State v. Ohms , 309 Mont. 263 ( 2002 )

No. 01-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 80STATE OF MONTANA,
Plaintiff and Respondent,
v.
EDDIE OTTO OHMS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven N. Eschenbacher, Hamilton, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant
Montana Attorney General, Helena, Montana; George H. Corn, Ravalli
County Attorney, Hamilton, Montana
Submitted on Briefs: October 11, 2001
Decided: April 29, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Respondent State of Montana filed an information in the
Twenty-First Judicial District Court, Ravalli County, charging
Appellant Eddie Ohms with felony theft. Ohms filed a motion to
dismiss which argued that the Ravalli County Justice Court retained
original jurisdiction over the matter, as the allegedly stolen
property was worth less than the statutory minimum required of
felony theft. The District Court denied Ohms’ motion and a jury
found Ohms guilty of felony theft. Ohms appeals. We reverse.
¶2 The sole issue on appeal is whether the State presented
sufficient evidence regarding the value of a masonry saw to convict
Ohms of felony theft.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On April 28, 2000, the State charged Ohms by information with
one count of felony theft and one count of misdemeanor theft in
violation of § 45-6-301, MCA. As to the felony charge, the State
alleged that “[o]n or about March 13, 1999, [Ohms] purposely or
knowingly obtained unauthorized control” of a masonry saw, valued
at over $1,000. As to the misdemeanor charge, the State alleged
that “[o]n or about April 12, 1999, [Ohms] purposely or knowingly
obtained or exerted unauthorized control over property belonging to
tenants of a butcher shop . . . .” The State valued the stolen
butcher shop property, consisting of butcher knives and a portable
stereo, at less than $1,000.
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¶4 Ohms plead not guilty to both offenses and filed motions to
dismiss both charges on jurisdictional grounds. Ohms argued that
the saw was worth less than the statutory minimum required to
obtain a felony conviction. Further, Ohms asserted that a district
court maintains original jurisdiction over misdemeanor offenses
only upon the existence of certain statutorily defined
circumstances. Ohms claimed that none of those circumstances
existed. Therefore, Ohms insisted that the Ravalli County Justice
Court retained original jurisdiction over both of the alleged
offenses.
¶5 On June 28, 2000, the District Court denied Ohms’ motion to
dismiss the felony charge. The State subsequently conceded that
the District Court lacked original jurisdiction over the
misdemeanor charge, and on September 21, 2000, the District Court
dismissed the same. On October 6, 2000, the State filed an amended
information to reflect the dismissal of the misdemeanor offense and
the case proceeded to trial on the felony allegation. On October
19, 2000, the jury found Ohms guilty of felony theft in violation
of § 45-6-301, MCA. On January 30, 2001, the District Court
sentenced Ohms to five years in the Montana State Prison, all
suspended, so long as Ohms complied with certain delineated
conditions. Ohms filed a notice of appeal which challenges his
conviction for felony theft.
STANDARD OF REVIEW
¶6 We review the sufficiency of the evidence to support a jury
verdict to determine whether, after viewing the evidence in the
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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. Merrick, 2000 MT 124, ¶ 7, 299 Mont.
472, ¶ 7, 2 P.3d 242, ¶ 7.
DISCUSSION
¶7 Did the State present sufficient evidence regarding the value
of a masonry saw to convict Ohms of felony theft?
¶8 Ohms indicates that, for purposes of his case, the State was
required to value the stolen property in excess of $500 to sustain
a conviction for felony theft. Ohms insists that the State failed
to establish a market value or reasonable replacement value for the
masonry saw at trial. In the absence of this valuation, Ohms
maintains that the statutory presumption valuing stolen property at
less than the felony threshold must prevail. Accordingly, Ohms
contends that the evidence did not support a felony theft
conviction.
¶9 In 1999, the Legislature amended the felony theft statute to
require that the stolen property’s value exceed $1000 to effect a
felony charge. However, the amendments did not take effect until
October 1, 1999. The information filed by the State alleged that
Ohms committed felony theft on March 13, 1999. Consequently, the
provisions of the felony theft statute in effect on that date, §
45-6-301, MCA (1997), apply to the case at bar.
¶10 Section 45-6-301(7)(b), MCA (1997), provides:
A person convicted of the offense of theft of
property exceeding $500 in value . . . shall be fined not
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to exceed $50,000 or be imprisoned in the state prison
for any term not to exceed 10 years, or both.
In a felony theft case, the value of the property taken is an
essential element which must be proven beyond a reasonable doubt.
State v. Sunday (1980), 187 Mont. 292, 300, 609 P.2d 1188, 1193.
Section 45-2-101(74)(a), MCA (1997), defines value as follows:
“Value” means the market value of the property at
the time and place of the crime or, if the market value
cannot be satisfactorily ascertained, the cost of the
replacement of the property within a reasonable time
after the crime.
Finally, § 45-2-101(74)(b), MCA (1997), provides:
When it cannot be determined if the value of the
property is more or less than $500 by the standards set
forth in subsection (74)(a), its value is considered to
be an amount less than $500.
¶11 At trial, the aggrieved owner, Todd Bruhnke, testified
that he purchased the used saw approximately nine years prior to
the theft for $400. Bruhnke also testified that after the purchase
he had the motor rebuilt for $600. Subsequently, the State
elicited expert testimony from a salesman within the masonry
industry to establish the value of the stolen property. On direct
examination, the State and the expert engaged in the following
colloquy:
Q: Have you become familiar . . . with the market values
of masonry saws?
A: Yes, I have.
Q: At some point in time, did you become familiar with
the specifications of a masonry saw that had been owned
by Todd Bruhnke?
A: Yes, I have.
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Q: Do you know what kind of a motor that we’re talking
about . . . here?
A: That motor, new, is going for right around $800. You
can get a replacement motor for about $700. If you
wanted to go high efficient, about $850. That’s just for
the motor. It’s not counting the arm, the housing, . . .
or the water portion.
. . . .
Q: [W]hat are we talking about for an entirely new unit?
A: An entire new saw, full list price is $3,924.
However, on cross-examination, the expert testified to the
following:
Q: The price (sic) that you were quoting, those are for
new parts like a new motor?
A: Replacement parts, yes.
Q: Is it possible to get used parts?
A: It’s possible to get used parts. My sources would be
new.
. . . .
Q: So, if [this saw has] been used for nine years and
rebuilt once, how much do you think it’s worth?
. . . .
A: I couldn’t say, not for used. I can only give you my
prices on new parts.
¶12 In convicting Ohms of felony theft, the jury presumably
found that the value of the masonry saw exceeded $500 based on the
expert’s replacement valuation. However, § 45-2-101(74)(a), MCA
(1997), clearly and unambiguously provides that evidence of
replacement value is to be considered only when the market value
“cannot be satisfactorily ascertained.” In other words, if the
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State is unable to present evidence of the stolen item’s market
value, it must establish that the market value of the stolen item
cannot be ascertained before it resorts to the alternative of
establishing value by proof of replacement value alone.
¶13 Clearly, the State’s expert could not provide a market value
for the stolen saw at the time and place of the crime, nor was he
asked by the State to do so. Further, the State failed to
establish that the market value could not be satisfactorily
ascertained. Instead, the State chose to rely exclusively on the
replacement value to meet its burden of proof. The State failed to
establish the necessary predicate to the use of replacement value
for purposes of determining “value” under § 45-2-101(74)(a), MCA
(1997). Accordingly, no rational finder of fact could have found
the essential elements of felony theft, as defined by statute,
beyond a reasonable doubt.
¶14 Our holding here is in accord with our decision in State v.
Martin, 2001 MT 83, 305 Mont. 123, 23 P.3d 216. In Martin, we
interpreted the statutory definition of “value” to place the burden
of proof on the State to establish the market value for stolen
property or, in the alternative, that the market value cannot be
satisfactorily ascertained, prior to proceeding to a replacement
valuation. We recognize that Martin was decided in May of 2001.
The case at bar proceeded to trial in October of 2000 and Ohms
filed his notice of appeal on December 29, 2000. Nevertheless, Martin governs
the disposition of this case pursuant to the principles discussed in State v. Goebel and State v.
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Giddings, 2001 MT 155, 306 Mont. 83, 31 P.3d 340, limited by Gundrum v. Mahoney, 2001
MT 246, 307 Mont. 96, 36 P.3d 890.
¶15 In Goebel and Giddings, ¶ 20, we cited Bouie v. Columbia
(1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, for the
proposition that if a judicial construction of a criminal statute
is “unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue,” it must not be
applied retroactively. However, Martin’s interpretation of the
“value” definition did not represent a construction that was
“unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue,” because this Court had
not previously interpreted the statutory “value” definition for
purposes of the issues raised in this case and Martin. Further, in
Goebel and Giddings, ¶ 23, we stated:
[A] judicial construction of a statute is an
authoritative statement of what the statute meant before
as well as after the decision of the case giving rise to
that construction. Thus, a court’s interpretation of a
statute is never new law because the decision declares
what the statute meant from the day of its enactment, not
from the date of the decision. [Citations omitted.]
Accordingly, for purposes of this appeal, Martin should be given
retroactive effect.
¶16 Pursuant to Martin, the State failed to carry its burden of
proof. The State had the opportunity to offer to the jury an
instruction on the lesser included offense of misdemeanor theft.
It initially proposed such an instruction but elected to withdraw
it prior to trial. Therefore, the only charge before the jury was
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that of felony theft. Accordingly, the felony theft conviction is
reversed, the charge is dismissed, and the sentence entered
pursuant to the conviction for felony theft is vacated.
¶17 Reversed.
/S/ PATRICIA COTTER
We Concur:
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JAMES C. NELSON
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