Case for Lawboost
Supreme Court of Montana.
The STATE of Montana, Plaintiff and Respondent.
*261 At approximately 11:00 p. m. on the night of March 15, 1978, Sergeant
Bowen of the Great Falls Police Department observed a pickup truck parked
in the emergency lane of Tenth Avenue South in Great Falls. Slowing to
investigate, Bowen observed the defendant, Michael Kevin Kyle, standing
in the open doorway of a mobile home. The mobile home was situated about
On April 10, 1978, defendant filed a notice of intent to rely on *376
the defense of mental disease or defect excluding responsibility. On
April 25, 1978, the State filed a motion for a psychiatric evaluation,
and the court appointed the superintendent of Warm Springs State Hospital
to conduct an examination. Defendant was subsequently examined at Warm
Springs. In July
After the State rested its case at trial, defendant
moved for a directed verdict on count one, burglary. Counsel argued
that the State failed to present evidence to support a finding that
Kyle had entered or remained in an "occupied structure," for
the purposes of a burglary conviction under section 45-6-204(1), MCA.
He asserted that a mobile home on a sales lot
After both sides rested at trial, defendant offered the court his proposed instructions Nos. 18, 19, and 20, which set forth the requirements for a jury finding of the lesser included offense of criminal trespass. Defense counsel argued that the jury could find defendant guilty of criminal trespass, rather than burglary, if the jury should determine that the mobile home was not an "occupied structure." The court determined that there was sufficient evidence to go to the jury on the burglary charge, and refused to give defendant's proposed instructions.
The jury found the defendant guilty of burglary and theft. He was sentenced to eight years. Defendant appeals from the judgment and presents three issues on appeal: 1. Whether the District Court erred in denying defendant's motion for a second psychiatric evaluation of defendant? 2. Whether a mobile home on a mobile home sales lot is an "occupied structure" within the definition of section 45-2-101(34), MCA? *377 3. Whether the District Judge properly refused defendant's proposed instructions on the lesser included offense of criminal trespass?
Defendant contends that his psychiatric examination at Warm Springs State Hospital did not comply with the court-ordered examination because it was not conducted in full by Dr. E. P. Higgins, Acting Superintendent. The District Judge issued the following order:
"IT IS HEREBY ORDERED that the Superintendent
of the Warm Springs State Hospital is hereby appointed as the psychiatrist
to conduct the psychiatric examination of the Defendant, pursuant to
Section 95-505, R.C.M.1947 as amended, (now section 46-14-202, MCA)
and to make his report
On June 14, 1978, the District Court received the psychiatric report from Warm Springs signed by: Katherine Gallagher, Psychologist **262 Counsel's argument that the manner in which this examination was conducted entitles him to a further examination is without merit. The statute relied on by Judge Roth in ordering the examination provides in pertinent part that: " . . . the court shall appoint at least one qualified psychiatrist or shall request the Superintendent of Warm Springs state hospital to designate at least one qualified psychiatrist, which designation may be or include himself, to examine and report upon the mental condition of the defendant." Section 46- 14-202(1), MCA.
As defendant points out, the superintendent was designated in the court
order as the psychiatrist to conduct the examination. Undoubtedly the
superintendent treated this order as he would treat *378 any other order
to conduct an examination; he designated certain staff members to assist
in this task. Defendant admits that he was examined at least in part
by Dr. Xanthopoulos, the superintendent of Warm Springs at the time the
order was issued and the psychiatrist with whom his counsel had communicated
prior to the examination. He was examined by other staff persons, primarily
Katherine Gallagher, psychologist. The record is silent as to
In reviewing the record as a whole, we conclude that defendant's evaluation
was in compliance with the court order, and the statutory requirements.
See, Knaub v. State (Alaska 1968), 443 P.2d 44, cert. denied, 393 U.S.
1039, 89 S.Ct. 661, 21 L.Ed.2d 586 (1969); Brockelhurst
Defendant next argues that he was entitled to a directed
verdict on count one, burglary. The record shows that he broke into
a furnished mobile home located on the sales lot of the Falls Mobile
Home Center. Defendant contends that such a structure is not an "occupied structure" for
purposes of a burglary conviction under section 45-6-204(1), MCA. We
find that the mobile home satisfies the definition of an "occupied
structure" set forth in section 45-2-101(34), MCA:
In State v. Sunday (1980), Mont., 609 P.2d 1188, 37 *379 St.Rep. 561, 564, this Court found that a tack shed was an "occupied structure" within the meaning of the statute. In that case we noted: "(t)he intent of the burglary statute was to prohibit wrongful intrusions into those places where the threat to people was most alarming. . . . Thus, in defining 'occupied structure,' the legislature included those places where the chance of human confrontation was most likely. . . . " State v. Sunday, Mont., 609 P.2d at 1193, 37 St.Rep. at 564. The tack shed in Sunday was used for storing horse tack, which was determined to be an integral part of the McLeans' horse rental business. Guests and employees of the McLeans' resort used the shed frequently and at irregular hours. That structure was a "building suited for carrying on business."
**263 A comparable situation exists here. The furnished mobile home on the sales lot is an integral part of the mobile home business. Employees and customers of the business may enter the structure at irregular times. It is a structure suitable for carrying on business and is so used for that purpose. Because the trial judge properly determined that the mobile home was an "occupied structure," he correctly denied defendant's motion for a directed verdict on the burglary charge.
The last specification of error alleged by defendant is that the District
Court erred in not instructing the jury on the lesser included offense
of criminal trespass. It is a fundamental rule that the defendant is
entitled to an instruction on a lesser included offense if the evidence
would enable the jury rationally to find him guilty of a lesser offense
*380 In the instant case, the trial judge properly determined that the
mobile home was an occupied structure within the statute. Section 26-1-201,
MCA. Once that determination was made, the evidence was not in dispute;
the defendant was either guilty of burglary or entitled to an
The verdict and the judgment of the District Court are affirmed. State
v. Kyle, 192 Mont., 374, 628 P.2d 260.