No. 89-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRAYMOND ERNEST FLOYD, JR., 

Defendant and Appellant, 

c; - J 

7-. - I 

APPEAL FROM: District Court of the Sixth Judicial l is trick, 

In and for the County of Park, c-3 

The Honorable Byron L. Robb, Judge prekidi~~. j _ i.3 

COUNSEL OF RECORD: 

For Appellant: 

Dan Yardley, Esq., Yardley & Yardley, Livingston, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Asst. Attorney General, Helena 

William Nels Swandal, Park County Attorney, 

Livingston, Montana; Jon M. Hess, Deputy County 

Attorney, Livingston, Montana 

Submitted on Briefs: February 15, 1990 

Filed: 

Decided: April 9, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant Raymond Floyd appeals the judgment of a Park County 

jury finding him guilty of two counts of burglary. We affirm the 

District Court's judgment. 

Defendant presents two issues: 

1. Did the District Court err in denying defendant's motion 

to dismiss Count I at the conclusion of the State's case-in-chief? 

2. Did the District Court err in not giving defendant's 

proposed instruction 9B regarding possession of the stolen 

property? 

By information defendant was charged in separate counts under 

§ 45-6-204, MCA, with burglarizing two homes in Livingston, 

Montana. Count I arises from a break-in on July 16 or 17, 1988 at 

an apartment located on North 7th Street, and Count I1 stems from 

the break-in at a residence on South C Street sometime between July 

11 and July 13, 1988. 

A brief summary of the facts surrounding Count I follows: 

When Gerald and Pearl Stratton and family, along with their 

houseguest Robert Armijo, returned from a visit to Yellowstone 

National Park, they discovered their apartment had been broken into 

sometime during their absence. The Strattons had been gone from 

their home between 10 a.m. on July 16, and 8 p.m. on July 17, 1988. 

Mrs. Stratton reported the burglary to the Livingston Police on 

July 18, 1988. Items taken during the burglary included a 

wristwatch, pocket change, clothing, a pair of diamond earrings and 
a 14-karat gold necklace. The necklace belonged to Mr. Armijo. 

Access to the Stratton home had been gained through a window. 

Defendant gave a gold necklace to Anita Christensen early in 

the morning of July 17. Ms. Christensen testified at trial that 

she had met defendant about 10 p.m. on July 16 and they spent the 

evening with a group of people in various Livingston bars. At 

closing time the group, which included defendant's sister Margaret 

Moore, went to Ms. Moore's residence for a party. Ms. Moore 

resided in an apartment above the Strattons'. 

Ms. Christensen left the party at the Moore home around 3 a.m. 

Shortly thereafter defendant visited Ms. Christensen at her home, 

but left when Ms. Christensen requested he do so. Defendant 

returned to Ms. Christensen's home at approximately 4 a.m. and gave 

her a gold necklace in a gray earring box. 

Because she suspected the necklace may have been stolen, Ms. 

Christensen turned in the necklace to a dispatcher for the 

Livingston Police Department on July 18. The investigation that 

followed revealed the necklace was the one belonging to Mr. Armijo 

stolen from the Stratton home. 

At trial Ms..Christensen testified that defendant had spoken 

of buying a car and a gold ring for her. Ms. Christensen stated 

she believed the defendant was trying to get intimate with her. 

On July 19, the day after the Stratton burglary was reported 

and Ms. Christensen turned in the gold necklace, defendant 

voluntarily gave a statement. Defendant indicated that he had 

purchased the stolen necklace from Roger Phillips while leaving his 
sister's residence on the night of the party. Mr. Phillips denied 

selling any necklace to the defendant. 

The police conducted a search of the defendant's residence in 

connection with cdunt I on July 19. None of the other items taken 

in the Stratton burglary were found in the search. The officers 

searching defendant's residence did, however, notice unusually 

large quantities of food. Livingston police had received a report 

a few days earlier of a break-in where large amounts of food had 

been taken from another Livingston residence. 

The circumstances of Count I intersect with circumstances of 

Count I1 which are as follows: 

John H. (Harve) Counts, Sr. resides at 221 South C Street 

in Livingston. While Mr. Counts was in Billings receiving medical 

treatment from July 11 to July 13, 1988, his house was burglarized. 

Upon returning, Mr. Counts immediately reported the break-in. 

Access had been gained by prying the back door open and many food 

items had been taken. 

Livingston police conducted a second search of defendant's 

residence in connection with Count I1 on July 26. The police 

seized several items which Mr. Counts identified at trial as having 

been stolen from his home. Mr. Counts also testified that he has 

known defendant for several years and defendant was familiar with 

the Counts residence. 

A trial was held February 27 through March 1, 1989 in Park 

County. Following the State's presentation of its case-in-chief, 

the defense moved-for a directed verdict on Count I, the Stratton 
burglary. The motion was denied. 

Issue I: Defendant's Motion to Dismiss 

At the conclusion of the State's case-in-chief defense counsel 

presented a motion to dismiss Count I and enter a directed verdict 

of acquittal on the basis there was insufficient proof to go to the 

jury. Defendant argued that the State merely proved that defendant 

had possession of the necklace and evidence of possession of stolen 

property alone is insufficient to sustain a burglary conviction. 

Whether a motion for directed verdict is granted lies within 

the discretion of the trial judge, as provided in § 46-16-403, MCA, 

which reads in part: 

When, at the close of the state's evidence . . . the 

evidence is insufficient to support a finding or verdict 

of guilty, the court may, on its own motion or on the 

motion of the defendant, dismiss the action and discharge 

the defendant . . . (Emphasis added.) 

That the decision whether to dismiss a charge or direct a 

verdict of acquittal lies within the sound discretion of the trial 

court and will not be disturbed absent an abuse of that discretion 

is well-established in Montana case law. See, State v. Graves 

(Mont. 1990), - P.2d -, -, 47 St.Rep. 483, 485; State v. 

Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v. 

Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965. Furthermore, 

only if there is no evidence to support a guilty verdict may a 

verdict of acquittal be directed. Graves at , 47 St.Rep. at 

485. 

The District Court judge, in his sound discretion denied 
defendant's motion, stating that there was other corroborating 

evidence, beyond defendant's mere possession of the necklace, 

sufficient to submit the case to the jury. We agree with the 

District Court's assessment and will not disturb its decision on 

appeal. 

The State's burden of proof with regard to the charge of 

burglary alleged in Count I was to show that the Stratton residence 

had been unlawfully entered for the purpose of committing an 

offense therein and that defendant was responsible therefor. 

Section 45-6-204 (1) , MCA. The record clearly shows that, in its 

case-in-chief, the State presented direct evidence sufficient to 

meet its burden. 

The State presented testimony of witnesses Gerald Stratton and 

Robert Armijo indicating the Stratton residence had been broken 

into during the weekend of July 16-17, 1988, and that several 

items, including a gold necklace, had been taken in the burglary. 

Police Officer Keyes testified entry had been gained through a 

window. Officer Keyes also indicated that investigation revealed 

defendant was a frequent visitor to his sister's apartment upstairs 

from the Strattons'. Anita Christensen's testimony linked 

defendant to the Stratton burglary, establishing that defendant had 

been in the building which housed the Stratton apartment around 2 

a.m. on July 17, 1988 and that defendant had given her the gold 

necklace in a gray earring box at about 4 a.m. the same day. 

Suspecting the necklace was stolen Ms. Christensen turned the 

necklace over to the police. Mr. Armijo identified the necklace 
at trial as having been stolen from his suitcase at the Stratton 

home. 

The above-listed evidence corroborates the fact that defendant 

was in possession of the gold necklace. While mere possession of 

stolen property .is insufficient to support a conviction of 

burglary, it is a strong circumstantial indication of guilt which 

may be considered by the jury. State v. Kramp (1982), 200 Mont. 

383, 396, 651 P.2d 614, 621 and State v. Deeds (1952), 126 Mont. 

38, 40, 243 P.2d 314, 315. 

Defendant's possession of the necklace, taken with the other 

incriminating circumstances presented by the State, will sustain 

the burglary conviction. 

[P]ossession of stolen property, accompanied by other 

incriminating circumstances, and false or unreasonable 

explanation by the suspect is sufficient to sustain a 

conviction of burglary. 

State v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309. 

The State, through Officer Lynn Gillett, offered evidence that 

refuted defendant's explanation of his possession of the necklace. 

The defendant stated that he bought the necklace from a man named 

Roger Phillips on July 17, while leaving the party at his sister's 

apartment. Officer Gillett testified that Mr. Phillips denied 

selling the necklace to defendant. The jury was presented with 

conflicting stories of how defendant came to possess the necklace 

and obviously chose to adopt the State's position on the matter. 

The State did establish that defendant was in exclusive possession 

of the necklace. The possession was accompanied by incriminating 
circumstances and defendant's fabricated explanation. On appeal, 

this Court presumes the correctness of the District Court's 

judgment and it is the appellant's burden to overcome such 

presumption. State v. District Court of Eighth Jud. Dist. (1978), 

176 Mont. 257, 264, 577 P.2d 849, 853. We find that the defendant 

did not overcome the presumption and hold the lower court properly 

denied the defendant's motion for a directed verdict. 

Issue 11: Jury Instruction 9B 

Defendant argues that the trial court's failure to give his 

proposed instruction 9B was error. Proposed instruction 9B is 

taken verbatim from an instruction previously approved by this 

Court, where we stated: 

We would support on retrial, the following 

instruction on the point: 

"Unauthorized control or possession of 

property belonging to another is ordinarily a 

circumstance from which the jury may draw an 

inference and find, in the light of all the 

evidence in the case, that the person in 

possession committed the theft of the 

property. 

"You are permitted but not required to infer 

from the defendant's possession of the 

property of another that the defendant is 

guilty of theft only if in your judgment such 

an inference is warranted by the evidence as 

a whole. It is your exclusive province to 

determine whether the facts and circumstances 

shown by the evidence warrant the inference to 

be drawn by you. 

''The possession of the property by the 

defendant does not shift the burden of proof 

which is always on the State to prove beyond 

a reasonable doubt every essential element of 
the offense with which defendant is charged. 

"The defendant's possession of property 

belonging to another may be satisfactorily 

explained in the evidence independently of any 

testimony of the defendant personally. If 

defendant does take the witness stand to 

explain his possession of the property, the 

weight to be attached to his explanation is 

exclusively for you to determine. Even if 

defendant's possession of the property is 

unexplained, you cannot find him guilty, if 

after consideration of all the evidence in the 

case, you have a reasonable doubt as to his 

guilt. 

"If under the evidence, defendant s possession 

of the property of another is consistent with 

his innocence, then the jury should acquit the 

defendant unless he has been proven guilty 

beyond a reasonable doubt by other evidence in 

the case. 

State v. Kramp (1982), 200 Mont. 383, 396-97, 651 P.2d 614, 621- 

22. The District Court refused the instruction as not timely 

because it was not submitted the requisite five days before trial. 

Additionally, the District Court judge termed the instruction 

"verbose and confusing." Moreover, the instructions approved by 

the trial court incorporate all of the essential provisions of the 

refused instruction 9B. 

Montana case law holds that where a proposed instruction was 

adequately covered by a given instruction, it is not error for the 

trial court to refuse the proposed instruction. 

It is not error for a trial court to refuse to give a 

requested instruction if other instructions given 

adequately coverthe rejected instruction's legal theory. 

State v. Laqqe (1964), 143 Mont. 289, 295, 388 P.2d 792, 

795. Nor must a trial court give repetitious 

instructions or instruct Ifon every nuance" of a defense 

theory. State v. Graves (Mont. 1981), 633 P. 2d 203, 210, 

38 St.Rep. 9, 16. 
State v. Bingham (1987), 229 Mont. 101, 111, 745 P.2d 342, 348. 

In the case at bar the District Court adequately covered the 

proposed instruction 9B principles in the instructions given. No 

prejudice to the- defendant resulted from the District Court's 

refusal of proposed instruction 9B. We therefore affirm the 

District Court. 

Affirmed. 

We concur: 

Justices /