In re E.B.G.

852 P.2d 538, 258 Mont. 96, 50 State Rptr. 445, 1993 Mont. LEXIS 119
CourtMontana Supreme Court
DecidedApril 29, 1993
DocketNo. 92-304
StatusPublished

This text of 852 P.2d 538 (In re E.B.G.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re E.B.G., 852 P.2d 538, 258 Mont. 96, 50 State Rptr. 445, 1993 Mont. LEXIS 119 (Mo. 1993).

Opinions

JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District Court, Rosebud County, of a conviction of a minor for possession of stolen property. We affirm.

The sole issue on appeal is whether there was sufficient evidence to support the conviction under § 45-6-301(3), MCA.

On September 27, 1991, the State filed a petition for a youth hearing alleging that the minor, E.B.G., was a delinquent youth because he violated § 45-6-301(3), MCA, by committing the offense of possession of stolen property. The petition alleged that he “knowingly obtained control over stolen property, No. 1 and No. 2 copper wire, of a value of more than $300 owned by Prince Inc., knowing the property to have been stolen by another and used, concealed or abandoned the property in such a manner as to deprive the owner of the property.” The youth denied the charge and a trial was held. E.B.G. was found guilty by a jury and was later found to be a serious juvenile offender by the District Court Judge. He was ordered committed to Pine Hills School and ordered to pay restitution in the amount of $7047, the replacement cost of the wire.

Sometime between Monday, August 12, 1991, and Friday, August 16, 1991, David Quenzer (Quenzer) discovered that a large amount of wire was missing from his place of business, Prince Inc. Quenzer had seen the wire on Monday, August 12, but on Friday, August 16, he saw two empty pallets leaning against a boxcar used for storage of wire. He could see patterns of dust rings on the empty pallet where the wire had been. Quenzer called the police. He then started to call people in the recycling business and upon calling Border Steel, a recycling center in Glendive, Montana, Quenzer learned that they had received wire on the previous day that was similar to the wire which had been stolen.

The wire received at Border Steel on Thursday, August 15, 1991, was brought in by E.B.G. of ENT Recycling in Forsyth, Montana. Bret Smelser, part owner and manager of Border Steel, stated during trial that either E.B.G. or D.H., a youth assisting E.B.G., told him that the wire had been brought into ENT on Wednesday, August 14. E.B.G. told Smelser that he and his friend, D.H., burned the copper wire Wednesday night and early Thursday morning in South Dakota and then drove to Border Steel in Glendive.

Smelser bought most of the wire brought in by E.B.G., but did not accept some wire which was unbumed and some clamps and connec[98]*98tors. E.B.G. told Smelser that he would clean those items and sell them to Border Steel at a later date, so they were placed back in the ENT truck.

Officer Skillen, a deputy sheriff with Rosebud County Sheriff’s Department, investigated the case. He went to Border Steel where he interviewed Mr. Smelser and examined some wire from their storage area. Skillen examined No. 1 and No. 2 wire which were identified as wire brought in by E.B.G., as well as some connectors. The officer took several samples of wire and a Hubbel connector that had been brought in by E.B.G.

The investigating officer also examined the scene of the theft and took photographs of the area. He found an area within the boxcar, where wire was stored, that contained multiple footprints. The footprints appeared fresh and there were “three relatively different types of prints.” The officer stated that he was led to believe that the area was the same as it had been since the theft.

Officer Skillen also applied for a search warrant to search ENT, E.B.G.’s place of business. The search of ENT involved Officer Skillen, Sergeant McComb, and Quenzer, and occurred on August 21. The search yielded some wire, which Quenzer stated looked like wire taken from Prince Inc., some brass clamps, and some connectors. Smelser had previously told Officer Skillen about the wire, connectors, and clamps which had been rejected by Smelser and returned to E.B.G. This information formed the basis of the search. Officer Skillen took several samples of the wire, as well as two couplers, during the course of his search.

Officer Skillen also learned that the wire “had been brought in by Justin Smith within a relatively short period of time.” The officer asked for a receipt for the wire purchased by ENT from Smith and he was led to believe that the receipt should not be hard to locate because Smith had recently brought the wire into ENT. E.B.G.’s father, the manager of ENT, was going to locate the receipt and bring it to Officer Skillen, but it was never brought to him.

As another step in Officer Skillen’s investigation of the stolen wire, he took statements from E.B.G. and E.B.G.’s father on August 23, 1991. E.B.G. stated that he understood that Justin Smith brought in a lot of wire and he had borrowed E.B.G.’s father’s truck to haul the wire. E.B.G also stated that his dad told him that Justin received the wire from Justin’s dad. When asked what time E.B.G. left from Forsyth to Glendive, he stated that it was around 12:30 or 1:00 and [99]*99he drove right to Glendive. When pressed by the detective as to where the wire came from, E.B.G. stated that:

Well, we got, like I said, that one pile Justin Smith brought in quite a bit back there, but I was in school and I just, I never seen what the weight was and stuff. And he worked out — he worked for us for awhile so — and we had him cutting tanks out there and stuff and that’s the time that he took it.

The officer asked: “At Prince’s?” and E.B.G. stated that they were cutting iron out there. Then the officer asked if E.B.G. knew that Justin took it from Prince’s and E.B.G. replied that “He said his dad gave it to him. I’m not familiar where his dad lives or anything.” Officer Skillen asked whether the wire was in the same condition when Smith brought it in as when E.B.G. took it to Glendive or if he had to clean it. E.B.G. answered “Most of it, like the No. 1, we had some No. 1 that we had to clean up.” “Q. That you stripped; it wasn’t burned?” “Yes,” answered E.B.G.

When Mr. G., E.B.G.’s father, was interviewed, he stated that he and his wife kept the business records. He further stated that Justin Smith had brought in a large supply of wire but he did not specify to the officers when the wire was brought in. He explained that when he called Smelser (Border Steel) to negotiate on the price of the wire on August 15 and he told Smelser the wire had come in on the previous day, he meant that “it was loaded up onto my vehicle to be finished prepared.” He said that although E.B.G. owned the business, Mr. G. controlled the money and E.B.G. He also later reported that Justin Smith brought the wire in on November 20,1990. He also related that E.B.G. cashed the check for the wire in Glendive, put some gas in the car and bought food for himself and D.H., who had assisted E.B.G. E.B.G. turned the remainder of the money over to Mr. G. upon his return to Forsyth.

Justin Smith testified that he had never brought in a large amount of copper wire but that he had helped Rob Watson bring in about 20 pounds at one time. He stated that he helped bring in that wire in November 1990. He further related that he had borrowed Mr. G.’s pickup truck at one time but had never used it to pick up wire. Finally, he stated that he could not have delivered wire to ENT in July or August 1991 because he was working from April 27 to August 23 or 24, 1991, on the Colorado River in Arizona.

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Related

State v. Hernandez
689 P.2d 1261 (Montana Supreme Court, 1984)
State v. Brown
781 P.2d 281 (Montana Supreme Court, 1989)
State v. Ramstead
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People v. Berg
234 N.E.2d 400 (Appellate Court of Illinois, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
852 P.2d 538, 258 Mont. 96, 50 State Rptr. 445, 1993 Mont. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ebg-mont-1993.