                                         No.    88-264

                I N THE SUPREME COURT OF THE STATE OF MONTANA

                                               1989




STATE O F MONTANA,

                 p l a i n t i f f and Respondent,
         -VS-

CHARLES MATTHEW FELDT,

                 Defendant and Appellant.


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APPEAL FROM:     District Court o f t h e ~ i g h t h u d i c i a l ~ i s t r i c t ,
                                                                J
                 I n and f o r t h e County o f Cascade,
                 The H o n o r a b l e J o e l R o t h , J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

         For Appellant:

                 N i c h a e l R . ~ r a m e l l i , G r e a t F a l l s , Montana

         For Respondent:

                 Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                 J a m e s ello ow tail, A s s t . A t t y . G e n e r a l , H e l e n a
                 p a t r i c k P a u l , County A t t o r n e y ; S t e p h e n ~ u d d p e t h ,Deputy,
                 G r e a t F a l l s , Montana




                                               s u b m i t t e d on ~ r i e f s : J u l y 20,   1989

                                                 Decided:        October 1 9 , 1 9 8 9

Filed:



                                               Clerk     _..IC
~ustice John C. Sheehy delivered the opinion of the Court.


     Defendant, Charles Matthew Feldt, appeals his January
12, 1988, bench conviction in the Eighth Judicial ~istrict
Court, Cascade County, for burglary and theft. The Honorable
Joel G. Roth sentenced Feldt to serve five years for burglary
and five years for theft, with the sentences to run
concurrently.     The imposition of both sentences was
suspended.   Feldt appeals the conviction of burglary.     We
reverse.
     The issue on appeal is stated as follows: (1) Whether
the trial court erred in finding that the defendant entered
his employer's premises "unlawfully," thereby committing
burglary under § 45-6-204(1), MCA.
     On the morning of April 27, 1987, the manager of T. C.
Foods, a convenient store in Great Falls, Montana, was called
to the store by the morning clerk. Upon arrival, the manager
found a set of keys in the door, subsequently determined to
have been issued to defendant, Feldt, an employee at T. C.
Foods.   The manager discovered $1,459 was missing from the
safe.   In addition, the manager found a note posted on the
cash register which stated, "I know you trusted me, but I
couldn't handle it at home. I am sorry. If you want, you
can try and get the money out of my car or bike. Chuck."
     On April 28, 1987, the defendant turned himself in to
the Great Falls police department. He gave the police a bag
containing $1,219 at the time of his surrender. He confessed
to entering the store after hours by means of his keys,
taking the money and leaving the note on the cash register.
     At trial, the manager testified that all employees were
given keys to the store and access to the store safe. The
defendant testified that he was required to open and close
the store and he was permitted access to the store's safe.
According to both the manager and the defendant, the manager
allowed employees to enter the store after business hours for
any proper purposes.   The evidence fails to disclose, from
the State or from the defendant, that when the store key was
delivered to Feldt, any limitation, written or oral, was
placed upon his use of it, or upon his access to the safe.
                             I.
     Whether the trial court erred in finding that the
defendant entered his employer's premises "unlawfully"
thereby committing the act of burglary under S 45-6-204 (1),
MCA?
     Section 45-6-204(1), MCA, defines burglary as follows:
     A person commits the offense of burglary if he
     knowingly enters or remains unlawfully in an
     occupied structure with the purpose to commit an
     offense therein ..  .
"Enters or remains unlawfully" is defined in S 45-6-201, MCA,
which reads in pertinent part:
     A person enters or remains unlawfully ...   when he
     is not licensed, invited, or otherwise privileged
     to do so.
     This Court in State v. Starkweather (1931), 89 Mont.
381, 297 P. 497 held that an entry made by one who is
licensed or privileged to be on the premises is not unlawful
under the burglary statute.      The Court in Starkweather
stated: "There is no breaking in or entering a house or room
and therefore, no burglary, if the person who enters has a
right to do so." Starkweather, 297 P. at 498. To constitute
a burglary the nature of the entry must itself be a trespass.
Starkweather, 297 P. at 498.
      his Court in Starkweather, focused on whether there was
a limitation upon the defendant's right to enter a pool hall.
In Starkweather, the Court found no limitation on the
defendant's right to enter the pool hall. This case turns on
the same issue, that is whether there is any limitation on
Feldt's right to enter T. C. Foods. The defendant Feldt was
given permission to enter T. C. Foods where he was employed.
As an employee of T. C. Foods, the manager gave Feldt a set
of keys to enter the store and provided Feldt with access to
the safe.    In issuing the keys, the manager provided Feldt
with authority to enter the premises at any time. The record
reveals no limitations to the defendant's right to enter the
store. However, the manager did testify at trial that Feldt
could only enter the store after it was closed for proper
purposes. Despite the manager's testimony, Feldt could enter
T. C. Foods at any time day or night.
     Under this Court's holding in Starkweather, and §§
45-6-204 and 45-6-201, MCA, the defendant can not be
convicted of burglary.     He lawfully entered the building
after closing hours with keys provided by the manager of T.
C. Foods.     Feldt did not trespass when he entered T. C.
Foods. His keys granted him authority to enter T. C. Foods
after hours.
     The State argues that Feldt abused his privilege to
enter T. C. Foods after hours, when he entered for the
improper purpose to steal the money from the safe. The State
further contends that Feldt's improper entry into T. C. Foods
after hours transforms his original permissible entry into a
trespass that can form the basis of a burglary charge. State
v. Courville (Mont. 1989), 769 P.2d 44, 48.      while Feldt
acted improperly in taking the money from the safe, his entry
into T. C. Foods was authorized by management.      Feldt was
properly charged and convicted for theft, but the State
failed to meet the "unlawful entry" element of the burglary
statute and this Court's previous holding under Starkweather.
     Finally, the State argues that the requirement of a
trespassory entry under Starkweather is no longer accurate
under the new burglary statute. We find little merit in the
State's argument, since the Criminal Code Commission
specifically endorsed the Court's holding in Starkweather in
rewriting the burglary statute. The Criminal Law Commission
specifically codified the Starkweather decision when it wrote
§ 45-6-204, MCA:

     .   .
       . or as defined in S 94-6-201 entering or
     remaining unlawful.
     This definition is meant to exclude from burglary
     the servant who enters an employer's house meaning
     to steal silver; the shoplifter who enters the
     store during business to steal from the counter;
     the fireman who forms the intent as he breaks down
     the door of the burning house to steal some of the
     householder's belongings; and similar acts in which
     the defendant is lawfully on the premises.
    Where breaking is not required, there has been a
    tendency to hold that guilt may be established by
    proof that the prescribed intent was secretly
    entertained in the mind of the entrant although
    apart from the secret intent, the entrance at that
    time and place would have been authorized.     For
    example, in People v. Brittain, 142 Cal. 8, 75 P.
    314, it was held that one could be convicted of
    burglary for entering a store with larcenists
    intent.    The Commission rejects this view and
    approves the decision on State v. Starkweather, 89
    Mont. 381, 297 P. 181 (1931) as a more practical
    result.
Criminal Law Comm. Comments at 236-237.
     The defendant had access to T. C. Foods and did not
"enter or remain unlawfully" as defined in 5 45-6-201, MCA.
Since there was no unlawful entry, the defendant's actions do
not constitute a burglary as defined in § 45-6-204, MCA. We
reverse the burglary conviction.    The theft conviction was
not appealed.    The sentence imposed upon Feldt for the
~ i s t r i c t Court is modified    to strike therefrom the penalty
assessed     for   burglary,   and    as   modified,   the   sentence   is
affirmed.


We Concur:




             Justices
Justice L. C. Gulbrandson, dissenting.

      I respectfully dissent. The trial judge, in Finding of
Fact Number 6 found:
           T.C. Foods store was closed for business
           when the defendant entered said store and
           took the money.   Defendant did not have
           permission to enter the store at that
           time and he did not have permission to
           take the money.
      In my view, there is sufficient evidence in the record
to affirm the conviction for burglary. The manager of T.C.
Foods store had personally hired the defendant and knew the
defendant's work schedule. At trial, the manager testified
as follows:
           Q. Now, the Defendant, Charles Matthew
           Feldt, even though he is an employee of
           your store, did he have your permission
           to enter the store after hours?
          A.   No.


          Q. And, if the Defendant was not working
          a shift on Sunday night before you arrive
          at the store Monday morning, then
          technically, isn't it correct, if at all,
          that an employee in his position would
          not have permission to go back and turn
          the coffee off or anything like that?
          A.   Right.
          Q. Because he wouldn't have been working
          that shift, isn't that my understanding?
          A.   Yes.
          Q. So,    he  really can't  have  any
          permission at all to go into the T.C.
          Foods between the times you closed on
           Sunday and you opened on Monday, isn't
           that my understanding of it?
           A.   Yes.
           Q. He didn't have permission to go into
           the store for any purpose such as turning
           the alarm on, or turning the coffee off,
           maybe to lock a door, things like that.
           Isn't that my understanding of the
           situation?
          A.    Yes.
      Testimony at trial established that the defendant had
not worked on the Sunday preceding the incident, and he was
not scheduled to work Monday, the day of the incident.
      The defendant testified personally as follows:
           Q. Now, you had nobody's permission to
           go into the store at that time; isn't
           that correct?
          A.    Not at that time.
      The foregoing testimony, in my view, supports the trial
judge's finding that defendant did not have permission to
enter the store at that time. The record as a whole supports
the trial judge's verdict that the defendant was guilty of
burglary.
      The majority opinion, in my view, has disregarded State
v. Courville (Mont. 1989), 769 P.2d 44, 46 St.Rep. 338,
wherein this Court stated:
                 A verdict of acquittal may be
           directed in favor of the defendant only
           if no evidence exists upon which to base
           a guilty verdict.    See State v. Matson
           (Mont. 1987), 736 P.2d 971, 44 St.Rep.
           874; State v. Whitewater (Mont. 1981),
           634 P.2d 636, 38 St.Rep. 1664; and
           § 46-16-403,    MCA.      The   foregoing
           testimony of T. B. regarding Courville's
           entry was sufficient for the case to go
           to the jury.  ..
          Even had the jury found that T. B. may
          have     invited     Courville    to    sleep
          downstairs on her couch, that invitation
          certainly did not include going up to her
          bedroom in order to choke and sexually
          assault her.       Such conduct exceeds any
          reasonable privilege and the trial court
          properly let the burglary charge go to
          the jury for determination.         See also
          State v. Manthie (1982), 197 Mont. 56,
          641 P.2d 491; State v. Watkins (1974),
          163 Mont. 491, 518 P.2d 259 ("when a
          person      exceeds   the   limits   of   his
          privilege     ...  he thereby transforms his
          original invited presence into a trespass
          that can form the basis of a burglary
          charge. " )
Courville, 769 P.2d     at 47-48.     See also State v.
Christofferson (Mont. 1989), 775 P.2d 690, 46 St.Rep. 1049.
      I would affirm.


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Justice R. C. McDonough:

     I concur in the foregoing dissent.


                                    Justice


Chief Justice J. A. Turnage:
     I concur in the dissent of Justice Gulbrandson. It is
unfortunate that prosecuting attorneys persist in filing bur-
glary charges when, as in this case, there are facts that clearly
establish a separate felony and no useful purpose is served in
the administration of justice in filing an additional charge of
burglary.




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