No. 81-296 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

-vsRICHARD WAYNE MANTHIE

## , Defendant and Appellant.

Appeal from: DistrictCourt of theFourth JudicialDistrict, In and fortheCounty 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:

# )n2

### 3

# m2

Filed: 

## FEB23

## 198ZMr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a conviction in the Fourth Judicial District, in and for the County ofMissoula, of the charge of the crime of burglary, a felony. The defendant was convicted after trial by jury,and he appeals. Two issues arepresented onappeal: 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 amatter 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 fromJohn. 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 towhen the defendant and John Bryan left, it would appear that it was shortly after Karen's departure. Thedefendant and John left the trailer court and ran off the road, wrecking John's car. After considerable difficulty, theydrove 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 insidewithout knocking or being invited, went toMary's bedroom where sheand 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 themotor 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 testimonywas similar to that ofJohnBryan. She testified thatwhen 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 shewoke up and saw Jonn and thedefendant standingover her bed. The two men told her tocome 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£riend'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 thetripdown toFlorence, but thatitwas either because John wanted toget hismoney back or that Mary had earlier invited them toreturn. Hetestified that they went tothe trailer, knocked and thatMary invited them infor a beer. He further testified that Mary willingly engaged in sexual intercoursewith him. He denied any knowledge of the theft of Burt Lande's wallet. In addition, the defendant testified thathe and hisfriendJohn did not fleefrom 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 intercoursewithout consent. The first issue presented is whether there was sufficient evidence tosupport the verdict of guilty on the burglary charge. The defendant claims there is insufficient evidence tosupport hisconviction on theburglary charge inthat the State failed toprove that he entered the trailer unlawfullyon thenight of theoffensecharged. Section45-6-204(1), MCA, provides: 

### "Aperson 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 furtherdefines enteringor remaining unlawfullyasdoing sowithout license, invitation, orprivilege. Section45-6-201(1), MCA. Defendant contends he lawfully entered the trailer, that state law requires unlawful entry, and that the State therefore failed toprove 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 isnot bound toblindly accept defendant's version of the facts. It is free to pick and choose the evidence it wishes tobelieve." Here, t.he Statepresented 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 enteredthetrailerwithout knocking and proceeded insideon their own. While there was no break-in or forced entry,

none was required under the law. State v. Watkins (1974), 163Mont. 491, 518 P.2d 259. Mary Borgeson's testimony indicates that the men

were strangers toher prior tothat night and they were notinvited toreturn tothe 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 allowher toturn 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 inwhen she returned cannotbe viewed

asan invitation tothe defendant and his accomplice or as permission for them toenter a darkened trailer. This state's burglary statute prohibits not only entering but also remaining unlawfully in an occupied structurewith the intenttocommit an offense. Section 45- 6-204(1), MCA. As previously noted in State v. Watkins, supra, wehave held thatwhen aperson exceedsthe limitsof 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 todefendant's contention thatMary didnot explicitly and verbally demand that the two men leave after theycame thesecond time, and therefore, thatthedefendant 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 thatany alleged consent tothecontinuingpresence of the defendant and his accomplice was clearly involuntary, coerced, and did not give the intruders legally cognizable

### permission toremainonthepremises. We can reasonably infer from the evidence that tne defendant and JohnBryan 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.hedefendant went into Mary's bedroom where her boyfriend was sleeping, got his pants, and took hiswallet. JohnBryan also testified that the defendant ].eft the wal-leton 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

ontheburglary charge. The second issue presented is whether the testimony by the alleged accomplice that the defendant had thewallet in hispossession 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 todo 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 theone responsible or legally accountable for the same offense tends to connect the defendant with the commissionof theoffense. The corroboration is not sufficient if it merely shows the commission of theoffense or the circumstances thereof."

### Over the years this Courthasdeveloped 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; Statev. 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), 65Mont. 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 towhich 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.

### ' [Citationomitted.]

### " 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 isdeficient. 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 theburglary 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, KarenWilson, and her boyfriend testified that the truck was parked in front ofNo. 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 andmentioned taking money fromher boyfriend. Of particular significance is Mary Borgeson's testimony that thedefendant 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 asbeing 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. Theconviction ofburglary isaffirmed.We concur:

1