No. 01-500
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 171
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHRISTOPHER JAMES RAY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli, Cause No. DC 99-27,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristina Guest, Appellate Defender Office, Helena, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Montana
Attorney General, Helena, Montana; George H. Corn, Ravalli County
Attorney, Hamilton, Montana
Submitted on Briefs: March 27, 2003
Decided: June 23, 2003
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Defendant Christopher Ray (Ray) was convicted in the Twenty-First Judicial District
Court, Ravalli County, of one count of burglary and two counts of aggravated burglary. Ray
appeals his convictions, alleging his right to a speedy trial was violated and that he was
entitled to a directed verdict on the aggravated burglary counts. We affirm in part and
reverse in part and remand for proceedings consistent with this Opinion.
¶2 We address the following issues on appeal:
¶3 1. Was Ray denied his constitutional right to a speedy trial in the District Court?
¶4 2. Under § 45-6-204(2)(a), MCA, does the theft of a loaded gun qualify as “armed
with a weapon” for purposes of elevating a burglary charge to aggravated burglary?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 On February 4, 1999, two residents of Ravalli County reported that their respective
houses had been burglarized. Items reported missing included one loaded firearm, several
unloaded firearms, electronic equipment, coins, a camera, and various other items. The
following week, two more burglaries were reported in the area. These two burglaries were
of summer vacation homes, and the owners and police officers could not determine the exact
date of the burglary. Items stolen from the vacation homes included, more firearms, a Ford
Bronco, electronic equipment, tools, household items, and alcohol.
¶6 On February 9, 1999, the stolen Ford Bronco was found in Madison, Ohio. The
Bronco contained possessions and firearms belonging to the owner of one of the houses that
was reported burglarized on February 4, 1999. The police also found Ray’s fingerprints
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inside the Bronco. An Oldsmobile Cutlass had been stolen in the area where the abandoned
Bronco was found.
¶7 Four days later, on February 13, 1999, the stolen Oldsmobile Cutlass was found in
Yonkers, New York. It contained firearms belonging to the owner of the other house that
was burglarized on February 4, 1999. Another car, this time a Honda, had been stolen in the
vicinity of where the Oldsmobile was found.
¶8 Finally, on February 13, 1999, Ray was discovered asleep in the stolen Honda in Polk
County, Arkansas. After Ray was arrested, he told the officer about stealing guns and cars
out of fear of the Mafia trying to kill him.
¶9 Ray was subsequently extradited to Montana and charged with three counts of
burglary. The charges were later amended to add another count of burglary and then to
change three of the counts to aggravated burglary. After lengthy delays but before trial, Ray
moved for dismissal of the charges on the grounds that his speedy trial rights were violated.
The District Court denied his motion, concluding that Ray was not prejudiced by the various
delays. The charges were then tried before a jury. At conclusion of the State’s evidence,
Ray moved for a directed verdict on the aggravated burglary counts, asserting that the stolen
firearms themselves did not qualify him as “armed” under aggravated burglary. The District
Court denied the motion concluding that carrying or being in possession of any weapon was
sufficient to meet the aggravated burglary statute.
¶10 After trial, the jury convicted Ray of one count of burglary and two counts of
aggravated burglary and acquitted Ray on the other count of aggravated burglary. Ray
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appeals, alleging his speedy trial rights were violated and that the District Court should have
granted his motion for a directed verdict regarding the aggravated burglary counts. Further
facts and the procedural background regarding the speedy trial issue are discussed below.
II. DISCUSSION
¶11 1. Was Ray denied his constitutional right to a speedy trial in the District Court?
A. Standard of Review
¶12 Whether a defendant has been denied a speedy trial constitutes a question of
constitutional law. State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378; see also
State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66. We review a district court's
conclusions of law to determine whether its interpretation of the law is correct. Carbon
County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶13 We review claims that a speedy trial was denied in violation of the Sixth Amendment
to the United States Constitution, and Article II, Section 24, of the Montana Constitution,
based on the general guidelines established by the United States Supreme Court in Barker
v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Under Barker, we must
consider: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right
to a speedy trial by the defendant; and (4) the prejudice to the defense. Barker, 407 U.S. at
530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
¶14 Using the general guidelines established in Barker, this Court set forth Montana’s
procedure for addressing speedy trial claims in City of Billings v. Bruce, 1998 MT 186, 290
Mont. 148, 965 P.2d 866. As for the first Barker factor, length of the delay, in Bruce, we
4
established 200 days as the necessary length of time to trigger further speedy trial analysis.
Bruce, ¶ 55.
¶15 The second Barker factor, the reason for the delay, requires us to attribute delay to
either the State or the defendant on a case-by-case basis. Bruce, ¶ 56.
¶16 Concerning the third Barker factor, whether the defendant’s right to speedy trial has
been timely asserted, we determined that if the right to speedy trial is invoked at any time
prior to the commencement of trial, either by demanding a speedy trial, or by moving to
dismiss for failure to provide a speedy trial, the third factor has been satisfied. Bruce, ¶ 57.
¶17 Finally, we determined that the fourth Barker factor, prejudice the delay caused to the
defense, can be established based on any of the following factors: (1) pretrial incarceration;
(2) anxiety and concern to the defendant; and (3) impairment of the defense. Bruce, ¶ 58.
Regarding these factors, the Supreme Court stated:
Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always reflected in the record
because what has been forgotten can rarely be shown.
Bruce, ¶ 19 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118).
B. Discussion
¶18 In the instant case, Ray was arrested in Arkansas on February 13, 1999. Over a
month later, on March 23, 1999, the State filed a motion for leave to file an information.
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Ray appeared in District Court for the first time on March 24, 1999, to enter a not guilty
plea.
¶19 On April 7, 1999, Ray appeared at an omnibus hearing and moved for a change of
counsel. On April 21, 1999, Ray requested a competency evaluation. Based on results of
the evaluation, the court determined Ray was fit to proceed at a status hearing on his case
on July 14, 1999. As a result, an original trial date was set for November 8, 1999. On
October 29, 1999, however, Ray and the prosecution supposedly reached a plea agreement.
The supposed plea agreement was never signed and neither the prosecution nor Ray filed a
motion to vacate the November 8, 1999 trial date. Consequently, the November 8, 1999 trial
date passed.
¶20 Ray requested a second mental competency evaluation on November 24, 1999. On
March 22, 2000, after a competency report was completed, the court found Ray competent
to proceed. Rather than setting a new trial date, the court ordered another settlement
conference. On April 28, 2000, a trial date of September 25, 2000, was finally set. Ray was
convicted by a jury of one count of burglary and two counts of aggravated burglary.
¶21 As stated above, the first inquiry we must make under Barker and Bruce pertains to
the length of the delay before Ray’s trial. Whether the length of delay before Ray’s trial is
sufficient to trigger a speedy trial analysis is a threshold question. Bruce, ¶ 55. Assignment
of blame to either the State or Ray is irrelevant for purposes of this inquiry. Bruce, ¶ 55.
We established 200 days as the minimum length of time required to trigger further speedy
trial analysis. Bruce, ¶ 55.
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¶22 The State contends that for purposes of this speedy trial analysis, the clock should
start running from March 24, 1999, the date the court granted the State’s motion for leave
to file an information. The State cites Bruce in support of this contention. In Bruce we
wrote, “We will first consider the length of delay from the time charges are filed (or as in
this case, the date on which the notice of appeal from the city court is filed) until the
defendant’s trial date for the purpose of determining whether there is a basis for conducting
a speedy trial analysis.” Bruce, ¶ 55. The facts of Bruce, however, are distinguishable from
the facts here. Bruce was convicted in city court and appealed the verdict to the district
court. Bruce alleged his speedy trial right was violated regarding his appeal, not his trial in
city court; thus, we used the date on which Bruce filed his notice of appeal from the city
court as the starting point for calculating delay.
¶23 The rule regarding when we begin calculating delay in a speedy trial analysis is stated
more clearly in State v. Wombolt (1988), 231 Mont. 400, 402, 753 P.2d 330, 331: “[T]he
right to speedy trial attaches at arrest or the filing of the complaint in justice court.” See
also State v. Larson (1981), 191 Mont. 257, 623 P.2d 954. In the instant case, 590 days
elapsed from the date Ray was arrested, February 13, 1999, until the start of his trial,
September 25, 2000, clearly exceeding the 200-day requirement.
¶24 Under the second prong of Barker and Bruce, we must next consider the reason for
the delay, and attribute the delay to either the State or Ray. “[T]he court determines which
party is responsible for specific periods of time, then respectively allocates the total time
delay between the parties.” State v. Hardaway, 1998 MT 224, ¶ 15, 290 Mont. 516, ¶ 15,
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966 P.2d 125, ¶ 15. As we already stated, 200 days is the necessary length of time to trigger
further speedy trial analysis. When it has been demonstrated that 275 days of delay is
attributable to the State, the burden shifts to the State to demonstrate that the defendant has
not been prejudiced by the delay. Bruce, ¶ 56.
¶25 The State and Ray generally agree on how many days of delay were attributable to
Ray as opposed to the State. As we explained above, we are required to start counting days
of delay on the day Ray was arrested, February 13, 1999. The 53-day delay from Ray’s
arrest on February 13, 1999, to the omnibus hearing on April 7, 1999, is attributable to the
State. At the April 7, 1999 omnibus hearing, Ray requested a change of counsel and at the
April 21, 1999 hearing he requested a competency evaluation, both of which the District
Court granted. As stated above, Ray was subsequently found competent at a status hearing
on July 14, 1999. The 98-day delay between the April 7, 1999 omnibus hearing and the July
14, 1999 status hearing is chargeable to Ray. The 133 days between the July 14, 1999 status
hearing and the November 24, 1999 hearing at which Ray requested another competency
exam is attributable to the State.
¶26 Then, 119 days passed from the time Ray requested the second competency
examination until Ray was determined competent on March 22, 2000, all of which are
attributable to Ray. Even though Ray was determined competent on March 22, 2000, the
District Court did not set a trial date until April 28, 2000. On April 28, 2000, the District
Court finally set the trial date for September 25, 2000, making 187 days attributable to the
State. Ray’s trial began as scheduled on September 25, 2000.
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¶27 In all, Ray is responsible for 217 days of delay, while the State is responsible for 373
days, well beyond the 275-day mark at which the burden to show lack of prejudice to the
defendant shifts to the State. On appeal the State concedes that 334 days of the delay should
be attributed to the State. Importantly, the District Court attributed less than 275 days of the
delay to the State.
¶28 Under the third prong of Barker and Bruce, we must next consider whether Ray’s
right to a speedy trial was timely asserted. If the right to speedy trial is invoked at any time
prior to the commencement of trial, either by demanding a speedy trial, or by moving to
dismiss for failure to provide a speedy trial, the third prong of the Barker test is satisfied.
Bruce, ¶ 57.
¶29 Ray asserted his right to a speedy trial on numerous occasions. He wrote letters to
the District Court complaining about the delays in his case. Ray’s letters were received by
the court on January 24, 2000, February 2, 2000, February 25, 2000, and March 8, 2000.
In his January 24, 2000 letter, Ray wrote to the District Court:
I have been waiting in Ravalli County jail since March 5th for trial. I am told
it has been scheduled and post poned [sic]. I would like to go to trial at the
earliest date possible. I feel my speedy trial rights may have been overlooked.
On September 11, 2000, Ray’s counsel filed a motion invoking his right to a speedy trial.
Moreover, the State concedes that Ray timely invoked his right to a speedy trial. Thus, we
conclude that Ray has satisfied the third prong of the Barker and Bruce test.
¶30 Finally, we must analyze the fourth prong of the Barker and Bruce test, whether the
defendant was prejudiced by the delay. In doing so, we should take into consideration, but
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need not include, three bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of
the practical applications that have been articulated by the United States Supreme Court, and
(c) impairment to the defense. Bruce, ¶ 58.
¶31 As we have already stated, if 275 days of delay are attributable to the State rather than
the defendant, then the burden shifts to the State to demonstrate that the defendant has not
been prejudiced by the delay. We have already concluded, and both parties agree, that more
than 275 days of delay before Ray’s trial are attributable to the State; therefore, the State has
the burden of showing that Ray was not prejudiced by the delay. In the District Court, the
State argued that Ray had the burden of showing prejudice by the delay since less than 275
days were attributed to the State. The District Court agreed and placed the burden on Ray.
As previously mentioned, the State concedes on appeal that this was error.
¶32 In its order denying Ray’s motion to dismiss for lack of speedy trial, the District
Court states that it would reach the same conclusion even if the burden of showing lack of
prejudice was with the State. Unfortunately, we are unable to conduct a meaningful review
of the evidence when the burden of proof was erroneously applied by the trial court.
Therefore, we remand this matter to the District Court so that it can revisit its speedy trial
analysis after properly acknowledging that the State has the burden of establishing lack of
prejudice to Ray occasioned by the delay.
¶33 2. Under § 45-6-204(2)(a), MCA, does the theft of a loaded gun qualify as
“armed with a weapon” for purposes of elevating a burglary charge to
aggravated burglary?
A. Standard of Review
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¶34 This Court reviews denial of a motion for a directed verdict of acquittal to determine
whether the district court abused its discretion. State v. Giant, 2001 MT 245, ¶ 9, 307 Mont.
74, ¶ 9, 37 P.3d 49, ¶ 9. A directed verdict is appropriate when there is no evidence upon
which a jury could base a guilty verdict. No abuse of discretion occurs if, after viewing 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. Giant, ¶ 9. However,
if the denial of directed verdict is based on a conclusion of law, like our review of any
conclusion of law by a district court, we review the conclusion of law de novo to determine
whether it is correct. Giant, ¶ 9.
¶35 In this case, the District Court’s denial of Ray’s motion for directed verdict rested on
the District Court’s interpretation of the definition of “armed with . . . a weapon” under § 45-
6-204(2)(a), MCA. As this involves interpretation of a statute, our review in this case is de
novo. State v. Peplow, 2001 MT 253, ¶ 17, 307 Mont. 172, ¶ 17, 36 P.3d 922, ¶ 17
(interpretation of a statute is a matter of law). Further, we note that this is an issue of first
impression in Montana. Accordingly, we look to other states for guidance.
B. Discussion
¶36 We begin by setting out the provision in issue here. Section 45-6-204(2)(a), MCA,
sets out the elements of aggravated burglary and states in relevant part:
A person commits the offense of aggravated burglary if he knowingly enters
or remains unlawfully in an occupied structure with the purpose to commit an
offense therein and: (a) in effecting entry or in the course of committing the
offense or in immediate flight thereafter, he or another participant in the
offense is armed with explosives or a weapon. [Emphasis added.]
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As is apparent from the statute, one of the elements the State must prove in a case of
aggravated burglary is that the defendant was “armed with . . . a weapon.”
¶37 Ray asserts the District Court erred when it denied his motion for a directed verdict
because he argues that the mere theft of a weapon during a burglary does not qualify as
“armed with . . . a weapon.” Citing State v. Befford (Ariz. 1986), 715 P.2d 761, in his
support, Ray asserts that he was not “armed” since he simply possessed the firearms as
stolen property and did not intend to use them. As a result, Ray claims the State’s evidence
failed to prove the element that he was armed with a weapon because the State did not prove
he had intent to use a weapon during the burglary.
¶38 In contrast, the State argues the element “armed with . . . a weapon” is satisfied by
possession of a weapon, rather than a showing of intent. Further, the State asserts Ray was
armed because he stole firearms in the course of the burglaries. In support of its argument,
the State cites State v. Merritt (N.J. Super. Ct. App. Div. 1991), 589 A.2d 648. The District
Court agreed with the State and held that simple possession of a weapon by virtue of the
burglary qualified as armed with a weapon.
¶39 As mentioned above, this case presents an issue of first impression to this Court.
After reviewing the statutory language and case law from other jurisdictions, we agree with
the State subject to a proviso which we discuss in detail below.
¶40 First, in interpreting § 45-6-204(2)(a), MCA, we must give effect to the plain
language “armed with . . . a weapon.” The term “weapon” is statutorily defined by § 45-2-
101(78), MCA, as follows:
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Unless otherwise specified in the statute, all words will be taken in the
objective standard rather than in the subjective, and unless a different meaning
plainly is required, the following definitions apply in this title . . . (78)
"Weapon" means an instrument, article, or substance that, regardless of its
primary function, is readily capable of being used to produce death or serious
bodily injury.
As our previous case law interpreting this section holds and as the plain language of this
section indicates, a weapon can be virtually any instrument. State v. Mummey (1994), 264
Mont. 272, 277-78, 871 P.2d 868, 871-72 (holding tennis shoe may be a weapon). Yet, if
this Court were to hold that “armed with . . . a weapon” means any instrument in possession
of a burglar, every burglary charge would automatically be elevated to aggravated burglary.
Besides eliminating the crime of burglary, such an interpretation would make the term
“armed” synonymous with the term “weapon.” Neither result is tenable under the rules of
statutory interpretation, as we normally construe provisions to give effect to all the language.
Hawley v. Board of Oil & Gas Conservation, 2000 MT 2, ¶ 12, 297 Mont. 467, ¶ 12, 993
P.2d 677, ¶ 12. Therefore, we must address the definition of the term “armed,” as it is not
specifically defined by statute.
¶41 At this point, it is instructive to look to case law from other jurisdictions. Our review
of the cases regarding the definition of the term “armed” indicates there is near uniform
agreement among the states that the term “armed” means readily accessible and available for
use. Merritt, 589 A.2d at 650; Wesolic v. State (Alaska Ct. App. 1992), 837 P.2d 130, 133-
34; State v. McCaskill (S.C. Ct. App. 1996), 468 S.E.2d 81, 82. However, again, combining
this definition with Montana’s definition of weapon gives the phrase “armed with . . . a
13
weapon” an overly broad meaning because it means the defendant has any instrument readily
accessible and available for use as a weapon. Therefore, we again look to other states to see
whether the element of armed with a weapon requires mere possession or, instead, requires
an intent to use burglary spoils as weapons in furtherance of the crime.
¶42 Our review of the case law indicates that whether a state allows possession of stolen
property to qualify a defendant as armed with a weapon depends on two factors: the nature
of the weapon stolen and the statutory definitions of both burglary and weapon. First,
regarding the nature of the weapon stolen, the case law is generally divided into cases that
address firearms versus cases that address other types of weapons. Further, cases involving
firearms make up the majority of jurisprudence on this subject. In this case, the underlying
weapons used to elevate the charges against Ray to aggravated burglary included various
firearms taken from the residences. Therefore, for our purposes here, we look to other case
law involving firearms. In pointing out this distinction in the case law, we note that our
holding here is accordingly limited to theft of firearms. We will address other types of
weapons that may be stolen during a burglary on a case by case basis.
¶43 Regarding the second factor, statutory definitions, the majority of jurisdictions
interpret their respective statutes to follow the common sense rule that a person who steals
a firearm may be found to have been armed with a weapon, without showing that he actually
intended to use the firearm, so long as the weapon was readily accessible and available for
use. Merritt, 589 A.2d at 650. As the Merritt court observed:
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[I]t is evident that a person may become armed with a weapon obtained in a
burglary or other offense. Once obtained during the course of the offense, a
weapon may be as readily accessible to the perpetrator as if he had brought it
to the scene initially, and the State is only required to show such access to
establish that the defendant was armed.
Merritt, 589 A.2d at 650. However, whether or not a firearm is readily accessible and
available for use varies significantly depending on a given state’s statutory scheme and
definitions.
¶44 For example, in State v. Crews (Mo. Ct. App. 1998), 968 S.W.2d 763, 765, the
Missouri court allowed theft of a gun, whether loaded or unloaded, to qualify a burglar as
armed with a deadly weapon because that state’s legislature defined a “deadly weapon” as
any firearm, loaded or unloaded. Consequently, by statutorily defining weapons to
specifically address firearms, an unloaded gun is considered readily available and accessible
for use in Missouri when taken by a burglar. See also State v. Hall (Wash. App. 1987), 732
P.2d 524, 527; State v. Faille (Wash. App. 1988), 766 P.2d 478, 479; State v. Luna (N.M.
Ct. App. 1982), 653 P.2d 1222, 1222; People v. Loomis (Colo. Ct. App. 1992), 857 P.2d
478, 480.
¶45 In contrast, in People v. Griffin (N.Y. County Ct. 1999), 695 N.Y.S.2d 868, 870, the
New York court noted that the definition of deadly weapon in that state requires a firearm
to be loaded. Therefore, theft of an unloaded firearm in the course of a burglary does not
elevate the crime in that state because an unloaded firearm is not considered readily
accessible and available for use. Further, the court noted that the prosecution has to prove
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the stolen firearm was loaded as an element of first degree burglary. Griffin, 695 N.Y.S.2d
at 870.
¶46 In addition to differences in the definition of weapon, differences in the definition of
burglary also affect judicial interpretation. For example, Alaska allows mere possession of
a loaded firearm stolen during a burglary to increase a criminal’s potential liability because
the statute in that state specifically requires the prosecution to prove intent only if the stolen
item is not a firearm. Wesolic, 837 P.2d at 133-34. However, the opinion in Wesolic notes
that the firearm in that case was loaded and the court left open the question of whether an
unloaded firearm would qualify one as “armed” under the statute. Wesolic, 837 P.2d at 134,
n.1.
¶47 In Befford, 715 P.2d at 763, cited by Ray, the Arizona court interpreted a burglary and
dangerous instrument statute similar to Montana’s under facts somewhat similar to the
instant case. In Befford, the defendant stole an unloaded firearm still in its case and asserted
that he was unarmed because he took the firearm as loot and did not have intent to use the
weapon. Ruling in favor of the defendant, the court noted that Arizona’s broad definition
of dangerous instrument could include anything from a lamp to a set of tools and stated, “the
result would be to classify most every burglary as first degree.” Befford, 715 P.2d at 763.
Consequently, the court held, “In order to be ‘armed’ within our burglary statute, a defendant
must possess the item considered a . . . dangerous instrument in such a manner as to indicate
his willingness or present ability to use it as a ‘weapon.’” Befford, 715 P.2d at 763.
Apparently, because the gun was not loaded and no intent was proven, the court did not find
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it necessary to distinguish between its use of “willingness,” indicating an intent to use a
weapon, and “present ability to use,” indicating mere possession of weapon.
¶48 In contrast to Befford, the Arizona court has also held in State v. Romero (Ariz. Ct.
App. 1982), 659 P.2d 655, that theft of a loaded gun stolen during a burglary qualifies as
armed with a weapon under the same statutory scheme. However, in that case, the defendant
attempted to use the gun, so he demonstrated an intent as well as mere possession. Further,
after Befford, the Arizona legislature amended the burglary statute to specifically allow mere
possession of an unloaded firearm to qualify for the elevated burglary charge by changing
the statutory language from “armed” to “knowingly possess.” State v. Tabor (Ariz. Ct. App.
1995), 907 P.2d 505, 506.
¶49 From these cases it is apparent that although statutory definitions vary, there is
general agreement that when a burglar steals a loaded firearm as proceeds, mere possession
of the firearm qualifies the defendant as armed with a weapon because the weapon is readily
accessible and available for use. Simply put, a burglar in possession of a loaded gun stolen
as part of the "loot" is just as dangerous as a burglar in possession of a gun he brought to the
burglary. In either case the armed burglar may well injure or kill upon being surprised by
the premises owner or the police, at or while in the flight from the scene of the crime.
¶50 In contrast, the cases also indicate that there is disagreement regarding whether theft
of an unloaded firearm makes the defendant armed. However, our review of the case law
indicates that in states that allow an unloaded firearm to qualify a defendant as armed with
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a weapon, the statutory definitions are generally designed to specifically include an unloaded
firearm as a deadly weapon.
¶51 While we agree with the policy that greater criminal liability should attach to the theft
of firearms whether loaded or unloaded, we are bound here to interpret when a defendant
legally qualifies as “armed with . . . a weapon” such that the defendant has a firearm readily
accessible and available for use. Because Montana’s statutory scheme does not specifically
define weapons so as to single out either firearms or deadly weapons, we cannot agree that
a defendant who steals an unloaded firearm has a weapon readily accessible and available
for use under the plain language of the statute. Any policy to provide greater punishment
for the theft of unloaded firearms during the course of a burglary, or to provide greater
punishment for the theft of any other specific types of weapons for that matter, must come
from the Legislature.
¶52 Accordingly, we hold that when the State seeks to prove a defendant was “armed with
. . . a weapon” under § 45-6-204(2)(a), MCA, the State meets this burden when it proves the
defendant stole a loaded weapon during the course of a burglary. Further, the State does not
meet this burden when it proves the defendant stole unloaded firearms, unless the State is
also able to prove the defendant had an intent to use the unloaded firearms as a weapon. We
note in making this holding that if the defendant loads a previously unloaded firearm stolen
during the course of a burglary, the defendant obviously qualifies as armed with a weapon
under § 45-6-204(2)(a), MCA.
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¶53 We also note that this interpretation of § 45-6-204(2)(a), MCA, gives proper meaning
to the term “armed” in other Montana statutes that imply an immediate and present ability
to use a weapon. See, e.g., § 46-5-402, MCA (stop and frisk allowed when officer has
“reasonable cause to suspect that the person is armed and presently dangerous”); § 37-60-
101(2)-(4), MCA (Armed private security guard means an individual who, in addition to
other requirements, wears or carries a firearm in the performance of the individual's duties).
This holding also fits with our prior use of the term “armed” in Montana case law. See, e.g.,
State v. Ahmed (1996), 278 Mont. 200, 205, 924 P.2d 679, 682 (victim testified defendant
was armed with a gun); Kills On Top v. State (1995), 273 Mont. 32, 57, 901 P.2d 1368, 1384
(armed officers in the courtroom was not prejudicial to defendant); In re Shennum (1984),
210 Mont. 442, 684 P.2d 1073 (defendant was armed when he entered city council chambers
with a loaded gun).
¶54 In sum, we hold that stealing loaded firearms in the course of committing an
otherwise unarmed burglary elevates a burglary to an aggravated burglary by virtue of mere
possession of the firearms. The burglar, whether he is so armed when he commences the
burglary or becomes so armed during the course of the burglary, nevertheless possesses a
weapon which is readily accessible in furtherance of the crime.
C. Ray’s Convictions for Aggravated Burglary
¶55 Having determined that mere possession of a loaded firearm stolen during a burglary
qualifies as armed with a weapon for purposes of aggravated burglary, while a showing of
intent is required when a defendant steals an unloaded firearm, we now turn to apply this rule
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to Ray’s case. As mentioned above, we review denial of a motion for a directed verdict of
acquittal to determine whether the district court abused its discretion. No abuse of discretion
occurs if, after viewing 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.
¶56 At trial, the State presented evidence that Ray stole over a dozen hunting rifles and
shotguns and several pistols from two of the residences, hence the two convictions for
aggravated burglary. However, the State’s evidence only showed one of those weapons to
be loaded. Therefore, we consider the two counts of aggravated burglary separately.
¶57 Regarding the count based in part on the loaded pistol from the McCarty residence,
the State proved the firearm was loaded based on the testimony of the owner who stated that
he knew the pistol was loaded when it disappeared from his residence. The State notes that
testimony from only one witness is sufficient to prove a fact. State v. Merrick, 2000 MT
124, ¶ 13, 299 Mont. 472, ¶ 13, 2 P.3d 242, ¶ 13. Having reviewed the testimony, we hold
that the State met its burden to prove Ray was in possession of a loaded firearm during the
course of one of the burglaries. Therefore, regarding this conviction for aggravated burglary,
the District Court did not abuse its discretion in denying Ray’s motion for a directed verdict.
¶58 Regarding the other conviction for aggravated burglary, the State failed to prove that
any of the other firearms were loaded. Therefore, the District Court abused its discretion
when it denied Ray’s motion for a directed verdict. At this point, Ray asserts the entire
conviction must be reversed. Alternatively, the State argues that Ray’s conviction should
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be reduced from aggravated burglary to burglary. We agree with the State. On appeal, this
Court may reduce the offense for which an appellant was convicted to a lesser included
offense. State v. Stevens, 2002 MT 181, ¶ 54, 311 Mont. 52, ¶ 54, 53 P.3d 356, ¶ 54; §
46-20-703(3), MCA. As the State met all the other elements for burglary in this case, we
hold that Ray’s conviction for aggravated burglary is hereby reduced to burglary and we
remand to the District Court for resentencing on this conviction.
III. CONCLUSION
¶59 Because mere possession of a loaded firearm in the course of a burglary qualifies Ray
as armed with a weapon, one of Ray’s convictions for aggravated burglary will stand. The
other conviction is reduced to burglary. Further, the District Court is directed to conduct a
speedy trial analysis consistent with Bruce and this Opinion.
¶60 Affirmed in part and reversed in part and remanded for proceedings consistent with
this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JIM RICE
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