NO. 84-51 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSBRIAN BARKER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF mCORD: 

For Appellant: 

Gary E. Wilcox, Billings, Montana 

For Respondent: 

I-Ion. Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

-- 

Submitted on Briefs: June 28, 1984 

Decided: August 9, 1984 

Filed: (4 5 l2 ;;I . 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Brian Barker appeals his iudgment of conviction of 

attempt (felony) toward the commission of theft entered 

against him in the District Court, Thirteenth Judicial 

District, Yellowstone County. His judgment of conviction is 

the result of a jury trial. Barker was sentenced to ten 

years i-n prison, in part because of a previous criminal 

record, and later the court suspended the last seven years of 

his sentence. 

On the day in question, April 12, 1983, Rarker had 

consumed a considerable amount of liquor. At 5:00 p.m., he 

entered the Corral West Ranch Wear store in Billings. At the 

time, he was wearing a blue down-filled coat, blue jeans, a 

plaid flannel shirt and a pair of cowboy boots. The boots 

that he was wearing were the same col-or as boots that were 

displayed in the Corral West Ranch Wear store. The left boot 

that Barker was wearing was in new condition but the right 

boot was split along the side and the sole had also separated 

from the bottom of the boot. Barker had approximately $160 

cash with him. 

Rarker testified that he looked at the boots in the 

store with the idea of replacing his boots. When he found 

that the ones that matched the boots he was wearing were not 

on sale, he picked both those boots off the shelf, walked to 

the door, dropped the left boot and put the right boot under 

his coat because that was the boot that he needed. He 

testified, and his girlfriend corroborated, that the right 

boot that he had been wearing was not capable of repair. 

The store owner testified that at the time of the 

incident, Rarker was the only customer in the store, that the 
hoot area of the store was checked approximately four minutes 

prior to the incident, and that it is straightened and 

checked every few minutes as a matter of course. The price 

at which the hoots were offered for sale to the general 

public was $178.50. The store owner was just starting to go 

downstairs when Barker came into the premises. The owner was 

downstairs about 10 to 15 seconds and on his return to the 

top of the stairs, he heard a running sound.. He looked and 

saw Barker running at a fairly fast rate toward the door. He 

saw a price tag protruding from Barker's jacket. and. gave 

chase. Another store employee, Brooks, also gave chase and 

caught Barker and returned him to the store with a 

right-footed boot that Barker had taken outside. When the 

store owner returned to the premises, he looked for the other 

boot a.nd found it under a clothing rack at about the same 

point where he first saw Barker start running for the front 

door. 

The store owner testified that the wholesale price of 

the boots was $116.50, and that one boot cannot be purchased. 

There are other portions of evidence relating to the 

iritoxication of Barker at the time, but they are not releva.nt 

here. 

Barker raises two issues, (1) that the court erred ir, 

its instructions to the jury respecting market value, and (2) 

that the evidence was insufficient to justify the guilty 

verdict. 

The District Court gave these instructions: 

"INSTRUCTION NO. 18: When the value of property 

involved in theft exceeds $150.00, the theft is 

considered a felony; if the value of the property 

does not exceed $150.00, the theft is considered a 

misdemeanor. 
"INSTRUCTION NO. 19: You. are instructed that 

'value' means the market value of the property at 

the time a.nd place of the crime. 

"INSTRUCTION NO. 20: You are instructed that 

'market value' means the price at which the 

merchant, from whom it was unlawfully taken, offers 

to sell the property; that is, the retail price." 

Barker contends that the court's instruction to the 

effect that the market val-ue is the same as the retail price 

at which the merchant offers the goods is a comment on the 

evidence, mandatory in its nature, and it took from the jury 

the determination of a question of fact, the value of the 

property taken. 

Under section 45-6-301, KCA, a person commits the 

offense of felony theft when he purposely or knowingly 

obtains or exerts unauthorized control over property of the 

owner and the value of the property exceeded $150.00. (This 

statute has since been amended so that $300.00 is now the 

line of demarcation between a felony and a misdemeanor, Ch. 

581, Laws of Montana (1983) .) 

A person commits the offense of attempt when with a 

purpose to commit a specific offense, he does any act toward 

the commission of such offense. Section 45-4-103, MCA. 

"Value" is defined as the market value at the time and 

pla.ce of the crime or, if such cannot be satisfactorily 

ascertained, the cost of the replacement of the property 

within a reasonable time after the crime. Section 

45-2-101- (69) (a) , KCA. 

We determine that in this case it was not error to 

instruct that the market value of the boots meant their 

retail price. Here there was no other evidence of the market 

value of the boots. Certainly here the wholesale price of 

the merchant could not be considered their market value. 
While the instruction that the retail price of the 

merchandise was the market value of the property was 

mandatory in nature, and a comment on the evidence as well, 

it was a necessary instruction in this case where the only 

other evidence of the value of the boots was the wholesale 

value. The price at which the merchant offers to sell. his 

merchandise ordinarily is its market value, though not 

always. See for example, State v. Younq (Mont. 1983), 669 

P.2d 239, 40 St.Rep. 1474. 

The other two instructions are based on statutes and 

properly state the law. 

In arguing the second issue, Barker contends that 

although he was admittedly guilty of a crime, he was guilty 

only of attempted misdemeanor theft as opposed to felony 

theft. He bases this contention on his testimony that in the 

store he picked up the pair of boots off the rack, and as he 

walked toward the door, he determined which was the right 

boot and which was the left. Having done so, he put the 

right boot under his jacket and put the left boot down on the 

floor. He contends that the store owner only assumed that 

the defendant had a pair of boots under his coat at the time 

he was first spotted. He argues that under the evidence, he 

intended to take only the right boot. 

Still the evidence was undisputed that both boots were 

taken by him from the rack where they were displayed for sale 

and the one boot which he left was dropped in another part of 

the store under a counter where other clothes were displayed. 

Moreover, if his attempted theft of the single boot had been 

successful, he would have then destroyed the market value of 

both boots by the theft. There is, we think, a dearth of 

one-legged men in Billings who need a left-footed cowboy 
boot. There is no v~eight to the second issue. In short, 

Barker has no leg to stand on. 

We do commend Barker's counsel for the preparation of 

his brief. He has appended essential court documents as 

copies, which ease considerably the work of this Court when 

reference to documents is necessary for the purpose of 

considering the appeal. 

Affirmed. 

- 

Justice 

We Concur: 

Justices 
I respectfully dissent from that aspect of the majority 

opinion which approves Instruction 20. 

The court instructed this jury that "market value" 

means the price at which a merchant offers goods for sale. 

The asking price is not necessarily market value. The 

instruction took this issue from the jury improperly. Market 

value is the price that a willing buyer will pay in a free 

and open atmosphere. 

The burden of proof here was upon the State to show that 

the value of the property exceeded $150. The majority 

opinion relieves the State from its burden. The majority 

opinion states: 

"We determine that in this case it was not error to 

instruct that the market value of the boots meant 

their retail price. Here there was no other 

evidence of the market value of the boots. 

Certainly here the wholesale price of the merchant 

could not be considered their- market value. While 

the instruction that the retail price of the 

merchandise was the market value of the property 

was mandatory in nature, and a comment on the 

evidence as well, --- it was a necessary instruction in 

-- this case where -& 

the onlv other evidence of -- the 

value -- of the boots -- was the wholesale value. . . " 

The majority seems to be saying that where the State 

fails in its burden to produce evidence establishing value in 

excess of $150, but does offer evidence of retail price, the 

court through an instruction can remedy the problem by 

telling the jury they must accept retail price as market 

value. I am at a loss to understand the position the 

majority has here taken. 

The majority concludes as follows: 

"There is, we think, a dearth of one-legged men in 

Billings who need a left-footed cowboy boot. There 

is no weight to the second issue. In short, Barker 

has no leg to stand on." 
I have carefully and painstakingly searched this record 

but find no evidence to support the majority's reference to 

the number of one-legged men in Billings. Furthermore, I 

find that Barker does, indeed, have a leg upon which to 

stand. In fact, in my opinion, the trial court "booted" this 

case by giving Instruction 20.