State v. Kelley, 04-264.

• Decision Date: 16 August 2005
• Docket Number: No. 04-264.,04-264.
• Citation: 2005 MT 200,119 P.3d 67
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas Michael KELLEY, Defendant and Appellant.
• Court: Montana Supreme Court

119 P.3d 67

2005 MT 200

STATE of Montana, Plaintiff and Respondent, v. Thomas Michael KELLEY, Defendant and Appellant.

No. 04-264.

Supreme Court of Montana.

Submitted on Briefs May 25, 2005.

Decided August 16, 2005.

For Appellant: Chad Wright, Appellate Defender Office, Helena, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Joslyn M. Hunt, Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Marty Judnich, Deputy County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Thomas Michael Kelley (Kelley) appeals from the judgment entered by the District Court of the Eighth Judicial District, Cascade County, upon a jury verdict finding him guilty of theft, criminal possession of dangerous drugs, and criminal possession of drug paraphernalia. We affirm. The sole issue on appeal is whether the evidence presented at trial was sufficient to sustain Kelley's conviction for the offense of theft.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Jack's Pet Center is co-owned by Sandra Schubarth (Sandra) and her mother, Ellen Fay Schubarth (Ellen), and is located in Great Falls. In the early morning hours of September 6, 2003, the store was burglarized. Officer Bruce McDermott (McDermott), of the Great Falls Police Department, responded to a call regarding the break-in. He arrived at the store at approximately 4:20 a.m., and discovered that a window had been broken, leaving a large opening adjacent to the sidewalk. Upon Sandra's arrival at the store that morning, she discovered that a male Chihuahua puppy and a female Doberman pinscher puppy were missing, along with approximately $2,700 in cash.

¶ 3 McDermott and one other officer collected fingerprints from the broken glass. The officers also dusted for fingerprints on various surfaces inside the store. The only fingerprints found were on the glass, and none of these were ever matched to Kelley. The officers also found a footprint in the broken glass on the floor. However, none of the footwear later examined in Kelley's apartment matched this footprint.

¶ 4 Dean Mayberry (Mayberry) lived in the same apartment complex as Kelley, and the two were acquaintances. At approximately 6:30 p.m., on September 6, 2003, Mayberry spoke with Kelley at Kelley's apartment. During the conversation, Mayberry noticed a Chihuahua puppy and a Doberman puppy in Kelley's apartment. Because Mayberry had previously cared for Kelley's "Blue Healer mix" while Kelley was away, he knew that the puppies were new to the apartment. Mayberry also testified that Kelley showed him a "wad of cash" and offered to buy drinks for both of them. At trial, Kelley denied showing Mayberry any cash. Mayberry declined the invitation to go out drinking, and returned to his apartment where he later heard about the pet store break-in on the evening news. Upon hearing the news report, Mayberry called law enforcement to report what he had seen at Kelley's apartment.

¶ 5 Later that evening, McDermott met Mayberry at the apartment complex and they knocked on Kelley's door. There was no answer, but they did hear dogs whimpering inside. Mayberry then took McDermott to a common access laundry room where they were able to look into Kelley's apartment through a screen window. In doing so, they saw Kelley's "Blue Healer" and two puppies matching the description which Sandra had given McDermott earlier that day. McDermott then called Officer Doug Mahlum (Mahlum) and one other officer to secure the scene while he left to obtain a search warrant.

¶ 6 Before McDermott returned, Kelley arrived at the apartment. The officers took him into custody and Mirandized him. Kelley appeared intoxicated, but was cooperative. When McDermott returned with a search warrant, Kelley consented to the search, stating that he had nothing to hide. He also agreed to speak with the officers and admitted that the puppies were in the apartment. Further, he stated that he had been by the pet store and had seen the broken window. However, he denied entering the store, and claimed to have found the puppies on the street. Upon questioning by McDermott, Kelley stated that there was no other stolen property from the pet store in his apartment. He also told the officers that they would not find any money therein.

¶ 7 Kelley was then taken from the apartment and interviewed by Mahlum. During this interview, Kelley again claimed to have been at the pet store and seen the broken window, but maintained that he did not enter the store. Again, he claimed to have found the puppies on the street. When Mahlum learned that the other officers had found money in Kelley's apartment, he questioned Kelley on that point. Kelley claimed that he won the money in Reno. Finally, Mahlum observed that Kelley had cuts on his hands. Kelley claimed to have received the cuts during a fight.

¶ 8 The search of Kelley's apartment yielded the two puppies and approximately $1,400 in cash, which included thirty-four two-dollar bills and one wheat penny. Additionally, officers found cigarette rolling papers, a partially smoked marijuana cigarette, some burnt marijuana on the kitchen table, and a small amount of marijuana in a bag.

¶ 9 On September 18, 2003, the State filed an Information charging Kelley with one count of criminal mischief in violation of § 45-6-101, MCA, one count of burglary in violation of § 45-6-204, MCA, one count of criminal possession of dangerous drugs in violation of § 45-9-102, MCA, and one count of criminal possession of drug paraphernalia in violation of § 45-10-103, MCA. Additionally, the Information charged Kelley with one count of theft in violation of § 45-6-301, MCA. While this statute contains several sub-sections, each of which constitutes a distinct offense, the Information did not cite to any particular sub-section. However, the language of the theft charge specifically outlined an alleged violation of § 45-6-301(1)(a), MCA. Hence, Kelley was effectively charged with one count of theft in violation of § 45-6-301(1)(a), MCA. Kelley pled not guilty to all charges.

¶ 10 At trial, Sandra positively identified the puppies found in Kelley's apartment as the same animals that were taken from the pet store. Sandra testified that Ellen had a collection of thirty-six two-dollar bills in the store's cash register at the time of the incident. Ellen testified that she also had her collection of ten to twelve wheat pennies in the cash register. A copy of each of the thirty-four two-dollar bills found in Kelley's apartment was entered into evidence. Two of these bills were distinct from the others in that they contained the number 2 on the front left side where all the others contained the traditional "Federal Reserve Bank" circular seal. Sandra and Ellen referred to this kind of bill as a "silver certificate," and testified that Ellen's collection contained two such bills. Additionally, Sandra and Ellen positively identified, as a part of Ellen's collection, two traditional two-dollar bills taken from Kelley's apartment. One of these contained a torn corner and the handwritten words "Good Luck," and the other was marked by handwritten scribbling.

¶ 11 Kelley testified in his own defense. While he did not contest the evidence that he possessed marijuana and drug paraphernalia, he did deny breaking into the pet store, and offered a new explanation as to how he obtained the puppies. He claimed to have purchased them from Eric Waldenberg and a woman named Mona, whose last name he did not know. As a part of this explanation, Kelley testified that the purchase occurred at the Triple Crown Motel, and that he then took the Chihuahua into the bar at the Motel. While at the bar, Kelley spoke with Scott Merry (Merry), a bartender. Merry testified that Kelley tried to sell him a "little brown dog." Kelley, however, claimed that he did not try to sell any dog, and testified that he only told Merry he had recently purchased the Chihuahua.

¶ 12 Pursuant to his new explanation as to how he obtained the puppies, Kelley testified that he had lied to the police officers about finding the puppies on the street because he "didn't want to go ratting Eric and Mona out," but preferred to deal with them personally. Further, Kelley suggested that his intoxication played some role in his decision not to implicate Mona and Waldenberg initially.

¶ 13 As he had claimed in the interview with Mahlum, Kelley testified that the money found in his apartment belonged to him. Further, Kelley's common law wife testified that Kelley had $2,000 in cash during the early part of August, 2003, $800 of which belonged to her. Kelley also testified that the wheat penney found in his apartment belonged to him and was his "lucky penny." As for his possession of the two-dollar bills, Kelley conceded that they were stolen from the pet store, but testified that he received twenty-five two-dollar bills in change when he purchased the dogs from Waldenberg and Mona. Further, Kelley testified that he asked for and received nine or ten more two-dollar bills in exchange for a twenty-dollar bill, because "[y]ou don't see them that often anymore."

¶ 14 Finally, McDermott testified, upon questioning by Kelley's counsel, that in September and October of 2003, Great Falls had experienced a rash of break-ins at businesses in the downtown area. McDermott testified that Eric Waldenberg had been arrested in connection with these crimes. However, McDermott testified that he did not determine whether Waldenberg's shoes matched the footprint in the broken glass at the pet store, nor did he discuss the incident with Waldenberg.

¶ 15 The jury found Kelley guilty of theft, possession of dangerous drugs, and possession of drug paraphernalia, but found him not guilty of burglary and criminal mischief. The District Court sentenced Kelley to serve 10 years pursuant to his theft conviction, six months pursuant to his conviction for...