                                                                                             05/05/2020


                                          DA 19-0011
                                                                                         Case Number: DA 19-0011

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 114N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JON DAVID BROOKS,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC 18-43
                       Honorable Matthew Cuffe, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Hannah E. Tokerud,
                       Assistant Attorney General, Helena, Montana

                       Marcia Boris, Lincoln County Attorney, Libby, Montana



                                                   Submitted on Briefs: March 11, 2020

                                                              Decided: May 5, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and may not serve

as precedent. The case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Jon David Brooks appeals his conviction in the Montana Nineteenth Judicial

District, Lincoln County, for theft, a felony in violation of § 45-6-301, MCA. Brooks

asserts that the State presented insufficient evidence to prove that the value of the subject

property exceeded the felony threshold of $1,500. We reverse and remand for entry of an

amended judgment of conviction on misdemeanor theft.

¶3     On March 5, 2018, a Lincoln County Sheriff’s Detective arrested Brooks on a

misdemeanor warrant unrelated to this case. Incident to the arrest, the Detective discovered

Brooks in possession of a personal computer stolen from a local business approximately

six weeks earlier. Subsequently charged with felony theft, Brooks ultimately waived his

right to a jury trial and then, except for the value of the stolen property, stipulated in

advance of trial to the essential elements of theft as charged.

¶4     At bench trial on September 6, 2018, the State’s sole witness was the owner of the

stolen computer who testified from memory that he bought it new in 2015, at the base price

of $1,500 with additional hardware and software, for a total of $3,000. Based on his

internet research, he testified that the total replacement value of the stolen items would be

$3,013.63    ($1,455.64/tower    and    power     cable,   $879.99/“memory    sticks,”   and

$678/software). No other evidence was presented by either party.
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¶5     At the close of evidence, Brooks moved for a “directed verdict” on felony theft on

the assertion that the State failed to present sufficient evidence to prove that the subject

property had a value in excess of $1,500 when stolen three years after original purchase.

The District Court denied the motion and ultimately found him guilty of felony theft. The

court reasoned that “even if we do a fifty percent reduction” in value from the original

purchase price, the value is “still at fifteen hundred dollars.” Brooks received a two-year

suspended commitment to the Montana Department of Corrections, inter alia. He timely

appeals.

¶6     A challenge to the sufficiency of the evidence to prove an essential element of a

crime is a question of law reviewed de novo. State v. Colburn, 2016 MT 246, ¶ 7,

385 Mont. 100, 386 P.3d 561. Our standard of review is whether, when viewed in the light

most favorable to the conviction, the record contains minimally sufficient evidence upon

which the trier of fact could have reasonably found all essential elements of the crime

proven beyond a reasonable doubt. State v. Booth, 2012 MT 40, ¶ 7, 364 Mont. 190,

272 P.3d 89; State v. Roberts, 194 Mont. 189, 195, 633 P.2d 1214, 1218-19 (1981) (citing

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

¶7     To convict on felony theft, the State has the burden of proving beyond a reasonable

doubt, inter alia, that the subject property had a value in excess of $1,500 at the time of

theft. Sections 45-6-301(7), 45-2-101(77)(a), and 46-16-204, MCA; State v. Martin,

2001 MT 83, ¶ 60, 305 Mont. 123, 23 P.3d 216 (citing State v. Sunday, 187 Mont 292, 300,

609 P.2d 1188, 1193 (1980)). As referenced in § 45-6-301(7), MCA, “value” means “the

market value of the property at the time and place of the crime.” Section 45-2-101(77)(a),
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MCA. However, “if the market value cannot be satisfactorily ascertained,” then the value

is “the cost of the replacement of the property within a reasonable time after the crime.”

Section 45-2-101(77)(a), MCA. When either the market value or replacement value

“cannot be determined” to be above or below the $1,500 threshold, the value “is considered

to be an amount less than $1,500.” Section 45-2-101(77)(b), MCA.

¶8     As referenced in § 45-2-101(77)(a), MCA, “market value” is not a statutorily

defined term and therefore has its plain meaning in ordinary usage. In ordinary usage,

“market value” means the current value on the open market—the price which a buyer with

full knowledge of pertinent fact is willing to pay and which a seller is willing to accept.

See Fair Market Value, Black’s Law Dictionary (10th ed. 2014). “[R]eplacement value is

[typically] greater than the fair market value due to depreciation in value over time of many

types of property.” United States v. Kaplan, 839 F.3d 795, 800 (9th Cir. 2016).

¶9     Here, viewed in the light most favorable to the conviction, the State at most

presented evidence of the replacement value of the stolen items. It presented no evidence

upon which the fact finder could have reasonably determined a current market value above

or below the $1,500 felony threshold. The court’s value rationale (50% reduction of

original purchase price as estimate of market value three years later) was thus wholly

unsupported by any record evidence.        Replacement value is certainly a permissible

alternative measure of value, but only if there is evidence upon which the fact finder can

reasonably conclude that “market value cannot be satisfactorily ascertained.”

Section 45-2-101(77)(a), MCA. The State presented no such evidence here. It jumped to

replacement value as an alternative measure of value without proof that the market value
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of the subject property could not “be satisfactorily ascertained.” We hold that the State

presented insufficient evidence to prove that the value of the subject property exceeded the

statutory threshold differentiating felony from misdemeanor theft.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. We reverse and remand for entry of an amended judgment

of conviction on the offense of misdemeanor theft, appropriate restitution,

misdemeanor-appropriate probation conditions, and corresponding statutory charges.


                                                  /S/ DIRK M. SANDEFUR


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ JIM RICE




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