*1 STATE OF MONTANA, Rеspondent, Plaintiff CHARITIE SHIVELY, LYNN Appellant.
Defendant No. DA 07-0474. July 28, Submitted on Briefs 2009. July 30, Decided September 16, 2009.
For General, Helena; Marty Attorney Fowler, Assistant C. Mark Attorney, Bozeman. County Lambert, Gallatin the Court. Opinion RICE delivered JUSTICE Court, County, Gallatin Eighteen Judicial District in the juryA¶1 *2 knowingly (Shively) theft for Shively L. Charitie convicted of its deprive owner of a welder to unauthorized control exercising of hеr sentence imposition deferred District Court use, felony. a The raising Shively appeals, subject to various conditions. three years, for following issues: there was no because conviction be reversed 1. Must Defendant’s ¶2 knew stolen? the welder had been evidence that she jury by failing to instruct the Court err 2. Did the District ¶3 a proof beyond reasonable not be convicted absent Defendant could the welder was stolen? that she knew doubt trial unfair? tactics render Defendant’s prosecutorial 3. Did ¶4 BACKGROUND FACTUAL AND PROCEDURAL Sletten 2005, a welder was stolen from In the summer of ¶5 (Sletten). 25, Shively August pawned On Company Construction Bozeman, telling Curry, David Shop Pawn for at Debos $800 welder needed to bail her pawnshop, $800 employee Later, returned to the Shively boyfriend jail. out of boyfriend A against the welder. Sletten another pawnshop $812 and borrowed pawnshop, in the and informed noticed the welder employee a welder was there. that Sletten-owned equipment manager Sletten number of the manager equipment then matched equipment that of the stolen welder. pawnshop at the with welder felony with one count of charged information ¶6 45-6-301(1), MCA, having “purposely specifically, under § Sletten’s unauthorized сontrol” over knowingly obtained exerted Sletten Construction welder “with property.” Curry manager and trial, equipment Sletten’s At the State called
¶7 Curry also witnesses, detailed above. who testified to facts had no indication that she knew the welder gave indicated that case-in-chief, Shively At of the State’s been stolen. the conclusion a moved court for directed verdict.1 The court ruled that the State conviction, support
had
sufficient evidence to
therefore denied
motion.
offered no evidence and
During closing argument,
rested.
prosecutor argued
there was nо
requirement
jury
within the
instructions “bhatthe State has to
jury
that the Defendant
knew this
was stolen.” The
returned
guilty
Shively appeals.
verdict.
OF
STANDARD
REVIEW
‘The denial of a
dismiss
case
a question
motion to
in criminal
of law and we review a district court’s conclusions of law to determine
McWilliams,
whether those conclusions are correct.”
¶
jury
We review a
court’s
instructions
abuse of discretion. State
Field,
181, 16,
MT
Mont.
DISCUSSION
1. Must Defendant’s
conviction be reversed because there
*3
was no evidence that she knew the welder had been stolen?
11 Shively argues
opening
in her
¶
brief that her ‘theft conviction must
because,
be reversed ...
prosecutor correctly admitted,
as the
there was
no
[she]
evidence that
knew that the welder she pawned had been
argument
stolen.” Her
a
is not
the
challenge
sufficiency
evidence generally, or even to the evidence of mental
generally,
state
but, rather, is a
argument
narrow
directed
very specific point:
to a
the
absence of
evidence that
knew the welder had been stolen. As
she opines,
illegal
“[i]t’snot
pawn
object
in Montana to
a
you
stolen
if
don’t know it’s stolen.” She
argument by asking
follows this
estopped
asserting
State be
from
any
that
evidence was
point,
this
or that the
was properly instructed that
of
this
conviction,
given
for
the prosecutor’s
comments
the contrary during
the trial. She offers
her appeal
‘is the
opportunity
State’s
of
disavow itself
conviction”
it “should concede that [her] conviction must be reversed.”
The State
has
taken
on the
up
Responding
offer.
explained
statutory authority
referring
haveWe
since
that “there is no
for
to a
motion to dismiss for
a
insufficient evidence as
‘motion for directed verdict.’” State v.
McWilliams,
36,
Rep.
2008 MT
341 Mont.
¶
65 U.C.C.
2d
Serv.
either the
brief,
not seek to excuse
the State does
Shiveljf s opening
Rather,
or the
instructions.
comments
prosecutor’s
§45-6-301(l)(a)
that the State
shows
argues
reading
that “a
of
plain
actually
the welder was
knew
obligated
was never
Characterizing Shively’s
the
appeal,
ab initio.”
stolen. Her issue fails
“a
law.”
‘Shively
much” on matter of
stakes so
State
and our
arguments,
issues and
posture ofthe
particular
the
Given
statute,
interpretation
the
of this appeal
resolution
sufficiency
challenges
for
to the
of review
not cited the standard
have
in light
most
evidence,
which we review the evidence
under
the
a rationale trier
and determine whether
prosecution
to the
favorable
beyond a
guilty of the crime
the defendant
could have found
fact
Meckler,
277, 9,
MT
v.
¶
doubt. See State
reasonable
by Shively
ultimately
The
does not
302,
(1) person A of theft when the commits offense person or knowingly or obtains exerts -unauthorized purposely and: property over owner
(a)has owner of the ... depriving property purpose (3) 45-6-301(1), provides: MCA. Subsection statute Section person A commits the offense of theft when knowingly or obtains control over purposely have another and: knowing been stolen (a) property; the owner of has (b) uses, conceals, or abandons purposely knowingly property; in a manner that the owner of deprives (c) uses, knowing conceals or abandons use, probably deprive will the owner concealment or abandonment *4 legal Shively substantially expands scope arguments theories other sufficiency brief, challenges she “knew reply ofthe evidence that where she also exercising [she] knew that control over another’s she was However, by arguments raised in her these are new not authorized the owner.” not 12(3); of Bovey, brief, App. R. P. In re opening See M. Estate which we will address. 254, 132 2006 MT property. added). 45-6-301(3), Section MCA Further (emphasis definitions forming part provisions of these are as follows:
(35) “Knowingly”-aperson acts with knowingly respect conduct to a by or circumstance described a statute an offense defining person person’s when the is aware of the or own conduct that the person knowingly respect circumstance exists. A acts with by defining result of conduct described a statute an offense when is person highly probable aware that is result will be the person’s caused conduct. When particular offense, existence fact is an element an knowledge is established if a person high probability is aware of a terms, of its Equivalent “knowing” existence. such as or “with knowledge”, have the meaning. same (46) ‘Obtains or exerts control” includes but is not limited to the taking, away, the carrying sale, or the conveyance, or transfer of to, in, title interest or possession
(65) “Purposely”-aperson purposely acts respect a result conduct described a statute defining an offense if it is person’s conscious object engage in that conduct to cause that result. When a particular purpose is element of an offense, the element аlthough established the purpose is conditional, negatives unless the condition the harm or evil sought be prevented by defining the law the offense. 45-2-101, Section MCA. (1) first argues that the plain language of subsection of §
45-6-301, MCA, unambiguously requires proof that she knew the
welder was stolen. The State answers that it unambiguously
not.
does
Shively,
(3)
noting the requirement under subsection
person
that a
must
the property
stolen,
know
alternatively argues that
(3)
“subsection
clear
makes
of knowledge that the item was
stolen is necessary for a theft conviction. The specific language of
(3)
(1).”
subsection
any ambiguity
contrоls
that lies in subsection
She
argues
also
(3),
subsection
being
specific
the more
of the two
provisions,
(1).
controls over the more general terms of subsection
argues
The State
plain language
merely
subsection
requires
a person
“obtains or exerts unauthorized control” over
the owner with
deprive
the owner. The State
that a
can obtain unauthorized
control over
being stolen,
without it
Long,
first
such
(1987).
P.2d 487
Long, we affirmed the defendant’s conviction
a boat where he initially exercised
lawful control with
*5
its
permission governing
the
later exceeded
permission, but
owner’s
White,
490-91;
204, 738
seeаlso State
Long, use.
(defendant
(1988)
of theft for
convicted
356,
While (1), in probably, and in subsection exerted is immaterial (c), (a), (b), or would one of the subdivisions conjunction with approach felt that such an theft the commission cover all forms of concise, might problems application, create might be too and large the number body statutory material and large ofthe view (2) Therefore, and subsections it is to replace. of offenses intended (3) by threat or the of theft added, specific to cover offenses were commission although the receipt property, deceit and stolen under charged proved be that all could intends theft forms of (1). subsection added). Comments) (Commission (emphasis Section 45-6-301 theft specific that while the statute defines several explain Comments under offenses, including knowing receipt property of stolen (1) nonetheless, general provision a under (3), subsеction subsection charged. Further, Comments theft” can be which “all forms of unauthorized control” is exerted explain that “the method which (1) immaterial.’’Thus, requirement not a ‘is there is under subsection (1) only by that a act without authorization under subsection or with was receiving stolen doing The statute would one method of so. stolen-although that be (1) the charged requires prove that the State under which knowingly exerted unauthorized control over purposely defendant (2) another, purpose had the the defendant An Annotator’s Note to property. the owner of the explanation: statute оffers this way concerning no distinction subsection makes
Because obtained, the subsection should cover in which the receiving including theft all conceivable forms of subsection, proved only elements must be under this Because two deprive, knowing exertion of from represents simplification a considerable provision approach. traditional (Annotator’s Note) added).
Section 45-6-301
(emphasis
We thus conclude that the State was not
to pursuant
knew the welder was stolen
charge
under
(1). Although
subsection
it is not
incumbent
this case that we look
Illinois,
statutory
provision,
the Statе of
source of our
in order
conclusion,
simply
to reach our
note that Illinois courts have held
permissible
charge
that it is
and convict a defendant under the
general
though
provisions
even
the evidence
support
would
Sherman,
conviction under the more specific statute. See Ill. v.
(1968).
McCormick,
(1982);
N.E.2d 896
Ill. v.
¶22 invoke the common plain law error prosecutor’s doctrine to review the “numerous tactics” improper which object she did not prosecutor’s trial. decision charge her, proposed jury instruction of “knowingly,”voir tactics, opening statement, dire closing argument compromised right her to a fair trial. We generally do not
¶23 address issues not raised trial. An exception general to rule is the plain common law error doctrine. We adopted this exception permit limited review “claimederrors implicate a criminal defendant’s fundamental constitutional 3 issue, Shively argument As reply with the first broadens and theories in her by challenging required brief the other charge, mental states under the but we do not arguments. address those additional 520 is made and objection contemporaneous if no
rights,
even
46-20-701(2), MCA,
of the §
notwithstanding
inapplicability
may result
error at issue
the claimed
criteria,
failing
review
where
question
may
unsettled the
miscarriage
justice,
leave
in a manifest
may
trial or proceedings,
fairness of the
of the fundamental
276
Finley,
State v.
judicial
integrity
process.”
compromise
(overruled
grounds
208,
on other
126, 137,
215
915 P.2d
Mont.
817).
39, 12,
Mont.
2001 MT
Gallagher,
v.
State
basis,
case-by-case
and will
However,
on a
power sparingly,
we use this
result in manifest
if
did not
alleged
doctrine
error
not invoke the
See
judicial process.
State
integrity
injustice
compromise
115;
Rogers,
v.
MT
Raugust,
Mont.
(1993);
Arlington,
State v.
413, 849P.2d 1028
(1994).
that this case is objects from her Shively now arises conduct to which Much she knew prosecution belief that the mistaken stolen, contrary requirement. to that acted the welder was to the Therefore, claim rеlated decline address actions. prosecutor’s Affirmed. McGRATH, and MORRIS JUSTICES WARNER
CHIEF JUSTICE concur. NELSON, dissenting.
JUSTICE respectfully I dissent. *7 charged Shively was and convicted states The statute under which ¶27 as follows: the person
A the offense of theft when commits person or exerts unauthorized control knowingly or obtains purposely depriving . . . the purpose the has property over owner property. the owner of the omitted). 45-6-301(l)(a), break (paragraph
Section MCA prove had to language, under this Shively argues that ¶28 (the welder) at issue property her control over the that she knew only however, prove that it had to argues, unauthorized.1 Thе specifically prove State had to perceives claim to be that the The Court 11,15. explains Opinion, then The Court ¶¶ knew had been stolen. that she the welder 45-6-301(1), MCA, person requirement act without that § that authorization other methods of there is no may only by receiving opines there be The Court that Opinion, not s acting 17. But this is authorization. without Shivel/ or “purposely knowingly ‘exercisefd] authoritative or dominating ‘grant influence over’ the welder for which she had no authority power[, or permission”(brackets or]... and ellipsis in State’s brief; citing American Heritage Dictionary English Language (4th 2002)). words, ed. In оther the State interprets the statute as requiring proof that Shively purposely knowingly or or obtained exerted control over the proof welder and that such control was unauthorized, but not she knew the control was view, unauthorized. In the State’s the “unauthorized” nature of the control purposeful need not be or knowing. entirely It could be inadvertent and innocent but still constitute theft. This is prosecutor’s theory consistent with the of the case and the
evidence testimony trial. The of the State’s two witnesses established that stole the someone welder from Sletten Construction in the summer оf2005 Shively pawned and that August the welder on 25, 2005. prosecutor That’s it. The offered no evidence that knew her exertion control over the August welder on 25 was Indeed, unauthorized. prosecutor told the that he did need such knowledge. prosecutor respect, error, was in as is the State on appeal. The statute does not person state that the simply must “obtain or exert unauthorized control over of the owner.”Nor it does merely state that the person “purposely must or knowingly obtain or exert control over states, rather, the owner.” It person “purposely knowingly must оr ] ] unauthorized obtain! exert! control Furthermore, over person owner.” must purpose have “the the owner of the property.” It is patently person obvious that a does not “purposely or knowingly” obtain or exert “unauthorized control”over property of owner with purpose of depriving the owner of if the person does not even know that her over the property is unauthorized. If does not knowledge, have felonious then she cannot be convicted of theft. Any interpretation other of the statute would lead to absurd “
results, contrary to the well-settled ‘[statutоry canon that argument. control §45-6-301(1), MCA, requires She does not contend that unauthorized Rather, be argument obtained or exerted certain “method.” is that the unauthorized, defendant must know that her controhhowever came aboutds and she mean, particular case, translates had been stolen. See reason, on the facts of this she knew welder e.g. 3, 6, Appellant 8,16,17, Brief of and Errata at 2. For this disagree I challenging sufficiency with the Court that is not *8 Opinion, 11,13. evidence. See ¶¶
522 if a reasonable absurd results not lead to construction should ” River Protective Assn. can it.’ Bitterroot avoid interpretation 507, 377, 72, 346 Mont. Dist., 2008 MT ¶ Bitterroot Conservation Fish, v. Dept. Sports Shooting Assn. Montana (quoting P.3d 219 of 1003). 1, 185 Parks, 2008 MT ¶ Wildlife, the transport Spot car to say Dick lends Jane his example, For that the Suddenly, changes his mind. Under Dick Jane drives off. vet. car over the guilty of theft because her control theory, Jane is State’s of authorized, although no Dick’s she has longer no is to exert acting purpose with although she is change ofheart and to the facts ofthis applied Even control”over the car. as “unauthorized guilty is person If a case, theory leads absurd results. the State’s welder, Sletten’s merely exerting unauthorized control over by unauthorizеd, then is or not he or she knows such control whether (the Indeed, if guilty as is. shop employee) is Curry pawn List Craig’s on purchased the had the welder any public member of charged sell, that could be with offeror’s to believing to be the no theory here. There is of theft under the State’s and convicted matter, language-er, for that in statutory in the evidence in Annotator’s Notes recited Court Commission Comments and §45-6-301(l)(a), interpretation of MCA. support 17-feo this absurd ¶ reasons, holding that agree I cannot Court’s For these Shively’s knowledge regarding the prove was not State requires Opinion, 18. The statute status of the welder. ¶¶ knowingly” obtained exerted “purposely the defendant purpose owner with the control” over “unauthorized Thus, in fact had to depriving the owner Sletten Shively, acting in with the welder, high probability” of a that she its least “aware (64) §45-2-101(34), exerting control over the welder. See unauthorized (2003) “knowingly” The State could (defining “purposely”). MCA herself or by showing have so that she had stolen welder done But prosecutor else. she knew it had been stolen someone evidence, believing that he had no erroneously no such is, Incidentally, as the and Annotator’s Notes resort to Commission Comments it, warrаnted,” given language ‘inappropriate” puts and ‘hot Indeed, Shively Sports Shooting, unambiguous. ¶ 11. statute is State both See Montana §45-6-301(1), MCA, agree In this "plain”language controls here. §45-6-301(3), MCA, analyzes connection, Shively’s which the Court arguments based arguments event this Court concludes are offered as alternative They primary ambiguous. Appellant are not her Brief of subsection See theory. obligation to do so. *9 error, appeal Given this the State now on that “[p]roof
¶33 that possessed the item exclusively recently, she had been stolen even stolen, absent she knew it was provided adequate circumstantial that Shively purposely inference or knowingly exerted words, unauthorized control.” In other the State contends that “the jury was entitled to make a guilt reasonable inference of her on based her possession recently however, stolen property.” argument, This implausible totally merit, is given without prosecutor specifically jury told the that the State did not need to that 25, knew her exertion of August control over the welder on 2005, was unauthorized. Moreover, I do not agree with the State that such an inference 199,
reasonable
Long,
(1987),
here. State v.
227 Mont.
§ about and concerns in future cases may be used Opinion did the State interpretation. Because constitutionality of the Court’s the welder or knew that Shively either stole evidence that not оffer not need to fact did holds that Court was stolen-and guilt left to find based evidence-the produce such proved All the State of the welder. possession mere Sletten, belonged leaving thus pawned welder control over the welder that she knew her from these two facts infer was unauthorized. concerning present specific evidence State’s failure to having position her in
Shively’s purpose put case. If she exercised disprove the State’s the stand take the risk testify3-which she did-fchenshe ran right not to constitutional possession mere being convicted-which she was-on basis the welder. association *10 Kramp, 383, v. 651 in State regard, In this we stated (1982):4 P.2d 614 45-6-304, MCA, 6
Nonetheless, and instruction no. section away they defects: take constitutional applicative have facial and testify, by innocence and force him to presumption defendant’s possession either to unlawful disprove a burden on him placing lawful possession. principles possession adhere. Proof of stolen Certain may as standing as consistent with innocence alone be be to consider jury ought at least allowed guilt. Yet fact infer possession property, ofstolen and from that unexрlained every of proving that he in theft. The burden participated always on the State. The element of the theft must be essential take the witness stand furnish defendant is never testify If he to his possession. does explanation is a matter to be explanation whether his is credible possession, incorporating jury. to the determined Instructions apply inform the how properly these should principles 3 Const, II, V; art. §25. U.S. Const. amend Mont. (1979). §45-6-304, Kramp, MCA Kramp, the unconstitutional Court declared provided: 396, 651 of stolen at 621. This statute ‘Possession
200 Mont. at place proof of theft. Such fact shall of the cоmmission of offense shall not constitute to be possessor effect of such fact as circumstance a burden on the to remove the repealed guilt.” in pointing his The statute was all other evidence considered with 188, 1991, ch. §2. See Laws of Montana possession fact of determining guilt or innocence of the defendant.
Kramp,
issue here. But the addressed in problem is the same 45-6-301(l)(a), MCA, here. was convicted of theft under § possession pawning based her mere aof welder that someone Yet, previously had stolen requires proof from Sletten. the statute felonious purpose knowledge: very least, at the an awareness of a high probability that or her his control over the issue is unauthorized. If such or knowledge may be inferred from possession, mere holds, as the State apparently and the Court then the is put defendant in the position having to take the stand disprove trial in order to the State’s case and show that she did not know control over implicitly was unauthorized. We. declared approach Kramp. unconstitutional See Kramp, 200 391-96, Mont. at 619-21; 651 P.2d at see also State Campbell, v. 15, 18-19, (1978);
Mont.
582 P.2d
Treible,
59, 63-65,
Erdmann, JJ.,
239-40
(Leaphart &
dissenting) (arguing that “mere association” with a stolen article is not
sufficient to show control over the stolen article in order
to sustain
MCA).
§45-6-301(l)(a),
conviction of theft under
course,
Of
Kramp
we stated in
jury ought
to be allowed
to consider unexplained possession property and,
stolen
from that
fact, infer that the defendant participated
However,
in the theft.
also stated that
ofpossession
alone,”
property, “standing
may be as consistent with innocence
guilt,
as with
we emphasized
that the burden of proving every essential element of the theft must
always be on the State: ‘The defendant is never required to take the
witness stand and furnish an explanation
possession.”5
Kramp,
JUSTICE COTTER joins the Dissent of JUSTICE NELSON. JUSTICE LEAPHART