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                                                                 No. 99-025

                            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 318

                                                               297 Mont. 270

                                                                 993 P.2d 9



STATE OF MONTANA,

Plaintiff and Respondent,

v.

BRIAN DOYLE,

Defendant and Appellant.




                                                           APPEAL FROM: District Court of the Eighth Judicial
                                                           District,

In and for the County of Cascade,

The Honorable Thomas McKittrick, Judge presiding.




COUNSEL OF RECORD:

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For Appellant:

Ronald L. Bissell, Public Defenders Office, Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General; Helena, Montana

Brant S. Light, Cascade County Attorney, Great Falls, Montana




Submitted on Briefs: December 9, 1999

Decided: December 22, 1999

Filed:




__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

      1. ¶ Appellant Brian Doyle (Doyle) appeals from his conviction for felony theft
         (common scheme) in the Eighth Judicial District Court, Cascade County. We affirm.
      2. ¶ Doyle raised three issues on appeal; however, in his reply brief, he abandoned two
         of the issues, leaving the following issue as dispositive:
      3. ¶ Did the State establish that Doyle had deprived the owner of the property in
         question in violation of § 45-6-301(2), MCA?
      4. ¶ Doyle worked for Hamid Basirat (Basirat) as a vacuum cleaner sales
         representative for the Electrolux Corporation. Electrolux had a policy that if a sales
         representative believed that he or she had a prospective sale for a unit, the sales

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        representative could check out a vacuum for up to thirty days, take it to the customer
        for demonstration, trial, and possibly sale. If the sale was not consummated, the
        vacuum was to be returned to the employer.
     5. ¶ Basirat reported to the police that Doyle had taken several vacuum cleaners and
        one shampoo unit worth a total of $3,950 and had pawned them for cash at various
        pawn shops in the Great Falls area. Doyle admitted that he had pawned the vacuum
        units to pay bills and to gamble. The investigating officer went to each of the
        various pawn shops and put a hold on the pawned vacuums. Each time Doyle had
        pawned a vacuum, he had declared on the corresponding pawn slip that he was its
        lawful owner. On one prior occasion, Doyle showed Basirat pawn tickets indicating
        that Doyle had pawned several vacuums. Basirat subsequently called the police who
        gave Doyle the opportunity to return the vacuums under threat of prosecution. Doyle
        complied and was neither prosecuted nor fired from his job. On the occasion in
        question, Basirat gave Doyle the same opportunity to return the vacuums and Doyle
        replied, "[j]ust do whatever you want to do" and failed to return the units.
     6. ¶ Doyle challenges the sufficiency of the evidence supporting his conviction. He
        contends that there was insufficient evidence to prove that he deprived the owner of
        the property in question. This Court reviews the sufficiency of the evidence to
        determine whether, upon viewing the evidence in the 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. Osborne, 1999 MT 149, ¶ 35, 982 P.2d
        1045, ¶ 35, 56 St.Rep. 589, ¶ 35. The State charged Doyle with felony theft
        (common scheme) in violation of § 45-6-301(2)(a), MCA. The applicable provision
        of that statute provides:

        A person commits the offense of theft when the person purposely or knowingly
        obtains by threat or deception control over property of the owner and:

        (a) has the purpose of depriving the owner of the property[.]

     7. ¶ The evidence at trial showed was that Basirat gave his employees permission to
        check out vacuums for the limited purpose of selling them. There was no proof or
        suggestion that Basirat allowed his employees to pawn any of the equipment. The
        State contends that the evidence established that Doyle deceived his employer by
        checking out the vacuums, claiming that he had a sale for each unit. Then, knowing
        that Basirat had told him not to do so, he purported to be the owner of the vacuums
        and pawned them for cash.

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     8. ¶ Doyle contends that he intended to return the vacuums within the thirty-day check
     out period, as he had done in the past, and that he would have done so had the
     criminal charges not been filed before the thirty days had expired. Thus, he argues
     that he had no intent to permanently deprive the owner of the vacuums.
  9. ¶ The term "deprive," as used in the theft statute, is not limited to permanent
     deprivations. Section 45-2-101(19), MCA. Rather, deprivation can occur in any one
     of four ways. See State v. Ferrel (1984), 208 Mont. 456, 464, 679 P.2d 224, 228.
     Proof of just one definition is sufficient for finding the crime of theft. See State v.
     Johnson (1982), 199 Mont. 211, 219, 646 P.2d 507, 511. "Deprive" includes
     withholding "property of another . . . for such a period as to appropriate a portion of
     its value[.]" Section 45-2-101(19)(a)(ii), MCA.
 10. ¶ In the present matter, Doyle held himself out as owner of the vacuums, pawned the
     units, and thereby secured cash loans. Once pawned, the units were held by the
     pawn broker unless and until Doyle redeemed them. In the interim, Basirat and
     Electrolux were deprived of any opportunity to sell the units and derive any income
     therefrom. In pawning the vacuums, Doyle withheld the property of the owner for a
     sufficient period of time to appropriate some of its value. In State v. Long (1987),
     227 Mont. 199, 738 P.2d 487, the owner of a boat gave it to the defendant to repair
     and use for a few months under an agreement which provided that the repairs would
     be made in the state of Washington. The owner allowed Long to take the boat for
     purposes of having it repaired, using it for a few months, and then returning it. Long,
     227 Mont. at 200, 738 P.2d at 488. Long, knowing that the owner did not want the
     boat taken out of the state of Washington, nevertheless took the boat to Montana.
     Long, 227 Mont. at 200, 738 P.2d at 488. Long was charged with theft of the boat
     under § 45-6-301(1)(a), MCA. Long, 227 Mont. at 201, 738 P.2d at 488. In seeking
     to withdraw his guilty plea as involuntary, Long argued that he had no intention to
     "deprive" the owner of the boat; that he fully intended to return it to the owner.
     Long, 227 Mont. at 201, 738 P.2d at 489. In affirming the district court we held that,
     by removing the boat from the state of Washington, Long "withheld the property for
     a sufficient period to appropriate a portion of its value" so far as the record owner
     was concerned. Long, 227 Mont. at 204, 738 P.2d at 490-91.
 11. ¶ Doyle went even further than Long in appropriating a portion of the value of the
     property. While Long merely removed the boat from the state of Washington with
     the intent to return it, Doyle purported to be the owner of the vacuums, pledged
     them as security for a loan, and thereby placed them at risk of forfeiture. Doyle thus
     withheld the property for a sufficient period to appropriate a portion of the value of
     the property and thereby used the property for the purpose of "depriving" the owner

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      of the property in violation of § 45-6-301(2), MCA.
  12. ¶ Having reviewed the evidence in the light most favorable to the prosecution, we
      determine that a rational trier of fact could have found the essential elements of the
      crime beyond a reasonable doubt.
  13. ¶ Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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