NO. 81-380 

IN THE SUPREFIE COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWAYNE JOHNSON, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, The Honorable 

Joseph B. Gary, Judge presiding. 

Counsel of Record: 

For Appellant: 

A. Michael Salvagni, Bozeman, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Submitted on Briefs: December 11, 1981 

Decided: 6EB 2 5 @N% 

Filed: 
Nr. Justice Gene B. Daly delivered the 3pinion of the Court. 

On December 1, 1980, the defendant was charged by 

information with criminal mischief and arson, sections 45-6- 

101 (1) (c) and 45-6-103(a), MCA, respectively, both felonies, 

in the District Court of the Eighteenth Judicial District of 

the State of Montana, in and for the County of Gallatin. 

The defendant pleaded not guilty to both charges and a jury 

trial was held on April 21, 22 and 23, 1981. The jury found 

the defendant guilty of each offense. The Honorable Joseph 

B. Gary sentenced the defendant to the Montana State Prison 

for ten years for criminal mischief and fifteen years for 

arson, but suspended all but two years of the sentence. The 

defendant appeals the conviction on both counts. 

Defendant owned and operated the Coral Reef Pet Shop 

in Bozeman, Montana, from 1975 to May 30, 1980. The 

defendant leased the premises f rom Lovelace Realty until 

October 1979 when the building was converted into a 

condominium. Defendant did not purchase his unit. The 

owner of the business located next to defendant purchased 

the unit occupied by the pet store and assumed the lease 

between defendant and Lovelace Realty. 

Sometime between 7:00 and 7:30 p.m. on May 22, 1980, 

a fire was discovered in defendant's pet store. Investigators of the fire determined it to have been intentionally 

set. Two Coleman fuel cans were found inside, near the rear 

door of the pet store. It was determined that the fire had 

been independently set in three separate areas of the store 

by the use of a petroleum product similar to, if not 

identical with, the Coleman fuel. Also, there was no 

evidence of a burglary or a break-in. 
Defendant was seen by the owner of the business 

located next door, Richard Wike, at about 5:30 p.m. on May 

22, 1980. Wike testified that the defendant partially 

emerged from the back door, stopped and then went back 

inside. Another witness, Wayne Pederson, who lived in an 

apartment over the pet store, testified that he saw a man in 

the pet store watching television between 6:00 and 6:38 p.m. 

Sgt. Green of the Bozeman Police Department testified 

that the defendant had informed him that he and his wife had 

the only keys to the pet store. However, at trial it was 

discovered that an employee, Norrna Blossom, also had a key, 

but she had not worked in or been to the store for several 

months. 

Further testimony revealed that the morning after the 

fire, while firemen were inspecting the damage at the store, 

the defendant appeared and asked if he could retrieve 

certain business records from his desk in the front of the 

store. He was allowed to do so. He later told police, 

however, that his business records had been stored on a 

shelf in the rear of the store and had been destroyed by the 

fire. The defendant did not produce any records at trial 

and an inspection of the back of the store did not reveal 

any evidence that records had been stored there. 

Wike testified that the defendant informed hirn the 

morning after the fire that the lease was ended and did not 

mention any plans to reopen. Testimony revealed that the 

defendant, after he had arrived at the scene, made no 

inquiry about the animals that had been in the store, nor 

did he search for survivors or request that arrangements be 

rnade for their remains. However, Sgt. Green testified that 
the defendant did talk quite a lot about insurance and 

inventory. 

Evidence was introduced at trial that the defendant 

had doubled his insurance coverage on inventory and fixtures 

from $25,000 to $50,000 in October 1979, After the fire, he 

filed a claim with his insurance company for $45,603.27 in 

alleged inventory and fixture loss, 

There was substantial testimony that defendant's 

inventory level was quite low at the time of the fire. This 

testimony was received from a sales representative for one 

of the defendant's suppliers, a truckdriver who delivered 

supplies to the pet store and another supplier who visited 

the store in the spring of 1980. One witness testified that 

he thought the defendant was going out of business. The 

only testimony to the contrary came from a couple who had 

purchased fish five days before the fire, 

The evidence further revealed that the defendant was 

burdened by business and personal debts. He was put on a 

C.O.D. basis by one of his suppliers in the fall of 1979. A 

judgment was obtained against the defendant by another 

supplier in April 1980 for $1,985.23. Also, at the time of 

the fire, defendant owed a third supplier $967.37 for 

merchandise acquired in December 1979. In addition, it was 

shown that the defendant owed Montana Power $190.38; $414.45 

for rent on a house in Bozeman; $95.18 for rent on a house 

in Belgrade; $325 for rent to a former landlady in Belgrade; 

$800 for a television set he purchased for the store; $259 

in back wages to a former employee; a substantial sum to the 

Bozeman clinic; $545 to a local furniture store; and he had 

a $14,000 unpaid bank debt. 
It was brought out at trial that the defendant had 

misrepresented and suppressed certain information during the 

official investigation. He had represented to Sgt. Green, 

who was in charge of the investigation, that he was indebted 

only to Western Bank and Pendelton Enterprises, an inventory 

supplier from Salt Lake. Further, the defendant informed 

Syt. Green that he had only two business suppliers. At 

trial, under cross-examination, the defendant admitted that 

neither representation was in fact true. 

Two issues are presented for review: 

1. Were there sufficient facts presented in the 

affidavit to allow the District Court to conclude that 

probable cause existed to charge the defendant with criminal 

mischief and arson? 

2. Was the evidence sufficient to support the guilty 

verdicts for criminal mischief and arson? 

Defendant contends that the affidavit of the deputy 

county attorney did not contain sufficient facts for a 

showing of probable cause that he, the defendant, committed 

either the offense of criminal mischief or arson. Defendant 

cites State v. Hallam (1978), 175 Mont. 492, 575 P.2d 55, as 

authority for this contention. The specific section of 

Hallam relied upon states: 

"Obtaining leave to file an information is 

not a mere perfunctory matter but rests in 

the sound discretion of the district judge, 

The application must be complete in itself, 

and contain such salient facts as will allow 

the district judge to make an independent 

determination that an offense has been committed," 575 P.2d at 59, 

While the defendant is indeed partially correct in citing 

Hallam as authority for his position, he fails to present 

the requisite authority that completely defines this area of 
the law. 

This Court has addressed the contention presented by 

the defendant in several previous cases, In State v. Dunn 

(1970), 155 Mont. 319, 472 P.2d 288, 292, this Court held 

that, "[i] f the evidence contained in the affidavit is 

sufficient to satisfy the district judge that probable cause 

exists, nothing further is required." Further, in State v. 

Miner (1976), 169 Mont. 260, 546 P.2d 252, this Court held: 

"In determining the probability that defendant committed an offense, the guidelines 

suggested in Spinelli v. United States, 393 

U.S. 418, 89 Sect. 584, 21 L.Ed.2d 637, have 

been noted with approval by this Court. See: 

State v. Troglia, 157 Mont, 22, 482 P,2d 143. 

Generally, those guidelines state that a mere 

probability is sufficient for probable cause, 

a prima facie showing not being necessary. 

Also affidavits of probable cause are subject 

to much less rigorous standards than the 

admissibility of evidence, Finally, judges 

reviewing such af f idavits should use their 

cominon sense in determining whether probable 

cause exists." 546 P.2d at 254-255. (Emphasis added.) 

See: State v. Hamilton (1980), - Mont. , 605 P.2d 

1121, 1127, 37 St.Rep. 78, 75, for a reaffirmation of the 

holding in Miner. 

We have reviewed the affidavit of the deputy county 

attorney. The affidavit contained a large array of facts 

that presented sufficient probable cause to warrrant the 

district judge to believe that the offenses of criminal 

mischief and arson were committed by the defendant. 

The second issue presented for review is the allegation that the evidence, because of its circumstantial 

nature, was insufficient to support the verdicts. Defendant 

argues that under the standard set out in State v. Cor 

(1964), 144 Mont. 323, 396 P.2d 86, and State v. Fitzpatrick 

(1973), 163 Mont. 220, 516 P.2d 605, the State failed to 
meet its burden of proof. The "standard," as alleged by the 

defendant is, "that to justify a conviction on circumstantial evidence, the facts and circumstances must not only be 

entirely consistent with the theory of guilt, but rnust be 

inconsistent with any other rational (e. reasonable) 

conclusion." Fitzpatrick, 516 P.2d at 609. Again, the 

defendant has only presented part of the legal analysis that 

is required when a substantial evidence question has been 

raised. 

This Court held in State v. Wilson (1981), - Mont. 

631 P.2d 1273, 38 St.Rep. 1840, 1047: 

"The correct test is whether there is substantial evidence supporting the conviction, 

viewed in the light most favorable to the 

State. State v. Brubaker (1981), - Mont. 

- , 625 P.2d 78, 81, 38 St.Rep. 432, 436; 

State v. Azure (1979), - Mont. - , 591 

P.2d 1125, 1131, 36 St.Rep. 514, 528. 'Substantial evidence' is such relevant evidence 

as a reasonable mind might accept as adequate 

to support a conclusion. State v. Graves 

(1981) - Mont. , 622 P.2d 203, 208, 38 

St.Rep. 9, 14; state v. Merseal (1975), 167 

filont. 412, 416, 538 P.2d 1366, 1368." 631 

P.2d at 1278. 

This Court must begin a review of the evidence with 

the above principles of law in mind. The fact that the 

defendant was convicted by the use of circumstantial 

evidence rather than direct evidence does not alter the 

process of review. State v. Cor (1964), 144 Mont. 323, 396 

P.2d 86; State v. Stoddard (1966), 147 Mont. 402, 408, 412 

P.2d 827, 831. While a conviction based upon circumstantial 

evidence may require a greater degree of scrutiny by this 

Court, circumstantial evidence does not require a separate 

or unique test as the defendant contends that it does. 

The standard that was cited by the defendant from - Cor 

and Fitz~atrick was not the full standard of review that is 
to be applied to verdicts based primarily upon circumstantial evidence. In - Cor, 396 P.2d at 88-89, this Court held: 

"Circumstantial evidence is not always 

inferior in quality nor is it necessarily 

relegated to a 'second class status' in the 

consideration to be given it. The very fact 

it is circumstantial is not a sufficient 

allegation to justify a reversal of the 

judgment for such evidence may be and frequently is, most convincing and satisfactory. 

In any criminal case, evidence that is 

material, relevant and competent will be admitted. 'nothina more and nothinq less,' The 

test is whethe; the facts and circumstances 

are of such a quality and quantity as to 

legally justify a jury in determining guilt 

bevond a reasonaTle doubt. If such be the 

case, then the court should not, indeed .................................... 

cannot. set aside the solemn findinas of the 

trier of the facts. d 

State v. Espelin, 106 

Mont. 231, 76 P,2d 629; State v, DeTonancour, 

112 Mont, 94, 112 P.2d 1065," (Emphasis 

added. ) 

See: State v. Shurtliff (1981), - Mont, - , 635 P.2d 

1294, 38 St.Rep. 1798; State v. Stoddard, supra, 412 P,2d at 

Further, in State v. Seitzinger (1979), - Ploi-lt. 

- , 589 P.2d 655, 36 St.Rep. 122, we stated: 

"Given the first explanation, defendant cites 

State v. Fitzpatrick (1973), 163 Mont. 220, 

516 P.2d 605, as holding that to support a 

criminal conviction the evidence must not 

only be consistent with defendant's guilt but 

also inconsistent with his innocence, 

Defendant's reading of the case is not quite 

complete. In Fitzpatrick, the Court went on 

to say that the jury is the fact-finding body 

in our legal system and is free to pick and 

choose the evidence it wishes to believe. 

State v. Fitzpatrick, supra at 226, 516 P.2d 

at 609." 589 P.2d at 658. 

Here, the jury determined from all the evidence 

presented, circumstantial though it may have been, that the 

defendant was guilty of criminal mischief and arson. The 

argument by defendant that there were other "rational (i.e., 

reasonable) " explanations of the evidence presented is 
without merit. The jury did not conclude from the evidence 

that there was any other reasonable explanation for the 

evidence, and we will not second guess the jury. 

In the past this Court reviewed the evidence frorn an 

arson case, State v. Murdock (1972), 160 Mont. 95, 500 P.2d 

387, that was quite similar to that presented here. When 

reviewing the evidence, we stated: 

"To be sure the evidence is circumstantial, 

as in most arson cases. Nobody saw defendant 

start the fire or saw him prepare the 

premises for the fire that resulted. But the 

evidence does show that: defendant was the 

sole occupant of the house; he had the only 

keys to the house; there were no signs of 

forced entry into the house; the house was 

prepared for a fire by jamming the safety 

devices and electrical circuit in the furnace 

with oily rages leading to containers filled 

with volatile liquids; gasoline, propane, and 

other flammable materials were placed on the 

floor directly above the furnace; the 

thermostat was set to fire the furnace in the 

early morning hours when the temperature on 

the inside of the house fell below 75 

degrees; the rugs in the house were soaked 

with oil; the furnace had manually been 

tampered with to cause it to malfunction and 

emit a continuous flow of oil when it turned 

on; and defendant, to the exclusion of anyone 

else, had both the motive and opportunity to 

burn the house down. Such circumstantial 

evidence is sufficient to establish that 

defendant caused the fire." 500 P.2d at 392. 

A review of the evidence in this case parallels 

quite closely with the evidence in Murdock. Here, as in 

Murdock, the defendant was not seen starting the fire. 

However, as in Murdock, the defendant controlled the keys to 

the premises; there were no signs of forced entry; fiammable 

materials were placed on the floor; and the defendant, to 

the exclusion of anyone else, had both the motive and opportunity to burn the store. In addition to the above 

evidence, there was further evidence presented to support 

the jury's findings. This evidence includes the fact that 
defendant had doubled his insurance six months before the 

fire and at the same time reduced his inventory; he was seen 

at the pet store shortly before the fire; he was heavily 

indebted and his business showed signs of severe financial 

stress; and, there were a number of untruths told by 

defendant to the investigating officers. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice