State v. Harvey

• Decision Date: 13 February 1986
• Docket Number: No. 85-214,85-214
• Citation: 43 St.Rep. 46,219 Mont. 402,713 P.2d 517
• Parties: STATE of Montana, Plaintiff and Respondent, v. William E. HARVEY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 517

713 P.2d 517

219 Mont. 402

STATE of Montana, Plaintiff and Respondent, v. William E. HARVEY, Defendant and Appellant.

No. 85-214.

Supreme Court of Montana.

Submitted Dec. 3, 1985.

Decided Jan. 14, 1986.

Rehearing Denied Feb. 13, 1986.

Richard J. Carstensen, P.C., argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., James D. McKenna argued, Deputy Co. Atty., Bozeman, for plaintiff and respondent.

HUNT, Justice.

Defendant was arrested on September 10, 1983, near the Trailside Store in Belgrade, Montana. An Information was filed on October 14, 1983, charging defendant with burglary, attempt, and possession of burglary tools. Defendant appeared and pled not guilty to all charges at his arraignment in the Eighteenth Judicial District, Gallatin County, on November 4, 1983.

Due to continuances, waivers of speedy trial, and defendant's change of counsel, the case did not come to trial until August 13, 1984. The charge on possession of burglary tools was dropped prior to trial. After hearing all the evidence, the trial judge instructed the jury it could find defendant guilty of criminal trespass to property. The jury returned a verdict on August 15, 1984, finding defendant guilty of criminal trespass to property. Defendant was sentenced to 30 days in the Gallatin County Jail. After the trial judge refused to grant a new trial, this appeal followed.

We affirm.

The issues presented for review are:

1. Whether criminal trespass is a lesser included offense to the offense of burglary.

2. Whether the State satisfied its burden on the defendant's speedy trial claim.

3. Whether the State failed to prove venue of this offense as occurring within Gallatin County, Montana.

4. Whether the defendant's pro se motions deprived the District Court of jurisdiction.

5. Whether the District Court's instructions as to the elements of the offense and the definition of public versus private access were erroneous.

6. Whether there was sufficient evidence for the jury to find every material element of criminal trespass beyond a reasonable doubt.

The affidavit of probable cause and leave to file information alleged the following: that defendant had entered the Trailside Store in Belgrade, Montana, and requested to use the men's room; defendant was accompanied by a woman, Patricia Bond, who remained in the front part of the store; an employee of the store, DeWayne Westfall, entered the store and walked back to the office to clock in; that upon opening the door to the office Westfall saw defendant crouching in front of the safe; upon seeing Westfall, defendant cursed and left the office, remaining in another part of the store momentarily before leaving; that Officer Baughman, called in to investigate, found a 5" lock pick on a shelf in the store, approximately where defendant had been standing; and that pursuant to an authorized search, burglary tools were seized from defendant's vehicle.

The defendant's version is that he went into the store to use the telephone in the store's office. On a previous occasion he had been allowed to use the phone. He knew where the phone was, the office was not locked, so he was in the store office with permission for a valid purpose. The lock pick found in the store would have been absolutely useless in trying to open a combination safe. Additionally, defendant is a locksmith, and it should not be incriminatory that he has tools which are considered to be "burglar's tools."

The information was filed on October 14, 1983, charging defendant on the following counts: 1) burglary, a felony, 2) attempt, theft, a misdemeanor, and 3) possession of burglary tools, a misdemeanor. Defense counsel, Jerome Cate, filed a motion to quash information on October 27, 1983. Defendant was arraigned on November 4, 1983, and plead not guilty on all counts. An omnibus hearing was held on December 23, 1983, and trial was scheduled for January 16, 1984. The order denying the motion to quash was entered on December 28, 1983. A suppression hearing was held on January 6, 1984, and the trial judge re-scheduled the trial for February 27, 1984, since defendant had not obtained full discovery.

The State filed for a continuance, based upon newly discovered evidence, and trial was set for April 16, 1984. Defendant filed a waiver of speedy trial for the period from February 27, 1984 to April 16, 1984.

On April 13, 1984, defense counsel filed several motions, including a waiver of speedy trial from April 16, 1984, to whenever the court re-scheduled the matter. In late April, defendant became disillusioned with his counsel and started filing pro se motions and supporting briefs. This resulted in counsel filing a motion to withdraw.

A hearing was held on June 4, 1984, addressing the motions on file up to that point, including counsel's motion to withdraw. Counsel was allowed to withdraw, and defendant was given 14 days to retain new counsel. Defendant repeatedly stated he did not wish to proceed pro se. The trial judge informed defendant that his pro se motions would not be considered unless they were re-submitted through his counsel of record. The trial judge denied defendant's motion for disqualification, pointing out it was untimely.

On June 18, 1984, another hearing was held. Defendant not having retained new counsel, the trial judge assigned a public defender to the case until defendant retained new counsel. The judge scheduled a new omnibus hearing for July 5, 1984, due to new counsel being on the case. Defendant retained new counsel on July 3, 1984.

At the hearing on July 5, 1984, the court re-affirmed its rulings that defendant's pro se motions were out of order and the disqualification motion was untimely and scheduled a hearing on pre-trial motions for August 3, 1984. Trial was set for August 13, 1984.

Prior to trial, the trial judge denied all of the defense motions, except the motion to suppress, which was granted. The possession of burglary tools charge was then dropped by the State.

The case was heard before a jury on August 13 and 14, 1984. After all the evidence had been presented, the trial judge determined defendant might be found guilty of a lesser included offense to the offense of burglary, criminal trespass, so an instruction to that effect was given. On August 15, 1984, the jury returned verdicts of not guilty of the burglary and attempt charges, but found defendant guilty of criminal trespass.

Defendant was sentenced to 30 days in the Gallatin County Detention Center. Defendant filed a motion for new trial, which was denied January 25, 1985. Defendant filed this appeal on February 1, 1985.

The first issue is whether criminal trespass is a lesser included offense to the offense of burglary. A reading of the criminal trespass and burglary statutes clearly shows that criminal trespass is a lesser included offense of burglary. Criminal trespass is "knowingly enters or remains unlawfully in an occupied structure," while burglary is "knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein." To commit burglary one has to commit a criminal trespass. See, Secs. 45-6-203 and 45-6-204, MCA.

Although criminal trespass is by definition a lesser included offense to the offense of burglary, the evidence in the record is determinative of whether a lesser included offense instruction should be given. The trial court's instructions must cover every theory having support in the evidence. State v. Bouslaugh (1978), 176 Mont. 78, 80, 576 P.2d 261, 262.

In this case, the trial judge felt it would be reversible error not to give a criminal trespass instruction, even though neither side requested such. The information filed in this case alleged, in part, "defendant committed the offense of burglary when he knowingly entered or remained unlawfully in an occupied structure, the office at the Trailside Store...." Defendant did not deny his presence in the store office, rather he claimed he had permission to use the telephone in the office. This evidence raises the issue of criminal trespass and supports the trial judge's instruction on criminal trespass.

This Court has explicitly recognized criminal trespass is a lesser included offense to the offense of burglary. State v. Radi (1978), 176 Mont. 451, 463, 578 P.2d 1169, 1177. We upheld the District Court's refusal to give an instruction on criminal trespass in that case because the defense was alibi and there was no evidence to suggest the defendant could be guilty of criminal trespass but not burglary. In the present case, there was evidence presented upon which the jury could rationally conclude defendant had committed a criminal trespass, but not burglary.

Defendant argues that he was either guilty of burglary or entitled to an acquittal. The evidence does not support his contention, because there was a dispute over whether defendant was lawfully in the store's office. We hold that criminal trespass is a lesser included offense to the crime of burglary and it was not error for the District Court to instruct the jury on that offense.

The second issue is whether the State satisfied its burden on the defendant's speedy trial claim. The Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, test focuses on: 1) length of delay; 2) reason for the delay; 3) defendant's assertion of the right to speedy trial; and 4) prejudice to the defendant. In the present case, the delay in getting to trial was 11 months, 3 days, which the trial judge correctly noted was presumptively prejudicial and shifted the burden to the State to explain the reason for delay and absence of prejudice.

Defendant admits he is chargeable for the delay from February 27, 1984, to June 4, 1984, because he specifically waived the right to speedy trial during that period. The point of contention is whether defendant should be charged...