NO. 83-231
IZJ THE SUPREI4l3 COURT O THE STATE O MONTANA
F F
1983
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
RICKY LEE YOUNG,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f H i l l ,
The H o n o r a b l e J. Chan E t t i e n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Mark A. S u a g e e , H a v r e , Montana
For Respondent :
lion. Mike G r e e l y , A t t o r n e y G e n e r a l , I-lelena,
Montana
Ronald W. S m i t h , County A t t o r n e y , H a v r e , Montana
S u b m i t t e d on B r i e f s : July 21, 1983
Decided: S e p t e m b e r 1 5 , 1983
Filed:
SEP ! 5 1983
.
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Ricky Lee Young appeals from a judgment of conviction
against him of felony theft. He was tried in the District
Court, Twelfth Judicial District, Hill County. We reverse
and remand for a new trial.
Young was charged with the felony theft of a Hondo-180
acoustic guitar with strap and case, with a manufacturer's
suggested retail price of $183, from Village Music store in
Havre, operated and owned by Roger Beck. Young was not a
regular employee of the store, but had previously done work
for Beck on a commission basis. Young was in the store when
Duane Stephenson of Fort Benton came to the store. Since
Beck was busy, Young discussed with Stephenson the purchase
of the guitar. Stephenson did not buy the guitar at the time
because he wanted both of his daughters to take guitar
lessons, and if either maintained a.n interest in the lessons,
he would then buy a guitar. Young went to Beck after his
conversation with Stephenson and asked if he could take the
guitar home in order to get it ready to sell to Stephenson.
Beck agreed, and Young took the guitar home.
A week or two later, Beck saw Young and asked whether
Stephenson had purchased the guitar. Young replied that
there had been no purchase and that he had returned the
guitar to the store. Later Beck took an inventory and
discovered that the guitar was missing. In the meantime,
Young was using the guitar to give lessons to one of
Stephenson's daughters. On March 11, 1982, Stephenson
entered into a deal with Young whereby Young purchased from
Stephenson beauty supplies and cleaning products for $106.54.
In return, Stephenson purchased the guitar from Young for
$149.95. Stephenson delivered a check to Beck for the
difference over the cost of the goods purchased by Young in
the sum of $43.46.
Although Young contended that the full amount of $149.95
(the Stephenson check for $43.46, plus a check from Young for
$106.54) was attempted to be delivered to Beck, Beck
testified no such attempts were made.
In May 1982, Stephenson came to the Village Music store
looking for Young. There Beck, questioning Stephenson,
learned that Young had sold the guitar to Stephenson. The
criminal charges against Young ensued.
Young raises two issues on appeal: (1) That the jury
should have been instructed as to the lesser-included offense
of misdemeanor theft; and, (2) that the evidence for the jury
to find a value of the guitar, strap and case in excess of
$150.00 was insufficient to justify the verdict.
We dispose of this case on the ground that the District
Court should have instructed the jury on the lesser-included
offense of misdemeanor theft.
We summarize the evidence on the value of the guitar,
strap and case as follows: The manufacturer's suggested
retail price of the guitar, strap and case was $183.00. When
Beck made sales through employees, those sales were made on a
commj-ssion basis. The employees had a 20 percent discount
from list price within which to make a sale. The difference
between the 20 percent discount price and the final
purchaser's price was the employee's commission. Thus, in
this case, Beck would. have ratified any sale made by Young
less than $36.60 from the suggested retail price. If Young
had an offer to sell the materials at less than 20 percent
discount, he had to have the approval of Beck. Young
actually sold the guitar to Stephenson for $149.95, within
the discount range. The replacement cost of the guitar,
strap and case to Beck was approximately $100.00.
At the time for settlement of the instructions during
the trial, defendant Young offered his instruction no. 10
which would have instructed the jury that if there was
reasonable doubt as to whether he wa.s guilty of a given
offense or one or more lesser-included offenses, Young could
only be convicted of the greatest-included offense about
which there was no reasonable doubt. Section 46-16-602, MCA.
When this instruction was offered, the following colloquy
between court and counsel occurred:
". ..
I am going to refuse number 10 because there
was no greater or lesser included in this. It's
either a felony or it's nothing.
"MR. DRIVENESS: [Counsel for the State] Well,
Your Honor, we have talked about that. It's my
opinion that there is an element that is not listed
in the offense, but it is in the whole statute, and
that's the value, and I think it's a jury question
for them to determine the value. Therefore it's a
lesser included offense.
"THE COURT: The way the State has brought the
prosecution, you have prosecuted a felony over a
hundred. and fifty (150) .
You have to prove that.
If you don't prove it, it fails. It's up to the
jurv. If the jury finds it's less than a hundred
or a hundred and fifty or less, then they are going
to acquit. If you wanted a misdemeanor, you should
have charged the guy with a misdemeanor.
"MR. DRIVENESS: We couldn't charge him with both,
could we?
"THE COURT: Not in District Court. No.
"MR. DRIVENESS: Then we are foreclosed from having
a finding that he is guilty of a misdemeanor?
"THE COURT: That's right. You have alleged a
felony and I don't consider that a misdemeanor is a
lesser included under the circumstances because the
cutoff is a hundred and fifty (150) or less for a
misdemeanor, and your obligation is to prove that
it was over a hundred and fifty (150). That's the
way I am looking at it. It will go straight on a
felony. He is either convicted or acquitted.
Okay.. .. I'
Young contends that under the evidence on value in this
case the jury could rationally have found that the value of
the guitar, strap and case did not exceed $150.00 and in that
situation, the jury should have been allowed to consider
whether he committed the crime of misdemeanor theft. Young
relies on Keeble v. United States (1973), 412 U.S. 205, 93
S.Ct. 1993, 36 L.Ed.2d 844; Sansone v. United States (1965),
380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882; Berra v.
United States (1956), 351 U.S. 131, 134, 76 S.Ct. 685, 100
L.Ed. 1013, to the effect that the defendant is entitled to
instruction on a lesser-included offense if the evidence
would permit a jury ra.tionally to find him guilty of the
lesser offense and acquit him of the greater. Keeble, supra,
412 U.S. at 208, 93 S.Ct. at 1995, 36 L.Ed.2d at 847. Young
further relies on our decisions in State v. Taylor (1973),
163 Mont. 10 515 P.2d 695; State v. Buckley (1976), 171
Mont. 233, 557 P.2d m; State v. Radi (1978), 176 Mont. 451,
578 P.2d 1169; and State v. Jackson (1979), 180 Mont. 1-95,
589 P.2d 1009. He cites Taylor, supra, to the effect that
the District Court is bound to instruct the jury on the
lesser-included offense since the weight to be given the
evidence is a question for the jury. Taylor, supra, 163
Mont. at 115, 515 P.2d at 701.
The State responds that the evidence in this case is
that the guita.r, strap and case had a value in excess of
$150.00, namely $183.00, and that the conviction cannot be
overturned in the light of that evidence. The State further
contends that at the time that defendant offered proposed
instruction no. 10 and it was rejected by the trial court,
Young shou1.d have then made further objections or offered
further instructions.
It is evident from the foregoing colloquy between court
and counsel at the time Young's instruction no. 10 was
offered that the court assumed that if the value of the items
did not exceed $150.00, beyond a reasonable doubt, the jury
would acquit the defendant, and thus the defendant was not
entitled to instructions on lesser-included offense. This
assumption, however, was answered in Keeble, supra, with the
Supreme Court saying:
". . . A defendant is entitled to a lesser offense
instruction .. . precisely because he should not
be exposed to the substantial risk that the jury's
practice will diverge from theory." 412 U.S. at
212, 93 S.Ct. at 1998, 36 L.Ed.2d at 850.
Section 46-16-602, MCA, provides:
"When it appears beyond a reasonable doubt that the
defendant has committed an offense but there is
reasonable doubt as to whether he is guilty of a
given offense or one or more lesser included
offenses, he may only be convicted of the greatest
included offense about which there is no reasonable
doubt. "
Under our statutes, a person who commits the offense of
theft of property commits a felony if the property exceeds
$150.00 in value, but a misdemeanor if the property is valued
at $150.00 or less. Section 45-6-301(5), MCA.
"Value" is defined as "the market value of the property
at the time and place of the crime, or if such cannot be
satisfactorily ascertained, the cost of the replacement of
the property within a reasonable time after the crime."
Section 45-2-101 (69)(a), MCA.
Since value is an element of the crime of theft, and is
a fact question, the question of value must be decided by the
jury. Section 46-16-103 (2), MCA. Even though the District
Court here may have considered the evidence of value less
than $150.00 weak and inconclusive, it was still bound to
instruct the jury on the lesser-included offense of
misdemeanor theft, since the weight to be given to the
evidence is a question for the jury. State v. Taylor, supra,
163 Mont. at 115, 515 P.2d at 701.
The Sta.te further contends that Young's counsel did not
object to the refusal of instruction no. 10 and therefore may
not raise the issue on appeal. That is not a correct
interpretation of criminal procedure. It is, of course, the
duty of counsel for the parties to object with specificity to
instructions which are offered by the other side in criminal
cases. Section 46-16-401 (4)(b), MCA. When, however, a
party's offered instructions are refused by the court in
criminal cases, there is no duty on the part of that party's
counsel to make further objections for the record. No
exceptions are necessary to the rulings of the court on the
settlement of instructions. Section 46-16-402(4)(c), MCA.
Young's counsel did not offer any further instruction to
the District Court on the lesser-included offense of
misdemeanor theft. It is apparent, however, that the
District Court would have refused such instructions.
On the basis therefore, that under the evidence of this
case the defendant was entitled to instructions on the
lesser-included offense of misdemeanor theft, we reverse the
conviction of the defendant for felony theft and remand the
case for a new trial.
We Concur: