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State v. Mckimmie6/7/1988
establish the requisite mental state. However, flight by a defendant may be considered by the trier of fact as a circumstance tending to prove consciousness of guilt. State v. Charlo (Mont. 1987), [226 Mont. 213,] 735 P.2d 278, 282, 44 St.Rep. 597, 603. As trier of fact, the District Court determined the evidentiary weight and significance of McKimmie's flight from the crime scene. State v. Twoteeth (Mont. 1985), [219 Mont. 101,] 711 P.2d 789, 794, 42 St.Rep. 1873, 1879.
McKimmie fled the crime scene, he disposed of the Mauser rifle, and he subsequently admitted shooting Valarie. The record contains ample evidence that McKimmie knowingly caused the death of Valarie. If the act which causes the death is done purposely or knowingly, deliberate homicide is committed even if death is not the intended result. State v. Sigler (Mont. 1984), [210 Mont. 248,] 688 P.2d 749, 758, 41 St.Rep. 1039, 1047. McKimmie's claim is without merit. We hold that the evidence clearly supports McKimmie's conviction for deliberate homicide.
Issue 2. Burglary, theft and tampering
a. Burglary
McKimmie was convicted of burglary as defined in Section 45-6-204(1), MCA:
"A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein. [Emphasis added.]"
McKimmie contends that he entered Ameline's apartment in his capacity as apartment manager. Ameline lived two apartments away from McKimmie. McKimmie asserts that he was in the process of evicting Ameline for nonpayment of rent. McKimmie argues that he merely inventoried Ameline's property for storage and removed Ameline's rifle as a "protective measure." He concludes that no evidence shows a purpose to commit an offense.
We disagree. McKimmie's "apartment manager" defense to burglary is inadequate. McKimmie acted far beyond his statutory authority as agent of the landlord. First, his method of entry was destructive. The police investigating officer noted that the main window on Ameline's apartment door had been broken out and the wire mesh behind the window had been damaged. Second, McKimmie entered Ameline's apartment at night. Third, McKimmie entered without the tenant's consent. Fourth, he entered without notice. McKimmie plainly violated a landlord's right of access under Section 70-24-312(3), MCA: ". . . the landlord shall give the tenant at least 24 hours' notice of his intent to enter and may enter only at reasonable times." (Emphasis added.)
McKimmie's unlawful entry was also done knowingly. McKimmie testified in detail about where he had been and what he had done in the hours prior to the time he entered Ameline's apartment. McKimmie precisely described his entry: "I had keys for all of the units except his. So I had to use a small hammer on the window and I was careful to try to keep the damage as minimal as possible." McKimmie then recalled in detail the events which occurred after his entry into the apartment. McKimmie's testimony falls squarely within the definition of "knowingly" in Section 45-2-101(33), MCA.
The third element of burglary — "purpose to commit an offense" — is discussed below, and shows that theft was the object and purpose of McKimmie's entry into the apartment. We hold that McKimmie's conviction of burglary is amply supported by the theft, the physical evidence of forced entry and McKimmie's admissions.
b. Theft
Theft is defined in Section 45-6-301(1), MCA:
"A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of
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