DA 18 - 0335



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 2 1 MT 134N ST ATE OF MONTANA,

Plaintiff and Appellee, v. DAVID MICHAEL YOUMANS,

Defendant and Appellant.
APP EAL FROM: Di strict Court o f the Eighth Judicial District ,

In and For the County

of Cascade , Cause No. DDC 17 - 244 Honorable John W. Parker , Presiding Judge COUNSEL OF RECORD:

For Appellant: Chad Wr ight, Appellat e Defender, Deborah S . Smi th , Assistant Appellate Defender, Helena , Mo nt ana For Appellee : Au stin Knudsen, Montana Att orney G eneral , Roy Brown, Assistant Attorney General , Helena, Montana Joshua A. Racki, Cascade Count y Attorney, Amanda L. Lo fink, Deput y County A ttorney, Great Falls, Montana

Submitted on Briefs: A

pril 28, 2021 Decided: May

25, 2021 Filed:

__________________________________________ Clerk 

# sr---6ma•—•f 05/25/2021

Case Number: DA 18-03352

Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Purs uant to Section I, Paragraph 3(c ), Montana Supreme Court Internal Ope rating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent . Its case title, cause number, and disposition shall b e inc luded in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Mo ntana Reports. ¶2 D avid Michael Youmans appeals a final judgment and sentencing order from the Eighth Judicial District Court, Cascade County , convicting him of criminal possession of dangerous drugs, criminal possession of drug paraphernalia, theft, and atte mpted tampering with or fabricating physical evidence . The only issue Youmans raises on appeal is whe ther there was suffic ient e vidence to support his theft conviction . W e reverse. ¶3 O n April 2, 2017, Officer Scheer responded to a report fro m Tiffany Merchant indicating that her roommate , Youmans, had stolen some of her money. When Officer Scheer arrived, Merchant was the o n ly per son present in the house. When Merc hant made the report to Offi cer Scheer, s he explained that she was on Supplemental Security Income (SSI) due to several disabilities s he had . She did not describe how much money was missing , but insisted Youmans stole it . The parties later stipulated that the full amount of Merchant ’ s SSI che ck was $733 . ¶4 Officer Sc heer return ed later that d ay to follow up on his report. Y oumans w as present at the house and was asked to talk with Office r Scheer. O ff icer Sch eer indi cated that Youmans seemed “ shocked” that he was there . Youmans followed Offi cer S cheer3

into the livin g room . Youman s explained that he went to the bank to withdraw mon ey and he was shorted. Officer S che er testified at trial to his conversation w ith Youmans : A: [Officer Scheer] : I as ked h im

— I basically s aid, “Well , ” in anticipation that he would explain his side of things regardin g the mo ney. Q: [Prose cutor]: And di d he say anything? A: Yeah. He provided a story of how he had gone to ge t the money at the bank, he had gotten shorted by about $20.00 . He w as going to return to the bank and get that probl em t aken care of and he ne ver made it back home. He ended up meetin g a friend named John, and they w ent driving around for a while until they ende d up out in Vaughn, Montana .

. . . Q : And did he tell you wh at occurred out in V a ughn? A: H e said he got to hang out with som e friends and partying. And during this time , John took his car, which also contai ned the money that b elonged to [Tiffany].

. . . Q: How did he get home? Did he tell you? A : He said h e walked from Vaughn to Great Falls. Q : A b out how far is that? A: I think it ’ s—to the city limits, I think it ’ s cl ose to 11 miles. ¶5 Officer S cheer asked Youmans for his identification during th e investigation . Youmans proceeded t o search the house for h is identification , and when he returned to the li ving room h e reportedly put his foo t on a sp oon that co ntained whit e residue and a cotton ball on it . The sp oon was originally on the floo r near a chair, then Youmans tried to push it under the chair when Officer Sc heer asked him about it . Officer Sc heer detained Y oumans and subsequently search ed the resi den ce , seiz ing drug s and drug paraphernal ia . Officer S cheer requested Merchant to provide him with written4

documents in support of her th eft asserti on , but s he provide d none. Officer S cheer also conducted a th orou gh search of Youmans ’ bedroom looking for ev idence of th e alleged theft , but acknowledged he was unable to find cash or documents that would support a theft had occurred. ¶6 Youmans was charged by Info rmation with : Count 1: Criminal Possession of Dangerous Drugs , a felony, in viol ation of § 45 - 9 - 102, MCA; Count 2: Criminal Posses sion of Drug Paraphernalia, a misdemean or, in violation of § 45 - 10 - 103, MCA; Count 3: Theft, a misdemeanor, in violation of § 45 - 6 - 301 (1)(a), MCA; and Count IV: attempted Tamperin g w ith or Fab ricating Physi cal Evidence , a felo ny, in viol ation of §§ 45 - 7 - 207(1)(a) and 45 - 4 - 10 3, MCA. ¶7 Trial w as h eld on February 20 through 21, 2018. The State presented testimony from a crime lab analyst an d Of ficer Sc heer ; Merchant did not testify. The defen se did not present witness testimony an d rested after the State rested . At the close o f evidence, Youmans mo ved to dismiss Count III

—the ft

—fo r insufficient evide nce pur suant to § 4 6 - 16 - 403, MCA. Youmans asserted the only evidence presented at trial regarding the theft allegation was through O fficer Schee r ’ s tes timony that Merchant reported Youmans stole her money . Th e State as serted the issue went to the weight of the eviden ce , which would be for the jury to decide. The District Court denied Youman s ’ motio n to dismiss, reasoning the elements of the case could be met in a light most favorab le to the State, while noting the State was not o n “ extremely strong footing. ” ¶8 The jury f

ound Y oumans guilty of all co unts . Y oumans received a concurrent senten ce for his theft conviction of six mo nths wi th the Casca de County Dete ntion5

Center , with credit for time served . The District Court also orde red restitution of $733 and imposed con ditions recommended in the presentence inve stigation. On appeal, Youman s c ontends the re was insuf ficient evidence to p rove theft . ¶9 Thi s Court reviews de novo whether sufficient evidence supports a conviction. Sta te v. Polak, 2018 MT 174, ¶ 14, 392 Mo nt. 9 0, 422 P.3d 112 (citations omitted). We vie w the evidence in light mo st favorable to the prosecution and determin e whe ther

“ any ratio nal trier of fact could have found all the essential e lements of the offense be yo nd a reasonable doubt. ” State v. To rres , 2013 MT 101, ¶ 16 , 369 Mont. 516, 299 P .3 d 804 (citing State v. Trujillo , 2008 MT 101, ¶ 8, 342 Mont . 219, 180 P.3d 11 53 ). ¶10 “ A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over p rope rty o f the owner and : ha s the purpose of depriving the owner of the prop erty [ .] ” Section 45 - 6 - 301(1 )(a), MCA. “When at the close of the p rosecutio n ’ s evidence or at the close of all the evidence, the evidence is insu fficient to support a f in ding or verdi c t o f guilty, the court may, on its own motion or on the motion of the defendant , dismiss the action and discharge the defen dant. ” Section 46 - 16 - 403, MCA. Evidence is insufficient to support a finding or ve rdict of guilty when, after reviewing the eviden ce in the light mo st favorable to the prosecuti on, no rational trier of fact could have found the essentia l elements of the crime beyond a reasonable doubt. Polak, ¶ 34. When considering the denial of a motion to dis miss for insufficient evi dence, th is C ourt considers only the trial testimony and the evi d ence properly before the jur

y. State v. Giant , 2001 M T 245, ¶ 10, 307 M o nt. 74, 37 P.3 d 49.6

¶11 Youmans raised a timely motion to dismiss at the close of evidence . In his motion, Youmans asse rted th at “the o n ly evidence that ’ s been presented at this trial regarding the theft allegati on is simply a report of a theft against Tif fany Merchant. ” During questioning , Officer S cheer was asked s pecifically about the theft charge : Q : [Defense Counsel] : B ut you con duct e d a very – a ve ry very th orough search of the room; correct? A : [Office r Scheer]: Yes. Q: An d it ’ s true, O fficer Sch eer, that you di d not find cash, for example; is that correct? A : I did not. Q: Okay. It ’ s true, Officer Scheer, that you did not find any documents that wo uld support the theft charge

– theft allegation again st Mr. Youmans; correct? A : Correct. Q: Ultimately, it ’ s true that in your search of the bedroom you did not find any evidence to connect David Youmans with a the ft charge ; co rrec t ? A : That ’ s correct. ¶12 Upon review ing the record , we conclude the re was insuffi cient evidence to convict Youmans of theft . The only evidence of theft was Officer S cheer ’ s testimony regarding Youmans ’ statements . M erchant did not testify. Y ouman s ’ s tatements to Officer Scheer

—that he went to the bank and was shorted $20

—do not establish Youmans ’ intent to deprive Merchant o f mon ey ; the amount of money purportedly taken ; that Youmans exercised unauthorized control o ver Merchant ’ s money; or that Merchant was actually deprived of some amount of her money . Further, Youmans ’ pur ported admission was not7

corroborated. The State failed t o pro ve every element of theft , thus, the District Court ’ s denial of Youmans ’ motion to dismiss was incorrect as a matter of law. ¶13 In review ing the e vidence in the light most favorable to the pro se cution, this C o urt co ncludes there was in suf ficient evid ence to support Youmans ’ conviction of theft pur suant to § 45 - 6 - 30 1(1)(a), MCA . Accordin gly, the theft conviction is reversed and dismissed with prejudice , and the corresponding sentence and restitution in the amount of $733 are vacated . ¶14 We h ave dete rmined to decide this case pursuant to Sectio n I, Paragraph 3(c ) of our Internal Ope rating Rules , which provides for me morandum opinions . In the opinion of the Court, the case presents a question control led by se ttl ed law o r by the clear applicati on of app licable standards of review. /S/ LAURIE McKINNON W e concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ JIM RICE