                                           No. 03-014

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 201N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOAN MARIE BURDEAU,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eighth Judicial District, Cause No. CDC-02-067
                     In and for the County of Cascade,
                     The Honorable Kenneth R. Neill, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Meghan Lulf, Deputy Public Defender, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Brant Light, Cascade County Attorney; Marvin Anderson,
                     Deputy County Attorney, Great Falls, Montana


                                                   Submitted on Briefs: March 13, 2003

                                                              Decided: August 12, 2003
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Joan Marie Burdeau (Burdeau) appeals from the judgment and sentence entered by

the Eighth Judicial District Court, Cascade County, on a jury verdict finding her guilty of

felony deceptive practices (common scheme). We affirm.

¶3     The issue on appeal is whether the District Court erred in denying Burdeau’s motion

for a directed verdict.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶4     On January 29, 2002, Tina Winkler (Winkler) discovered that her credit card was

missing. Her husband called the credit card company, which informed him that someone

had used the card at the Lady Footlocker store in Great Falls, Montana. Winkler called the

Great Falls Police Department. The State of Montana (State) ultimately charged Burdeau

and Kamel Wiley (Wiley) with deceptive practices (common scheme), a felony, and the

District Court scheduled a jury trial.

¶5     Christina Carter (Carter), an employee at Lady Footlocker in the Holiday Village Mall

in Great Falls, testified that on January 29, 2002, two women, “[a] heavier set African

American and a heavier set Native American,” entered the store shortly before 5:00 p.m.


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Carter identified the women at trial as Wiley and Burdeau, respectively. Carter recognized

Wiley because Wiley previously had placed a special order. After shopping “pretty

quick[ly],” Burdeau and Wiley brought two pair of shoes to the counter and Wiley presented

a credit card bearing the name Tina Winkler. Wiley signed the credit card sales slip with

Winkler’s name. As the two women left the store, Carter became suspicious and looked up

the paperwork from the special order she had placed for Wiley. The paperwork indicated

the woman’s name was Kamel Wiley, not Tina Winkler. Carter watched the two women as

they went to Footlocker, another store in the mall. Carter telephoned the employees at

Footlocker and warned them not to accept a credit card from the two women. She then

called 911.

¶6     Jason Lising (Lising), an employee at Footlocker, testified he saw Wiley and Burdeau

enter his store around 5:00 p.m. While Burdeau and Wiley were in Footlocker, another

employee received the call from Carter warning about the stolen credit card. The other

employee told Lising he and Lising should attempt to stall the two women as they might

have a stolen credit card. Lising and the other employee attempted to delay until Wiley

complained that she and Burdeau weren’t being helped. Lising testified that, after “hurriedly

going through the store picking out things,” Burdeau and Wiley brought five or six items to

the counter and Burdeau presented the credit card bearing the name Tina Winkler. Lising

asked for identification, which Burdeau said she did not have. Lising told the women he

could not process the transaction, and they left the store.

¶7     Vernon Lindstrom (Lindstrom), the manager of the Herberger’s store in the mall,

testified that at about 5:00 p.m. he noticed a Native American woman in the lingerie

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department of his store. A police officer investigating the use of the stolen credit card asked

Lindstrom if he had seen a Native American woman in the store. Lindstrom told the officer

he had, and the officer asked Lindstrom to look around for the credit card. Lindstrom found

Winkler’s credit card under some merchandise in the lingerie department.

¶8     At the conclusion of the State’s case, Burdeau and Wiley moved for a directed

verdict. The District Court denied the motion, and the jury ultimately found both defendants

guilty. The court sentenced them and entered judgment. Burdeau appeals.

                                STANDARD OF REVIEW

¶9     In a criminal case, we review a district court’s decision denying a motion for a

directed verdict to determine whether, viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. State v. Landis, 2002 MT 45, ¶ 23, 308 Mont. 354, ¶ 23,

43 P.3d 298, ¶ 23. We will not reverse the trial court’s decision absent an abuse of

discretion. Landis, ¶ 23.

                                       DISCUSSION

¶10    Did the District Court abuse its discretion by denying Burdeau’s motion for a directed

verdict?

¶11    Purposely or knowingly “using a credit card that was issued to another without the

other’s consent” to obtain or attempt to obtain property constitutes the misdemeanor offense

of deceptive practices. The offense is a felony “[i]f the deceptive practices are part of a

common scheme.” Section 45-6-317(1)(d)(i), (2), MCA. Section 45-2-101(7), MCA,

defines “common scheme” as

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       a series of acts or omissions motivated by a purpose to accomplish a single
       criminal objective or by a common purpose or plan that results in the repeated
       commission of the same offense or that affects the same person or the same
       persons or the property of the same person or persons.

The “common scheme” element requires proof of a series of acts which must be “either

individually incomplete such that they show that a single crime ha[s] been committed, or be

acts which closely follow one another evidencing a continuing criminal design.” State v.

Fleming (1987), 225 Mont. 48, 51, 730 P.2d 1178, 1180 (citation omitted)(emphasis added).

¶12    Burdeau concedes that the State established that she committed the misdemeanor

offense of deceptive practices by presenting Winkler’s credit card at Footlocker. She asserts,

however, that one instance cannot constitute a common scheme. She argues Wiley presented

the card at Lady Footlocker and proof of Wiley’s actions is insufficient to support Burdeau’s

conviction for the felony offense of deceptive practices (common scheme). Thus, the only

question before us is whether the State presented evidence upon which a rational jury could

have found acts by Burdeau constituting a common scheme.

¶13    The evidence in the present case is that Burdeau and Wiley had unauthorized

possession of Winkler’s credit card by sometime in the afternoon of January 29, 2002. Over

a short period of time, they shopped together in at least two stores in the mall. On each

occasion, they brought merchandise to the counter for purchase, taking turns presenting

Winkler’s credit card while standing together. Lindstrom’s testimony that, at approximately

the same time, he saw a Native American woman in the lingerie department of Herberger’s,

and then found Winkler’s credit card in that department, adds circumstantial evidence that

Burdeau also was in Herberger’s and disposed of Winkler’s credit card there.


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¶14    Viewing the evidence most favorably to the State, we conclude a rational jury could

have found Burdeau guilty of deceptive practices (common scheme) beyond a reasonable

doubt. The State established that Burdeau engaged in a series of acts affecting Winkler’s

property and motivated by a common purpose or plan to use Winkler’s credit card to obtain

as much merchandise as possible.        See § 45-2-101(7), MCA.         The evidence also

demonstrated a series of acts by Burdeau which closely followed each other, evidencing a

continuing criminal design. See Fleming, 225 Mont. at 51, 730 P.2d at 1180. For these

reasons, we hold the District Court did not abuse its discretion in denying Burdeau’s motion

for a directed verdict.

¶15    Affirmed.

                                                        /S/ KARLA M. GRAY


We concur:


/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE




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Justice W. William Leaphart dissenting.

¶16    I dissent. Burdeau was convicted of deceptive practices, common scheme, a felony.

Section 45-6-317(1)(d)(i), MCA. “Common scheme” requires that the defendant engage in

a “series of acts or omissions.” Section 45-2-101(7), MCA. Defendant Burdeau only

attempted to use the credit card once. The Court has adopted the State’s theory that,

although she only presented the card one time, she was present with Wiley when Wiley used

the same card to purchase goods. Burdeau, however, was not charged with accountability

for Wiley’s actions. In the absence of an accountability charge, the State’s case against

Burdeau must focus on Burdeau’s conduct, not Wiley’s. Burdeau’s one time attempted use

of the card does not satisfy the “series of acts or omissions” requirement of a common

scheme. Her single act, at most, constitutes a misdemeanor deceptive practice. I would

reverse the felony conviction.


                                                          /S/ W. WILLIAM LEAPHART



Justice Patricia O. Cotter joins in the dissent of Justice Leaphart.



                                                          /S/ PATRICIA COTTER




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