State v. Boese , 244 Mont. 122 ( 1990 )

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:
Stephen Hudspeth, Deputy County Attorney, Great
Falls, Montana
Marc Racicot, Attorney General, Helena, Montana
Submitted on Briefs: May 30, 1990
~ecided: August 7, 1990
Filed:
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 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 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 ~ n l a w f u l l yis 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