                              No.    93-481
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
JOHN BERNARD BENSON,
            Defendant and Appellant.




APPEAL FROM:     District Court of the Fourteenth Judicial District,
                 In and for the County of Musselshell,
                 The Honorable Roy C. Rodeghiero, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                William Hooks, Appellate Defender, Helena,
                Montana

            For Respondent:
                 Hon. Joseph P. Mazurek, Attorney General,
                 Jennifer Anders, Assistant Attorney General,
                 Helena, Montana
                 Vicki Knudsen, Musselshell County Attorney,
                 Roundup, Montana
Justice John Conway Harrison delivered the opinion of the Court.


     John Bernard Benson (Benson) appeals h i s conviction in the
District Court of the Fourteenth Judicial District, Musselshell
County, of the offense of burglary.        We reverse.
     Sometime between 2 a . m .   and 5 a.m. the morning of January 23,
1993, the    Melstone Bar      and Cafe     in Melstone, Montana, was
burglarized. The owners of the establishment reported that money,
lottery tickets, liquor, food, and tobacco products were stolen,
Deputy Floyd Fisher (Deputy Fisher), the investigating officer,
found no apparent signs of forced entry.
     After receiving an anonymous tip on January 24 that some of
the missing liquor might be found in B . .            Murnionrs (Murnion)
fatherrs garage, Deputy Fisher proceeded to Murnionls residence.
Deputy Fisher obtained Murnion's         fatherls consent to search his
garage and Murnionrs consent to search his trailer. Deputy Fisher
seized several items, including alcoholic beverages, cigarettes,
and plastic wrap and wax paper believed to be used in the Melstone
B a r and Cafe f o r food preparation.   Murnion t o l d Deputy Fisher t h a t
Benson and two others had brought the alcoholic beverages to
Murnionrs trailer on the night of January 22.
     After seizing the items at Murnionls place, Deputy Fisher
proceeded to Bensonls residence. After obtaining Bensonfsconsent
to search his trailer, Deputy Fisher seized several items,
including alcoholic beverages, tobacco products, and                 lottery
tickets stamped !aMelstoneBar and C a f e . ! '
     The Musselshell County Attorney filed an information charging
                                     2
Benson with the crime of burglary, a felony. A jury trial was held
from May 24, 1993 through May 28, 1993.       At the close of the
State's case, Benson moved for a directed verdict.    The District
Court denied this motion.     Following the trial, Benson was found
guilty, and received a three-year deferred sentence with several
conditions.
     Benson raises only one issue on appeal: whether the District
Court erred by failing to grant his motion for directed verdict.
     The standard of review for a trial court's refusal to grant a
defendant's motion for directed verdict is whether, after reviewing
the evidence in a light most favorable to the prosecutor, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. State v. Mummey (Mont. 1994),
871 P.2d 868, 870, 51 St.Rep. 198, 199.
     Burglary is defined by statute 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." Section 45-6-204(1), MCA.    Benson contends that
while the State may have shown that someone unlawfully entered the
Melstone Bar and Cafe, it did not prove beyond a reasonable doubt
that he unlawfully entered.
     At trial, evidence was presented to the effect that the owners
of the Melstone Bar and Cafe suspected that copies of a key opening
their business' door were in the possession of unknown persons in
the community. Also, Deputy Fisher testified that he examined some
footprints in the snow leading into and out of the building through
that   same   door.     No   evidence   was   introduced   that Benson had

possession of such a key other than testimony that there was a
nondescript outline of something in the dust on top of Bensonfs
water heater.         The footprints were never compared to any of
Bensonfs footwear.      We hold that there is no direct evidence that
Benson unlawfully entered the Melstone Bar and Cafe.
       The State contends that it sufficiently proved the element of
unlawful entry with circumstantial evidence, and that Bensonfs
possession of the stolen lottery tickets and items consistent with
some of those stolen from the Melstone Bar and Cafe, combined with
the other evidence introduced, is enough to support his conviction.
We disagree.
         A conviction for burglary may be upheld if possession of

stolen property is accompanied by other incriminating circumstances
and a false or unreasonable explanation by the accused.           State v .
Floyd (1990), 243 Mont. 269, 273, 790 P.2d 475, 478; citing State
v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309. In Flovd,
the defendant was in possession of a gold necklace identified at
trial as property stolen from an apartment.            Flovd, 790 P.2d at
478. Testimony at trial placed the defendant in the same building
as the burglarized apartment on the night of the burglary and
demonstrated that he had possession of the necklace during the time
frame that the apartment was burglarized. Floyd, 790 P.2d at 476.
In addition, the defendant offered a fabricated explanation of his
possession of the stolen necklace which was refuted at trial.
Floyd, 790 P.2d at 478.
     In Cox, the defendant was apprehended across the street from
a burglarized garage in possession of items stolen from the garage.
Cox, 733 P.2d at 1309. The burglary occurred between 10 p.m. and
2 a.m., and the defendant was apprehended at 2 a.m.        Cox, 733 P.2d
at 1310.     The defendant also falsely claimed that stolen items,
positively identified by the true owner, were his own and then
reached for a gun when confronted by those who detained him.          Cox,
733 P.2d at 1309-10.
     In the present case, more than twenty-four hours after the
burglary, Benson was found in possession of lottery tickets stolen
from the Melstone Bar and Cafe. He was also found in possession of
other items consistent with, but not identified as, those stolen
from the Melstone Bar and Cafe.     Benson and two others testified
that they were driving around Melstone during the approximate time
frame of the burglary.      This testimony, considering the size of
Melstone, places them near the scene of the burglary.         Arguably,
this is an additional incriminating circumstance.           However, no
false   or   unreasonable   explanation   necessary   to    sustain    the
conviction exists.
     Benson explained that the alcoholic beverages found in his
trailer were there in anticipation of his upcoming birthday party.
This testimony was uncontroverted and it was not unreasonable as an
explanation.    Benson testified that he did not know anything about
the stolen lottery tickets found under his bed. This testimony was
also unrebutted and was not proven false.     In addition, it was not
inherently unreasonable as an explanation considering that other
individuals were in BensonJs trailer the night of the burglary, and
the next day.
     Finally, the State failed to show by direct or circumstantial
evidence that Benson unlawfully entered the Melstone Bar and Cafe
with the purpose to commit an offense.   We conclude that, in this
case, no rational trier of fact could have found all of the
elements of burglary beyond a reasonable doubt. We therefore hold
that the District Court erred in denying the motion to dismiss.
Reversed and remanded.




We concur:
