defendant contends that this Court reversed the conviction of
J.B. Benson, who had also been charged in connection with the
break-in at the Melstone Bar. J.B. Benson was convicted of the
crime of burglary. We held the State had failed to prove by either
direct or circumstantial evidence that J.B. Benson had unlawfully
4
entered the Melstone Bar with the purpose of committing an offense.
A conviction of burglary may be upheld if possession of stolen
property, accompanied by other incriminating circumstances, and a
false or unreasonable explanation by the accused is shown. State
v. Benson (1994), 266 Mont. 415, 418, 860 P.2d 1338, 1340.
Because the jury convicted defendant of the crime of felony
theft as a lesser included offense of burglary, we need not discuss
the elements of burglary. The testimony shows that the defendant
had unauthorized control over the property of the Metzgers
depriving them of the property.
The defendant rented a room in the Murnion trailer. Defendant
testified he was paying rent for the trailer at the time of the
robbery, but claims that he did not stay there very much and
actually resided with his parents at the family ranch. On the
night of the robbery defendant spent some time at the trailer alone
prior to the robbery, was there with friends after the robbery and
spent the night there.
The evidence showed that items taken from the Bar were found
in the Murnion trailer in the common areas used by all of the
occupants of the trailer. Stolen merchandise was found in the
kitchen, in the refrigerator and in the garbage can. In addition,
Deputy Fischer testified that he found four packs of unopened
Marlboro cigarettes in the defendant's bedroom in the Murnion
trailer.
Judy Metzger identified the plastic wrap found in Murnion's
trailer as the wrap used to cover hamburger patties at the Cafe.
5
She also identified the wax paper found in Murnion's trailer as the
same kind of paper she used to separate the patties before wrapping
them in plastic.
Melvin Metzger identified the bottle of Jim Beam by its
handwritten price, and he was also able to identify the handwriting
on the Crown Royal box found in the trailer. Metzger further
testified that the bottle of champagne seized was the same brand
purchased by the Bar for the New Year's party and that the
champagne had been taken the night of the crime.
The Metzger's testified that the Bar was broken into between
2:00 and 5:00 a.m. Defendant admits he left the party with J.B.
Benson and Barry DeJaegher around 2:00 a.m. to retrieve more beer.
When the three returned to the party in the Murnion trailer they
were carrying three cases of beer.
We conclude there was sufficient evidence in the record to
support the jury finding that the defendant was guilty of felony
theft. Circumstantial evidence when sufficient, will support a
criminal conviction. State v. Bromgard (1993), 261Mont. 291, 295,
862 P.2d 1140, 1142. We hold the District Court did not err in
denying the defendant's motion for a directed verdict.
Affirmed
We Con ur:
i
FhLP~
Justices
Justice James C. Nelson specially concurs.
I agree with the result of our opinion--i.e. that there was
sufficient circumstantial evidence to sustain Treible's conviction
of felony theft. I write separately, however, out of my concern
that any implication be drawn from our opinion that felony theft
is, in fact, a lesser included offense of burglary. On appeal
Treible did not challenge the status of felony theft as a lesser
included offense of burglary, and, accordingly, we have not ruled
on that issue. Whether felony theft is a lesser included offense
of burglary under § 46-l-202(8), MCA, and under the tests
enunciated in the case law remains to be decided in some future
case, and our opinion here should not be read as having decided
that issue one way or the other.
Justice W. William Leaphart, dissenting.
I dissent from the Court's opinion and would hold that the
District Court erred in denying Treible's motion for a directed
verdict. The evidence presented by the State was insufficient to
support the conviction. Treible's connection to the stolen
property is even more tenuous than co-defendant Benson's
connection--which this Court found to be inadequate to support the
conviction. State v. Benson (19941, 266 Mont. 415, 880 P.2d 1338.
As the Court points out, the State concedes that there is a
lack of direct evidence linking Treible to the stolen property.
Although Treible rented a room from Murnion, none of the stolen
property was tied to defendant Treible or found to be in his
possession or control. The stolen property was found in the
Murnion garage, Murnion's trailer, and in Benson's trailer. None
of the evidence the Court points to in sustaining Treible's
conviction for felony theft was connected to Treible, rather, it
was tenuously tied to co-defendants Murnion and Benson. Section
45-6-301, MCA, provides:
(1) A person commits the offense of theft when the
person purposely or knowingly obtains or exerts
unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the
property . . [emphasis added].
The State has not proven that Treible obtained or exerted
unauthorized control over the property of the owner as required by
§ 45-6-301, MCA. In Benson, this Court rejected the State's
9
argument that Benson's possession of the stolen lottery tickets and
items consistent with others taken from the bar was enough to
sustain the conviction for burglary. Benson, 880 P.2d at 1339-40.
This Court has held that control over the stolen property is
an essential element of the offense of theft. State v. Campbell
(1978), 178 Mont. 15, 582 P.2d 783. Mere association with the
stolen article is not sufficient to show control over the stolen
article and does not establish the control element of theft.
Campbell, 582 P.2d at 785. Here, the State did not even prove that
the stolen property was within Treible's possession--let alone his
control. As the renter of a room in Murnion's trailer, Treible did
not have exclusive possession over the contents of the entire
trailer. As the Court in Campbell clearly stated:
"[IIn order that recent possession be evidence of guilt
it must be exclusive in the accused. The possession must
be such as to indicate that the accused and not someone
else took the property. If the place where the property
is found is such that another person could have had
access thereto as well as the accused, it cannot be said
that the property was in the accused's exclusive
possession and the circumstance would not be evidence of
his guilt."
Camobell, 582 P.2d at 785 (citation omitted). In this case, the
State alleged that Treible and two co-defendants were responsible
for the theft. Further, as the Court's opinion in Benson
recognizes, all co-defendants had access to the locations where the
stolen property was found. In addition, other individuals were
present the night of the incident. Benson, 880 P.2d at 1340.
Although the State was not required to prove that Treible's
explanation was false or unreasonable, the State was still required
10
to prove the elements of felony theft, namely, that Treible
obtained or exerted unauthorized contr,ol over the stolen property.
The State failed to meet that burden. Accordingly, I would reverse
the District Court.
Justice Charles E. Erdmann joins in the foregoing dissent of
Justice W. William Leaphart.
aa Justice --
January 18, 1996
CERTIFICATE OF SERVICE
I hereby certify that the : following certified order was sent by United ‘States mail, prepaid, to the
following named:
Jock L. 1. wuc,
West, Patten, ‘De:nneuillu LY ureen
301 No. 27th St., Ste. 100
Billings, MT 59101
Hon. Joseph P. Mazurek, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620
John Bohlman
Musselshell County Attorney
P.O. Box 248
Roundup, MT 59072-0248
ED SMITH
CLERK OF THE SUPRE {ME COURT
STATE OF MONTANA