                            No.    90-302

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



THE STATE OF MONTANA,
               Plaintiff and Respondent,


RICHARD DUKE JUNGERS,
               Defendant and Appellant.


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APPEAL FROM:   District Court of the First Judicial ~istrsik, P
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               In and for the County of Lewis and Clark, E &
               The Honorable Thomas Honzel, Judge presidigzu 0 -  7C.




COUNSEL OF RECORD:
          For Appellant:
               Randi Hood, Public Defender, Helena, Montana

          For Respondent:
               Marc Racicot, Attorney General, Helena, Montana
               Jennifer Anders, Asst. Atty. General, Helena,
               Montana
               Mike McGrath, County Attorney, Helena, Montana
               Leo J. Gallagher, Deputy County Atty., Helena,
               Montana


                            submitted on Briefs:        November 1, 1990
                                             Decided:   December 11, 1990
Filed:                                   0
Justice R. C. McDonough delivered the Opinion of the Court.

     Richard Duke Jungers appeals from a jury verdict finding him
guilty of felony theft.   The District Court of the First Judicial
District, Lewis and Clark County sentenced Jungers to ten years for
the felony theft and an additional twenty years with twelve years
suspended as a persistent felony offender. Jungers was designated
dangerous for purposes of parole.   We affirm.
     The issues presented for review are:
     1.    Whether there is sufficient evidence to support Jungers'
conviction for felony theft;
     2.    Whether Jungers was afforded effective assistance of
counsel.
     In the weeks preceding Thanksgiving of 1989, Richard Duke
Jungers stayed at an apartment rented by Debbie and Ron Newbreast,
which was located in Helena, Montana.    His stay at the apartment
was intermittent because at times he stayed with his girlfriend,
or was out of town.   However, when he did stay at the apartment he
slept on a couch which was in the front room.          The Newbreasts
occupied the bedroom, which apparently was the only other room in
the apartment.
     During this same period of time a number of burglaries
occurred in the Helena area.   On Thanksgiving day Virginia Pruett
observed a man running across her neighbor's back yard carrying a
long object wrapped in a rug or blanket. The man ran to a blue and
white jeep which was waiting in an alley.        The   man threw the
wrapped object into the back, climbed into the passenger side of
the vehicle which then drove off.    The man Ms. Pruett saw running
across the yard had dark tousled hair and was not Richard Jungers.
She could not identify the driver of the vehicle.
     Gwen Smith, the owner of the house was out of town for the
Thanksgiving holiday.   Upon returning home, she found out that her
house had been ransacked. She prepared a list of missing personal
property which included several pieces of jewelry.    She estimated
the total value of her missing property at $4,300.00.
     Shortly after the reported burglary, police found a Jeep
Cherokee matching Ms. Pruett's description parked in an apartment
complex across the street from the Helena Police Department. The
police took a photograph of the vehicle and showed it to Ms.
Pruett, who stated that it was similar to the vehicle she had seen
in the alley Thanksgiving day.      Upon further investigation, the
police discovered that the vehicle belonged to Richard Jungers, who
as stated earlier, had been staying with        Debbie and Ronald
Newbreast at their home in the apartment complex.
     On December 1, 1989, Helena police, pursuant to a search
warrant entered and searched the Newbreast residence.    An arrest
warrant was also issued for Richard Jungers and while the officer
searched the home, Jungers was arrested.      Recovered during the
search were several items taken from area homes and offices during
recent burglaries. These items included a .22 rifle which belonged
to Henry Smith and a bronze statue and a notary seal taken from the
Morrison-Meloy Law Office during a burglary which occurred shortly
after the Thanksgiving holiday.   Also found were several articles
of jewelry taken from the Gwen Smith residence.
     Jungers was charged with four counts of burglary in violation
of 9 45-6-204, MCA, and felony theft (common scheme) as defined in
9 9 45-6-301 and 45-2-lOl(7).    After Jungers entered his plea of not
guilty, the State moved to dismiss the four counts of burglary.
The District Court granted this motion and ordered trial to proceed
on the charges of felony theft.
     Following trial, a jury found Jungers guilty of felony theft
as defined by   §   45-6-301(1)(c), MCA.   The District Court sentenced
Jungers as heretofore stated.      This appeal followed.


     Jungers argues that there is insufficient evidence to support
his conviction for felony theft.           As stated earlier, he was
convicted of felony theft because the jury found he received stolen
property.   This offense is defined in 9 45-6-301(3), MCA, which
states in pertinent part:
          (3) A person commits the offense of theft when he
     purposely or knowingly obtains control over stolen
     property knowing the property to have been stolen by
     another and:
          (a) has the purpose of depriving the owner of the
     property ;
          (b) purposely or knowingly uses, conceals, or
     abandons the property in such manner as to deprive the
     owner of the property; or
          (c) uses, conceals, or abandons the property knowing
     such use, concealment, or abandonment probably will
     deprive the owner of the property.
     Section    45-6-301(6),    MCA,   provides   that   the   line   of
demarcation between felony and misdemeanor theft as to the value
of the property stolen is $300.00.          Taking these two sections
together, it is apparent that in order to support Jungers'
     conviction the evidence must support the conclusion that:
          1.  Jungers had control over
          2.  stolen property
          3. whose value exceeded $300.00,
          4.   with the intent to deprive its owner of such
          property.
          During trial, four items seized during the search of the
     Newbreast home were entered into evidence.        The value of these
     items, as estimated and testified to by their owners was:
                 .22 rifle                $225.00
                 items of jewelry         $5-$10.00
                 notary seal              $27.00
                            X
                 bronze statu e           $50.00
     The total value of this property approximated $307-$312.00.     This
     evidence as a whole is sufficient to meet the value requirement of
     felony theft.
          However, Jungers strongly argues that the evidence does not
     support the conclusion that he purposely or knowingly had control
     over the stolen property. The .22 rifle, in particular, was found
     in a closet in the Newbreasts' bedroom.    According to testimony of
     Debbie and Ronald Newbreast the rifle was sold to them by another
     friend, Freddy Gaither.        Jungers maintains that there is no
     evidence he had access to the closet or the rifle and therefore his
     control over it cannot be established.        Since the State cannot
     prove he had control of the rifle, his conviction for felony theft
     is unsupported because the only items proven to be in his control
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     were worth          at the most, $87.00, which is less than the
               required for a felony conviction.
          We disagree with Jungersl argument.      We begin by noting that
     the testimony of Ronald Newbreast is far from convincing.      It is
riddled with inconsistencies and suspect explanations.         Following
his arrest Newbreast told police that the .22 rifle was brought
into the apartment by Richard Jungers.       By the time he was called
to testify, however, Newbreast changed his story to incriminate
Freddy Gaither, who apparently had fallen from Newbreastts favor
because he suspected him of Ifratting them out."               Newbreast
attempted to account for this inconsistency through various
explanations including his insistence that he was high at the time
of the police interview or, in the alternative, that he lied to get
out of jail.
     We further note that testimony established, contrary to
Jungerst argument, that Jungers had full access to the Newbreast
apartment.     Testimony established that Jungers and the Newbreasts
were very generous towards one another and shared all of their
belongings.     This generosity towards Jungers apparently included
permission to enter the Newbreasts1 room and access to their
personal belongings.
     Given this testimony, we hold that the evidence meets the
requirement of control.     The standard of review employed by this
Court   when   reviewing   jury   verdicts   in   criminal   matters   is
necessarily very limited.    This standard dictates that:
     [A] conviction may not be overturned when the evidence
     presented, viewed in the light most favorable to the
     prosecution, would permit a rationale [sic] trier of fact
     to find the essential elements necessary to establish the
     offense. State v. Holman (1990), 241 Mont. 238, 241, 786
     P.2d 667, 669.
The above evidence would permit a jury to find such essential
elements.
     Next Jungers argues that he was denied his constitutional
right to effective assistance of counsel. In making this argument
Jungers maintains that through his failure to rebut the value of
the stolen property seized by police, his attorney failed to
adequately represent him.     As stated earlier, only four items
seized at trial were appraised by their owners. The value of these
items totaled between $307-$312.00.       Jungers argues that his
counsel should have attacked the values placed on these items in
an effort to establish a total value less than $300.00, which would
have led to a conviction for the lesser crime of misdemeanor theft.
     In asserting his claim of ineffective assistance of counsel,
Jungers must establish two elements. First he must prove that his
lawyer's performance fell below the range of competence reasonably
demanded of attorneys by the Sixth Amendment to the United States
Constitution. Second, he must demonstrate that the deficiency was
so prejudicial that he was denied a fair trial.       State v. Senn


     After careful review of the record, it is apparent that
Jungersl counsel performed adequately and competently.         It is
obvious that he decided, as a matter of tactic, to confront
Jungers'   guilt head   on   in an   effort to   establish   complete
innocence. Perhaps he utilized this tactic in an effort to prevent
Jungers, who was on parole, from being sent back to prison. At any
rate, we refuse here to second guess counsells tactical decisions.
Accordingly, we hold that Richard Duke Jungers was not denied his
constitutional right to effective assistance of counse. The jury's
verdict is affirmed.

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                                               Justice2
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