NO. 90-042 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent, 

### v. DOUGLAS RICHARD BOESE, Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD: For Appellant: 

## -- L3 Antonia

### P.Marra,Bell & Marra,Great Falls,Montana .A For Respondent:

Filed: Stephen Hudspeth, Deputy County Attorney, Great Falls,Montana Marc Racicot,Attorney General, Helena,Montana
Submitted on Briefs: May 30, 1990 ~ecided:August 7, 1990JusticeJohn C. Sheehy delivered the Opinion of the Court.
Appellant Douglas Richard Boese appeals from the District Court, Eighth Judicial District, Cascade County, his convictions of burglary and attempted theft. We affirm the District Court. The sole issue raised on appeal is whether the evidence was sufficient to sustain the appellantlsconvictions of burglary and attempted theft. Boese was discovered on the premises of a Great Falls business,thePlushPillow,sometime after midnight onFebruary 21, 1989. Boese, a former employee, was discovered kneeling down behind the counter where the cash registerwas located. Boese had gained entrance by a back door left unlocked. Boese was asked by the owner's husband, Dave McClellan, what he was doing in the store. Boese replied he waswaiting for a current employee at the store. McClellan told Boese that that employee was in another state at that time. McClellan then noticed a money bag on the floor near Boeselsfeet. McClellan picked up the phone and informed Boese he was calling thepolice,whereupon Boese fled. McClellan picked up the bag and pursued Boese, shouting that none of the contents of the bag had better be missing and telling Boese to stop. Boese yelled back I1Comeon, Dave, give me a break." McClellan went back to the phone and Boese exited the rear of the building.City police officers responding to McClellanls call found Boese in his vehicle behind the store. Boesels car was stuck in the snow. Boese was then taken into custody. It had been storepolicy until shortly before Boese's arrest to leavemoney in the storeovernight. However,the salesmanager, in January or February of 1989,began taking the money home with her. She testified that on the night of February 21, 1989, she took the money with her and left the bag in a drawer in the counter. At that time the bag contained only candy,not money as it did during business hours. Boese was chargedwith burglary and attempted theft. 

### A bench trial was held on September 25, 1989, and Boese was found guilty on both counts. Boese contends on appeal that the State did not prove the elementsof eitherburglary orattempted theft. As to theburglary conviction, Boese cites the recent case of Statev. Feldt (1989),

-Mont. 

### , 781 P.2d 255, for the premise that the State must prove an ex-employee entered the business after hours without permission. Thismischaracterizes Feldt completely. Feldt was an employeeof thebusiness at the time thealleged break-in occurred. Boese was no longer employed at the Plush Pillow when hewas found on the premises. It was clear from the testimony that Boese was not authorized to be in the store on the night in question. Section 45-6-204(1), MCA, defines burglary as follows:


### A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein 

## . . ."Entersor remains~nlawfully~~ isdefined in 

### 5 45-6-201,MCA, reading in pertinent part:
A person enters or remains unlawfully 

# . . . when he is not licensed, invited,or otherwise privileged todo so. Boese cannot sustain his claim that his entry was by right. It was clearly an illegal entry. Having satisfied one prong of the burglary statute,we now address Boese's contention that the State failed to prove Boese intended to commit an offense therein. While it is true that no theft occurred,testimonywaspresented that themoney bag had been moved between the closing time and the time when Boese was discovered in the storewith the bag at his feet. Further,Boese lied about his reason for being in the store, fled the premises when confronted, and lied to police officers as to his conduct scant minutes later. While theseactions constitutecircumstantial evidence, that evidence was sufficient for the court to infer that Boese did an act toward the commission of a theft and with such purpose. Section 45-4-103, MCA; State v. Cox (1987), 226 Mont. 111, 733 P.2d 1307. Boese's conduct by his flight and false statements indicates consciousness of guilt, and supports the court's conclusionthat Boesewas interrupted in the commissionof a theft from an occupied structure. State v. Walker (1966), 148 Mont. 216, 419 P.2d 300. Viewed in the light most favorable to the State,the evidence showed that Boese attempted to burglarize the Plush Pillow; that he was not authorized to be on the premises; and that he wasinterrupted in the commission of a theft. We hold that, based on facts adduced at trial, a rational trier of fact would have found Boese guilty of the essential elements of burglary and attempted theftbeyond a reasonable doubt. State

### v. Moreno (1990), -Mont

## .

, 787 P.2d 334. - Affirmed.

We Concur: 

# /

Chief Justice