                               No.    89-406

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1990



STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
RAYMOND ERNEST FLOYD, JR.,
            Defendant and Appellant,

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APPEAL FROM:    District Court of the Sixth Judicial l is trick,
                In and for the County of Park,                 c3
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                The Honorable Byron L. Robb, Judge p r e k i d i ~ ~ .
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COUNSEL OF RECORD:
            For Appellant:
                Dan Yardley, E q , Yardley
                              s.                   &   Yardley, Livingston,
                Montana
            For Respondent:
                Hon. Marc Racicot, Attorney General, Helena, Montana
                James Yellowtail, Asst. Attorney General, Helena
                William Nels Swandal, Park County Attorney,
                Livingston, Montana; Jon M. Hess, Deputy County
                Attorney, Livingston, Montana


                              Submitted on Briefs:        February 15, 1 9 9 0
                                               Decided: April 9, 1990
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

      Defendant Raymond Floyd appeals the judgment of a Park County
jury finding him guilty of two counts of burglary.      We affirm the
District Court's judgment.
      Defendant presents two issues:
      1.    Did the District Court err in denying defendant's motion
to dismiss Count I at the conclusion of the State's case-in-chief?
      2.    Did the District Court err in not giving defendant's
proposed     instruction   9B   regarding possession   of   the   stolen
property?
      By information defendant was charged in separate counts under
§   45-6-204, MCA, with burglarizing two homes in Livingston,
Montana.    Count I arises from a break-in on July 16 or 17, 1988 at
an apartment located on North 7th Street, and Count I1 stems from
the break-in at a residence on South C Street sometime between July
11 and July 13, 1988.

     A brief summary of the facts surrounding Count I follows:
     When Gerald and Pearl Stratton and family, along with their
houseguest Robert Armijo, returned from a visit to Yellowstone
National Park, they discovered their apartment had been broken into
sometime during their absence.       The Strattons had been gone from
their home between 10 a.m. on July 16, and 8 p.m. on July 17, 1988.
Mrs. Stratton reported the burglary to the Livingston Police on
July 18, 1988.       Items taken during the burglary included a
wristwatch, pocket change, clothing, a pair of diamond earrings and
a 14-karat gold necklace.    The necklace belonged to Mr. Armijo.
Access to the Stratton home had been gained through a window.
     Defendant gave a gold necklace to Anita Christensen early in
the morning of July 17.   Ms. Christensen testified at trial that
she had met defendant about 10 p.m. on July 16 and they spent the
evening with a group of people in various Livingston bars.        At
closing time the group, which included defendant's sister Margaret
Moore, went to Ms. Moore's residence for a party.        Ms. Moore
resided in an apartment above the Strattons'.
     Ms. Christensen left the party at the Moore home around 3 a.m.
Shortly thereafter defendant visited Ms. Christensen at her home,
but left when Ms. Christensen requested he do so.         Defendant
returned to Ms. Christensen's home at approximately 4 a.m. and gave
her a gold necklace in a gray earring box.
     Because she suspected the necklace may have been stolen, Ms.
Christensen turned   in the necklace to a dispatcher for the
Livingston Police Department on July 18.     The investigation that
followed revealed the necklace was the one belonging to Mr. Armijo
stolen from the Stratton home.
     At trial Ms..Christensen testified that defendant had spoken
of buying a car and a gold ring for her.     Ms. Christensen stated
she believed the defendant was trying to get intimate with her.
     On July 19, the day after the Stratton burglary was reported
and Ms.   Christensen turned     in the gold   necklace, defendant
voluntarily gave a statement.     Defendant indicated that he had
purchased the stolen necklace from Roger Phillips while leaving his
sister's residence on the night of the party. Mr. Phillips denied
selling any necklace to the defendant.
     The police conducted a search of the defendant's residence in
connection with cdunt I on July 19. None of the other items taken
in the Stratton burglary were found in the search.     The officers
searching defendant's residence did, however, notice unusually
large quantities of food. Livingston police had received a report
a few days earlier of a break-in where large amounts of food had
been taken from another Livingston residence.
     The circumstances of Count I intersect with circumstances of
Count I1 which are as follows:
          John H. (Harve) Counts, Sr. resides at 221 South C Street
in Livingston. While Mr. Counts was in Billings receiving medical
treatment from July 11 to July 13, 1988, his house was burglarized.
Upon returning, Mr. Counts immediately reported the break-in.
Access had been gained by prying the back door open and many food
items had been taken.
     Livingston police conducted a second search of defendant's
residence in connection with Count I1 on July 26.       The police
seized several items which Mr. Counts identified at trial as having
been stolen from his home.    Mr. Counts also testified that he has
known defendant for several years and defendant was familiar with
the Counts residence.
     A trial was held February 27 through March 1, 1989 in Park
County.    Following the State's presentation of its case-in-chief,
the defense moved-for a directed verdict on Count I, the Stratton
burglary.    The motion was denied.


                Issue I: Defendant's Motion to Dismiss
       At the conclusion of the State's case-in-chief defense counsel
presented a motion to dismiss Count I and enter a directed verdict
of acquittal on the basis there was insufficient proof to go to the

jury. Defendant argued that the State merely proved that defendant
had possession of the necklace and evidence of possession of stolen
property alone is insufficient to sustain a burglary conviction.
       Whether a motion for directed verdict is granted lies within
the discretion of the trial judge, as provided in    §   46-16-403, MCA,
which reads in part:
       When, at the close of the state's evidence          .
                                                       . . the
       evidence is insufficient to support a finding or verdict
       of guilty, the court may, on its own motion or on the
       motion of the defendant, dismiss the action and discharge
       the defendant .   .. (Emphasis added.)
       That the decision whether to dismiss a charge or direct a
verdict of acquittal lies within the sound discretion of the trial
court and will not be disturbed absent an abuse of that discretion
is well-established in Montana case law.       See, State v. Graves
(Mont. 1990), - P.2d       -,   -,    47 St.Rep. 483, 485; State v.
Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v.
Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965.        Furthermore,
only if there is    no   evidence to support a guilty verdict may a
verdict of acquittal be directed.      Graves at ,        47 St.Rep. at
485.

       The District Court judge, in his sound discretion denied
defendant's motion, stating that there was other corroborating
evidence, beyond defendant's mere possession of the necklace,
sufficient to submit the case to the jury.           We agree with the
District Court's assessment and will not disturb its decision on
appeal.
       The State's burden of proof with regard to the charge of
burglary alleged in Count I was to show that the Stratton residence
had been unlawfully entered for the purpose of committing an
offense therein and that defendant was responsible therefor.
Section 45-6-204 (1), MCA.    The record clearly shows that, in its
case-in-chief, the State presented direct evidence sufficient to
meet its burden.
       The State presented testimony of witnesses Gerald Stratton and
Robert Armijo indicating the Stratton residence had been broken
into during the weekend of July 16-17, 1988, and that several
items, including a gold necklace, had been taken in the burglary.
Police Officer Keyes testified entry had been gained through a
window.    Officer Keyes also indicated that investigation revealed
defendant was a frequent visitor to his sister's apartment upstairs
from    the   Strattons'.    Anita   Christensen's   testimony   linked
defendant to the Stratton burglary, establishing that defendant had
been in the building which housed the Stratton apartment around 2
a.m. on July 17, 1988 and that defendant had given her the gold
necklace in a gray earring box at about 4 a.m. the same day.
Suspecting the necklace was stolen Ms. Christensen turned the
necklace over to the police.     Mr. Armijo identified the necklace
at trial as having been stolen from his suitcase at the Stratton
home.
        The above-listed evidence corroborates the fact that defendant
was in possession of the gold necklace.     While mere possession of
stolen property .is insufficient to        support a   conviction of
burglary, it is a strong circumstantial indication of guilt which
may be considered by the jury.      State v. Kramp (1982), 200 Mont.
383, 396, 651 P.2d 614, 621 and State v. Deeds (1952), 126 Mont.
38, 40, 243 P.2d 314, 315.
     Defendant's possession of the necklace, taken with the other
incriminating circumstances presented by the State, will sustain
the burglary conviction.
     [P]ossession of stolen property, accompanied by other
     incriminating circumstances, and false or unreasonable
     explanation by the suspect is sufficient to sustain a
     conviction of burglary.
State v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309.
     The State, through Officer Lynn Gillett, offered evidence that
refuted defendant's explanation of his possession of the necklace.
The defendant stated that he bought the necklace from a man named
Roger Phillips on July 17, while leaving the party at his sister's
apartment.     Officer Gillett testified that Mr. Phillips denied
selling the necklace to defendant.      The jury was presented with
conflicting stories of how defendant came to possess the necklace
and obviously chose to adopt the State's position on the matter.
The State did establish that defendant was in exclusive possession
of the necklace.     The possession was accompanied by incriminating
circumstances and defendant's fabricated explanation.   On appeal,
this Court presumes the correctness of the District Court's
judgment and   it is the appellant's burden to overcome such
presumption.   State v. District Court of Eighth Jud. Dist. (1978),
176 Mont. 257, 264, 577 P.2d 849, 853. We find that the defendant
did not overcome the presumption and hold the lower court properly
denied the defendant's motion for a directed verdict.


                   Issue 11: Jury Instruction 9B
     Defendant argues that the trial court's failure to give his
proposed instruction 9B was error.     Proposed instruction 9B is
taken verbatim from an instruction previously approved by this
Court, where we stated:
          We would support on       retrial,   the   following
     instruction on the point:
          "Unauthorized control or possession        of
          property belonging to another is ordinarily a
          circumstance from which the jury may draw an
          inference and find, in the light of all the
          evidence in the case, that the person in
          possession committed the theft of the
          property.
          "You are permitted but not required to infer
          from the defendant's possession of the
          property of another that the defendant is
          guilty of theft only if in your judgment such
          an inference is warranted by the evidence as
          a whole.   It is your exclusive province to
          determine whether the facts and circumstances
          shown by the evidence warrant the inference to
          be drawn by you.
          ''The possession of the property by the
          defendant does not shift the burden of proof
          which is always on the State to prove beyond
          a reasonable doubt every essential element of
           the offense with which defendant is charged.
           "The defendant's possession of property
           belonging to another may be satisfactorily
           explained in the evidence independently of any
           testimony of the defendant personally.      If
           defendant does take the witness stand to
           explain his possession of the property, the
           weight to be attached to his explanation is
           exclusively for you to determine.     Even if
           defendant's possession of the property is
           unexplained, you cannot find him guilty, if
           after consideration of all the evidence in the
           case, you have a reasonable doubt as to his
           guilt.
           "If under the evidence, defendant s possession
           of the property of another is consistent with
           his innocence, then the jury should acquit the
           defendant unless he has been proven guilty
           beyond a reasonable doubt by other evidence in
           the case.
State v. Kramp (1982), 200 Mont. 383, 396-97, 651 P.2d 614, 621-
22.   The District Court refused the instruction as not timely
because it was not submitted the requisite five days before trial.
Additionally, the District Court judge termed the instruction
"verbose and confusing."   Moreover, the instructions approved by
the trial court incorporate all of the essential provisions of the
refused instruction 9B.
      Montana case law holds that where a proposed instruction was
adequately covered by a given instruction, it is not error for the
trial court to refuse the proposed instruction.
      It is not error for a trial court to refuse to give a
      requested instruction if other instructions given
      adequately coverthe rejected instruction's legal theory.
      State v. Laqqe (1964), 143 Mont. 289, 295, 388 P.2d 792,
      795.     Nor must a trial court give repetitious
      instructions or instruct Ifon every nuance" of a defense
      theory. State v. Graves (Mont. 1981), 633 P.2d 203, 210,
      38 St.Rep. 9, 16.
State v. Bingham (1987), 229 Mont. 101, 111, 745 P.2d 342, 348.
     In the case at bar the District Court adequately covered the
proposed instruction 9B principles in the instructions given.   No
prejudice to the-defendant resulted from the District Court's
refusal of proposed instruction 9B.     We therefore affirm the
District Court.
    Affirmed.




We concur:




         Justices
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