No. 12463 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

STATE OF MONTANA, Plaintiff and Respondent,
-VS

# - CHARLES R. CJATKINS

## , Defendant and Appellant.

Appeal from: District Court of the ThirteenthJudicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: 

### For Appellant: John 

### L. Adams argued, Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas Beers, Assistant Attorney General, argued,

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Diane G. Barz, Deputy County Attorney, appeared, Billings,

Montana

Submitted: October 1, 1973Honorable Paul G. Hatfield, District Judge, sitting forJustice John Conway Harrison, delivered the Opinion of the Court.
On October 31, 1972, defendant Charles R. Watkins was tried, and on November 1, 1972, convicted of burglary inthe second degree inthe district court, Yellowstone County. He was sentenced toa term of fiveyears inthe stateprison. From this conviction and judgment he appeals. Either lateon May 5, 1972, or early in the morning May 

### 6, 1972, the rear door of the Gorham Park Drug, located atBroadwater Avenue and 19th StreetWest inBillings, Montana, was found open by a merchant policeman. The owner-manager testifiedhe had brred the rear door from the inside of the storeand left the store through the front door, which he locked, atapproximately 8:15 p.m.
on May 5, 1972. The testimony was uncontradicted that defendant frequented the storequite often; that defendant was in the drugstore on the evening of May 

### 5 with a companion; that he stayed quite awhile; that he bought eitherWinston or Camel cigarettes, as the clerk recalled; and, that no employee of the store saw defendant leave the premises. Testimony of the investigating officers revealed that, intheir opinion, no forced entry of the premises was made. However, they did conclude that escape was made through the rear door. There was further testimony that someone had been hiding in the back storeroom. In fact, several Camel cigarette butts were found in

### a storage areabetween boxes. This was an area of the premises used for storage and not open to the public. Investigation also uncovered a pair of gloves which were dirty and greasy. The safe
was peeled. Found atthe safewere a screwdriver and a chisel, which did not belong tothe store. Also found was the dial from the safe and the shaft housing from the inside of the safe, which the police marked. Inventory of missing items given by the store manager to the police atthe time of the investigation included a pistol with

### its make, model and serialnumber; watches; cigarette lighters; and quite a bit of medicine from the pharmacy. Therewas also money and somenarcotics missing from the safe. On the morning ofMay 7, 1972,authorities,armed with a searchwarrant, searched the premises of Room 6,in the Uptown Motel, Billings,Montana. In the roomwas defendant Charles Watkins. The authorities found a pistol which matched inmake, model and serial number the pistol reported stolen from the Gorham Park Drug; and 

### a narcotics labelwith the Gorham Park owner's initials, which labels
were kept on the narcotics in the safe at the drugstore, in the room. They also found in the room an attache case containing numerous drugs, alongwith somewatches and cigarette lighters. These itemswere all similar to the items reported missing from the Gorham Park Drug, but they had no identifying marks and, therefore,were not positively identified. Also foundwas a wallet in a shaving kit in a box next to or on the bed in the room. In the wallet were two 

### ID'Sbelonging to defendant. Next to the box was found a paper sack containing brass,whiich togetherwith pieces of the safe found at the scene of the crimewere sent to the F.B.I. The F.B.I. reported this brass could have been from the same safe as the brass found at the scene of the crime. Placed in evidencewere two registration cards for Room 6 of the Uptown Motel. One of these cards listed the address of the signer as 317 South 27th Street. This address is the address of one-half of a duplex. Therewas testimony that the other half of this duplexwas rented to a Charles Watkins and a Betty Jones about
a year prior to the date of the crime. Also on this registration card was listed a license number of a car owned by a person known to associatewith defendant. Finally, therewas found in Room 6 

### of the Uptown Motel a laundry tag with Watkins's name on it and the address 2612 South First. Testimony indicated this address is located between 26th Street South and 27th Street South in Billings. Too, therewas evidence of the statementmade by defendant at the sheriff's office,which will be discussedwith more particularity later.Defendant contends that no burglary was committed because of the lack of forced entry. The attorney on appeal isnot the
same attorneywho represented defendant attrial, and this argument was not presented attrial. As a matter of fact, inthe closing argument to the jury the defense counsel said: 

### "*

# *

# * Now we do not deny that a burglary must have taken place. The police say it took place, it must have taken place. But, Ladies and Gentlemen, this defendant didn't do it.I' Further, the case law cited by defendant requiring a trespass, Statev. Mish, 36 Mont. 168, 170, 92 P. 459, affirmed State
v. Rodgers, 40 Mont. 248, 251, 106 P. 3, and carried out inState
v. Starkweather, 89 Mont. 381, 386, 297 P. 497, is: 

### "*

# * *'in order toconstitute a burglarious entry the nature of the entrymust be itself a trespass.' A trespass isthe invasion of the possession of another. (Coburn Cattle Co. v. Hensen, 52 Mont. 252, 157 Pac. 177; Thrasher v. Hodge, 86 Mont. 218, 283 Pac. 219.)" The two cases cited inthe above quotation arecivilcases. In this case, someone exceeded the invitation given as a business invitee and stayed in the store afterbusiness was closed, becoming
a trespasser. The principal contentions of defendant are (1) that the evidence viewed initsentiretywas insufficient in law tojustify conviction of the crime of burglary inthe second degree; (2) that the pistol introduced inevidence was introduced without proper foundation laid for its admission; (3) that evidence of other crimes including the fact defendant was under surveillance for another crime was prejudicial and improperly introduced; (4) that the statement taken from defendant by the sheriff was coerced and should have been suppressed; and (5) that the closing argument of the prosecutor
was prejudicial to the rights of defendant to a fairand impartial trial. Concerning defendant's firstcontention, this Court inState
v. Joseph Lee Allen, Mont

# . , 509 P.2d 849, 850, 30 St.Rep. 532, 533, 534, examined a similar conviction. InAllen the Court said:"The record shows that during the earlymorning hours of December 

### 8, 1969, the Eagles Club Bar inBozeman, Montana was burglarized. There was no forced entry and the crimewas accomplished by the burglar hiding himself inthe building until the club closea at 1:00 a.m. He then wheeled the safe from the officewhere itwas kept into thebar area. Thiswas done so he was not visible from the outside of thebuilding. The safewas turned on 

### its back, the door pried off, and over $5,000 in small bills, fives, tens and twenties, stolen.II The same contention, lack of evidence, was made inAllen and the Court said: 

### h his Court has been faced with this issue in several previous cases. Justwhat weight and use should be given tocircumstantial evidence ina criminal trial? We answered that question and established a test in Statev. Cor, 144 Mont. 323, 326, 396 P.2d 86 (1964). In that casewe held:

111Circumstantial evidence isnot always inferior inqualitynor isit necessarily relegated toa "second class status" inthe consideration tobe given it. The very fact it 

### is circumstantial isnot a sufficient allegation to justify a reversal of thejudgment for such evidence may be and frequently 

### is, most convincing and satisfactory. In any criminal case, evidence that ismaterial, relevant and competent, 

### willbe admitted, "nothing more and nothing less." The test iswhether the facts and circumstances are of such a quality and quantity as to legallyjustify a jury indetermining guilt beyond a reasonable doubt. If such be the case, then the court should not, indeed cannot, setaside the solemn findings of the trier of the facts.'

1IThis testwas used recently ina firstdegree murder casewhere the evidence of guiltwas based on circumstantial evidence. Statev. Gallagher, Mont

# . P.2d 

## , 30 StateRep. rc~ay, 

# m:" Again, in Statev. Fitzpatrick, Mont *-Y P.2d 

## , 30 St. Rep. 1052, 1060, this Court reiterated therule
on circumstantial evidence. In the instant case therewas sufficient evidence tojustify the conviction. As todefendant's second contention--the introduction of the gun-- the objection isthat the state failed to introduce in evidence the box inwhich the gun was kept and which was leftat the scene of the crime, or atleast that the serialnumber introduced attrialhad not been compared with the box the gun had originally come in. However, the officers did testify they weregiven the serialnumber and that the gun recovered inmotel Room 6 bore the same serialnumber as the one given them after the burglary in the inventory of missing articles. Statev. Wilroy, 150 Mont. 255, 258, 259, 434 P.2d 138, sets out the rule:

11

Failure toeither properly identify the article, or toprove that no substantial change has taken place inthe article, while incustody, constitutes ground for an objection that the proper foundation has not been shown. I1 Xn this case a sufficient foundation was shown and as stated in Wilroy and inFitzpatrick: 

# "*

# ** we find the identification tohave been sufficient. The lack of specific orpositive identification marks isnot of great import for the items were not souncommon that a reasonable identification cannot be made. The lack of

ositive identification goes to theweight of !he evidence rather than 

### itsadmissibility. 

# ** It 

### is sufficient if they are shown tobe connect with the crime, and identified as such." As to defendant's third contention--that evidence of other crimes including the fact defendant was under surveillance for another crime was prejudicial and improperly introduced inthe case--
we have made a careful inspection of the record and findno merit inthis contention. 

### As to the fifthcontention--that the closing argument of the prosecutor was prejudicial to the rights of defendant toa fair and impartial trialwhen he related evidence not introduced. Again,
we have examined the final argument of counsel set out inthe transcript, and the case law in Statev. Watkins, 156 Mont. 456, 481 P.2d 689; Statev. Quigg, 155 Mont. 119. 467 P.2d 692; State
v. Lucero, 151Mont. 531, 445 P.2d 731; and Statev. Jensen, 153 Mont. 233, 455 P.2d 63). We find the remarks made by the prosecutor
were not sufficiently prejudicial to require a mistrial. The remaining matter isdefendant's fourth contention-- that the statement taken from defendant by the sheriff was coerced and should have been suppressed. During the time after the execution of the search warrant on May 7, 1972, and the time defendant
was charged with the crime by direct Information on July 21, 1972,defendant on his own volitionwent to the sheriff's office and inquired as to obtaining his identification, which the sheriff had from the execution of the search warrant. Defendant contends that the statement taken atthat time by the sheriff from him was coerced and should have been suppressed. Basically, the statement the sheriff took was merely a receipt for the identificationwhich defendant wanted. The statement was required asa receipt for letting out of custody of the sheriff evidence that the search warrant had obtained, and it merely stated that the identification
was his, the defendant Watkins. The first question iswhether or not the statement was voluntary. The trialcourt properly held thehearing outside the presence of thejury and found the statement tobe voluntary before allowing 

### its admission into evidence. Statev. White, 146Mont. 226, 236, 405 P.2d 761; Statev. Iacero, 151Mont. 531, 445 P.2d 731. At the time defendant signed the receipt he was represented by counsel. He was read the Miranda warning before he signed the statement. He was told inpart that he had a right to remain silent; that anythinghe said could and probably would be used against him; that he had a right to consult an attorneybefore making any statement; but that he could waive these rights and make a statement without consulting an attorney ifhe desired. The statement itself says it isvoluntary. Watkins testified he understood the warning. There were no threats nor promises made nor other coercion to get him to give the statement. Again, it should be stated that he went to the sheriff's office on his own initiativeand the only admission
was that the identifcation was his, which ismerely a receipt which the sheriff would require anyone to sign inorder to obtain any property the sheriff might have. Further, it should be remembered that Watkins himself was inthe room atthe time of the execution of the search warrant. The admission of the statement was not error. For the above reasons, the verdict was justified by the

### evidence. The pistol was properly admitted into evidence, and the 

### trial court did not err in allowing statements made by the prosecution in closing argument, especially where no objectionwas made at the time. The conviction of burglary in the second degree is a£

### firmed.



# ...................................... Hon. Paul 

### G. Hatfied, sitting for Justice John Conway Harrison.

/i 

### /chief Justice

Justices.