                            No.    94-246
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.                                                JUN 14Wi
CHRISTOPHER P. BAYSINGER,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Galiatin,
               The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Brian P. Fay, Angel, Screnar, Coil,
               Bartlett & Fay, Bozeman, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Kathy Seeley, Assistant Attorney General,
               Helena, Montana
               Mike Salvagni, Gallatin County Attorney,
               Gary Balaz, Deputy County Attorney,
               Bozeman, Montana


                            Submitted on Briefs:         January 26, 1995
                                            Decided:     June 14, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

     Appellant Christopher Baysinger was convicted of felony theft

by a jury in the Eighteenth Judicial District Court,                     Gallatin
County.     Appellant    appeals.   We reverse.

     The     issue on     appeal is    whether    sufficient     evidence       was
introduced at trial to sustain a guilty verdict on the charge of

felony theft against appellant.

     The appellant and his brother, Jeff, were tried in the same
trial.      The charges against appellant and his brother arose from

the following circumstances:

     Vern VanAckeren,       trustee chairman of the Bozeman Elks Lodge

entered the Elks Lodge building on the morning of July 5, 1993, and

discovered that a break-in had occurred.              He reported the break-in

to the Bozeman Police Department.

     Sergeant Bill Dove and another officer investigated and found

no evidence of forced entry to the exterior doors.                    Inside, the

door to the manager's office had been pried open.                The safe that

had been kept in the office was missing, and damage had been done

to the sheetrock walls in the area where the safe had been.                     The

officers     found   a   metal   bar   lying     on    the   office    floor.    A

two-wheeled cart was        missing from the building.                Four poker
machines had been pried open and emptied of cash.                     A total of

approximately $5900 in cash was missing from the safe and the poker

machines.     Audit tapes from the poker machines revealed that they
had been broken into between 3:28 a.m. and 3:55 a.m. on July 5,

1993.

        This was the second time the Elks Lodge had been burglarized.
In December 1992, there was a break-in and a safe was stolen.      That

burglary was never solved.
        A new safe had been installed in the manager's office and was

secured to the floor by eight to ten inch long bolts which ran

through the floor and into a basement storage room where they were

fastened by nuts.     A padlocked door secured the storage room. To

take the safe from the office, the nuts in the storage room had to

be removed and the 200 to 250 pound safe had to be lifted

vertically eight to ten inches for the bolts to clear the floor.

        On July 5, the investigating officers found the storage room

door and padlock in place and undisturbed.          At the top of the

storage room walls, between the ceiling joists, were spaces through

which someone could crawl.      However,   the officers determined from

the accumulation of dust and cobwebs that entry into the storage

room had not been made through these openings.       The officers also

noted that dust and cobwebs had accumulated in the ceiling space

where the bolts had protruded, concluding that the nuts had been

removed sometime prior to the break-in.

        The lack of damage to the exterior doors and the prior removal

of the nuts indicated to Sgt. Dove that the burglary was an "inside

job," i.e., the work of a current or previous employee or member.
Sgt. Dove asked the manager who he suspected of the crime, and the


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manager named two persons,        one of whom was Jeff Baysinger,     the
appellant's       brother.   At the time of the break-in, Jeff lived in

the Bozeman area, was employed as an assistant cook at the Lodge,
and had been employed there for three or four weeks.

        The investigation revealed that there were six authorized sets

of keys to the Lodge building.            The keys were marked "Do Not
Duplicate,"       and were issued to the manager, the trustee chairman,
the exalted ruler, the janitor, and the head cook.         Jeff had not

been given a set of keys.       The sixth set of keys, including keys to

the entire building, remained in the bar area during business hours

and any employee could use them if needed; however,           they   were

supposed to ask to borrow them before taking them from the bar
area.     When the Lodge closed at night, the bartender was supposed

to lock the keys in the manager's office.             None of the six

authorized sets were found missing on July 5, and the bartender's

keys were in the manager's office.

        The Lodge employed a janitor whose hours were from 4 a.m. to

1 p.m.     About one week before the July 5 break-in, the janitor was

working in the basement around 5 a.m. when he heard footsteps

upstairs.     Because no one else is allowed in the building at that

time    of day,    the janitor became concerned and investigated.     The

janitor testified that he found Jeff standing outside the manager's

office with his hand on the doorknob.         According to the janitor,

Jeff told him that he had seen the lights on inside the Lodge, and

not knowing that the janitor was there, had decided to investigate.


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Jeff told him that he had found one of the exterior doors unlocked.

The janitor also testified that Jeff questioned him about the times

that he and other employees came to work.

         On July 6, 1993, Sgt. Dove interviewed Jeff.           Jeff told Sgt.

Dove that the janitor had discovered him in the Lodge building the

previous     week.      Jeff stated that he had a 6 a.m. breakfast date

that     day, and that when he drove past the Lodge at about 5 a.m. he

saw lights on and became suspicious.           He stated that he found an

unlocked door, entered the building, and began to look around when

the janitor confronted him.
         During   the   interview,   Jeff also discussed his activities

during the 24 hours surrounding the break-in.           Jeff stated that on
July 4 he and his girlfriend were together at her house in

Belgrade. About 11 p.m., Jeff was called by appellant, who said he

was coming to Bozeman from Missoula, where he lived.                 Appellant
arrived at Jeff's girlfriend's house at about 1:00 or 1:30 a.m. on

the morning of July 5.         According to Jeff, he and appellant then

left the house to go drink coffee and later spent the night in
Bozeman at the apartment of a friend.             The friend had not been

there,     but Jeff had his own key to the apartment and had slept

there on previous occasions.          Jeff's   girlfriend     initially   stated

that,     on the night of the break-in,          she   also    stayed at     the

apartment, but later changed her story on this point, stating that

she remained at her house in Belgrade.




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        In her initial interview, Jeff's girlfriend also stated that

Jeff and appellant had returned to her house around 4:30                 a.m. on

the morning of July 5.         At trial, however, she explained that she

had her days confused,             and that on July 5 Jeff and appellant

actually returned around 7:30           a.m.     Jeff told Sgt. Dove that on

July 5 he and appellant left Jeff's friend's apartment at 6:00 or

6:30    a.m.   and    returned to       Jeff's    girlfriend's   house    around

7:30 a.m.         According to Jeff,         he and appellant left Belgrade

shortly thereafter to go fishing near Butte and returned to

Belgrade on the morning of July 6 around             4:30 a.m.    Later on the

morning of July 6, appellant left to return to Missoula, and Jeff
left to go to work.

       On the morning of July 8, the police obtained a search warrant

and    searched    Jeff's   car.     They found two bags, one containing

$1727.10 in cash,       and the other containing $506.39.           They found

marijuana, a marijuana pipe, a small scale, a flashlight, a wrench,

an air canister,       two pairs of gloves, a tire iron, and a set of

vending machine keys.

       Also,   on the morning of July 8,          Jeff received a phone call

while he was at his girlfriend's house.             Jeff's girlfriend was in

the room with Jeff while he talked on the phone.                 At trial, the

prosecutor asked her: "On July 8, 1993,             did Jeff receive a phone

call at your residence from [appellantl?"               She answered, "Yes."

She also testified:         "In the room, [Jeff] covered the phone, and he




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said he wasn't going to go down.          And then he said something about

he couldn't say the money was his savings."

        On July 12, Sgt. Dove interviewed appellant regarding the Elks
Lodge    break-in.    Before    the   interview,      Dove   read   appellant    his

rights     and informed him that Jeff had implicated him in the

break-in.    Appellant asked to see Jeff's signed statement, but Sgt.

Dove did not have it with him.           Instead,     Sgt. Dove played a taped

recording of Jeff's interview.           Appellant listened to it, and as

soon as the part of the tape where Jeff implicated him was played,

appellant     informed   Sgt.     Dove    that      the   interview     was    over.

Appellant stated, "That's the end of the interview.                 I'm not going

to prison as a snitch."

        On August 17, 1993, the District Court granted the State leave

to file an information,          which was filed the same day.                  Both

appellant and Jeff subsequently pled not guilty.                On December 29,

1993,    Jeff filed a motion to sever his trial from appellant's, but

withdrew that motion on January 7, 1994.                  On January 10, 1994,

appellant and Jeff were tried together by the same jury.                    The jury

returned    guilty   verdicts    as to both Jeff and appellant on the

charge of felony theft.        However, the jury failed to reach verdicts

on the charges of burglary and criminal mischief.                     The   District

Court declared a mistrial as to those counts, and on January 25,

the court granted the State's motion to dismiss the burglary and
criminal mischief charges.
     On February 10, 1994, appellant filed a motion for a new

trial.     Hearing on the motion was held on March 15.      Following an

additional hearing on March 29, the District Court denied the
motion.     On April 4, 1994,      the District Court filed sentence and

judgment    against   appellant.      On April 11, appellant filed his

notice of appeal.
     Was sufficient evidence introduced at trial to sustain a

guilty verdict on the charge of felony theft against appellant?

     Appellant argues that the State failed to introduce sufficient
evidence at trial upon which reasonable persons could find him

guilty beyond a reasonable doubt.

     In reviewing a jury's verdict,          this Court has repeatedly

stated that:

      [Al defendant is entitled to an acquittal if reasonable
     persons could not conclude from the evidence taken in the
     light most favorable to the prosecution that guilt has
     been proven beyond a reasonable doubt.

State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870

(citing State v. Haskins (1992), 255 Mont. 202, 210, 841 P.Zd 542,

547; State v. Laverdure    (lPPO), 241 Mont. 135, 785 P.2d 718; State

v. Doney (1981), 194 Mont. 22, 29, 636       P.Zd 1377, 1381).

     The jury in this case found appellant guilty of felony theft.

Section 45-6-301(l),    MCA, provides:
      (1) A person commits the offense of theft when the person
     purposely or knowingly obtains or exerts unauthorized
     control over property of the owner and:
           (a) has the purpose of depriving the owner of the
     property;
             (b) purposely or knowingly uses, conceals, or
       abandons the property in a manner that deprives the owner
       of the property; or
             (c)  uses,  conceals, or abandons     the property
       knowing that the use,      concealment, or abandonment
       probably will deprive the owner of the property.

Section 45-2-101(39),      MCA, defines the phrase "obtains or exerts

unauthorized control" as         including,    but not limited to,    "the

taking,      the carrying away or the sale, conveyance, or transfer of

title to, interest in, or possession of property."          In this case,

we determine that the State failed to prove that appellant obtained

or exerted unauthorized control of the Lodge's property.

       The only uncontroverted evidence regarding appellant that was

introduced at trial is as follows:            appellant arrived at Jeff's

girlfriend's house in Belgrade between 1:00 and             1:30   a.m. on

July 5; appellant and Jeff left the house shortly after appellant

arrived; appellant and Jeff returned to the house around 7:30 a.m.

and then left again shortly thereafter; appellant and Jeff returned

.to the house on July 6 around 4:30 a.m.; and about 7:30 a.m.

appellant left for Missoula.       During an interview with Sgt. Dove on

July   12,   appellant stated,   "I'm not going to prison as a snitch."

None of these facts establish appellant's unauthorized control of

the items stolen from the Elks Lodge

       We hold that the State failed to prove the essential element

of control over the stolen property by appellant and that the State

failed to introduce sufficient evidence to support the jury's

verdict finding appellant guilty of felony theft.

       We reverse the judgment of the District Court.

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           Pursuant to Section I, Paragraph 3 (c),   Montana Supreme Court

      1988 Internal Operating Rules, this decision shall not be cited as

      precedent and shall be published by its filing as a public document

      with the Clerk of the Supreme Court and by a report of its result

      to Montana Law Week, State Reporter and West Publishing Company.




      We concur:



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           Chief   ,Justice
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