No. 83-144 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM JOHN GLADUE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF -CORD: 

For Appellant: 

Michael S. Smartt, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Submitted on Briefs: January 26, 1984 

Decided: April 19, 1984 

Filed: ,\PR : -J 1984 

- 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

PROCEDURE : 

Defendant William John Gladue appeals from judgment of 

conviction on counts of criminal mischief and attempted 

burglary entered by the District Court of the Eighth Judicial 

District. Gladue was sentenced to two concurrent ten (10) 

year terms for the felony convictions and received an 

additional five-year sentence for his status as a persistent 

felony offender. 

FACTS : 

The Great Falls Police Department received a call 

shortly after 4:00 a.m., May 23, 1982, reporting a burglary 

was in progress at the Sports Room Bar. The responding 

officer parked his patrol car and walked to a vantage point 

where he could observe the bar. He heard loud banging noises 

coming from the vicinity of the Sports Room Bar and witnessed 

two individuals on the roof of the business establishment, 

neither of whom he could identify. It appeared that one 

acted as a "lookout", while the other man was banging on the 

air conditioning vents. Likewise, the second responding 

officer observed two individuals on the roof of the subject 

building, but was unable to specifically identify either of 

them other than both were male. 

The suspects made an attempted escape from the scene 

shortly after the second officer arrived. Both officers 

followed in pursuit and ordered the suspects to halt. One 

suspect (later identified as David Alan Lapier) stopped in 

response to this command and was arrested. 

The chase and apprehension of the other suspect 

eventually resulted in the arrest of the defendant, William 

Gladue. Ignoring the policemen's order to halt, the second 
suspect, who was carrying a crowbar, ran west from the Sports 

Room and out of sight around the corner of the neighboring 

Darigold building. The record reveals that when the pursuing 

officer rounded the corner seconds after the suspect had, the 

suspect was nowhere to be seen. The officer immediately 

determined the probable path of escape to be toward an area 

where numerous large, wooden shipping crates were stored. 

Two policemen attempted to contain the area around the crates 

and began searching the moving containers. Within fifteen 

minutes a Deputy County Sheriff arrived with his tracking 

dog. The dog searched the crates and discovered the 

defendant hiding in one of the shipping containers. Five to 

ten feet from where the defendant was discovered a tire iron 

was found on top of a crate. 

Another Great Falls officer was dispatched to the scene 

for followup investigation, documentary photographing and 

analysis of evidence. While fingerprints and footprints were 

found at the scene of the crime, none were positively matched 

to the defendant. 

At trial two witnesses testified for the defense: the 

defendant and Brooke Trainor, the defendant's girlfriend. 

Both defense witnesses agreed that the evening of May 22, 

1982 sta.rted at the Gaslight Bar where the defendant and 

Brooke met friends including David Lapier, the first suspect 

arrested at the scene of the crime. Subsequently, the 

defendant and Trainor, along with David Lapier, attended an 

after-hours party in the home of another friend. Gladue and 

Trainor began to argue and then left the party bound for a 

Circle K store to purchase cigarettes. As a result of their 

continuing argument Gladue and Trainor parted company; 

consequently, Trainor's testimony does not corroborate the 

defendant's explanation of his activities prior to being 
found in the moving crates. While waiting outside the store 

for Gladue, Trainor started talking with another man and 

ultimately left the Circle K with him in his car. The 

defendant claims he followed Trainor and her new companion on 

his motorcycle. He stated that he parked outside an 

apartment building he suspected they entered and waited. 

Gladue then saw a police cruiser. Thinking he would be 

arrested for either his intoxication or a delinquent traffic 

violation, the defendant ran across the street and hid in the 

moving crates where he was later detected by the police dog 

and arrested. 

The appellant presents two issues: 

ISSUE NO. I: 

Is the evidence sufficient to sustain a conviction of 

the defendant for the crimes of attempt (burglary), a felony, 

and of criminal mischief, a felony? 

ISSUE NO. 11: 

Does a prior, unrevoked deferred imposition of sentence 

for a felony constitute a previous "conviction" for purposes 

of Montana's persistent felony offender statutes; and, if 

not, was Gladue improperly determined to be a persistent 

felony offender and thus improperly sentenced as such? 

The defendant contends that the State's evidence at 

trial was insufficient to sustain a finding of guilt. 

Defendant's position is: that police officers at the scene 

were unable to identify their suspects until after they were 

in custody; that, while fingerprints and shoe/boot/footprints 

were found at the scene of the crime, none of such prints 

were determined to belong to Gladue; that the record is 

devoid of evidence that Gladue was with the co-defendant 

Lapier at the time Lapier (admittedly) committed the crimes; 

that the evidence is uncontroverted that Gladue was 
physically inca.pable of making an escape in the fashion that 

the police officers described; that it is pure speculation 

that the tire iron, found in the vicinity where Gladue was 

discovered, was the instrument used by the suspects in the 

perpetration of their crime; and, that the record does not 

show "purpose" in the attempted burglary. Consequently, the 

verdicts of guilty must be reversed and the charges against 

Gladue must be dismissed. 

A recent synopsis of the case law concerning the issue 

of the sufficiency of evidence to sustain a conviction was 

enunciated in State - vs. Graham (Mont. 1983), 40 St.Rep. 1499, 

1503, P.2d , as follows: 

"The test for the sufficiency of the evidence to 

support the judgment of conviction is whether there 

is substantial evidence to support the conviction, 

viewed in a light most favorable to the State. 

State v. Lamb (Mont. 1982), 646 P.2d 516, 39 

St.Rep. 1021. The resolution of factual matters is 

for the jury, and if there is substantial evidence 

to support the judgment, this Court must affirm the 

decision of the jury. State v. Hardy (Mont. 1980), 

604 P.2d 792, 37 St.Rep. 1. Disputed questions of 

fact and the credibility of witnesses will not be 

considered on appeal. State v. DeGeorge (1977), 

173 Mont. 35, 566 P.2d 59." 

Furthermore, the rule has long been established in 

Montana that use of circumstantial evidence is an acceptable 

and often convincing method of proving criminal intent. As 

we restated in Sta.te v. Pascgo (1977), I73 Mont. 121, 126, 

566 P.2d 802 citing State v. Farnes, 171 Mont. 368, 558 P.2d 

"The element of felonious intent in every contested 

criminal case must necessarily be determined from 

the facts and circumstances of the particular case, 

this for the reason that criminal intent, being a 

state of mind, is rarely susceptible of direct or 

positive proof and therefore must usually be 

inferred from the facts testified to by witnesses 

and the circumstances as developed by the 

evidence." 

The jury considered the testimony and evidence presented 

along with the defendant's version of the incident and 
concluded that the defendant committed the crimes. There 

was substantial evidence to support the jury's conclusion. 

The defendant claims that his prior deferred imposition 

of sentence was erroneously considered a "conviction" and he 

was improperly classified as a persistent felony offender 

pursuant to section 46-18-501, MCA. In 1978 Gladue was 

adjudged guilty of two felony counts, burglary and theft. 

The district court judge gave Gladue a three-year deferred 

imposition of sentence. While the record reflects Gladue's 

successful completion and final termination of the deferred 

imposition of sentence, there is no evidence of record to 

indicate whether or not the defendant's guilty plea was 

withdrawn or the verdict of guilty removed, or the criminal 

charges dismissed from Gladue's record pursuant to section 

46-18-204, MCA. 

On appeal, the defendant maintains that even though this 

prior unrevoked, expired deferred imposition of sentence was 

not subjected to the dismissal provisions of section 

46-18-204, this administrative oversite should not prevent 

him from the benefits afforded him if the charges against him 

had been dismissed upon proper motion. 

This Court addressed the intent of the legislature in 

regard to deferred imposition of a sentence in the context of 

section 46-18-204, MCA: 

" . . . At the termination of the time of deferment 

or stayed imposition, section 95-2207, R.C.M. 1947, 

authorizes the court to accept a plea withdrawal or 

to strike the verdict of guilty and order the 

charge dismissed. 

"The passage of section 95-2207, R.C.M. 1947, 

demonstrates the intent of the legislature in 

regard to deferred imposition of sentence. If 

sentence were imposed or executed in any part, then 

the end advantage to the entire concept of the 

deferred sentence could not be attained and section 

95-2207 would become inoperative." State v. Drew 

(1971), 158 Mont. 214, 217, 490 P.2d 230. 
Accordingly, the sentencing issue is remanded to the 

district court for a hearing to determine whether defendant 

Gladue's prior, expired and unrevoked deferred sentence 

should be dismissed pursuant to 46-18-204, MCA. If the trial 

court determines that the charges should not be removed from 

his record then the persistent felony offender designation 

remains intact and the sentence unchanged. However, if the 

lower court allows the dismissal of charges for the previous 

1978 felonies, then the defendant has no "conviction" as 

contemplated by the persistent felony offender statute and he 

shall be resentenced accordingly. 

The conviction for defendant's commission of attempted 

burglary and criminal mischief is affirmed. The sentence 

based on designation of persistent felony offender is 

remanded for hearing. 

We concur: 

Chief Justice, -\