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: 

-- 

L 3 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, 1990 
Justice John 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 appellantls convictions of burglary and 

attempted theft. 

Boese was discovered on the premises of a Great Falls 

business, the Plush Pillow, sometime after midnight on February 21, 

1989. Boese, a former employee, was discovered kneeling down 

behind the counter where the cash register was 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 was waiting 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 Boesels feet. 

McClellan picked up the phone and informed Boese he was 

calling the police, 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 I1Come on, 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 store policy until shortly before Boese's arrest 

to leave money in the store overnight. However, the sales manager, 

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 charged with 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 

elements of either burglary or attempted theft. As to the burglary 

conviction, Boese cites the recent case of State v. 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. This mischaracterizes Feldt completely. Feldt was an 

employee of the business at the time the alleged break-in occurred. 

Boese was no longer employed at the Plush Pillow when he was 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 . . . 
"Enters or remains ~nlawfully~~ is defined 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 to do 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, testimony was presented that the money bag had been 

moved between the closing time and the time when Boese was 

discovered in the store with 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 these actions constitute circumstantial 

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 conclusion that Boese was interrupted in the commission of 

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 was 
interrupted 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 

theft beyond a reasonable doubt. State v. Moreno (1990), - Mont . 

- 

, 787 P.2d 334. 

Affirmed. 

We Concur: / 

Chief Justice