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 Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy C. Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, Montana 
Justice 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. 

Sometime between 2 a.m. and 5 a.m. the morning of January 23, 

1993, the Melstone Bar and Cafe in Melstone, Montana, was 

burglarized. The owners of the establishment reported that money, 

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) 

fatherrs garage, Deputy Fisher proceeded to Murnionls residence. 

Deputy Fisher obtained Murnion's fatherls consent to search his 

garage and Murnionrs consent to search his 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. Murnion told Deputy Fisher that 

Benson and two others had brought the alcoholic beverages to 

Murnionrs trailer on the night of January 22. 

After seizing the items at Murnionls place, Deputy Fisher 

proceeded to Bensonls residence. After obtaining Bensonfs consent 

to search his trailer, Deputy Fisher seized several items, 

including alcoholic beverages, tobacco products, and lottery 

tickets stamped !aMelstone Bar and Cafe.!' 

The Musselshell County Attorney filed an information charging 

2 
Benson with 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 for directed verdict. 

The standard of review for a trial court's refusal to grant a 

defendant's motion for directed verdict is whether, after reviewing 

the evidence in a light most favorable to the prosecutor, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. State v. 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 structure with the purpose to commit an 

offense therein." Section 45-6-204(1), MCA. Benson contends that 

while the State may have shown that someone unlawfully 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 the Melstone 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 that he examined some 

footprints in the snow leading into and out of the building through 
that 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 

Bensonfs footwear. We hold that there is no direct evidence that 

Benson unlawfully entered the Melstone Bar and Cafe. 

The State contends that it sufficiently proved the element of 

unlawful entry with circumstantial evidence, and that Bensonfs 

possession of the stolen lottery tickets and items consistent with 

some of those stolen from the Melstone Bar and Cafe, combined with 

the other evidence introduced, is enough to support his conviction. 

We disagree. 

A conviction for burglary may be upheld if possession of 

stolen property is accompanied by other incriminating circumstances 

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 same building 

as the burglarized apartment on the night of the burglary and 

demonstrated that he had possession of the necklace during the time 

frame that the apartment was burglarized. Floyd, 790 P.2d at 476. 

In addition, 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 burglarized garage in possession of items stolen from the garage. 

Cox, 733 P.2d at 1309. The burglary occurred between 10 p.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 confronted by 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 the Melstone Bar and Cafe. He was also found in possession of 

other items consistent with, but not identified as, those stolen 

from the Melstone Bar and Cafe. Benson and two others testified 

that they were 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 

trailer were there in anticipation of his upcoming birthday party. 

This testimony was uncontroverted and it was not unreasonable as an 

explanation. Benson testified that he did not know anything about 

the stolen lottery tickets found under his bed. This testimony was 

also unrebutted and was not proven false. In addition, it was not 

inherently unreasonable as an explanation considering that other 
individuals were in BensonJs trailer the night of the burglary, and 

the next day. 

Finally, the State failed to show by 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 reasonable doubt. We therefore hold 

that the District Court erred in denying the motion to dismiss. 

Reversed and remanded. 

We concur: