NO. 81-380 INTHE SUPREFIE COURT OF THE STATE OFMONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,



### -vsWAYNE JOHNSON,Defendant andAppellant.

Appeal from: 

### District Courtof theEighteenthJudicial District, Inand fortheCounty 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, CountyAttorney, Bozeman, Montana

Submittedon Briefs: December 

### 11, 1981 Decided: 

### 6EB25 

### @N%

Filed:

### Nr. JusticeGene B. Dalydelivered the 3pinion of the Court. On December 1, 1980, the defendant was charged by information with criminalmischief and arson, sections 45-6- 101

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

### District Court of the Eighteenth Judicial 

### District of the State of Montana, in and for the County of Gallatin. The defendant pleaded not guiltyto both charges and a jury trialwas held on April 21, 22 and 23, 1981. The jury found thedefendant guiltyof each offense. The Honorable Joseph B. Gary sentenced thedefendant to the Montana StatePrison for ten years for criminal mischief and fifteen years for

arson, but suspended allbut two yearsof the sentence. The defendant appealstheconviction 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 from 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 firedetermined 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 firehad 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 thathe saw aman in the pet storewatching televisionbetween 6:00 and 6:38p.m. Sgt. Green of the Bozeman Police Department testified that the defendanthad informed him thathe and hiswife 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 themorning after the fire, while firemen were inspecting the damage atthe 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 storeand 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 firethat 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 thatthe defendant did talk quite a lot about insurance and inventory. Evidence was introduced at trial that the defendant had doubled hisinsurancecoverage on inventoryand fixtures from $25,000 to$50,000 inOctober 1979, After the fire, he filed a claim with his insurance company for $45,603.27 in alleged inventory and fixtureloss, There was substantial testimony that defendant's inventorylevelwas quitelow atthe

### 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 storeinthe spring of 1980. One witnesstestified that he thought the defendant was going out of business. The only testimony to the contrary came from a couple who had purchased fishfivedaysbefore the fire, The evidence further revealed that the defendant was burdened by business and personal debts. He was put on a C.O.D. basisby one of hissuppliersin the fallof 1979. A judgment was obtained against the defendant by another supplier inApril 1980 for $1,985.23. Also, atthe time of the fire, defendant owed a third supplier $967.37 for merchandise acquired inDecember 1979. In addition, it was shown thatthedefendantowed Montana Power $190.38; $414.45 for rent on 

### a house in Bozeman; $95.18 for rent on a house inBelgrade; $325 for rent to

### a former landlady inBelgrade; $800 for a television 

### set he purchased for the store; $259 inback wages toa former employee; a substantial sum tothe Bozeman clinic; $545 toa 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 

### incharge of the investigation, thathe was indebted onlytoWestern 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 facttrue. Two issues arepresented for review: 1. Were there sufficient facts presented in the affidavit to allow the District Court to conclude that probable cause existed tocharge the defendantwith criminal mischief and arson? 2. Was the evidence sufficient to support theguilty verdicts for criminalmischief 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 citesStatev. Hallam (1978), 175Mont. 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 aswill allow the district judge to make an independent determination that an offense has been committed," 575 P.2d at59, While the defendant is indeed partially correct in citing Hallam as authority for his position, he fails to present the requisite authoritythatcompletely definesthisarea ofthelaw. ThisCourt has addressed the contention presented by the defendant in several previous cases, In Statev. Dunn (1970), 155 Mont. 319, 472 P.2d 288, 292, this Court held that, "[i]f the evidence contained in the affidavit 

### is sufficienttosatisfythedistrictjudge thatprobable cause exists, nothing further 

### is required." Further, in Statev. Miner (1976), 169Mont. 260, 546 P.2d 252, thisCourt 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 approvalby thisCourt. See: Statev. Troglia, 157Mont, 22, 482 P,2d 143. Generally, thoseguidelinesstatethat a

### mere probability 

### is sufficientfor probable cause, a prima facie showing not being necessary. Also affidavitsof probable cause are subject to much 

### less rigorous standards than the admissibility of evidence, Finally, judges reviewing such affidavits should use their cominon sense in determining whether probable cause exists." 546 P.2d at254-255. (Empha

### sis added.) See: State v. Hamilton (1980), 

## - Mont. 

## , 605 P.2d 1121, 1127, 37 St.Rep. 78, 75, for a reaffirmation of the holding inMiner. 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 arsonwere committed by thedefendant. The second issue presented for review 

### is the allegation that the evidence, because of 

### its circumstantial nature, was insufficientto support the verdicts. Defendant argues that under the standard 

### set out in State v. Cor (1964), 144Mont. 323, 396 P.2d 86, and Statev. Fitzpatrick (1973), 163 Mont. 220, 516 P.2d 605, the State failed tomeet itsburden of proof. The "standard," asallegedby the defendant is, "that to justify a conviction on circumstantial evidence, the factsand 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 onlypresented partof the legal analysisthat 

### is required when a substantial evidence question has been raised.This Court held in Statev. Wilson (1981), Mont. 

### - 631P.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 asa reasonablemind might accept asadequate to support a conclusion. State v. Graves (1981) 

### -Mont. 

## , 622 P.2d 203, 208, 38 St.Rep. 9, 14; 

## statev. Merseal (1975), 167 filont. 412, 416, 538 P.2d 1366, 1368." 631 P.2d at1278. 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. Statev. Cor (1964), 144Mont. 323, 396 P.2d 86; State v. Stoddard (1966), 147Mont. 402, 408, 412 P.2d 827, 831. While a convictionbased upon circumstantial evidence may require a greater degree of scrutiny by this Court, circumstantial evidence does not require a separate

or unique test asthedefendant contends that it does. The standard thatwas citedby thedefendant from 

### - Cor and Fitz~atrick was not the full standard of review that 

### isto be applied to verdicts based primarily upon circumstantial evidence. In 

## - Cor, 396 P.2d at88-89, thisCourt 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 iswhethe; the factsand circumstances areof such a quality and quantity asto legallyjustify a jury indeterminingguilt bevond a reasonaTle doubt. If such be the case, then the court should not, indeed



### .................................... cannot. setasidethe solemn findinas of the trierof the facts. d State v. Espelin, 106 Mont. 231, 76 P,2d 629; Statev, DeTonancour, 112 Mont, 94, 112 P.2d 1065," (Emphasis added.) See: State v. Shurtliff (1981), 

### -Mont, 

### -

## , 635 P.2d 1294, 38 St.Rep. 1798; Statev. 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 firstexplanation, 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 onlybe consistent with defendant's guiltbut also inconsistent with his innocence, Defendant's reading of the case 

### is not quite complete. In Fitzpatrick, the Court went on to saythat thejury 

### is the fact-finding body in our legal system and 

### is free to pick and choose the evidence it wishes to believe. Statev. Fitzpatrick, supra at 226, 516 P.2d at609." 589 P.2d at658. 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 therewere other "rational (i.e., reasonable)

### " explanations of the evidence presented iswithout 

### merit. The jury did not conclude from the evidence that there was any other reasonable explanation for the evidence, and 

### we willnot second guess thejury. In the past thisCourt reviewed the evidence frorn an

arson case, Statev. Murdock (1972), 160Mont. 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, asinmost arson cases. Nobody sawdefendant start the fire or saw him prepare the premises for the firethat 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 devicesand electricalcircuit in the furnace with oily rages leading to containers filled withvolatileliquids; gasoline, propane, and other flammable materials were placed on the floor directly above the furnace; the thermostat was 

### set to firethe 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 tomalfunction and emit a continuous flow of oilwhen it turned on; and defendant, tothe 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 at392. 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, asinMurdock, thedefendant controlled thekeys to the premises; therewere no signsof forced entry; fiammable materials were placed on the floor; and the defendant, to the exclusionof anyone 

### else, had both themotive 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 thatdefendant had doubled his insurance six months before the fireand atthe same 

### time reduced hisinventory; 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 theDistrict Court 

### is affirmed.

We concur:

Chief Justice