No. 81-296 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICHARD WAYNE MANTHIE , 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

John S. Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ferguson & Mitchell, Missoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, County Attorney, Missoula, 

Montana 

Submitted on Briefs: January 14, 1982 

Decided : )n 2 3 m2 

Filed: FEB 2 3 198Z 
Mr. Justice John Conway Harrison del ivered the Opinion of 

the Court. 

This is an appeal from a conviction in the Fourth 

Judicial District, in and for the County of Missoula, of the 

charge of the crime of burglary, a felony. The defendant 

was convicted after trial by jury, and he appeals. 

Two issues are presented on appeal: 

1. Whether the evidence presented at the trial was 

sufficient to support the guilty verdict on the burglary 

charge. 

2. Whether the testimony of the defendant's accomplice was sufficiently corroborated as a matter of law. 

On the night of November 9, 1.979, the defendant, 

Richard Manthie, and John Bryan, ex-Marines who had served 

together in the Pacific, decided to have a night on the 

town. At some point during the evening they went to the 

Amvets Club in Missoula, Montana, where they met a woman 

named Karen Wilson. She was in the bar with a roommate, 

Mary borgeson, along with Mary's boyfriend, Burt Lande. 

About closing time that night, Mary and her boyfriend 

Burt left the Amvets Club and went to the Blue Iblountain 

Trailer Lodge, where Mary and Karen shared a trailer. Karen 

did not accompany them but instead went with the defendant 

and John Bryan to purchase some marijuana for which the 

women had pooled their monetary resources. However, at the 

time of purchase Karen was five dollars short and borrowed 

five dollars from John. 

Following the purchase of the marijuana, they drove 

to the women's trailer, and all three went into the trailer 

and woke Mary up. From the testimony, Karen gave Mary her 

share of the marijuana, the four people had a beer or two, 
and Karen left with a boyfriend who had come to get her. 

While the testimony is in conflict as to when the defendant 

and John Bryan left, it would appear that it was shortly 

after Karen's departure. 

The defendant and John left the trailer court and ran 

off the road, wrecking John's car. After considerable 

difficulty, they drove the car to John's house and had a few 

beers. Then, to get the defendant home, John took his 

employer's truck, parked nearby, without permission and 

headed to the defendant's place in Florence. On the way, 

they passed the Blue Mountain Trailer Court and stopped to 

collect the five dollars Karen borrowed earlier in the 

evening. 

From this point on the testimony is contradictory. 

John Bryan testified that he stopped at the trailer to get 

the money that Karen owed him, left the motor of the truck 

running, went inside without knocking or being invited, went 

to Mary's bedroom where she and her boyfriend were sleeping, 

woke Mary up and asked her to come into the living room. 

After being there a short time the defendant and John went 

into the second bedroom in the trailer with Mary and had 

sexual intercourse. They were interrupted by the return of 

Karen and her boyfriend and left the trailer by the back 

door. When they got to the truck they found that the motor 

had been turned off and the keys were gone, so the two of 

them left by foot. John also testified that when they left 

the trailer the defendant had a wallet with him from which 

he took some money and thereafter put the wallet on a 

utility pole near the trailer court. 

Mary Borgeson's testimony was similar to that of John 
Bryan. She testified that when John and the defendant were 

originally in the trailer, she told them to leave and did 

not indicate that she wanted them to return. Later, she 

testified that she was awakened by John poking her and that 

she woke up and saw Jonn and the defendant standing over her 

bed. The two men told her to come into the living room and 

talk about things and she complied. She testified that 

thereafter she was raped by the two men and that the 

defendant took from her boy£ r iend' s pants a wallet 

containing approximately twenty-five dollars. 

The defendant's testimony is substantially different 

from that produced by the State. He testified he did not 

know exactly why he and his friend John returned to the 

trailer on the trip down to Florence, but that it was either 

because John wanted to get his money back or that Mary had 

earlier invited them to return. He testified that they went 

to the trailer, knocked and that Mary invited them in for a 

beer. He further testified that Mary willingly engaged in 

sexual intercourse with him. He denied any knowledge of the 

theft of Burt Lande's wallet. In addition, the defendant 

testified that he and his friend John did not flee from the 

trailer but. left at Mary's request when she heard her 

roommate returning. 

The jury found defendant guilty on the charge of 

burglary, but were unable to reach a verdict on the charge 

of sexual intercourse without consent. 

The first issue presented is whether there was 

sufficient evidence to support the verdict of guilty on the 

burglary charge. The defendant claims there is insufficient 

evidence to support his conviction on the burglary charge in 
that the State failed to prove that he entered the trailer 

unlawfully on the night of the offense charged. 

Section 45-6-204(1), MCA, 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." 

The code further defines entering or remaining unlawfully as doing so without license, invitation, or privilege. 

Section 45-6-201(1), MCA. 

Defendant contends he lawfully entered the trailer, 

that state law requires unlawful entry, and that the State 

therefore failed to prove its case. State v. Starkweather 

(1931), 89 Mont. 381, 297 P. 497; see also, Criminal Law 

Commission Comment to section 45-6-204, MCA. However, the 

State proved to the jury's satisfaction that the entry was 

unlawful . 

As pointed out by this Court in State v. Sorenson 

(1980), - Mont . - , 619 P.2d 1185, 1194, 37 St.Rep. 1834, 

1845: "The jury is not bound to blindly accept defendant's 

version of the facts. It is free to pick and choose the 

evidence it wishes to believe." Here, t.he State presented 

for the jury's consideration sufficient evidence to show 

that tne defendant and his accomplice entered the trailer 

illegally. John Bryan testified that he and the defendant 

entered the trailer without knocking and proceeded inside on 

their own. While there was no break-in or forced entry, 

none was required under the law. State v. Watkins (1974), 

163 Mont. 491, 518 P.2d 259. 

Mary Borgeson's testimony indicates that the men 

were strangers to her prior to that night and they were not 
invited to return to the trailer after they came the first 

time. She testified that the first time she saw the men 

after they returned to her trailer was when t,hey awakened 

her in her bedroom in the middle of the night, would not 

allow her to turn on the lights, and requested that she get 

out of bed and come into the living room of the trailer. 

The fact that she had left the front door unlocked so that 

her roommate could get in when she returned cannot be viewed 

as an invitation to the defendant and his accomplice or as 

permission for them to enter a darkened trailer. 

This state's burglary statute prohibits not only 

entering but also remaining unlawfully in an occupied 

structure with the intent to commit an offense. Section 45- 

6-204(1), MCA. As previously noted in State v. Watkins, 

supra, we have held that when a person exceeds the limits of 

his privilege by remaining on the premises longer than is 

permitted, he thereby transforms his originally invited 

presence into a trespass that can form the basis of a 

burglary charge. 

In answer to defendant's contention that Mary did not 

explicitly and verbally demand that the two men leave after 

they came the second time, and therefore, that the defendant 

and his accomplice were privileged to stay, Mary Borgeson 

testified that she was extremely frightened by the unexpected presence of the two men, that they made threatening 

remarks to her, and that they subsequently used physical 

force against her. Under these circumstances, the evidence 

shows that any alleged consent to the continuing presence of 

the defendant and his accomplice was clearly involuntary, 

coerced, and did not give the intruders legally cognizable 
permission to remain on the premises. 

We can reasonably infer from the evidence that tne 

defendant and John Bryan intended to commit a theft in the 

trailer. They entered the trailer, went to the bedroom, 

woke Mary, and took her to the living room. There they 

discussed taking money or property. Finally, John and Mary 

both testified that t.he defendant went into Mary's bedroom 

where her boyfriend was sleeping, got his pants, and took 

his wallet. 

John Bryan also testified that the defendant ].eft the 

wal-let on a utility pole stub outside the trailer, which the 

utility man discovered the next day. Under the circumstances, there is sufficient evidence to sustain the verdict 

on the burglary charge. 

The second issue presented is whether the testimony 

by the alleged accomplice that the defendant had the wallet 

in his possession was sufficiently corroborated by independent evidence. The defendant argues that the State's 

evidence, independent of the accomplice's testimony, did 

nothing more than raise a suspicion that the defendant committed the crime or had the opportunity to do so. 

In this state, to sustain a criminal conviction where 

testimony of an accomplice must be corroborated, section 

46-16-213, MCA, requires: 

"A conviction cannot be had on the testimony 

of one responsible or legally accountable for 

the same offense . . . unless the testimony 

is corroborated by other evidence which in 

itself and without the aid of the testimony 

of the one responsible or legally accountable 

for the same offense tends to connect the 

defendant with the commission of the offense. 

The corroboration is not sufficient if it 

merely shows the commission of the offense or 

the circumstances thereof." 
Over the years this Court has developed a substantial 

body of case law defining the type of proof required to 

corroborate an accomplice's testimony. Defendant correctly 

argues that, to be sufficient, the corroboration must do 

more than show that the offense was committed or that the 

accused had an opportunity to commit the crime charged. 

State v. Kose (1980), - Mont. - , 608 P.2d 1074, 37 

St.Rep. 642; State v. Owens (1979), - Mont. - , 597 P.2d 

72, 36 St.Rep. 1182. It is a longstanding rule that corroborative evidence need not in itself be sufficient to 

support the conviction or even make out a prima facie case 

against the defendant. State v. Ritz (1922), 65 Mont. 180, 

211 P. 298; State v. Kemp (1979), - Mont. - , 597 P.2d 

96, 36 St.Rep. 1215. In addition, the independent evidence 

need not extend to every fact to which the accomplice testifies. State v. Holliday (1979), - Mont. - , 598 P.2d 

1132, 36 St.Rep. 1535. As this Court noted in State v. 

Williams (1979), - Mont. - , 604 P.2d 1224, 1230, 36 

St.Rep. 2328, 2336, "' . . . there should be some fact 

deposed to, independently of the evidence of the accomplice, 

which taken by itself leads to the inference, not only that 

a crime has been committed, but that the prisoner is 

implicated in it. ' [Citation omitted.] " 

The defendant contends that because the accomplice 

was the only witness to testify that he had possession of 

the stolen wallet, the corroborative testimony elicited by 

the State is deficient. Here, the crime charged was that of 

burglary, not theft. To prove the crime of burglary, the 

State had to prove that the defendant knowingly entered or 

remained unlawfully in the trailer with the intent to commit 
a theft therein. Here, the independent evidence introduced 

at trial was sufficient to "tend to connect" the defendant 

with the commission of the burglary charge. 

We have the testimony of the accomplice's wife who 

testified that in the early morning of November 10, 1979, 

she saw her husband and the defendant leave her home in a 

truck owned by the accomplice's employer. The roommate, 

Karen Wilson, and her boyfriend testified that the truck was 

parked in front of No. 10 Blue Mountain Trailer Court when 

they returned to the trailer, where they had earlier left 

Mary and her boyfriend. In addition, Mary Borgeson testified that the defendant and his accomplice entered her 

trailer without permission or invitation while she was 

sleeping, came to her bedroom and took her into the living 

room where the accomplice made threatening remarks to her 

and mentioned taking money from her boyfriend. 

Of particular significance is Mary Borgeson's 

testimony that the defendant got Burt Lande's pants from the 

bedroom, and it was later discovered that his wallet was 

missing from his pants. As previously noted, that wallet 

was recovered and identified by Burt Lande as being his. 

Reviewing the evidence in its totality, and all of 

this independent of the testimony of the accomplice, there 

was sufficient evidence presented, independent of the 

testimony of the accomplice, to meet the State's burden of 

proof. 

The conviction of burglary is affirmed. 
We concur: 

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