No. 81-281 INTHE 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:

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## 1982Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. ~ollowing a jury trial,defendantWillie 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. Defendantnow 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, Johnsonhad $20.00. On November 29, 1980,Johnsonwent 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 tomeet a new acquaintance, Sherry, at the Woolco Store,defendant hurried out of Jensen's. When Sherry was not atWoolco, 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: "Iseen all these white people with sticks running atme. 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 tomatch the Black Hills gold pendant he was wearing. "Hewas 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 rememberwhat color itwas. He was very nervous. His eyes were red and they wouldn't look directly at somebody. His speech was very slow." Thewitness 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 storemailer. She left to giftwrap 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 fromwhich 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 thewindow 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 "hishands in the display 

### glass,"holding a tray of some sort. He did not seewhat, if anything,was in the tray. Mr. Campbellwent 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 theman as follows: "Hewas young,black; as 

### I recallhe had something funny in his hair. Itwas pleated or braided or something like that and 

### I think he was wearing a green jacket or garment of some kind." He identified defendant'svest as looking familiar to him, similar to what the black man in Jensen'swas wearing. Donald Floth and his girlfriend, SueWhiting, were in Jensen Jewelry Store onNovember 29, 1980. A man came over to them and started talking. According to Floth, "[hle

was tall, slim,black. He had a smallbeard, and he talked really different, slowly. 

# ..He told me that he was going to make a 'quickbuck' and thatyou had to do something to make a buck in this world." Floth testified at trial: "Q. 

### Where was thisman whom you saw at that point in time? "A. He was at the far case against the wall, and he was looking over itwith his rear end to thewall, looking over it. "Q. 

### And what did you seehim do? "A. I 

### saw him take out a tray. "Q. 

### And what did you seehim do after he took it out? "A. I

### didn't seehim dump the tray,but I 

### saw hiswrist 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. Itwasn't a bushy beard. Itwas 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. Itwasn'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. 

### Inoticed his vest and pants. He had baggy pants on, kind of a tweed. "Q. Do you recallwhat kind of vest itwas? "A. Itwas 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. Frothwas, however, unable to identify the State's Exhibit No. "2" as the pendant worn by theman in the store. DianeMurray Willard was the sales clerk to whom the theftwas reported. After the report, shewalked over to the case area, saw the empty tray and saw "atall, thin, black guy. He had a maroon sweater and a green down vest and some string in his hair." She identified the defendant

as thatman.Next, Ms. Willard went to the assistantmanager, 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 suspectdown themall 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 themall; and while Siegel attempted to cross the interstate. The police took Mr. Siegel's statement, then placed defendant under arrest. When he was arrested, defendantwas wearing a green vest, a Black Hills gold pendant and he had string in his hair. 

### A pat-down searchwas conducted,but no ringswere found in defendant'spossession. Later searches of the path of pursuit, the trailer park area, the roof of themall, the trash from themall and the police car in which defendantwas transported produced nothing. The rings have never been found. Based upon the above factspresented 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 evidencepresented by the Statewas sufficient to sustain a conviction,namely: (a) Whether the State adequately proved Jensen ~ewelersowned the rings taken in the theft. (b) Whether the State proved the defendant exercised unauthorized control over theproperty 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 JensenJewelers 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 corporationhas been alleged. An article at 88A.L.R. 485discusses 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. Themore 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 stolenproperty has been considered essential for several

reasons. The prosecution must show that the stolenproperty does not belong to the accused. Stewartv. State (Ala. 1968), 438 P.2d 387. The accusedmust be made fully aware of the charges so that he might prepare a full and adequate defense. Statev. 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. Statev. Morrow, supra. None of these reasons are served by proving the legal existence 

### of the corporate owner. Martin v. State, supra; Stewartv.

### State, supra; Statev. Hume (1950), 145Me. 5, 70A.2d 543; Statev. Morrow, supra. InMontana, proof of possession suffices to prove ownership for purposes of theft. Section 45-2-101(46), MCA; 

### Statev*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 sameproperty. The prosecutionproved through the testimony of Michael Brad Siegel,aswell as other store employees, that Jensen Jewelry Store was inpossession of the wedding ring sets before they were stolen. Proof of possession is adequate in this context. See Statev. Dolan, supra. Defendant next contends that a conviction of theft cannotbe 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 JensenJewelry Store sawdefendantbehind the counterwhere the ring casewas kept,with his hand inside the case where the rings were, holding the tray the ringswere 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.InstructionNo. 8was 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." Statev. Martinez (1980), 37 St.Rep. 982, 989, 613 P.2d 974, 980. See also Statev. Pendergrass (1980), 37 St.Rep. 1370, 615 P.2d 201; and Statev. Merseal (1974),167Mont. 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 InstructionNo. 11 rather than giving his offered InstructionNo. 7. InstructionNo. 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 tomake itunlikely that the owner will recover it." Section 45-2-101(19)(d), MCA. Defendantproposed the definition of "deprive" found at 45- 2-101(19)(a), MCA: "'Deprive' means to withhold property of another permanently." These definitions are alternativedefinitions. 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 topermanency. The Court properly gave InstructionNo. 11 as opposed to Defendant's offered Instruction "To. 7. Defendantalso objects to the trial judge's failure to give defendant's offered InstructionNo. 2: "Youare 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 InstructionNo. 8 concerning the definition of "obtainsor 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, itwas 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. Statev. Farnes (1976),171Mont. 368, 375, 558 P.2d 472, 476; Statev. 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 defendantJohnson. We affirm the judgment of the District Court.

We Concur: