No. 86-435

TN THE SUPREME COURT OF THF STATE OF MONTANA
1987

STATE OF MONTANA, Plaintiff and Respondent,-vsJODY DUANEMcDONALD, DefendantandAppellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula, The HonorableJack L. Green,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: 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,CountyAttorney, Missoula, Montana;Fred Van Valkenburg,Deputy County Attorney

Submitted on Briefs: Jan. 29, 1987 Decided: March 30, 1987 

### /,; i;--: c; :-! <,. Filed: $: t,i!

## ?987

- ClerkMr. Justice JohnConwayHarrison 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,defendantwas found guilty ofburglary and now appeals. We affirm. On the evening ofJanuary 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 thebar, she told the others that shewas going to visit Tammy Sessions, a friend who was hosting a small, informalparty that evening. She left inAlbert's car. By 11:OO p.m., Albert Cannonhad become concerned about his girlfriend. He and Kim had previously agreed that Kim would pick upAlbert at thebar at 10:30, but shehad notyet returned. Albert also expressed some discomfort over the presence of Rim's formerboyfriend 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 brotherswent 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 wereby then in various stagesof loss. What happened next is disputed. Apparently, when the Cannonbrothers 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 knowthe 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 herscreams 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 trailerdoor for the defendant to come inside. The defendant responded by entering the trailer through the broken door. Direct testimony attrial 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 toleave. 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 firstissueraised on appeal iswhether defendant's burglary conviction is supportedby sufficientevidence. Our standard of review when presented with a challenge to the sufficiency of the evidence is 

### "[w]hether, afterviewing the evidence inthe lightmost favorable tothe prosecution, any rational trier of fact could have found the essential elements of the crimebeyond 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 at573.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 thepurpose 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 theburglary statute,remains amystery. 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 circumstantialevidence. Statev. Hardy

(1980),185Mont. 130, 137,604P.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 thebroken doorway, a fight in progress in the living room. Nevertheless, Stevens testified she and the defendant entered the trailer. The State thenproduced 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 Stateelicited testimony that the defendant (1) remained in the trailer after being asked to leave and (2) continued to assaultpeoplewithin the trailer. Tammy and Raeann Sessions testified that the defendant was asked to leave but did not do sobefore 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 ofburglary,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 reasonedwhena defendant requested in aburglaryprosecution

a lesser included instruction on "criminal damage to property": Thedifficulty with this argument is that the element of willfully injuring, damaging, mutilating, defacing, destroyingor 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 toproperty isnot 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.