No. 92-168 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,

CHARLES D. PIERCE and WITNEY H. FERDINAND, Defendants and Appellants,

APPEAL FROM: District Court of the Tenth ~udicial ~istrict, 

### In and for the County 

### of Judith Basin, The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD: ForAppellants: Bradley 3. Parrish, Attorney 

### at Law, Lewistown, Montana Craig 

### R. Buehler, Attorney 

### at 

### Law, Lewistown, Montana 

### For Respondent: Hon. Marc Racicot, Attorney General, Paul D. Johnson, Assistant Attorney General, Helena, Montana James A. Hubble, Judith 

### Basin County Attorney, Stanford-, Montana

Fil Submitted on Briefs: October 9, 1992 Decided: November 24, 1992

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from 

### the Tenth Judicial ~istrict, ~udith Basin County,theHonorable PeterL. Rapkoch presiding. Appellants Charles Pierce (Pierce) and Whitney Ferdinand (Ferdinand) were found guilty of felony burglary and felony theft after a bench trial on September 9, 1991. Pierce and Ferdinand appeal on the grounds that the ~iatrict Court improperly denied their motion 

### for reduction of the burglary charge to criminal trespass and their motion to dismiss the felony theft charge and replace it with a misdemeanor theft charge. We affirm. On ~pril 10, 1991,Pierceand Ferdinandwere traveling west on Montana Highway 87, en route from Billings to Kalispell. Pierce



### was driving a pickup truck the pair had used to deliver a trailer for Pierce's family business in Kalispell. At Windham they turned 

### off the highway onto an unpaved lane and drove about a quarter of


### a mile into the yard of an old farmstead known locally as the Ray place. It 

### was 7:30 in the evening, still light enough for a 

### witness to see the pickup turn off 

### the highway 

### and park 

### in the farmyard. Thewitness was Ray Sherer,who leased theproperty and lived in a trailer at the junction of the lane and the highway. Sherer testified that

### he saw the truck 

### stop near a bunkhouse. 

### He telephoned theproperty owner,John Tripp,who also lived at the junction of the lane and the highway, and asked whether he had given anyonepermission to drive into the farmyard. Tripp said 

### he had not, so Sherer called the sheriff

# . Then, watching through binoculars, he saw a man, later identified as pierce, use an 2eighteen-inch bar to break the padlock off the bunkhouse door. By the time Undersheriff John Shilling arrived, five to ten minutes later, Pierce and Ferdinand had removed several items from the bunkhouse and placed them in thepickup. They had also broken the padlock on the back door of the farmhouse, but before they could remove anything from the house, Sherer and Shilling had driven into the farmyard. Shilling testified that he looked into the bed of the pickup truck at that time and saw an old school desk, a box containing several miscellaneous items, and a wall clock. He advised Pierce and Ferdinand of their rights and placed them under arrest. After the sheriff arrived, Pierce acknowledged that the items in thepickup truck, including two items in the cab, had come from the bunkhouse. Ferdinand's motion to sever her case from Pierce'swasdenied, and the twowere tried as co-defendants. The District Court heard the evidence after the twodefendantswaived jury trial, and on the

same day Judge Rapkoch and the three attorneys visited the Ray place. On the basis of the evidence presented at trial and his personal observation, Judge Rapkoch found that the bunkhouse and farmhouse Pierce and Ferdinand had broken into were "occupied structuresu and ruled that their offense therefore was burglary under § 45-6-204(1), MCA. He also ruled that the retail value of $416 assigned to the stolen itemsby the State's expert witness was the relevant value for determining whether the defendants were guilty of misdemeanor theft or felony theft,and found them guilty of felony theft under § 45-6-301(6), MCA.Pierce,who had a prior burglary conviction and several DUI convictions onhis record, received a five-year suspended sentence and was fined $500. Ferdinand,who had no prior criminal history, received a two-year deferred sentence and was fined $250. Both were ordered to pay costs, restitution,and a $20 surcharge. The issues on appeal are: 1. Whether the Statepresented sufficient evidence that the buildings Pierce and Ferdinand entered were "occupied structuresM

so as to support a burglary conviction. 2. Whether the State presented sufficient evidence of the value of the stolen property to support a conviction of felony theft. I When sufficiency of evidence is at issue on appeal, our standard of review is whether, after reviewing the evidence in a lightmost favorableto theprosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (Mont. 1992), 833 P.2d 1106, 1110, 49 St.Rep. 586, 588. Burglary is a felony under 

### 5 45-6-204,MCA, and occurswhen a person "knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein." The first issue on appeal is whether the State presented sufficient evidence that the buildings Pierce and Ferdinand entered were lloccupied ~tructures.~~ Appellants argued that thebuildings at the Ray place were not occupied structures, and that their offensethereforewasmerely criminal trespass,a misdemeanor under 

### 5 45-6- 203,MCA. An occupied structure isdefined in 

### 5 45-2-101(40)

### ,MCA,

any building,vehicle, or otherplace suitable forhuman occupancy ornight lodging of persons or for carrying on business, whether or not a person is actually present. Testimony at the trial established that no one had lived at the Ray place since 1964; that neither the farmhouse nor the bunkhouse had electricity, heat, or running water; and that the house smelled strongly of wild animals and had a leaking roof. Nevertheless,both Sherer and the sheriff testified that they had

seen people living in places "a lot worse." Tripp, who had owned the Ray place since 1947, lived in the house from 1948 to 1952 and now used both the farmhouse and the bunkhouse to store old furniture and appliances. Sherer used the bunkhouse to store fence posts. Tripp visited the house and bunkhouse about once a month, sometimes to poison mice and sometimes just to look around. No one had stayed overnight in the house or in the bunkhouse since 1964. In considering the defendants' motion to reduce the charge against them to criminal trespass,Judge Rapkoch observed that the bunkhouse was tight and of sound construction, though old, and was suitable for storage and safekeeping of antique items. Such buildings,he said, "haveunique and personal value in themselves

or are used as natural places for the storage of property which itself has real value to the owners. 

## . 

# . . The owners of such 'mini-ghost towns1

# . . . are entitled to have them respected."Therefore, the court concluded, the bunkhouse was an occupied structure at the time of the offenses charged. Under the rule we established in State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188, a structure suitable for carrying on business and used regularly for that purpose is an "occupied structure," and wrongful entry thereto for the purpose of committing an offense is burglary. Here, the bunkhouse was used regularlyby the lessee, Sherer, to storematerials needed forhis farming business, and by the owner, Tripp, to store household goods. It is an occupied structure, suitable for use in the lessee's farming business, just as the tack shed in Sundav was an occupied structure suitable for carrying on the owners* horse rental business. We hold that any rational trier of fact could have found the essential elements of the crime of burglary in this instance. The twodefendants admittedthattheyhad broken into thebunkhouse,an occupied structure, for the purpose of finding and taking away antique objects. The District Court properly found them guilty of burglary under 5 45-6-204, MCA. II The second issue is whether the State presented sufficient evidence to sustain a convictionof felony theft. A person commits theft when he "purposely or knowingly obtains or exerts unauthorized control overproperty of the ownerand has thepurpose of depriving the owner of theproperty.'* Section 45-6-301(l), MCA. If the property exceeds $300 in value, the theft is felony theftunder f 45-6-301(6)(b), MCA. The value of stolen property is the market value at the time and place of the crime. Section 45-2- 101(69) (a)

## ,MCA. Pierce and Ferdinand removed the following objects from Tripp's bunkhouse: Seth Thomas wall clock Two photographs in leather cases School desk Oil lamp with chimney Shaving mug with three brushes Hand crank telephone Wall mirror with thermometer Square glass bottle with cork Schilling spice can Boraxo hand cleaner can Car wash compound At the trial the State called Patricia Lee Stoos, a school teacher and part time antique dealer who had examined the stolen items in May 1991. She testified that the retail value of these items was $416, though she would pay only $219 if she were to buy them for future resale. If the clock were restored, she said, it alone would be worth $400, though in its present condition its retail value was only $225. Appellants argue that the relevant value of the stolen items

was thewholesalevalue, or $219, because the owner,Tripp, was not a retail merchant. Appellants distinguish Statev. Barker (1984), 211Mont. 452, 455-56, 685P.2d 357, 359-60, inwhich we held that the retail value of a pair of boots stolen from a clothing store

was the market value for the purpose of deciding whether the defendant was guilty of felony theft: Itwas not error to instruct that themarket value of the boots meant their retailprice. 

## . . 

# . Certainly here thewholesale price of themerchant could not be considered theirmarketvalue. 

# . .

# .Theprice atwhich themerchant offers to sell his merchandise ordinarily is its market value, though not always. Wehave applied this ruletoproperty stolen fromnonmerchants like Tripp as well as to property stolen from merchants. In State v. Fox (1984), 212 Mont. 488,689 P.2d 252, for example,we found that testimony by the owner of a retail computer store was sufficient evidence of the value of computer equipment stolen from an apartment. See also Statev. Dess (1984), 207 Mont. 468, 674 P.2d 502 (value of bicycles stolen fromprivate ownerwas establishedby testimony from retail bicycle shop owners). The weight of the evidence and the credibility of the witnesses are exclusively theprovince of the trier of fact. State

v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. When conflicting evidence of value ispresented, it is for the trier of facttodetermine which evidence isdispositive. Statev. Ramstead (1990), 243 Mont. 162, 170-71, 793 P.2d 802, 807. Here, any rational trier of fact could have found that the retail value assessed 

### by a local antique dealerwas 

### in fact themarket value of the stolen goods. The District Court properly adopted that value in denying the appellants' motion to dismiss the felony theft charge. AFFIRMED.We concur:November24, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentbyUnited States mail, prepaid, to thefollowing named: BradleyB. Parrish AttorneyatLaw 209BankElectric Bldg. Lewistown,MT 59457 CraigR. Buehler Attorney at Law 505West MainSt.,Ste.210 Lewistown,MT 59457 Hon.MarcRacicot, Attorney General Paul

### D.Johnson,Assistant Justice Bldg. Helena.MT 59620 JamesA. Hubble Judith Basin County Attorney P.O. Box556 Stanford,MT 59479

EDSMITH CLERKOFTHESUPREMECOURT