No. 88-173 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsPATRICK MARK TRACY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COIJNSEL OF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Paul D. Johnson, Assistant Attorney General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Leo Gallagher, Deputy County Attorney, Helena 

Submitted on Briefs: Aug. 4, 1988 

Decided: September 13, 1988 

Filed : 

SEP 13 1988' 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Patrick Mark Tracy appeals from a judgment of the 

District Court of the First Judicial District, Lewis and 

Clark County. The judgment was entered pursuant to a jury 

verdict finding Tracy guilty of the crime of theft (common 

scheme), a felony. We affirm. 

Tracy presents two issues for review: 

1. Whether the evidence was sufficient to sustain the 

jury's verdict convicting Tracy of felony theft (common 

scheme) . 

2. Whether the District Court properly imposed a minimum 

10-year sentence on Tracy as a persistent felony offender 

under § 46-18-502 (2), MCA. 

A summary of the facts is as follows: Tracy was hired 

as a janitor by Universal Floor Maintenance on September 8, 

1987. Part of his job was to clean the Thriftway North store 

in Helena. A manager and checker at the store, Bob Day, 

testified at trial that on the evening of September 27, 1987, 

Tracy cashed over 30 winning Montana lottery tickets at Day's 

checkstand and another checkstand. 

The fact that Tracy cashed so many winning tickets on 

the same day and the fact that he did so in separate 

transactions struck Day as odd. He notified his employer, 

Thriftway President Frank Capps, about his concern. Capps in 

turn contacted Montana State Lottery Security Director John 

Onstad. Onstad also received reports that Tracy had cashed 

30 other winning tickets at State Lottery Headquarters as of 

September 29, 1987, all of which were stamped "Thriftway 

North. " 

Capps and Onstad investigated. They began keeping track 

of the numbers on the beginning and ending lottery tickets in 
the store's dispensers at the end of each business day. The 

numbers were then rechecked each morning when the store 

opened to see if any tickets were missing. They also began 

nighttime surveillance of the store when janitors would be 

working. 

On the evening of October 3, 1987, Capps and Onstad hid 

themselves in the store and observed Tracy as he arrived for 

work. After store personnel had left, Tracy came to the 

front of the store and appeared to wave at someone outside 

the store. He then took a shopping cart to the cigarette 

rack and loaded it with an estimated 50-70 cartons of 

cigarettes. Onstad took a photograph of Tracy while he was 

loading the cigarettes onto the cart. Tracy took the 

cart-load of cigarettes to the back of the store, and the two 

hidden men heard it pass through the swinging metal doors 

that separate the shopping area from storage areas in the 

rear of the store. A few minutes later, Tracy returned with 

the cart, which was then empty. 

Tracy then began to go about his work. While he was 

doing so, Capps went to the rear of the store to look for the 

cigarettes. He was unable to find them, and returned to his 

hiding place. A short time later, the two men observed Tracy 

removing lottery tickets from the dispensers and placing them 

inside his pants. He then turned out the lights and left the 

store. 

Capps and Onstad left their hiding place and intercepted 

Tracy. They brought him back into the store and notified the 

police. A Helena police officer testified that when he 

arrived, he searched Tracy and found two bundles of lottery 

tickets (a total of 213 tickets) stuffed down the front of 

his pants. A search of the rear of the store at that point 

also failed to reveal the missing cigarettes. Tracy was then 

placed under arrest. Subsequent searches of the store for 
the missing cigarettes were likewise unsuccessful, but Capps 

did discover that the locking mechanism on one of the rear 

doors could be manipulated to enable someone to open it far 

enough to pass items outside. 

Onstad testified that lottery tickets are sold to 

merchants for 95C apiece and resold for one dollar. The 

tickets found on Tracy's person thus had a wholesale value of 

$202.35, and a retail value of $213.00. Capps testified that 

the missing cigarettes had a wholesale value of $576.20, and 

a retail value of $634.10. Capps also testified that since 

Tracy's arrest, Thriftway had experienced no problems with 

lottery tickets. 

The jury returned a verdict of guilty on December 2, 

1987. At the sentencing hearing held January 20, 1988, Tracy 

was sentenced to ten years in prison for felony theft and 50 

years of imprisonment as a persistent felony offender, with 

40 years of that sentence suspended. This appeal followed. 

I. 

Tracy was charged under 5 45-6-301, MCA. Under 

S 45-6-301(6), MCA, theft is a felony if the value of the 

property involved is at least $300. Tracy admits to bein9 

guilty of misdemeanor theft in connection with the lottery 

tickets found. on him when he was arrested. However, he 

argues that the evidence was insufficient to prove that he 

exercised control over other lottery tickets and cigarettes 

of sufficient value to constitute a felony. He argues that 

the evidence introduced at trial connecting him to the theft 

of these additional items was based on "conjecture, 

probability or suspicion." 

The test applied by this Court to determine whether the 

evidence is sufficient to support a criminal conviction is 

whether, after reviewing the evidence in the light most 

favorable to the State, any rational trier of fact could have 
found the essential elements of the crime beyond a reasonable 

doubt. State v. McHugh (Mont. 1985), 697 P.2d 466, 42 

St.Rep. 371. If the evidence conflicts, it is for the trier 

of fact to determine which evidence is dispositive. State v. 

Oman (Mont. 1985), 707 P.2d 1117, 42 St.Rep. 1565. 

The statutory definition of theft used in charging Tracy 

reads as follows: 

(1) A person commits the offense of theft when he 

purposely or knowingly obtains or exerts 

unauthorized control over property of the owner 

and : 

. . . (c) uses, conceals, or abandons the property 

knowing such use, concealment, or abandonment 

probably will deprive the owner of the property. 

Section 45-6-301(1) (c), MCA. In addition to the 213 lottery 

tickets found on Tracy's person, the record contains 

testimony by two witnesses that Tracy cashed a total of 64 

tickets marked "Thriftway North" under circumstances that 

aroused their suspicion. Tracy was employed as a night 

janitor at the store when he cashed those tickets. Capps and 

Onstad testified to having observed Tracy removing lottery 

tickets from store dispensers while in the store for the 

purpose of cleaning. Capps further testified that his audit 

showed tickets with a total value of $1,000 to be missing, 

and that after Tracy's arrest, the ticket thefts ceased. 

Capps and Onstad also testified to having observed Tracy 

remove between 50 and 70 cartons of cigarettes from a rack at 

the front of the store. Onstad photographed Tracy in the 

course of this activity. Capps testified that Tracy did not 

have permission to exercise control over the cigarettes. 

Both men testified that when Tracy returned from the storage 

area at the back of the store, the shopping cart into which 

he had placed the cigarettes was empty. Roth men also 
testified that repeated searches failed to locate the 

cigarettes. The value of the cigarettes was placed at over 

From this evidence, a reasonable trier of fact could 

conclude that Tracy obtained unauthorized control over 

property valued at over $300 belonging to Thriftway, and 

concealed or used it knowing that his actions would deprive 

Triftway of the property. We conclude the evidence 

introduced at trial was sufficient to sustain Tracy's 

conviction. 

II. 

Tracy also argues that he was improperly sentenced as a 

persistent felony offender. Tracy admits that he was 

properly designated a persistent felony offender, but 

disputes the court's imposition of a 50-year sentence with 40 

years suspended. Section 46-18-502, MCA, provides the 

criteria for sentencing a persistent felony offender: 

(1) Except as provided in subsection (2) , a 

persistent felony offender shall be imprisoned in 

the state prison for a term of not less that 5 

years or more than 100 years or shall be fined an 

amount not to exceed $50,000, or both, if he was 21 

years of age or older at the time of the commission 

of the present offense. 

(2) If the offender was a persistent felony 

offender, as defined in 46-18-501, at the time of 

his previous felony conviction ... he shall be 

imprisoned in the state prison for a term of not 

less than 10 years or more than 100 years or shall 

be fined an amount not to exceed $50,000, or both. 

According to Tracy, the court incorrectly based its sentence 

on subsection (2) of the statute. Tracy argues the court's 

sentence amounts to imposing the minimum of 10 years for a 

defendant who was a persistent felony offender at the time of 

his previous conviction. Tracy was not designated a 

persistent felony offender in his previous conviction, and he 
argues that he should have received a sentence of only 5 

years under subsection (1) . The State counters that Tracy could have been designated 

a persistent felony offender in his previous conviction based 

on his record at that time. The State argues that the 

language of the statute does not require that the defendant 

actually be designated a persistent felony offender in his 

previous conviction in order to come under subsection (2). 

A judge is vested with wide discretion when imposing a 

sentence on a convicted defendant. If the sentence imposed 

is within the limits provided by statute, it is not an abuse 

of discretion. State v. Garrido (Mont. 1981), 621 P.2d 1105, 

38 St.Rep. 78. Section 46-18-502(1), MCA, grants the judge 

discretion to sentence a persistent felony offender to not 

less than 5 or more than 100 years in prison. The sentence 

imposed by the judge in this case is within the range 

authorized by the statute. The judge did not abuse his 

discretion in imposing a 50-year sentence with 40 years 

suspended based on Tracy's designation as a persistent felony 

of fender. 

We affirm the decision of the District Court. 

&///.%- 

Chief Justice 

. A