No. 13877 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,

-vsFRANK DAVIS and DUANE CLOSE, Defendants and Appellants.

Appeal from: DistrictCourt of the Third Judicial Dist?ict, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellants: Bryon W. Boggs argued, Anaconda, Montana For Respondent: Hon Mike Greely, Attorney General, Helena, Montana Denny Moreen, Assistant Attorney General, argued,

Helena, Montana James J. Masar, County Attorney, DeerLodge, Montana

Submitted: March 9, 1978 Decided: 

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### . .Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendantswere charged by information filed January 31, 1977with the crimes of attempted escape and criminal mischief, both felonies. Following a jury trial in District Court, Powell County, defendantswere convicted of both offenses. They were subsequently found to be persistent felony offenders and sentenced to ten years imprisonment at Montana State Prison for attempted escape and fiveyears imprisonment for criminal mischief, the sentences to be served consecutively. Defendants appeal the judgment and sentence. The instant charges resulted from an attempted act of escape on the part of defendants, while incarcerated in the Powell County jail. Defendants were observed digging a hole in the wall of the jail facility. The arraignment of defendantswas conducted before Hon. John B. McClernan. Counsel for defendants orally moved for an order requiring the State to elect between the two charges on the ground they weremultiplicious, in that theywere based upon the doing of one act. JudgeMcClernan thereupon ruled on the motion as follows: "Theobjection is overruled, but, the Court will reserve the right to these Defendant (sic) to compel the County Attorney to make an election before these men go to trial." Defendants entered pleas of "notguilty" to both charges. Hon. Arnold Olsen later assumed jurisdiction of the

cause. Thematter was tried before a jury on March 8, 1977. As of the time of trial, the Statehad not elected between the two charges. Prior to the commencement of trial, counsel for defendants againmoved that the Statebe required to elect between the charges. Themotion was denied, and the trial ensued, resulting in the conviction of both defendants on both felony charges. -2-The following issues are presented for review: (1)Did Judge Olsen overrule a prior order of Judge McClernan requiring the State to elect between the charges and, if so,was it error to so overrule the order? (2)Did the District Court err in permitting the trial and conviction of defendants on both charges in violation of the constitutional guaranty against double jeopardy? (3)Did the District Court err in denying defendants' motion to dismiss the felony criminal mischief charge on the ground the State failed to establish a prima facie case that the amount of damage exceeded $150? Defendants first argue that JudgeMcClernan initially granted the motion to force an election between the charges, this becoming the "lawof the case". It ismaintained that when Judge Olsen subsequently assumed jurisdiction and denied the renewed motion to force an election, he thereby overruled the "lawof the case",and in so doing, abused his discretion as district judge. We find no foundation in the record for such a contention. Rather, it ismanifest that Judge McClernan, in ruling

on defendants'motion to force an election at the time of the arraignment,denied saidmotion with the reservation of the right to renew itprior to trial. By statute, a district judge is empowered with the discretion to force the State to elect between duplicitous charges. Section 95-1504(2), R.C.M. 1947. However, JudgeMcClernan did not order such an election in this case,but merely reserved the right to defendants to renew the r~~otion prior to trial. Ne find no abrogation of the doctrine of "law of the case" in the subsequent denial of the renewed motion by Judge Olsen. Defendants' second argument relatesdirectly to thesubstance of the election issue. In this regard,defendants contend the State charged and obtained convictions for two separate offenses based upon proof of the same act. As such, the Convictionson both chargesplaced defendants in double jeopardy for the same offense in violation of the 1972Montana Constitution,Art. 11, Section 25. We conclude the constitutional guaranty against double jeopardy is not relevant to the facts of this case. This Court has consistently quoted with approval the following holding from the Massachusetts case of Morey 

### v. Cornmonwealth, (1871), 108Mass. 433, 434: 

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## * * * A single actmay be an offense against two statutes;and if each statute requiresproof of an additional factwhich the other does not, an acquittal or convictionunder either statute does not exempt the defendant from prosecution and punishment under the other." State v. Marchindo, (1923),65Mont. 431, 446, 211 P. 1093; State

v. Lagerquist, (1968), 152Mont. 21, 30, 445 P.2d 910;Statev. McDonald, (1971), 158Mont. 307, 310, 491 P.2d 711. See also Blockburger v. United States, (1932), 254 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306;Gore v. United States, (19581,357 U.S. 386, 78 S. Ct. 1280, 2 L ed 2d 1405. It is plain that the statutes defining the offenseswith which defendants were charged have, in the ordinary situation,

no common elements. The statutes clearly set forth separate and distinct criminal offenses, and are designed for the protection of completely different interests. Criminal mischief is classified by the Montana Criminal Code of 1973, sections 94-1-101 et seq., R.C.M. 1947, as an offense againstproperty. Section 94-6-102,R.C.M. 1947provides in relevantpart: "(1) A person commits the offense of criminal mischief if he knowingly or purposely:

"(a) injures, damages or destroys any property ofanother or public property without consent

## * * *". Escape, in contrast, is an offense againstpublic administration. Under section 94-7-306,R.C.M. 1947, the offense of escape is committedwhen:

"(2) A person subject to officialdetention

## * * * knowingly or purposely removes himself from officialdetention

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## *." Here,proof of the digging of the hole in the Powell County jail establishes the requisite act in each offense. However, the prosecutionwas obviously required to establishdiffering facts in proving two distinctmental states or intents,and two separate criminal results. We hold, therefore, the District Court did not err in permitting defendants to be charged and convicted of both offenses. Defendantsalso contend, however, the DistrictCourt erred in denying their motion to dismiss the felony criminal mischief charge following the State's casein-chief, on the ground the State failed to establish a prima facie case that the amount of property damage exceeded $150. We agree. The State'sproof of the value of the damage to the wall of the Powell County jail consisted of the admission of two bills totaling $169. On cross-examination, a State's witness, Powell County Sheriff Callings, admitted the bills not only covered the cost of repairing the hole dug in the jail wall by defendants, but additional repairs to the wall around the door lock and a plate adjoining a window in the jail visitor's room as well. Thewitness testified that only a "very light" amount of the $169was attributable to the repair of the other holes. No furtherproof was adduced tending to establish defendants had caused the other holes. The function of proof 

### of thevalue of destroyed or injured property under the Montana Criminal Mischief Statute, section94-6-102,R.C.M. 1947, is essentially similar to that of the analogous Illinois statute defining the offense of criminal damage to property, 1 Ill.Rev,Stat.'65, Ch. 38, Section 21-1. In both statutes,proof of value is not an element of the offense. Rather,proof of value is to be considered by the trial judge in the exercise of his sentencingdiscretion. See (19751, Peoplev. Tidwe11,/33 Ill.App.3d 232, 338N.E.2d 113;People

v. Vesley, (1967), 86 Ill.App.2d 283, 229 N.E.2d 886. Thus, whether a defendant is sentenced for the offense of criminal mischief as a felon or a misdemeanant, is directly contingent upon whether the value of the damage or destruction is shown to be greater or less than $150,respectively. In the instant case,however, defendantswere charged with felony criminalmischief. It was thus incumbent upon the State to establish that the amount of damages caused by defendants exceeded $150. Section 94-6-102(2), R.C.M. 1947. This the State failed to do. The record reveals that the State proved the total damage to the jailwas valued at $169. However, therewas no direct proof that the cost of the repair of the hole caused by defendants exceeded $150. 

### We conclude defendants' motion to dismiss the felony criminal mischief charge at the close of the State's case should have been granted, for failure of proof of an amount of damage consistent with the felony charge. The State had the opportunity to offer to the jury an instruction on the lesser included offense of misdemeanor criminalmischief. Itnevertheless elected not to do so. Thus,we cannotpermit defendants' conviction on the charge of felony criminalmischief to stand. The conviction and sentence for the offense of attempted escape are affirmed. The conviction of the offense of criminalmischief is reversed and the charge therefor dismissed. The sentence entered pursuant to the conviction for criminal mischief is hereby vacated. Affirmed in part, reversed in part.

We concur:



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chief/Justice

- - Judge, suingin the vacant seat on the Court.