                             NO.    90-363

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



STATE OF MONTANA,
           Plaintiff and Respondent,
     -v-
SHAWN ALLEN STEELE,
           Defendant and Appellant.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               J. Dirk ~eccari'and Dave Ohler; Missoula Public
               Defender Office; Missoula, Montana
           For Respondent:
               Marc Racicot, Attorney General; Joe Thaggard, Asst.
               Atty. General; Helena, Montana
               Robert L. Deschamps, 111, County Attorney; Betty
               Wing, Deputy Co. Atty; Missoula, Montana

                             Submitted on Briefs:       February 7, 1991
                                             Decided:   March 19, 1991
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.


     A jury trial was held in the District Court for the Fourth
Judicial District, Missoula County. Defendant, Shawn Allen Steele,
was convicted of misdemeanor criminal mischief, felony criminal
mischief, misdemeanor theft and felony theft.     Defendant appeals.
We affirm.
     The issues on appeal are:
     1.   Did the District Court err in denying defendant's
     motion for directed verdict?
     2.   Did the aggregation of the value of the stolen
     property subject the defendant to multiple convictions
     for the same transaction?
     On Saturday, October 28, 1989, Renae Rostad        (Ms. Rostad)
attended a late movie at the Cinema 3 movie theater in Missoula,
Montana.   Ms. Rostad parked her car in the theater's rear-parking
lot. At about 11:45 p.m., after the movie, she returned to her car
only to find that someone had broken one of its windows and stolen
her purse. The purse, valued at $55, contained $10, several credit
cards, and a "bank cardw from First Interstate Bank.
     Ms.   Rostad   reported   the theft   to   the Missoula   Police
Department that night.   She reported the theft of her bank card on
the following Monday.      The customer representative for First
Interstate Bank checked the "cardholder activity report" for Ms.
Rostad's bank card and discovered that the night Ms. Rostadtspurse
was stolen someone made three $100 withdrawals from her account
with her bank card. A fourth attempt to withdraw $100 was made but
since the maximum allowable withdrawal from Ms. Rostad's account
was $300 per day, the attempted withdrawal was refused.     A video
tape taken of all individuals who withdraw money from the Automatic
Teller Machine (ATM) revealed that an unidentified male made the
three withdrawals.     No suspect was apprehended at that time.
     Early in 1990, a number of break-ins into vehicles occurred
in the parking lots of Cinema 3 and the Duelin' Daltons Saloon in
Missoula.     Most of the break-ins resulted in the theft of purses
and credit cards from the vehicles.
     The owner of Duelin' Daltons, Bruce Fowler, began to conduct
a surveillance of the Duelin' Dalton's parking lot.     On February
2, 1990, Mr. Fowler saw a man emerge from a vehicle and steal

something from a car parked across the street from Duelin' Daltons.
The man returned to his car and drove away.      Mr. Fowler and his
friend, Wayne Frank, followed the suspect's car to the parking lot
of the Cinema 3. Mr. Fowler used his car to block in the suspect's
car in the parking lot. They could see that the suspect was still
sitting in his car going through a purse.
     Mr.    Fowler and Mr.    Frank then approached the suspect's
vehicle.     Mr. Frank recognized the suspect as the defendant and
someone he had known for years.     Defendant resisted an attempted
citizen's arrest by the two men.    Mr. Fowler then went to a nearby
phone to call the police.     In the meantime, defendant admitted to
Mr. Frank that he had been involved in thefts from cars for several
months.     Defendant then escaped on foot.
     When the police arrived, they impounded defendant's vehicle
and searched it.      The detective conducting the search found a
purse, two wallets, two sets of keys and identification cards.
When the detective reviewed the investigative file from the Rostad
case, he recognized the man in the ATM photographs withdrawing
money from Ms. Rostadts account as the defendant.        The detective
later     interviewed defendant.     The    detective testified   that
defendant admitted to being the man in the photographs but denied
any wrongdoing.
        In support of its motion for leave to file an Information, the
State submitted to the court an affidavit setting forth the
circumstances of the alleged crimes.       The affidavit revealed that
defendant admitted to Mr. Frank that he had been stealing items
from cars for several months in order to support his child.
     A jury trial was held.     At the close of the State's case-in-
chief, defendant moved the court to either dismiss Count V of the
Information or direct a verdict in defendantts favor.         Count V
read:
     On or about October 28, 1989, through November 5, 1989,
     the above-named Defendant purposely or knowingly obtained
     or exerted unauthorized control over property of another,
     a purse and cash with value in excess of $300, property
     of Renae Rostae (sic), with the purpose to deprive the
     owner of the property.
Defendant argued that the value of the purse stolen from Ms. Rostad
was not over $300.     Counsel for the defense argued:
           My first motion regarding this is that the court
     should dismiss the felony charge because the State has
     failed to prove value of the purse being over $300.00.
           It's my position that the transaction which occurred
     at the bank is a deceptive practices or some other theft.
     It Is a separate offense. You cannot use the money taken
     off of that card to include it in the value of the purse.
           The bank card itself is worth less.
                                 ...
          [Tlhe State can't use that value to enhance the
     value of the purse.  ...
          Renae Rostad was out the value of her purse, she was
     out the $10.00 in her purse, and she was out $50.00
     according to the last person we had testify to the bank.
          The bank was out the other $250.00. And as long as
     she notified them within two business days, her account
     was never affected by that.
          Therefore, her charge should only be a misdemeanor
     charge because they haven't proven, even if you aggregate
     the total amount in it -- with the bank machine, the
     value still does not exceed $300.00.
     The State argued that the purse and the cash together were all
part of the same transaction because not only was the bank card

taken from the purse, it was used within a half-hour from the time
the purse was stolen.
     On appeal, defendant challenges only his conviction for Count
V, the felony theft relating to Ms. Rostadts purse.


     Did the District Court err in denying defendant's motion
     for directed verdict?
     Defendant maintains that the State's failure to charge the
theft of Ms. Rostadls purse and the money from her bank account as
the same transaction or a common scheme was fatal to the State's
case. Defendant argues that in this case no evidence permitted the
jury to conclude that the value of the property stolen from Ms.
Rostad exceeded $300.    He maintains that two misdemeanor thefts
were involved here: one involved breaking into a car and stealing
a purse; the other the use of a bank card.
     The State contends that the Information properly charged
defendant with felony theft as 5 45-6-301(1)(a),   MCA, defines the
offense.   Section 45-6-301, MCA, provides (in part):
     (1)   A person commits the offense of theft when he
     purposely of knowingly obtains or exerts unauthorized
     control over property of the owner and:
          (a) has the purpose of depriving the owner of the
     property ;
                              ...
     (6)   A person convicted of the offense of theft of
     property not exceeding $300 in value shall be fined not
     to exceed $500 or be imprisoned in the county jail for
     any term not to exceed 6 months, or both.      A person
     convicted of the offense of theft of property exceeding
     $300 in value  ...  shall be fined not to exceed $50,000
     or be imprisoned in the state prison for any term not to
     exceed 10 years, or both.
     (7) Amounts involved in thefts committed pursuant to a
     common scheme or the same transaction, whether from the
     same person or several persons, may be assresated in
     determinins the value of the property. (Emphasis added).

Thus, the State must prove that the value of the property stolen
exceeds $300.   The State maintains that the evidence presented at
trial indicated that the theft of the purse and the money from Ms.
Rostadls bank account constituted the same transaction. We agree.
     When reviewing the denial of a motion for directed verdict,
only substantial evidence in the record supporting the jury's
finding is required. State v. Laverdue (1990), 241 Mont. 135, 785
P.2d 718. The standard of review on issues of substantial evidence
is that the conviction cannot be overturned if evidence, when
viewed in a light most favorable to the prosecution, would allow
any rational trier of fact to find essential elements of the crime
beyond a reasonable doubt.   State v. Krum (1989), 238 Mont. 359,


     The evidence presented at trial proved that the bank card
taken from Ms. Rostadts purse was used to withdraw the cash within
about a half-hour after the theft of the purse.      The evidence
presented at trial would allow a rational trier of fact to find the
essential elements of felony theft beyond a reasonable doubt.    We
hold that the ~istrictCourt did not err in denying defendant's
motion for a directed verdict.


            Did the aggregation of the value of the stolen
       property subject the defendant to multiple convictions
       for the same transaction?
       Defendant maintains that the aggregation of the value of Ms.
Rostad's purse and the money stolen from her bank account subjected
him to multiple convictions for the same transaction, a violation
of 5    46-11-502,   MCA.   That section prohibits the State from
convicting a defendant of more than one offense arising from the
same conduct. As the State points out, such was not the case here.
Defendant was charged and convicted of one crime only (felony
theft) for his theft of Ms. Rostadls purse and use of her bank
card. We conclude defendant's argument is without merit.   We hold
that the aggregation of the value of the stolen property did not
subject defendant to multiple convictions for the same transaction.
       Affirmed.

We Concur:
