No. 92-304 IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF E.B.G., a Youth, Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Joe E. Hegel,Judge presiding.

COUNSEL OF RECORD: For Appellant: Mark S. Werner, Attorney at Law, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana; John S. Forsythe, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: October 29, 1992 Decided: April 29, 1993Justice R. C. McDonough delivered the Opinion of the Court.

This is an appeal from the SixteenthJudicial District Court, Rosebud County,of a conviction ofa minor forpossession of stolen property. We affirm. The sole issue on appeal is whether there was sufficient evidence to support the conviction under 5 45-6-301(3), MCA. On September 27, 1991, the State filed a petition for a youth hearing alleging that the minor, E.B.G., was a delinquent youth because he violated 5 45-6-301(3), MCA, by committing the offense of possession of stolen property. The petition alleged that he Itknowinglyobtained control over stolen property, No. 1 and No. 2 copper wire, of a value of more than $300 owned by Prince Inc., knowing the property to have been stolen by another and used, concealed or abandoned theproperty in such a manner as to deprive the owner of the property." The youth denied the charge and a trial was held. E.B.G. was found guilty by a jury and was later found to be a serious juvenile offender by the District Court judge. He was ordered committed to Pine Hills School and ordered topay restitution in the amountof $7,047, the replacementcost of the wire. Sometime between Monday, August 12, 1991, and Friday, August 16, 1991,David Quenzer (Quenzer)discovered that a large amount of wire was missing from his place of business, Prince Inc. Quenzer had seen the wire on Monday, August 12,but on Friday, August 16, he saw two empty pallets leaning against a boxcar used for storage of wire. He could see patterns of dust rings on the empty pallet 2empty pallet where the wire had been. Quenzer called the police. He then started to call people in the recycling business and upon calling Border Steel, a recycling center in Glendive, Montana, Quenzer learned that they had received wire on the previous day that was similar to the wire which had been stolen. The wire received at Border Steel on Thursday, August 15, 1991, was brought in by E.B.G. of ENT Recycling in Forsyth, Montana. Bret Smelser, part owner and manager of Border Steel, stated during trial that either E.B.G. or D.H., a youth assisting E.B.G., told him that the wire had been brought into ENT on Wednesday,August 14. E.B.G. told Smelser that he and his friend, D.H., burned the copper wire Wednesday night and early Thursday morning in South Dakota and then drove to Border Steel inGlendive. Smelserbought most of the wire brought in by E.B.G., but did not accept some wire which was unburned and some clamps and connectors. E.B.G. told Smelser that he would clean those items and sell them to Border Steel at a later date, so they were placed back in the ENT truck. Officer Skillen, a deputy sheriff with Rosebud County Sheriff's Department, investigated the case. He went to Border Steelwhere he interviewed Mr. Smelser and examined somewire from their storage area. Skillen examined No. 1 and No. 2 wire which

were identified as wire brought in by E.B.G., as well as some connectors. The officer took several samples of wire and a Hubbel connector that had been brought in by E.B.G. The investigating officeralso examinedthe scene of thetheftand took photographs of the area. He found an area within the boxcar,where wirewas stored,that containedmultiple footprints. The footprints appeared fresh and there were "three relatively different types of prints." The officer stated that he was led to believe that the areawas the same 

### as it had been since 

### the theft. officer skillen also applied for a search warrant to search ENT, E.B.G.'s place of business. The search of ENT involved Officer Skillen, Sergeant McComb and Quenzer, and occurred on August 21. The search yielded some wire, which Quenzer stated looked likewire taken from Prince Inc., some brass clampsand some connectors. Smelserhad previously told Officer Skillen about the wire, connectors and clamps which had been rejectedby Smelser and returned to E.B.G. This information formed the basis of the search. Officer Skillen took several samples of the wire as well

as two couplers during the course of his search. officer Skillen also learned that the wire "had been brought in by Justin Smithwithin a relatively shortperiod of time." The officer asked for a receipt for the wire purchased by ENT from Smith and he was led tobelieve that the receipt shouldnot be hard to locate because Smith had recently brought the wire into ENT. E.B.G.Is father, the manager of ENT, was going to locate the receipt and bring 

### it to Skillenbut 

### it was never brought to him. As another step in Officer Skillen's investigation of the stolenwire, he took statements from E.B.G. and E.B.G.Is father on August 23, 1991. E.B.G. stated that he understood that Justin Smith brought in a lot of wire and he had borrowed E.B.G.'sfather's truck to haul the wire. E.B.G also stated that his dad told him that Justin received the wire from Justin's dad. When asked what time E.B.G. left from Forsyth to Glendive, he stated that it was around 12:30 or 1:00 and he drove right to Glendive. When pressed by the detective as to where the wire came from, E.B.G. stated that: Well, we got, like I said, that one pile Justin smith brought in quite a bit back there, but I was in school and 

### I just, 

### Inever seenwhat the weight was and stuff. And he worked out 

## -- he worked for us for awhile so

## -- and we had him cutting tanks out there and stuff and that's the time that he took it. Theofficerasked: "Atprinces'^?^^ and E.B.G. stated that theywere cutting iron out there. Then the officer asked if E.B.G. knewthat Justin took it from Prince's and E.B.G. replied that "He said his dad gave it to him. I'm not familiar where his dad lives or anything." Officer Skillen asked whether thewire was in the same condition when Smith brought it in as when E.B.G. took it to Glendive or if he had to clean it. E.B.G. answered "Most of it, like the No. 1,we had some No. 1 that we had to clean up." Q. Thatyou stripped; itwasn't burned?" "Yes", answered E.B.G. When Mr. G., E.B.G.'s father,was interviewed,he stated that he and hiswife kept the business records. He further stated that Justin Smith had brought in a large supply of wire but he did not specify to the officerswhen the wire was brought in. He explained that when he called Smelser (Border Steel) to negotiate on the price of the wire on August 15 and he told Smelser the wire had

come in on the previous day, he meant that "it was loaded up onto my vehicle to be finishedprepared." He said that although E.B.G. 5owned thebusiness,Mr. G. controlled themoney and E.B.G. He also later reported that Justin Smith brought the wire in on November 20, 1990. He also related that E.B.G. cashed the check for the wire in Glendive, put some gas in the car and bought food for himself and D.H., who had assisted E.B.G. E.B.G. turned the remainder of the money over to Mr. G. upon his return to Forsyth. Justin Smith testified that he had never brought in a large amount of copper wire but that he had helped Rob Watson bring in about 20 pounds at one time. He stated that he helped bring in that wire in November of 1990. He further related that he had borrowed Mr. G. Ispickup truck at one timebut had neverused it to pick upwire. Finally,he stated that he could not have delivered wire to ENT in July or August of 1991 because he was working from April 27 to August 23 or 24 of 1991 on the Colorado River in Arizona. Our standard of review is "[wlhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Statev. Brown (1989), 239 Mont. 453, 456-57, 781 P.2d 281, 284. (Citationomitted.) Section 45-6-301(3), MCA, the statute at issue, reads: (3) A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and: (a) has the purpose of depriving the owner of the property; (b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of theproperty; or (c)uses, conceals,orabandonsthepropertyknowingsuch use, concealment, or abandonment probably will deprive the owner of the property. E.B.G. argues that there was no proof that the wire had been stolen by another and there was no proof that the youth knew that the wire was stolen at the time he received the property. Each of these arguments will be taken in turn. First, the State has provided sufficient evidence for a jury to conclude that E.B.G. knew that the wire was stolen. E.B.G. contends that "[tlhere is absolutely no evidence in the record to show that at any period between August 12 and August 15,when the youthwould have had physical possession of thewire, that he knew that it was stolen." The State counters that he would not have burned the insulated copper wire and sold it as scrapunless itwas stolen. According to Dave Quenzer, the wire, if insulated,would be worth three to six dollars per foot and he estimated that the wire which was stolen was worth $5000 to $6000. Bret Smelser stated that he bought most of the wire that E.B.G. brought him but did not accept some of the wire because it was not completely burned. E.B.G. told Smelser that he would clean the unburned copper later and sell it to Smelser. In total, Smelser purchased 784 pounds of No. 1wire and 986 pounds of No. 2 wire for a total of $1,318.80. Theburning of the insulated copper wire to sell for scrap at 

### amuch lower price is evidence that could lead a jury to determine that E.B.G. knew thewire was stolenand therefore tried to change its appearance. Further,E.B.G.'s inconsistent statementsmayhavedamagedhis credibility before the jury. Bret Smelser said that E.B.G. told 7him that he and D.H. had burned the wire in South Dakota on Wednesday night and early Thursdaymorning and thentheydrove from South Dakota toGlendive. However, when E.B.G. was interviewedby Officer Skillen,he statedthathedrove straighttoGlendiveafter leaving Forsyth between 12:30 and 1:OO. Hedid not mentionburning thewire and told Officer skillen that thewire had been stripped, not burned. E.B.G.'s companion,D.H. testified at trial that they took thewire to Buffalo, SouthDakota, toburn onThursday,August 15. They left at about seven or eight o'clock that morning and then drove toGlendive,Montana, to Border Steel afterburning the wire.E.B.G. also made contradictory statements about how ENT had acquiredthe copperwire. When Officer Skillenasked E.B.G. during the taped interviewwhere thewirehe sold toBorder Steelhad come from the following discussion took place: Okay. Well, 

### I guess where we're at is this. Prince's had about 2000 pounds of wire stolen in August. They'be identified the connectors and they've identified the wire as being theirs. Yes. Okay. You brought that wire to Glendive? Yeah, 

### Idid. So the bottom line is where did you get the wire from? We've had a lot of wire held up for a long time. You seewhat I'm saying, if that amount ofwirewas taken,No. 1 and No. 2, it was insulated? Yes. Two thousand pounds approximately sometime the second week of August, maybe the first or second week of August it was noticed; so those connectors and stingers and leads were all on that wire when itwas in Glendive and itwas identified, okay? So some of that wire, if not all, had to have come from Prince1 s. Yes. Sowhat I need fromyou is a logical explanationofwhere you got the wire from? 

### A. Well, we got, like 

### I said, that one pile Justin Smith brought in quite a bit back there, but I was in school and I just, I never seenwhat the weight wasand stuff. And he worked out

# -- he worked for us for a while so 

## -- and we had him cutting tanks out there and stuff and that's the time that he took it. Q. At Princes's? 

### A. Yeah, when we were cutting iron out there. Q. Do you know that he took it from Prince's? A. He said his dad gave it to him. I'm not familiar where his dad lives or anything. "This Court has recognized that 'possession of stolen property, accompanied by other incriminating circumstances, and false or unreasonable explanationby the suspect is sufficient to sustaina conviction..

## .'" Statev. Ramstead (1990), 243Mont. 162, 170, 793 P.2d 802, 807. (Citationomitted.) Second, the Statehas provided sufficient evidence for a jury to conclude that thewirewas stolenby another. E.B.G., himself, statedduringhis taped interviewwithOfficerSkillen,thatJustin Smith had taken the wire when he was working for ENT cutting up scrap iron at Prince, the scene of the theft. "Theweight of the evidence and credibility of the witnesses is exclusively theprovince of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shallprevail." Brown, 781 P.2d at 284. (Citation omitted.) In the instant case, there was sufficient evidence for the jury todeterminethat the Stateproved all elements of 5 45-6- 3Ol(3), MCA. Affirmed.

We Concur:Justice Terry N. Trieweilerdissenting. I dissent from the majority opinion. I would reverse the judgment of the District Court for the reason that there was insufficient evidence to support a convictionunder 5 45-6-301(3), MCA

# . Under the above statute, the youth in this case was charged with theft for obtaining control over stolenproperty knowing the property to have been stolen by another. However, there was no evidence that the copper wire which theyouthwas accused of having illegally received was stolenby another. According to our prior

case law, the absence of thatproof was fatal to the State's case. In Statev.Hernandez (1984), 213 Mont. 221, 224, 689 P.2d 1261, 1262, we held that to sustain a conviction under the statutewith which thisyouthwas charged "requiresproof that theproperty must have been stolenby someone otherthan the receiver." Here there was no evidence of who stole the copper wire. In fact,during his closing argument the prosecutor argued that: [I]f he [E.B.G.] stole the wire he is guilty of theft. And anotherdoes notmean that ifhe stole the wire he is not guilty of this offense, that there was anyone else involved in it[,] he is just as guilty of this offense. However, that argumentwas incorrect as a matter of law. If the youth in this case actually participated in the theft of the wire, thenhe was, in effect, convicted of receiving the wire from himself. InHernandez, we ruled out that scenariowhenweheld that: Here the charge essentiallywas that defendant received stolenproperty from himself. Defendantwas charged with'I. 

# . . purposely or knowingly obtaining control over stolenproperty 

# . . . knowing the property to have been stolen

### byMattHernandez 

# .. . [the defendant here]

# ." In Peoplev.Bee (1968), 91 Ill. App. 2d 166, 234 N.E.2d 400, the Illinois court set forth the elements to prove receipt of stolen property, one of them being a requirement that the property was stolen by a person other than the one charged with receiving the property. Applied here, the defendant could not be convicted of stealing the coins, and later be convicted of receiving those coins from himself. Hernandez, 689 P.2d at 1262-63. The State argues on appeal that this case is distinguishable fromHernandez since in that case there was actual proof that the defendant had stolen the coins,and in this case,the State offered

noproof that E.B.G. participated inthe actual theft of the copper wire. However, the fact that the Statedid not attempt to disprove its case did not relieve it of the obligation to offer proof on each element of the crime with which E.B.G. was charged. To sustain a conviction, the State has the burden of proving that every element of the crime occurred beyond a reasonabledoubt. In this case, one such element is that the property was received by the youth from another. The State also argues that based on the number of footprints found at the scene of the crime, and the weight and length of the wire that was stolen, therewas evidence thatmore than oneperson participated in the theft of thewire. However,themere fact that several people participated in the theft of the wire does nothing to suggest that E.B.G. was not among those several people. If he was, 

### he was just as guilty of theft under 

### S 45-6-301(1), MCA, asthe others who participated, and according to Hernandez, could not be subject to criminal conviction for stealing the wire and later be convicted of receiving the wire from himself. Finally, the State argues, and the majority seems to accept, that since E.B.G. stated in a tape recorded interview with the investigating officer that he had in fact received the wire from Justin Smith, that statement was sufficient to prove that he received the wire from another. However, both the State and the majority are selective about the weight they chose to give to E.B.G.'s statement about Smith. When discussing the credibility of that statement for other purposes,theStatereferredto it asan "incredibleexplanationof how E.B.G. acquired thewire." In itsbrief, the Statepointed out that:E.B.G. told Skillen that ENThad accumulated some of the wire andJustin Smithhad brought in "quite abit" of the wire. E.B.G. then explained that Smith stole the wire from Prince when Smith was cutting steel for ENT at Prince's. Tony, after giving various accounts prior to trial of when Smith had brought the wire to ENT, testified that Smith brought the copper wire to ENT on November 20, 1990. The time frame of the theft and Smith'semployment with ENTmade it impossible forhim to have stolenthe insulated copperwire from Prince'swhen cutting up steel there forENT. Smithhadworked forENT for two months in the fall of 1990. In October 1990, whileworking for ENT, Smithcut up steel at Prince,Inc. The theft of the insulated copper wire occurred sometime between August 12 and August 16, 1991. Accordingly, it was impossible for Smith to steal the wire from Prince while he was salvaging steel there for ENT, because the theft had not yet occurred, and would not occur for approximatelya year. Also, Smith could not have stolen the wire in August 1991becausehe wasworking in Arizona at that time. Furthermore, Smith denied that he had brought in a large amount of wire to ENT. The jury, astrier of fact, clearly did not believe E.B.G. 's incredibleand impossible explanation ofhowENTacquired the copper wire. Brief of Respondent,pp. 11-12. Likewise, the majority opinion points out that the wire was stolen sometime between August 12, 1991,and August 16, 1991. The majority refers to E.B.G. 's statement that he received this wire from Smith in November 1990 as an example of why he had poor credibility before the jury, and then turns around later in the same opinion and uses that same statement as the only basis for supporting the jury's finding that the wire was in fact received from another. The fact is that thewire could not have been stolenby Smith because it was not takenduring the time that Smithwas working on Prince'sproperty, and Smith was out of state at the time that the wire was taken. There was absolutely no evidence that the wire stolen from Prince, Inc.

## ,was stolenby anyone other than

### E.B.G. 

### E.B.G. cannot be convictedunder 

### 5 45-6-301(3), MCA, of receiving stolenproperty that he himself stole. Since there was not substantial evidence for each element of the crime with which the youth was charged, I would reverse his convictionanddismiss the complaint againsthim.

Justice Karla M. Gray co

Justice William E. 

### Hunt,



## ,