No. 93-481 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

STATE OF MONTANA, Plaintiff and Respondent,

-vsJOHN BERNARD BENSON, Defendant and Appellant.

APPEAL FROM: District Court of the FourteenthJudicial District, In and for the County of Musselshell, The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD: ForAppellant: William Hooks,Appellate Defender, Helena, Montana

For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana Vicki Knudsen, Musselshell County Attorney, Roundup, MontanaJustice John Conway Harrison delivered the opinion of 

### the Court.

John 

### Bernard Benson (Benson) appeals his 

### conviction in 

### the District Court 

### of the Fourteenth Judicial District, Musselshell County, 

### of the offense 

### of burglary. 

### We reverse. Sometimebetween 2 a.m. and 5 

### a.m. themorning of January 23, 1993, the Melstone Bar and Cafe in Melstone, Montana, was burglarized. The owners of the establishment reported thatmoney, lottery tickets, liquor, food, and tobacco products were stolen, Deputy Floyd Fisher (Deputy Fisher), the investigating officer, found no apparent signs 

### of forced entry. After receiving 

### an anonymous tip on January 24 that some of the missing liquor might be found in B.. Murnionrs (Murnion) fatherrsgarage, Deputy Fisher proceeded to Murnionlsresidence. Deputy Fisher obtained Murnion's fatherlsconsent to search his garage and Murnionrsconsent to searchhis trailer. Deputy Fisher seized several items, including alcoholic beverages, cigarettes, and 

### plastic wrap and

### wax paper believed to be used in the Melstone Bar and Cafe for food preparation. MurniontoldDeputy 

### Fisherthat Benson and two others had brought the alcoholic beverages to Murnionrstrailer on the night of January 22. After seizing the items at Murnionlsplace, Deputy Fisher proceeded to Bensonlsresidence. After obtaining Bensonfsconsent 

### to search his trailer, Deputy Fisher seized several items, including alcoholic beverages, tobacco products, and lottery tickets stamped !aMelstone Bar and Cafe.!' TheMusselshell CountyAttorney filed an informationcharging 2

### Bensonwith the crime of burglary,a felony. A jury trial was held from May 24, 1993 through May 28, 1993. At the close of the State's case, Benson moved for a directed verdict. The District Court denied this motion. Following the trial, Benson was found guilty, and received a three-year deferred sentence with several conditions. Benson raises only one issue on appeal: whether the District Court erred by failing to grant his motion fordirectedverdict. The standard of review for a trial court's refusal to grant a defendant's motion fordirected verdict iswhether,afterreviewing the evidence in a light most favorable to the prosecutor, any rational trier of fact could have found the essential elements of the crimebeyond a reasonabledoubt. Statev. 

### Mummey (Mont. 1994), 871 P.2d 868, 870, 51 St.Rep. 198, 199. Burglary is defined by 

### statute as follows: "A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structurewith the purpose to commit an offense therein." Section 45-6-204(1), MCA. Benson contends that while the Statemay have shown that someoneunlawfully entered the Melstone Bar and Cafe, it did not prove beyond a reasonable doubt that he unlawfully entered. At trial,evidence was presented to the effect that the owners of theMelstone Bar and Cafe suspected that copies of a key opening their business' door were in the possession of unknown persons in the community. Also, Deputy Fisher testified thathe examined some footprints in the snow leading into and out of the building throughthat same door. No evidence was introduced that Benson had 

### possession of such a key 

### other than testimony that there was a 

### nondescript outline of something in the dust on top of Bensonfs water heater. The footprints were never compared to any of Bensonfsfootwear. We hold that there is no direct evidence that Benson unlawfully entered the Melstone Bar and Cafe. The State contends that it sufficientlyproved the element of unlawful entry with circumstantial evidence, and that Bensonfs possession of the 

### stolen lottery tickets and 

### items consistentwith

some of those stolen from theMelstone Bar 

### and Cafe, combined with the other evidence introduced,is enoughto supporthis conviction. We disagree. A 

### conviction for burglary may be upheld if possession of stolenproperty 

### isaccompaniedby other incriminatingcircumstances and a false or unreasonable explanation by the accused. State v. 

### Floyd (1990), 243 

### Mont. 269, 273, 790 P.2d 475, 478; 

### citing State



### v. Cox (1987), 226 

### Mont. 111, 114, 733 

### P.2d 1307, 1309. In Flovd, 

### the defendant was 

### in possession of a 

### gold necklace identified at trial as 

### property stolen 

### from an apartment. Flovd, 790 P.2d 

### at 478. 

### Testimony at trial placed the defendant in the 

### samebuilding

as 

### the burglarized apartment on the night of the burglary and demonstratedthathe hadpossession of thenecklace during the time frame that the apartment was burglarized. Floyd, 790 

### P.2d at 476. 

### Inaddition, the

### defendant offered a fabricated explanation of his 

### possession of the stolen necklace which was 

### refuted at trial. Floyd, 790 

### P.2d at 478.In

### Cox, the defendant was apprehended across the street from a burglarizedgarage inpossession of items stolen fromthegarage. 

### Cox, 733 P.2d at 1309. The burglary occurred between 10p.m. and 2 a.m., and the defendant was apprehended at 2 a.m. 

### Cox, 733 P.2d at 1310. The defendant also falsely claimed that stolen items, positively identified by the true owner, were his own and then reached for a gun when confrontedby those who detained him. 

### Cox, 733 P.2d at 1309-10. In the present case, more than twenty-four hours after the burglary, Benson was found in possession of lottery tickets stolen from theMelstone Bar and Cafe. Hewas also found inpossession of other items consistent with, but not identified as, those stolen from the Melstone Bar and Cafe. Benson and two others testified that theywere driving around Melstone during the approximate time frame of the burglary. This testimony, considering the size of Melstone, places them near the scene of the burglary. Arguably, this is an additional incriminating circumstance. However, no false or unreasonable explanation necessary to sustain the conviction exists. Benson explained that the alcoholic beverages found in his trailerwere there in anticipation of his upcoming birthday party. This testimonywas uncontrovertedand it was notunreasonable as an explanation. Benson testified thathe did not know anything about the stolen lotterytickets foundunderhisbed. This testimonywas also unrebutted and was not proven false. Inaddition, it was not inherently unreasonable as an explanation considering that otherindividualswere in BensonJstrailer thenight of theburglary, and the next day. Finally,the State failed to showby direct or circumstantial evidence that Benson unlawfully entered the Melstone Bar and Cafe with the purpose to commit an offense. We conclude that, in this case, no rational trier of fact could have found all of the elements of burglary beyond 

### a reasonabledoubt. We therefore hold that the District Court erred in denying the motion to dismiss. Reversed and remanded.

We concur: