State v. Cox, 86-421
| Decision Date | 12 March 1987 |
| Docket Number | No. 86-421,86-421 |
| Citation | 44 St.Rep. 496,733 P.2d 1307,226 Mont. 111 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Jack Jason COX, Defendant and Appellant. |
| Court | Montana Supreme Court |
Christopher Daly, Missoula, for defendant and appellant.
Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
Defendant appeals the April 11, 1986, judgment of the Fourth Judicial District Court finding defendant guilty of aggravated burglary. We affirm.
At approximately 2:00 a.m. on November 17, 1985, Skip Caluori noticed a station wagon drive by his home and pull into a grassy driveway beside his neighbor's wood-pile. Caluori was suspicious as he had seen a similar car earlier in the evening drive by his house slowly. Caluori and his neighbor, Gene Nulliner, live on Cross Street in Piltzville, Montana. Cross Street receives very little traffic.
After seeing two men emerge from the station wagon, Caluori phoned Nulliner and told him he thought two prowlers were by his woodpile. Nulliner turned on his outside lights and he and Caluori approached the station wagon. Caluori's sister phoned the sheriff's department concerning the suspected prowlers.
Defendant and another man were crouching behind the station wagon, apparently trying to hide. Nulliner told the men to move away from the car and asked what they were doing. Defendant stated they were fixing a flat tire. Caluori and Nulliner saw no evidence of a flat tire and asked the men to step onto the lighted driveway. At that point, Caluori and Nulliner saw numerous tools and equipment lying on the ground next to the station wagon. Defendant made an offer to trade a gun in exchange for their release.
As they stood in the driveway waiting for the sheriff, Nulliner noticed defendant inching his hand toward the inside of his coat. Nulliner grabbed defendant's arm and reached inside his coat and extracted a handgun. The gun was a loaded .38 semi-automatic revolver. Law enforcement officers arrived shortly thereafter.
Nulliner observed the name of his neighbor, Gene Sperry, on a power generator lying near the car so he went across the street and returned with Sperry. Sperry has a large garage where he maintains a shop to conduct his business as a pump repairman. Sperry identified the equipment next to the station wagon as his, including a tool chest in the back of the station wagon. Caluori and Sperry both noticed a well beaten path between Sperry's garage and the station wagon. There was frost on the ground and the tracks were easily seen. Sperry stated his equipment was in the shop when he closed up at 10 p.m. but that he had not locked the door.
The stolen property included an air compressor, electric welder, hand truck, power plant, two toolboxes, a trailer house wheel and tire, a boat trailer wheel, and several other tires. The equipment was valued at $7000. Defendant was discovered to be the owner of the station wagon.
Defendant was charged with aggravated burglary and the case was consolidated with several other theft charges pending against defendant. Defendant plead guilty on all counts except the aggravated burglary count. A bench trial was conducted on April 1, 1986, as to the aggravated burglary charge. Defendant was found guilty of aggravated burglary and sentenced to 30 years in the Montana State Prison with 20 years suspended, in addition to his sentences on the other counts. Defendant appeals and raises the following issue:
1) Whether the evidence is sufficient to support defendant's conviction for the offense of aggravated burglary?
Aggravated burglary is defined in Sec. 45-6-204(2), MCA:
(2) A person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit a felony therein and:
(a) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he or another participant in the offense is armed with explosives or a weapon; or
(b) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he purposely, knowingly, or negligently inflicts or attempts to...
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