No. 86-435 

TN THE SUPREME COURT OF THF STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJODY DUANE McDONALD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

O'Brien & Conrad; Barbara J. Conrad, Missoul-a, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana; Fred Van Valkenburg, Deputy County Attorney 

Submitted on Briefs: Jan. 29, 1987 

Decided: March 30, 1987 

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Filed: $: t, i! ?987 

- Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arises from a conviction entered in the 

District Court of the Fourth Judicial District in and for 

Missoula County. Following a jury trial, defendant was found 

guilty of burglary and now appeals. We affirm. 

On the evening of January 10, 1986, the defendant, Jody 

McDonald, and his girlfriend, Maggi Stevens, visited a 

Missoula bar with another couple, Albert Cannon and Kim 

Cornelius. Because Miss Cornelius was under age and could 

not remain in the bar, she told the others that she was going 

to visit Tammy Sessions, a friend who was hosting a small, 

informal party that evening. She left in Albert's car. 

By 11:OO p.m., Albert Cannon had become concerned about 

his girlfriend. He and Kim had previously agreed that Kim 

would pick up Albert at the bar at 10:30, but she had not yet 

returned. Albert also expressed some discomfort over the 

presence of Rim's former boyfriend at Tammy Sessions' party. 

Albert asked the defendant to drive him to Sessions' trailer. 

They were accompanied by Miss Stevens and Tony Cannon, 

Albert's brother who had joined them at the bar. At the 

trailer, the Cannon brothers went to the front door while the 

defendant and Miss Stevens waited in the car. Meanwhile, 

those inside the trailer had switched the evening's 

entertainment from drinking games to a game of strip poker 

and were by then in various stages of loss. 

What happened next is disputed. Apparently, when the 

Cannon brothers were not granted immediate entry, one of them 

kicked the door off its hinges. Inside, the unclad youths 

ran for cover as the Cannons entered and demanded to know the 

whereabouts of Kim. Tony Cannon soon discovered Kim hiding 

in a back bedroom closet after he had ripped off its door. 

Tony alerted his brother who proceeded to scuffle with his 

girlfriend in the bedroom. Kim became hysterical and her 
screams prompted a neighbor to phone the police. Tony 

meanwhile returned to the living room where he punched two 

youths, knocking one out. 

Tony Cannon then shouted from the trailer door for the 

defendant to come inside. The defendant responded by 

entering the trailer through the broken door. Direct 

testimony at trial stated that once within the trailer the 

defendant assaulted at least four persons. Testimony was 

also presented that Tammy Sessions and her younger sister, 

Raeann, asked the defendant to leave. 

The defendant, Miss Stevens and Tony Cannon left the 

trailer just before the authorities arrived. Sheriff ' s 

deputies ordered a pick-up and hold for both the defendant 

and Tony Cannon and the two were arrested after a short 

search in the early morning of January 11, 1986. The 

defendant was tried before a jury on the charge of burglary 

and was found guilty. He now appeals. 

The first issue raised on appeal is whether defendant's 

burglary conviction is supported by sufficient evidence. Our 

standard of review when presented with a challenge to the 

sufficiency of the evidence is " [w] hether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.'' Jackson v. 

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 

L.Ed.2d 560, 573; State v. Crumley (Mont. 1986), 725 P.2d 

214, 215-16, 43 St.Rep. 1675, 1677; State v. McHugh (Mont. 

1985), 697 P.2d 466, 469, 42 St.Rep. 371, 374; State v. 

Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41 St.Rep. 1277, 

1289. "This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve 

conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate 

facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 

L.Ed.2d at 573. 
The defendant was convicted of burglary pursuant to 

§ 45-6-204(1), MCA, which provides: 

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. 

From the evidence presented by the prosecution it is 

obvious that appellant knowingly entered and remained 

unlawfully in an occupied structure with the purpose to 

commit an offense therein, at the very least a misdemeanor 

offense. He witnessed the door being torn off its hinges, 

entered thereafter and assaulted at least four persons. Why 

the State did not charge him with the assault, and chose 

instead the burglary statute, remains a mystery. 

The specific issue we face on appeal is whether, 

viewing the evidence in the light most favorable to the 

State, a rational trier of fact could have concluded that the 

defendant had the specific purpose to commit assault either 

at the moment he entered the trailer or after he remained 

unlawfully within the trailer. 

It is by now well established that one's mental state 

may be gleaned from circumstantial evidence. State v. Hardy 

(1980), 185 Mont. 130, 137, 604 P.2d 792, 796. 

In this case, the State presented the testimony of 

Maggi Stevens, the defendant's girlfriend, who testified that 

as she entered the trailer immediately in front of the 

defendant, she could see, through the broken doorway, a fight 

in progress in the living room. Nevertheless, Stevens 

testified she and the defendant entered the trailer. The 

State then produced testimony that the defendant, once within 

the trailer, assaulted at least four different individuals. 

Alternatively, a rational juror could have concluded 

that the State satisfied the elements of burglary by 

establishing that the defendant remained unlawfully within 

the trailer with the purpose to commit assault. The State 
elicited testimony that the defendant (1) remained in the 

trailer after being asked to leave and (2) continued to 

assault people within the trailer. Tammy and Raeann Sessions 

testified that the defendant was asked to leave but did not 

do so before assaulting others. 

In short, viewing the evidence in the light most 

favorable to the State, we cannot say that a rational jury 

could not have found that the defendant had the purpose to 

commit an assault either when he entered the trailer or 

remained unlawfully therein. We therefore find no error. 

The defendant also asserts that the trial court erred 

in its failure to instruct the jury on the lesser included 

offense of assault. Because we do not find assault to be a 

lesser included offense of burglary, we disagree. 

As defined herein, the offense of assault requires (1) 

purposely or knowingly (2) causing bodily injury to another. 

Section 45-5-201(1), MCA. The offense of burglary, however, 

does not require any showing of bodily injury, so that one 

may be convicted of burglary without any such showing. 

Section 45-6-204 (I), MCA. As the Kansas Supreme Court 

reasoned when a defendant requested in a burglary prosecution 

a lesser included instruction on "criminal damage to 

property": 

The difficulty with this argument is that 

the element of willfully injuring, 

damaging, mutilating, defacing, 

destroying or substantially impairing the 

use of property is not an element of 

burglary. It is entirely possible to 

establish a burglary without proving 

damage, and the mere fact there was 

damage to the building in this case does 

not make criminal damage to property a 

lesser included offense. We conclude 

that criminal damage to property is not a 

lesser included offense of burglary, and 

the trial court did not err in refusing 

to instruct on that offense. 

State v. Harper (Kan. 1984), 685 ~.2d 850, 856.