STATE v TRACY
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No. 88-173 IN THE SUPREME COURT OF THE STATE OF MONTANA 1988 THE STATE OF MONTANA, Plaintiff and Respondent, -vsPATRICK MARK TRACY, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding. COIJNSEL OF RECORD: For Appellant: Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Paul D. Johnson, Assistant Attorney General, Helena Mike McGrath, County Attorney, Helena, Montana Leo Gallagher, Deputy County Attorney, Helena Submitted on Briefs: Decided: Filed : SEP 1 3 1988' Clerk Aug. 4, 1988 September 13, 1988 Mr. Justice R. Court. C. McDonough delivered the Opinion of the Patrick Mark Tracy appeals from a judgment of the District Court of the First Judicial District, Lewis and Clark County. The judgment was entered pursuant to a jury verdict finding Tracy guilty of the crime of theft (common scheme), a felony. We affirm. Tracy presents two issues for review: 1. Whether the evidence was sufficient to sustain the jury's verdict convicting Tracy of felony theft (common scheme) 2. Whether the District Court properly imposed a minimum 10-year sentence on Tracy as a persistent felony offender . under ยง 46-18-502 (2), MCA. A summary of the facts is as follows: Tracy was hired as a janitor by Universal Floor Maintenance on September 8, 1987. Part of his job was to clean the Thriftway North store in Helena. A manager and checker at the store, Bob Day, testified at trial that on the evening of September 27, 1987, Tracy cashed over 30 winning Montana lottery tickets at Day's checkstand and another checkstand. The fact that Tracy cashed so many winning tickets on the same day and the fact that he did so in separate transactions struck Day as odd. He notified his employer, Thriftway President Frank Capps, about his concern. Capps in turn contacted Montana State Lottery Security Director John Onstad. Onstad also received reports that Tracy had cashed 30 other winning tickets at State Lottery Headquarters as of September 29, 1987, all of which were stamped "Thriftway North. " Capps and Onstad investigated. They began keeping track of the numbers on the beginning and ending lottery tickets in t h e s t o r e ' s d i s p e n s e r s a t t h e end o f e a c h b u s i n e s s day. numbers were then rechecked each morning when opened t o s e e i f any t i c k e t s were m i s s i n g . nighttime s u r v e i l l a n c e of the The store They a l s o began t h e s t o r e when j a n i t o r s would be working. On t h e e v e n i n g o f October 3 , 1987, Capps and Onstad h i d t h e m s e l v e s i n t h e s t o r e and o b s e r v e d Tracy a s he a r r i v e d f o r work. After f r o n t of s t o r e p e r s o n n e l had left, Tracy came to the t h e s t o r e and a p p e a r e d t o wave a t someone o u t s i d e the store. rack He t h e n t o o k a shopping c a r t t o t h e c i g a r e t t e and it loaded with an estimated 50-70 cartons of cigarettes. Onstad t o o k a photograph of Tracy w h i l e he was loading cigarettes the onto the cart. Tracy took the c a r t - l o a d o f c i g a r e t t e s t o t h e back o f t h e s t o r e , and t h e two h i d d e n men h e a r d that i t p a s s t h r o u g h t h e swinging m e t a l d o o r s separate the shopping a r e a from s t o r a g e a r e a s i n the A few m i n u t e s l a t e r , Tracy r e t u r n e d w i t h r e a r of t h e s t o r e . t h e c a r t , which was t h e n empty. Tracy t h e n began t o go a b o u t h i s work. While he was d o i n g s o , Capps went t o t h e r e a r of t h e s t o r e t o l o o k f o r t h e cigarettes. He was u n a b l e t o f i n d them, and r e t u r n e d t o h i s hiding place. A s h o r t t i m e l a t e r , t h e two men o b s e r v e d Tracy removing l o t t e r y t i c k e t s from t h e d i s p e n s e r s and p l a c i n g them inside h i s pants. He t h e n t u r n e d o u t t h e l i g h t s and l e f t t h e store. Capps and Onstad l e f t t h e i r h i d i n g p l a c e and i n t e r c e p t e d Tracy. They b r o u g h t him back i n t o t h e s t o r e and n o t i f i e d t h e police. A Helena police officer testified that when he a r r i v e d , h e s e a r c h e d Tracy and found two b u n d l e s o f l o t t e r y tickets ( a t o t a l of h i s pants. 213 t i c k e t s ) s t u f f e d down t h e f r o n t of A search of t h e r e a r of t h e s t o r e a t t h a t point a l s o f a i l e d t o r e v e a l t h e missing c i g a r e t t e s . p l a c e d under a r r e s t . Tracy was t h e n Subsequent s e a r c h e s of t h e s t o r e f o r the missing cigarettes were likewise unsuccessful, but Capps did discover that the locking mechanism on one of the rear doors could be manipulated to enable someone to open it far enough to pass items outside. Onstad testified that lottery tickets are sold to merchants for 95C apiece and resold for one dollar. The tickets found on Tracy's person thus had a wholesale value of $202.35, and a retail value of $213.00. Capps testified that the missing cigarettes had a wholesale value of $576.20, and a retail value of $634.10. Capps also testified that since Tracy's arrest, Thriftway had experienced no problems with lottery tickets. The jury returned a verdict of guilty on December 2, 1987. At the sentencing hearing held January 20, 1988, Tracy was sentenced to ten years in prison for felony theft and 50 years of imprisonment as a persistent felony offender, with 40 years of that sentence suspended. This appeal followed. I. Tracy was charged under 5 45-6-301, MCA. Under S 45-6-301(6), MCA, theft is a felony if the value of the property involved is at least $300. Tracy admits to bein9 guilty of misdemeanor theft in connection with the lottery tickets found. on him when he was arrested. However, he argues that the evidence was insufficient to prove that he exercised control over other lottery tickets and cigarettes of sufficient value to constitute a felony. He argues that the evidence introduced at trial connecting him to the theft of these additional items was based on "conjecture, probability or suspicion." The test applied by this Court to determine whether the evidence is sufficient to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McHugh (Mont. 1985), 697 P.2d 466, 42 St.Rep. 371. If the evidence conflicts, it is for the trier of fact to determine which evidence is dispositive. State v. Oman (Mont. 1985), 707 P.2d 1117, 42 St.Rep. 1565. The statutory definition of theft used in charging Tracy reads as follows: (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and : .. . (c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property. Section 45-6-301(1) (c), MCA. In addition to the 213 lottery tickets found on Tracy's person, the record contains testimony by two witnesses that Tracy cashed a total of 64 tickets marked "Thriftway North" under circumstances that aroused their suspicion. Tracy was employed as a night janitor at the store when he cashed those tickets. Capps and Onstad testified to having observed Tracy removing lottery tickets from store dispensers while in the store for the purpose of cleaning. Capps further testified that his audit showed tickets with a total value of $1,000 to be missing, and that after Tracy's arrest, the ticket thefts ceased. Capps and Onstad also testified to having observed Tracy remove between 50 and 70 cartons of cigarettes from a rack at Onstad photographed Tracy in the the front of the store. course of this activity. Capps testified that Tracy did not have permission to exercise control over the cigarettes. Both men testified that when Tracy returned from the storage area at the back of the store, the shopping cart into which he had placed the cigarettes was empty. Roth men also testified that repeated searches failed to locate the cigarettes. The value of the cigarettes was placed at over From this evidence, a reasonable trier of fact could conclude that Tracy obtained unauthorized control over property valued at over $300 belonging to Thriftway, and concealed or used it knowing that his actions would deprive Triftway of the property. We conclude the evidence introduced at trial was sufficient to sustain Tracy's conviction. II. Tracy also argues that he was improperly sentenced as a persistent felony offender. Tracy admits that he was properly designated a persistent felony offender, but disputes the court's imposition of a 50-year sentence with 40 years suspended. Section 46-18-502, MCA, provides the criteria for sentencing a persistent felony offender: (1) Except as provided in subsection (2), a persistent felony offender shall be imprisoned in the state prison for a term of not less that 5 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if he was 21 years of age or older at the time of the commission of the present offense. (2) If the offender was a persistent felony offender, as defined in 46-18-501, at the time of his previous felony conviction he shall be imprisoned in the state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both. ... According to Tracy, the court incorrectly based its sentence on subsection (2) of the statute. Tracy argues the court's sentence amounts to imposing the minimum of 10 years for a defendant who was a persistent felony offender at the time of his previous conviction. Tracy was not designated a persistent felony offender in his previous conviction, and he argues that he should have received a sentence of only 5 years under subsection (1) The State counters that Tracy could have been designated a persistent felony offender in his previous conviction based on his record at that time. The State argues that the language of the statute does not require that the defendant actually be designated a persistent felony offender in his previous conviction in order to come under subsection (2). A judge is vested with wide discretion when imposing a sentence on a convicted defendant. If the sentence imposed is within the limits provided by statute, it is not an abuse of discretion. State v. Garrido (Mont. 1981), 621 P.2d 1105, 38 St.Rep. 78. Section 46-18-502(1), MCA, grants the judge discretion to sentence a persistent felony offender to not less than 5 or more than 100 years in prison. The sentence imposed by the judge in this case is within the range authorized by the statute. The judge did not abuse his discretion in imposing a 50-year sentence with 40 years suspended based on Tracy's designation as a persistent felony offender. We affirm the decision of the District Court. . &///.%- Chief Justice . A
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