No. 88-173

IN THE SUPREME COURT OF THE STATE OF MONTANA 1988

THE STATE OF MONTANA, Plaintiffand Respondent,-vsPATRICK MARK TRACY, Defendant andAppellant.

APPEAL FROM: District Court of the FirstJudicialDistrict, 

### In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding.
COIJNSEL OF RECORD:
ForAppellant:
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, CountyAttorney, Helena,Montana Leo Gallagher,Deputy CountyAttorney, Helena

Submitted onBriefs: Aug. 

### 4, 1988 Decided: September 13,1988 Filed: 

### SEP13

### 1988'

ClerkMr. 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 DistrictCourt properly imposed aminimum 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 ofhis jobwas 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 winningMontana 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 inthe store's dispensers atthe end of each business day. The numbers were then rechecked each morning when the store opened to see if any tickets were missing. They alsobegan nighttime surveillance of the store when janitors would be working. On the evening of October 3, 1987, Capps and Onstad hid themselves inthe storeand observed Tracy ashe arrived for work. After store personnel had left, Tracy came to the front of the store and appeared towave atsomeone 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 cigarettestotheback 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 totherear of the storetolook forthe cigarettes. He was unable tofind them, and returned tohis hiding place. A shorttime later, thetwo men observed Tracy removing lottery tickets from the dispensers and placing them insidehispants. He then turned outthe lightsand leftthe store. Capps and Onstad lefttheirhiding place and intercepted Tracy. They broughthim back intothe storeand 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 atthatpoint alsofailedtoreveal themissing cigarettes. Tracywas then placed under arrest. Subsequent searches of the store forthe 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 topass itemsoutside. Onstad testified that lottery tickets are sold to merchants for 95C apiece and resold for one dollar. The tickets foundonTracy'sperson thushad a wholesale value of $202.35, and a retailvalue of $213.00. Capps testified that the missing cigaretteshad 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 inprison 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 connectinghim 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 crimebeyond 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 todetermine which evidence is dispositive. State

### v. Oman (Mont. 1985), 707 P.2d 

### 1117,42 St.Rep. 1565. The statutorydefinition of theftused in chargingTracy 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 storewhen 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 tohaving observed Tracy remove between 50 and 70 cartonsof cigarettes froma 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 thatwhen 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 cigaretteswas 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 actionswould 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 apersistent felonyoffender: (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, ifhewas 21 years ofage or older at the time of the commission of thepresent 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 ormore than 100years or shall be fined an amount not to exceed $50,000,or both. According to Tracy, the court incorrectlybased its sentence
on subsection (2) 

### of the statute. Tracy argues the court's sentence amounts to imposing the minimum of 10 years for a 

### defendantwho was apersistent felony offenderat the time of his previous conviction. Tracy was not designated a persistent felonyoffender in his previous conviction,and he

### argues that he should have received a sentence of only 5 

### yearsunder subsection (1)

# . The State counters thatTracy could have been designated
apersistent felony offender inhis previous convictionbased
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 ofdiscretion. Statev. Garrido (Mont.1981), 621P.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 onTracy's designationas apersistent felony offender. We affirm the decision of the DistrictCourt.



# &///.%- Chief Justice



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