                                           No. 01-300

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 80


STATE OF MONTANA,

               Plaintiff and Respondent,

         v.

EDDIE OTTO OHMS,

               Defendant and Appellant.




APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and for the County of Ravalli,
                      The Honorable Douglas G. Harkin, Judge presiding.



COUNSEL OF RECORD:

               For Appellant:

                      Steven N. Eschenbacher, Hamilton, Montana

               For Respondent:

                      Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant
               Montana Attorney General, Helena, Montana; George H. Corn, Ravalli
         County Attorney, Hamilton, Montana



                                                          Submitted on Briefs: October 11, 2001

                                                                      Decided: April 29, 2002
Filed:



                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.


¶1     Respondent State of Montana filed an information in the

Twenty-First Judicial District Court, Ravalli County, charging

Appellant Eddie Ohms with felony theft.                    Ohms filed a motion to

dismiss which argued that the Ravalli County Justice Court retained

original jurisdiction over the matter, as the allegedly stolen

property was worth less than the statutory minimum required of

felony theft.        The District Court denied Ohms’ motion and a jury

found Ohms guilty of felony theft.                 Ohms appeals.   We reverse.
¶2     The sole issue on appeal is whether the State presented

sufficient evidence regarding the value of a masonry saw to convict

Ohms of felony theft.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On April 28, 2000, the State charged Ohms by information with

one count of felony theft and one count of misdemeanor theft in

violation of § 45-6-301, MCA.              As to the felony charge, the State

alleged that “[o]n or about March 13, 1999, [Ohms] purposely or
knowingly obtained unauthorized control” of a masonry saw, valued

at over $1,000.         As to the misdemeanor charge, the State alleged

that “[o]n or about April 12, 1999, [Ohms] purposely or knowingly

obtained or exerted unauthorized control over property belonging to

tenants of a butcher shop . . . .”                   The State valued the stolen

butcher shop property, consisting of butcher knives and a portable

stereo, at less than $1,000.



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¶4     Ohms plead not guilty to both offenses and filed motions to

dismiss both charges on jurisdictional grounds.              Ohms argued that

the saw was worth less than the statutory minimum required to

obtain a felony conviction.          Further, Ohms asserted that a district

court maintains original jurisdiction over misdemeanor offenses

only    upon    the    existence         of   certain   statutorily     defined

circumstances.        Ohms claimed that none of those circumstances

existed.    Therefore, Ohms insisted that the Ravalli County Justice

Court retained original jurisdiction over both of the alleged

offenses.
¶5     On June 28, 2000, the District Court denied Ohms’ motion to

dismiss the felony charge.            The State subsequently conceded that

the    District     Court    lacked      original   jurisdiction      over   the

misdemeanor charge, and on September 21, 2000, the District Court

dismissed the same.        On October 6, 2000, the State filed an amended

information to reflect the dismissal of the misdemeanor offense and

the case proceeded to trial on the felony allegation.                On October

19, 2000, the jury found Ohms guilty of felony theft in violation

of § 45-6-301, MCA.              On January 30, 2001, the District Court

sentenced Ohms to five years in the Montana State Prison, all

suspended,     so   long    as    Ohms   complied   with   certain   delineated

conditions.       Ohms filed a notice of appeal which challenges his

conviction for felony theft.
                                 STANDARD OF REVIEW

¶6     We review the sufficiency of the evidence to support a jury

verdict to determine whether, after viewing the evidence in the


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light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.       State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont.

472, ¶ 7, 2 P.3d 242, ¶ 7.


                                DISCUSSION

¶7    Did the State present sufficient evidence regarding the value

of a masonry saw to convict Ohms of felony theft?

¶8    Ohms indicates that, for purposes of his case, the State was

required to value the stolen property in excess of $500 to sustain

a conviction for felony theft.       Ohms insists that the State failed

to establish a market value or reasonable replacement value for the

masonry saw at trial.        In the absence of this valuation, Ohms

maintains that the statutory presumption valuing stolen property at

less than the felony threshold must prevail.              Accordingly, Ohms

contends   that   the    evidence   did   not   support    a   felony   theft

conviction.
¶9    In 1999, the Legislature amended the felony theft statute to

require that the stolen property’s value exceed $1000 to effect a

felony charge.    However, the amendments did not take effect until

October 1, 1999.    The information filed by the State alleged that

Ohms committed felony theft on March 13, 1999.            Consequently, the

provisions of the felony theft statute in effect on that date, §

45-6-301, MCA (1997), apply to the case at bar.

¶10   Section 45-6-301(7)(b), MCA (1997), provides:

           A person convicted of the offense of theft of
      property exceeding $500 in value . . . shall be fined not

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      to exceed $50,000 or be imprisoned in the state prison
      for any term not to exceed 10 years, or both.

In a felony theft case, the value of the property taken is an

essential element which must be proven beyond a reasonable doubt.

State v. Sunday (1980), 187 Mont. 292, 300, 609 P.2d 1188, 1193.

Section 45-2-101(74)(a), MCA (1997), defines value as follows:

           “Value” means the market value of the property at
      the time and place of the crime or, if the market value
      cannot be satisfactorily ascertained, the cost of the
      replacement of the property within a reasonable time
      after the crime.
Finally, § 45-2-101(74)(b), MCA (1997), provides:

           When it cannot be determined if the value of the
      property is more or less than $500 by the standards set
      forth in subsection (74)(a), its value is considered to
      be an amount less than $500.

¶11         At trial, the aggrieved owner, Todd Bruhnke, testified

that he purchased the used saw approximately nine years prior to

the theft for $400.     Bruhnke also testified that after the purchase

he had the motor rebuilt for $600.          Subsequently, the State

elicited expert testimony from a salesman within the masonry

industry to establish the value of the stolen property.     On direct

examination, the State and the expert engaged in the following

colloquy:

      Q: Have you become familiar . . . with the market values

      of masonry saws?

      A: Yes, I have.

      Q: At some point in time, did you become familiar with
      the specifications of a masonry saw that had been owned
      by Todd Bruhnke?

      A: Yes, I have.


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      Q: Do you know what kind of a motor that we’re talking

      about . . . here?

      A: That motor, new, is going for right around $800.             You
      can get a replacement motor for about $700.      If             you
      wanted to go high efficient, about $850. That’s just            for
      the motor. It’s not counting the arm, the housing, .            . .
      or the water portion.

      . . . .

      Q: [W]hat are we talking about for an entirely new unit?
      A: An entire new saw, full list price is $3,924.

However,     on   cross-examination,   the       expert   testified   to    the

following:
      Q: The price (sic) that you were quoting, those are for
      new parts like a new motor?

      A: Replacement parts, yes.

      Q: Is it possible to get used parts?

      A: It’s possible to get used parts.           My sources would be

      new.

      . . . .

      Q: So, if [this saw has] been used for nine years and
      rebuilt once, how much do you think it’s worth?

      . . . .

      A: I couldn’t say, not for used.           I can only give you my

      prices on new parts.

¶12          In convicting Ohms of felony theft, the jury presumably

found that the value of the masonry saw exceeded $500 based on the

expert’s replacement valuation.        However, § 45-2-101(74)(a), MCA

(1997),    clearly   and   unambiguously     provides     that   evidence   of

replacement value is to be considered only when the market value

“cannot be satisfactorily ascertained.”             In other words, if the

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State is unable to present evidence of the stolen item’s market

value, it must establish that the market value of the stolen item

cannot be ascertained before it resorts to the alternative of

establishing value by proof of replacement value alone.

¶13    Clearly, the State’s expert could not provide a market value

for the stolen saw at the time and place of the crime, nor was he

asked by the State to do so.                       Further, the State failed to

establish       that    the    market      value     could     not    be    satisfactorily

ascertained.        Instead, the State chose to rely exclusively on the

replacement value to meet its burden of proof.                       The State failed to

establish the necessary predicate to the use of replacement value

for purposes of determining “value” under § 45-2-101(74)(a), MCA

(1997).      Accordingly, no rational finder of fact could have found

the essential elements of felony theft, as defined by statute,

beyond a reasonable doubt.

¶14    Our holding here is in accord with our decision in State v.

Martin, 2001 MT 83, 305 Mont. 123, 23 P.3d 216.                             In Martin, we

interpreted the statutory definition of “value” to place the burden

of proof on the State to establish the market value for stolen

property or, in the alternative, that the market value cannot be

satisfactorily ascertained, prior to proceeding to a replacement

valuation.        We recognize that Martin was decided in May of 2001.

The case at bar proceeded to trial in October of 2000 and Ohms

filed his notice of appeal on December 29, 2000. Nevertheless, Martin governs

the disposition of this case pursuant to the principles discussed in State v. Goebel and State v.


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Giddings, 2001 MT 155, 306 Mont. 83, 31 P.3d 340, limited by Gundrum v. Mahoney, 2001

MT 246, 307 Mont. 96, 36 P.3d 890.

¶15   In Goebel and Giddings, ¶ 20, we cited Bouie v. Columbia

(1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, for the

proposition that if a judicial construction of a criminal statute

is “unexpected and indefensible by reference to the law which had

been expressed prior to the conduct in issue,” it must not be

applied retroactively.          However, Martin’s interpretation of the

“value” definition did not represent a construction that was

“unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue,” because this Court had

not previously interpreted the statutory “value” definition for

purposes of the issues raised in this case and Martin.                 Further, in

Goebel and Giddings, ¶ 23, we stated:

      [A]   judicial   construction   of   a  statute   is   an
      authoritative statement of what the statute meant before
      as well as after the decision of the case giving rise to
      that construction. Thus, a court’s interpretation of a
      statute is never new law because the decision declares
      what the statute meant from the day of its enactment, not
      from the date of the decision. [Citations omitted.]

Accordingly, for purposes of this appeal, Martin should be given

retroactive effect.

¶16   Pursuant to Martin, the State failed to carry its burden of

proof.     The State had the opportunity to offer to the jury an

instruction on the lesser included offense of misdemeanor theft.

It initially proposed such an instruction but elected to withdraw

it prior to trial.       Therefore, the only charge before the jury was


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that of felony theft.       Accordingly, the felony theft conviction is

reversed,    the   charge   is   dismissed,   and   the   sentence   entered

pursuant to the conviction for felony theft is vacated.

¶17   Reversed.

                                               /S/ PATRICIA COTTER

We Concur:

/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JAMES C. NELSON




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