No. 81-281 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

WILLIE JAMES JOHNSON, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

McKinley Anderson, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Submitted on briefs: March 25, 1982 

Decided: June 10, 1982 

Filed: JUk' 1 0 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

~ollowing a jury trial, defendant Willie James Johnson, 

Jr,, was found guilty on December 29, 1980, of theft, a 

felony, in violation of section 45-6-301(1)(a), NCA, 1978. 

Pursuant to that verdict, the Eighteenth Judicial District 

Court issued a sentence and judgment on January 12, 1981, 

ordering defendant to serve ten years at the Montana State 

Prison, Deer Lodge, Montana, and designating defendant a 

non-dangerous offender. Defendant now appeals from that 

verdict, judgment and sentence. We affirm. 

While traveling from California to Oklahoma to spend 

Christmas with his family, Johnson "hitched" a ride to 

Bozeman, Montana. He rented a room for two nights at the 

Baxter Hotel, at a cost of $10.00 per night. When he began 

his journey to Oklahoma, defendant had $200.00. After 

paying for his room in Bozeman, Johnson had $20.00. 

On November 29, 1980, Johnson went to the Main Mall in 

Bozeman. He testified that he entered the Jensen Jewelry 

Store to look for a Black Hills gold ring to match the Black 

Hills gold pendant he was wearing. Upon noticing that it 

was time for him to meet a new acquaintance, Sherry, at the 

Woolco Store, defendant hurried out of Jensen's. 

When Sherry was not at Woolco, defendant stated he left 

the mall and began to run toward the Baxter Hotel. While 

running, allegedly a common activity for defendant, he 

realized that a group of people were chasing him. He became 

scared and continued to run. At trial, defendant stated: 

"I seen all these white people with sticks running at me. 

You know, I thought, 'Hey, what's happening, am I in ~ississippi 

or something'. . ." Defendant, a black man, was apprehended 

in a trailer park shortly after noticing his pursuers. 
The prosecution presented several employees and customers 

of Jensen Jewelry Store as witnesses. Their testimonies 

were generally consistent, but varied greatly from that of 

defendant. 

Lisa Pribsnic is a part-time clerk at Jensen's. On 

November 29, 1980, she assisted a blonde woman looking at 

wedding rings. A black man, sitting next to the blonde 

woman, asked to see Black Hills gold rings to match the 

Black Hills gold pendant he was wearing. "He was tall, 

about six foot, black. He had string tied in his hair; very 

short, curly hair. He was wearing some sort of a vest. I 

don't remember what color it was. He was very nervous. His 

eyes were red and they wouldn't look directly at somebody. 

His speech was very slow." The witness identified the 

defendant as the black man who was in the store and defendant's 

pendant, State's Exhibit No. 2, as being the pendant shown 

her by him. 

Ms. Pribsnic stated that she returned all the rings she 

had been showing the two customers to their respective cases 

and locked the cases before going to the back room. When 

she returned, the black man was examining a store mailer. 

She left to gift wrap a package for another customer and the 

theft occurred. 

According to her testimony, Ms. Pribsnic, while waiting 

on the blonde woman, had not entered the case from which the 

rings were stolen. She also stated that the lock on that 

case was malfunctioning. The automatic lock often did not 

work, thereby requiring a key in order to adequately lock 

the case. 

Thomas H. Campbell and his wife were looking at cigarette 

lighters in the window of Jensen Jewelry Store around 1:30 

P.M., November 29, 1980. As Mr. Campbell entered the store, 
he saw "a young black man behind and to the left of the 

counter" with "his hands in the display glass," holding a 

tray of some sort. He did not see what, if anything, was in 

the tray. Mr. Campbell went to the main counter to seek a 

sales person, turned and saw the young black man "rapidly 

leaving the store." 

Although Campbell could not positively identify defendant 

as the young black man in Jensen's, he described the man as 

follows: "He was young, black; as I recall he had something 

funny in his hair. It was pleated or braided or something 

like that and I think he was wearing a green jacket or 

garment of some kind." He identified defendant's vest as 

looking familiar to him, similar to what the black man in 

Jensen's was wearing. 

Donald Floth and his girlfriend, Sue Whiting, were in 

Jensen Jewelry Store on November 29, 1980. A man came over 

to them and started talking. According to Floth, "[hle 

was tall, slim, black. He had a small beard, and he talked 

really different, slowly. . . He told me that he was going 

to make a 'quick buck' and that you had to do something to 

make a buck in this world." Floth testified at trial : 

"Q. Where was this man whom you saw at that 

point in time? 

"A. He was at the far case against the wall, 

and he was looking over it with his rear end 

to the wall, looking over it. 

"Q. And what did you see him do? 

"A. I saw him take out a tray. 

"Q. And what did you see him do after he took 

it out? 

"A. I didn't see him dump the tray, but I 

saw his wrist turn. 

"Q. And what happened after his wrist turned? 
"A. He put the case back in and closed the 

door. 

"Q. Then what happened? 

"A. Then he bundled up his gloves and his hat 

together and started to walk out. Meanwhile, 

my girlfriend and I were talking to the personnel. " 

Later in his testimony, Floth further described the 

man. 

"A. He was tall, black. He had a small beard. 

It wasn't a bushy beard. It was tight and it 

was small, and -- 

"Q. Do you remember anything about his hair? 

"A. Yeah. He had a piece of string hanging 

off it. It wasn't tied in or anything, it was 

just hanging there. 

"Q. Did he have -- was he wearing any jewelry 

that you noticed? 

"A. He had a pendant on. I noticed his vest 

and pants. He had baggy pants on, kind of a 

tweed. 

"Q. Do you recall what kind of vest it was? 

"A. It was green. 

"Q. Do you recognize State's Exhibit No. 'l'? 

"A. Yeah. 

"Q. What is it? 

"A. It looks like the vest he was wearing." 

Mr. Froth was, however, unable to identify the State's 

Exhibit No. "2" as the pendant worn by the man in the store. 

Diane Murray Willard was the sales clerk to whom the 

theft was reported. After the report, she walked over to 

the case area, saw the empty tray and saw "a tall, thin, 

black guy. He had a maroon sweater and a green down vest 

and some string in his hair." She identified the defendant 

as that man. 
Next, Ms. Willard went to the assistant manager, Brad 

siege1 and told him of the theft. The suspect left the 

store rapidly while the two were talking. Mr. Siegel testified 

that upon hearing of the theft, he ran to the case, verified 

that the tray was empty and then ran out of the store after 

the suspect. 

Mr. Siegel pursued the suspect down the mall corridor, 

across the parking lot, over the interstate and through a 

field. Siegel received assistance from four young men he 

passed during the chase. They apprehended the suspect in a 

trailer park where they then awaited the arrival of the 

police. Johnson was out of Siegel's sight three times: 

when Siegel first gave chase; when Johnson rounded a corner 

in the mall; and while Siegel attempted to cross the interstate. 

The police took Mr. Siegel's statement, then placed 

defendant under arrest. When he was arrested, defendant was 

wearing a green vest, a Black Hills gold pendant and he had 

string in his hair. A pat-down search was conducted, but no 

rings were found in defendant's possession. Later searches 

of the path of pursuit, the trailer park area, the roof of 

the mall, the trash from the mall and the police car in 

which defendant was transported produced nothing. The rings 

have never been found. 

Based upon the above facts presented at trial, the 

defendant was found guilty of the theft of seven wedding 

ring sets from the Jensen Jewelry Store in the Main Mall, 

Bozeman, Montana. In appealing that conviction, defendant 

presents the following issues to this Court: 

(1) Whether the evidence presented by the State was 

sufficient to sustain a conviction, namely: 

(a) Whether the State adequately proved Jensen ~ewelers 
owned the rings taken in the theft. 

(b) Whether the State proved the defendant exercised 

unauthorized control over the property of another. 

(2) Whether the District Court erred in giving Instruction 

No. 11 and in refusing to give defendant's offered Instruction 

No. 2. 

Defendant contends that the State did not adequately 

prove Jensen Jewelers to be the owner of the rings taken in 

the theft. This contention is founded upon Illinois law 

that includes the existence of a corporation as an element 

of the crime to be proven when theft from a corporation has 

been alleged. 

An article at 88 A.L.R. 485 discusses the necessity of 

alleging and proving in a charge of theft that the owner of 

the stolen property, if a corporation, is incorporated. 

There are two views, the oldest being that followed by 

Illinois. The more modern view is that such allegation and 

proof is not necessary. We agree with the modern viewpoint. 

In a theft charge, the identity of the owner of the 

stolen property has been considered essential for several 

reasons. The prosecution must show that the stolen property 

does not belong to the accused. Stewart v. State (Ala. 

1968), 438 P.2d 387. The accused must be made fully aware 

of the charges so that he might prepare a full and adequate 

defense. State v. Morrow (Tenn. 1975), 530 S.W.2d 60; 

Martin v. State (Okl. 1950), 222 P.2d 534. The property 

must be adequately identified, including ownership, so as to 

protect the accused from any further prosecution involving 

the theft of that same property. State v. Morrow, supra. 

None of these reasons are served by proving the legal existence 

of the corporate owner. Martin v. State, supra; Stewart v. 
State, supra; State v. Hume (1950), 145 Me. 5, 70 A.2d 543; 

State v. Morrow, supra. 

In Montana, proof of possession suffices to prove 

ownership for purposes of theft. Section 45-2-101(46), MCA; 

State v* Dolan (1980), 37 St.Rep. 1860, 620 P.2d 355. This 

is true whether an individual or a corporation is the owner 

of the property. Determining ownership by proving possession 

of property: (1) will adequately identify the property so as 

to prove that it does not belong to the accused; (2) allow 

the accused to prepare a full and adequate defense; and (3) 

prevent further theft charges against the accused regarding 

the same property. 

The prosecution proved through the testimony of Michael 

Brad Siegel, as well as other store employees, that Jensen 

Jewelry Store was in possession of the wedding ring sets 

before they were stolen. Proof of possession is adequate in 

this context. See State v. Dolan, supra. 

Defendant next contends that a conviction of theft 

cannot be sustained as the State never proved the defendant 

exercised unauthorized control over the rings. This contention 

is based on defendant's assertion that the testimony never 

showed him to have been in actual possession of the wedding 

ring sets. 

Although no witness actually saw the rings in the 

defendant's possession, several employees and customers of 

Jensen Jewelry Store saw defendant behind the counter where 

the ring case was kept, with his hand inside the case where 

the rings were, holding the tray the rings were in and 

rapidly leaving the store shortly thereafter. The tray 

contained rings ten minutes prior to defendant's exit, he 

tray was found to be empty immediately after his departure. 
Instruction No. 8 was taken directly from section 45-2- 

101(39), MCA: "You are instructed that 'obtains or exerts 

control' includes but is not limited to the taking, carrying 

away, or sale, conveyance, or transfer of title to, interest 

in, or possession of property." After applying the evidence 

presented at trial to the above instruction, the jury found 

the defendant to have obtained or exerted unauthorized 

control over the rings and found him guilty of theft. There 

is substantial credible evidence to support the jury's 

findings and verdict. We will not overturn it. "Given a 

certain legal minimum of evidence, this Court will not 

substitute its judgment for that of the jury." State v. 

Martinez (1980), 37 St.Rep. 982, 989, 613 P.2d 974, 980. 

See also State v. Pendergrass (1980), 37 St.Rep. 1370, 615 

P.2d 201; and State v. Merseal (1974), 167 Mont. 409, 538 

P.2d 1364. 

The second issue raised in this appeal concerns the 

adequacy of the jury instructions given by the District 

Court. Defendant first contends that the District Court 

erred by giving Instruction No. 11 rather than giving his 

offered Instruction No. 7. Instruction No. 11 states in 

statutory language: I' . . . [t] he term 'deprive' means to 

withhold property of another, to dispose of the property and 

use or deal with the property so as to make it unlikely that 

the owner will recover it." Section 45-2-101(19)(d), MCA. 

Defendant proposed the definition of "deprive" found at 45- 

2-101(19)(a), MCA: "'Deprive' means to withhold property of 

another permanently." 

These definitions are alternative definitions. The one 

chosen to be used in this instance adequately defines the 

word "deprive" as it applies to these facts. Here, defendant 

denied asserting any control. There was no issue as to 
permanency. The Court properly gave Instruction No. 11 as 

opposed to Defendant's offered Instruction "To. 7. 

Defendant also objects to the trial judge's failure to 

give defendant's offered Instruction No. 2: "You are instructed 

that 'possession' is the knowing control of anything for a 

sufficient time to be able to terminate control." The trial 

judge chose instead to give Instruction No. 8 concerning the 

definition of "obtains or exerts control." The definition 

of theft found in section 45-6-301(1)(a) does not refer to 

the "possession" of goods; rather, it refers to obtaining or 

exerting unauthorized control over goods. Therefore, it was 

proper for the trial judge to instruct the jury regarding 

"obtaining and exerting control" rather than "possession." 

This Court must look at jury instructions as a whole to 

determine if they fully and fairly present the applicable 

law of the case. State v. Farnes (1976), 171 Mont. 368, 

375, 558 P.2d 472, 476; State v. Higley (1980), 37 St.Rep. 

1942, 1953, 621 P.2d 1043, 1054. The instructions given to 

the jury in the instant case fully and fairly present the 

law of theft as it applies to defendant Johnson. 

We affirm the judgment of the District Court. 

We Concur: