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, 1993 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from the Sixteenth Judicial District Court, 

Rosebud County, of a conviction of a minor for possession 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 

Itknowingly obtained 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 the property 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 

to pay restitution in the amount of $7,047, the replacement cost 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 

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empty 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 in Glendive. 

Smelser bought 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 

Steel where he interviewed Mr. Smelser and examined some wire 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 officer also examined the scene of the theft 
and took photographs of the area. He found an area within the 

boxcar, where wire was stored, that contained multiple 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 area was 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 like wire taken from Prince Inc., some brass clamps and some 

connectors. Smelser had previously told Officer Skillen about the 

wire, connectors and clamps which had been rejected by 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 Smith within a relatively short period of time." The 

officer asked for a receipt for the wire purchased by ENT from 

Smith and he was led to believe that the receipt should not 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 Skillen but it was never brought to him. 

As another step in Officer Skillen's investigation of the 

stolen wire, 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.'s 
father'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, I never seen what 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. 

The officer asked: "At princes'^?^^ and E.B.G. stated that they were 

cutting iron out there. Then the officer asked if E.B.G. knew that 

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 the wire 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. 

That you stripped; it wasn't burned?" "Yes", answered E.B.G. 

When Mr. G., E.B.G.'s father, was interviewed, he stated that 

he and his wife 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 officers when 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 finished prepared." He said that although E.B.G. 

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owned the business, Mr. G. controlled the money 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. Is pickup truck at one time but had never used it to 

pick up wire. 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." State v. Brown (1989), 239 

Mont. 453, 456-57, 781 P.2d 281, 284. (Citation omitted.) 

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 the property; or 

(c) uses, conceals, or abandons the property knowing 
such 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 

youth would have had physical possession of the wire, that he knew 

that it was stolen." The State counters that he would not have 

burned the insulated copper wire and sold it as scrap unless it was 

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. 1 wire and 986 pounds of No. 2 wire for a total 

of $1,318.80. The burning of the insulated copper wire to sell for 

scrap at a much lower price is evidence that could lead a jury to 

determine that E.B.G. knew the wire was stolen and therefore tried 

to change its appearance. 

Further, E.B.G.'s inconsistent statements may have damaged his 

credibility before the jury. Bret Smelser said that E.B.G. told 

7 
him that he and D.H. had burned the wire in South Dakota on 

Wednesday night and early Thursday morning and then they drove from 

South Dakota to Glendive. However, when E.B.G. was interviewed by 

Officer Skillen, he stated that he drove straight to Glendive after 

leaving Forsyth between 12:30 and 1:OO. He did not mention burning 

the wire and told Officer skillen that the wire had been stripped, 

not burned. E.B.G.'s companion, D.H. testified at trial that they 

took the wire to Buffalo, South Dakota, to burn on Thursday, August 

15. They left at about seven or eight o'clock that morning and 

then drove to Glendive, Montana, to Border Steel after burning the 

wire. 

E.B.G. also made contradictory statements about how ENT had 

acquired the copper wire. When Officer Skillen asked E.B.G. during 

the taped interview where the wire he sold to Border Steel had 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, I did. 

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 see what I'm saying, if that amount of wire was 

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 

it was in Glendive and it was identified, okay? So 

some of that wire, if not all, had to have come 

from Prince1 s. 

Yes. 

So what I need from you is a logical explanation of 
where 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 seen what 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 explanation by the suspect is sufficient to 

sustain a conviction.. . '" State v. Ramstead (1990), 243 Mont. 162, 

170, 793 P.2d 802, 807. (Citation omitted.) 

Second, the State has provided sufficient evidence for a jury 

to conclude that the wire was stolen by another. E.B.G., himself, 

stated during his taped interview with Officer Skillen, that Justin 

Smith had taken the wire when he was working for ENT cutting up 

scrap iron at Prince, the scene of the theft. 

"The weight of the evidence and credibility of the witnesses 

is exclusively the province of the trier of fact. If the evidence 

conflicts, it is within the province of the trier of fact to 

determine which shall prevail." Brown, 781 P.2d at 284. (Citation 

omitted.) In the instant case, there was sufficient evidence for 

the jury to determine that the State proved all elements of 5 45-6- 

3Ol(3), MCA. Affirmed. 

We Concur: 

Justice Terry N. Trieweiler dissenting. 

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 conviction under 5 45-6-301(3), 

MCA . 

Under the above statute, the youth in this case was charged 

with theft for obtaining control over stolen property knowing the 

property to have been stolen by another. However, there was no 

evidence that the copper wire which the youth was accused of having 

illegally received was stolen by another. According to our prior 

case law, the absence of that proof 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 statute with 

which this youth was charged "requires proof that the property must 

have been stolen by someone other than 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 another does not mean that if he 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 argument was incorrect as a matter of law. If 

the youth in this case actually participated in the theft of the 

wire, then he was, in effect, convicted of receiving the wire from 

himself. In Hernandez, we ruled out that scenario when we held that: 

Here the charge essentially was that defendant received 

stolen property from himself. Defendant was charged with 
'I. . . purposely or knowingly obtaining control over 

stolen property . . . knowing the property to have been 

stolen by Matt Hernandez . . . [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 

from Hernandez since in that case there was actual proof that the 

defendant had stolen the coins, and in this case, the State offered 

no proof that E.B.G. participated in the actual theft of the copper 

wire. However, the fact that the State did 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 reasonable doubt. 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, there was evidence that more than one person 

participated in the theft of the wire. However, the mere 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, as 
the 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, the State referred to it as an "incredible explanation of 

how E.B.G. acquired the wire." In its brief, the State pointed out 

that: 

E.B.G. told Skillen that ENT had accumulated some of the 

wire and Justin Smith had brought in "quite a bit" 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's employment with ENT made it impossible for him to 

have stolen the insulated copper wire from Prince's when 

cutting up steel there for ENT. Smith had worked for ENT 

for two months in the fall of 1990. In October 1990, 

while working for ENT, Smith cut 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 

approximately a year. Also, Smith could not have stolen 

the wire in August 1991 because he was working in Arizona 

at that time. Furthermore, Smith denied that he had 

brought in a large amount of wire to ENT. The jury, as 
trier of fact, clearly did not believe E.B.G. 's 

incredible and impossible explanation of how ENT acquired 

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 the wire could not have been stolen by Smith 

because it was not taken during the time that Smith was working on 

Prince's property, 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 stolen by anyone other than E. B. G. E. B. G. cannot 

be convicted under 5 45-6-301(3), MCA, of receiving stolen property 

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 conviction and dismiss the complaint against him. 

Justice Karla M. Gray co 

Justice William E. Hunt, 

,