                             NO.    91-217
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



STATE OF MONTANA,
               Plaintiff and Respondent,
    V.

RAYMOND JOSEPH PEAK,
               Defendant and Appellant.



APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 E. June Lord, Attorney at Law, Great Falls, Montana
          For Respondent:
                 Hon. Marc Racicot, Attorney General, Helena,
                 Montana; Barbara Harris, Assistant Attorney General,
                 Helena, Montana
                 Patrick L. Paul, Cascade County Attorney, Great
                 Falls, Montana




Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

     The defendant, Raymond Joseph Peak, appeals from the judgment
of the District Court of the Eighth Judicial District, Cascade
County, which found him guilty of felony theft in violation of
5 45-6-301, MCA.   We affirm.
     The issue on appeal as restated by this Court is whether there
is sufficient evidence to support the defendant's conviction of
felony theft   .
     The defendant was found guilty of stealing tools and other
items from a truck belonging to U.S. West Communications while the
truck was parked in the lot of Ulmer's Auto Service in Great Falls.
At trial, Myron Oatman, a mechanic at the shop, testified that he
was working on April 30, 1990, when he saw the defendant walking
away from the utility truck carrying a bucket of tools.     Oatman
recognized the bucket as the type that previously had been in U.S.
West trucks while at the shop.   Oatman watched the defendant as he
walked down an alley and into a nearby house.     Oatman then went
inside the shop and spoke to his boss, Greg Ulmer, and they checked
the truck, noting that there was not a tool bucket in the truck.
     Ulmer testified that shortly after he and Oatman checked the
truck, he saw the defendant walking across the shop's parking lot
with a large set of cable cutters and an impact wrench.        When
checking the truck, Ulmer had seen the same tools inside the door.
Ulmer ran after the defendant, detained him, and called the police.
     Great Falls City Police Officer Daniel Nelson arrived at the
scene, searched the defendant, and took as evidence the cable


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cutters and impact wrench.     After interviewing Oatman and Ulmer,
Officer Nelson went to the residence that Oatman had seen the
defendant enter earlier that day.         Thereafter, Detective John
Cameron went to the residence and spoke with Peter Lira, who gave
the officers permission to search the residence.           The officers
found a Telstar heater and module machine, both identified as
telephone company equipment.
     Randy Rossberg, the U.S. West employee assigned to the truck
parked at Ulmer's, testified that he inventoried the tools and
equipment in the truck after the reported thefts.      He then worked
with another employee, Shelley Freshly, in compiling a list of
items that were missing.     Rossberg testified that his truck was
normally equipped with a tool bucket full of hand tools, cable
cutters and an impact wrench.         Of the items missing, all were
recovered except the bucket filled with tools.
     Freshly testified that she used a catalog used by the company
to order tools to attach replacement values to the missing items.
The cable cutters were valued at $96.83, the impact wrench at
$196.70, and the tool bucket and hand tools at a total of $424.92.

Freshly further testified that she was sure that the total worth of
the items at the time they were taken was over     $300.

     The defendant testified that he took the cable cutters and
impact wrench, but stated that they were laying next to the truck.
He denied taking the other items.
     On appeal, the defendant argues that there was not sufficient
evidence to convict him of felony theft because the State failed to
prove beyond a reasonable doubt that he stole the Telstar heater

                                  3
and module machine.    This Court will not overturn a criminal
conviction if, after viewing the evidence in a 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. Krum (1989), 238 Mont. 359, 362, 777 P.2d 889, 891.
     After reviewing the record, we hold that there is sufficient
credible evidence to support the defendant's conviction.       The
testimony at trial connected the defendant to equipment stolen from
the utility truck and to the residence in which the heater and
module machine were found.   Even if we were to conclude that the
evidence was not sufficient to establish that the defendant stole
the heater and the module machine, the conviction for felony theft
was still supported by substantial credible evidence.    Uncontro-
verted testimony at trial established that the defendant was seen
carrying the tool bucket, cable cutters, and impact wrench from the
utility truck. The defendant admitted taking the cable cutters and
impact wrench.   Thus, considering only the evidence regarding the
bucket, cable cutters and impact wrench, there was sufficient
evidence to support the conviction.
     The defendant argues that the District Court erred in finding
the commission of a felony theft because the values of the items
stolen were established by testimony providing only the replacement
costs of the items rather than their market value.    We disagree.
Freshly was unable to ascertain the market value of the tools in
the bucket because they were unavailable. The replacement cost of
those tools was established as $424.92.     Such valuation of the
stolen items is proper in accordance with 9 45-2-101(69)(a), MCA,

                                 4
which states in pertinent part:
     (a) Value11 means the market value of the property at the
     time and place of the crime or, if such cannot be
     satisfactorily ascertained, the cost of the replacement
     of the property within a reasonable time after the crime.
     The total value of the missing bucket of tools is well over
the $300 misdemeanor limit and, by itself, is sufficient to provide
a basis for determining that the defendant committed a felony
theft.   Moreover, Freshly testified that she was certain that the
total value of the bucket of tools, cable cutters and impact wrench
exceeded $300 when they were stolen. We find no error on the part
of the District Court.
     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.
     Affirmed   .




                                  5
                                       November 22, 1991

                                 CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


E. JUNE LORD
Attorney at Law
600 Central Plaza, Suite 400
Great Falls, MT 59401

HON. MARC RACICOT, Attorney General
           , Assistant
Justice Blgd.
Helena, MT 59620

PATRICK L. PAUL, County Attorney
Jeffrey T, McAllister, Deputy
Cascade County Courthouse
Great Falls. MT 59401

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
