No
No. 98-597
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 147
295 Mont. 42
983 P.2d 332
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRAND CAEKAERT,
Defendant and Appellant.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (1 of 6)4/6/2007 1:23:53 PM
No
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
Honorable Maurice R. Colberg, Jr., Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Mark S. Hilario, Hilario Law Firm, Billings, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Dan Schwarz, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: June 10, 1999
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (2 of 6)4/6/2007 1:23:53 PM
No
Decided: June 29, 1999
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1. Brand Caekaert appeals the order of the Thirteenth Judicial District Court,
Yellowstone County, revoking his suspended sentence and committing him to the
custody of the Montana Department of Corrections and Human Services (DOC). We
affirm.
¶2. The sole issue presented in this appeal is whether the District Court erred in
revoking Caekaert's suspended sentence.
BACKGROUND
¶3. Caekaert was placed on probation in November 1996 after receiving a suspended
sentence for a felony theft conviction. In early March 1997, Caekaert's probation
officer, Julie McLaughlin, received information from an agent with the federal
Bureau of Alcohol, Tobacco and Firearms (ATF) that a Winnebago containing
firearms had been sporadically parked on Caekaert's property. McLaughlin did
nothing at that time because she believed the ATF was handling the case and would
apprise her of any further developments. Later that month, an officer with the
Billings, Montana, Police Department contacted McLaughlin to inform her that one
of Caekaert's neighbors had reported hearing gunshots fired on Caekaert's property
the evening before.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (3 of 6)4/6/2007 1:23:53 PM
No
¶4. Based on this report, McLaughlin obtained a warrant and conducted a search of
the residence and outbuildings on Caekaert's property. In one of the outbuildings,
officers discovered twelve assorted rifles and pistols and several miscellaneous boxes
of ammunition. The items were wrapped in blankets and stuffed into the cushions of
or underneath a couch stored inside the building. The officers confiscated the
weapons and arrested Caekaert for probation violation.
¶5. The District Court conducted a probation revocation hearing and found that
Caekaert had been in constructive possession of firearms in violation of the
conditions of his suspended sentence. In an order dated July 10, 1998, the District
Court revoked Caekaert's probation and sentenced him to three years in the custody
of the DOC. Caekaert appeals the revocation of his probation and his commitment to
the DOC. We affirm.
DISCUSSION
¶6. Did the District Court err in revoking Caekaert's suspended sentence?
¶7. We review a district court's revocation of a suspended sentence to determine
whether that court abused its discretion. State v. Baisch, 1998 MT 12, ¶ 10, 287 Mont.
191, ¶ 10, 953 P.2d 1070, ¶ 10. So long as the district court is satisfied that the
conduct of the probationer has not been what he agreed it would be when he was
given liberty, this Court will not overturn a district court's decision to revoke a
suspended sentence. Baisch, ¶ 10. In order to revoke a suspended sentence, the State
must prove by the preponderance of the evidence that the probationer violated terms
or conditions of his suspended sentence. Section 46-18-203(6), MCA.
¶8. Among the terms of Caekaert's probation was the condition that he "not own,
possess, or be in control of any firearms or deadly weapons, including black powder,
as defined by State or Federal Law." Caekaert argues that he was not in violation of
the terms of his probation because the weapons recovered from the outbuilding
located on his property did not in fact belong to him, but were owned by various
friends and relatives who were merely storing the weapons on his property.
Additionally, Caekaert argues that even though the weapons were located on his
property, he had no right to maintain control over them because their owners had
not given him permission to do so.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (4 of 6)4/6/2007 1:23:53 PM
No
¶9. The State responds that for purposes of determining whether Caekaert was in
constructive possession of the firearms, it is wholly irrelevant whether Caekaert
owned the guns or had the permission of the owners to exercise control over them.
Rather, the State argues, such a determination may be predicated upon a finding
that Caekaert knew of the presence of the weapons and exercised a means of control
over them. We agree.
¶10. "Possession" is the knowing control of anything for a sufficient time to be able
to terminate control. Section 45-2-101(57), MCA. "Constructive possession occurs
when the accused maintains control or a right to control the contraband; possession
may be imputed when the contraband is found in a place which is immediately and
exclusively accessible to the accused and subject to his dominion and control, or to
the joint dominion and control of the accused and another." State v. Meader (1979),
184 Mont. 32, 43, 601 P.2d 386, 392.
¶11. It is an undisputed fact that Caekaert knew there were weapons stored in the
outbuilding. Moreover, McLaughlin testified at the revocation hearing that it was
Caekaert who provided McLaughlin with the key to the building where the guns
were located.
¶12. The District Court apparently found that to the extent that Caekaert exercised
dominion and control over the buildings on his property, he was in constructive
possession of the property inside them. Such a finding is consistent with our opinion
in Meader, 184 Mont. at 43, 601 P.2d at 392, in which we upheld a jury verdict that
the defendant had constructive possession of narcotics found in his residence where
there was ample evidence to support the finding that the defendant exercised
dominion and control over the premises in which the drugs were located.
Furthermore, the possession of keys to a locked area is probative of constructive
possession of items within that area. State v. Turner (Wash. App. 1977), 571 P.2d 955,
957.
¶13. Despite Caekaert's efforts to demonstrate that he was not the legal owner of the
weapons and had no legal right to exercise control over them, neither of those facts, if
proven, is sufficient as a matter of law to preclude a finding of constructive
possession. Because there is ample evidence in the record to support the District
Court's determination that Caekaert did in fact exercise knowing control over the
building where the weapons were stored, and thereby exercise knowing control over
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (5 of 6)4/6/2007 1:23:53 PM
No
the building's contents, we hold that the District Court did not abuse its discretion in
revoking Caekaert's suspended sentence for constructive possession of firearms.
¶14. Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-597_(06-30-99)_Opinion_.htm (6 of 6)4/6/2007 1:23:53 PM