No. 14700
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1979
STATE O M N A A
F O T N ,
P l a i n t i f f and Respondent,
-vs-
STEVEN DUANE HARDY, a / k / a WILLIAM EDWARD IVERSON,
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 F i r s t J u d i c i a l D i s t r i c t ,
Honorable W G ~ n e t t , J u d g e p r e s i d i n g .
Ben
Counsel o f Record:
For- A p p e l l a n t :
C a l v i n J . E r b a r g u e d , Helena, Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
C h r i s Tweeten a p p e a r e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
C h a r l e s G r a v e l e y a r g u e d , County A t t o r n e y , H e l e n a , Montana
Submitted: September 1 0 , 1979
Decided: AN - 3 1979
Filed:
'SF[ = 3rm
Mr. Chief Justice Frank I. Haswell delivered the Opinion
of the Court.
Defendant Steven Hardy was convicted of burglary follow-
ing a jury trial in Lewis and Clark County District Court. He
appeals from the judgment of conviction.
On July 22, 1978, the Helena City Police were dispatched
to the Globe Clothing Store after a silent alarm was set off at
approximately 6:05 a.m. Two officers in a squad car arrived at
approximately 6 : 0 9 a.m. The bottom section of a glass door, which
was the back door of the store, was broken and the officers ob-
served the defendant inside the store. When the defendant observed
the officers at the back door, he ran toward the front of the
store. In the meantime, a second squad car had arrived in front
of the store, and the officer positioned himself outside the
front door which was locked. When the defendant observed the
officer outside the front door, he turned and ran toward the
back door.
When the defendant arrived at the back door, the officers
ordered him to put his hands on his head and stay inside the
building; but instead, the defendant got down on all fours and
crawled through the broken part of the door. Defendant had crawl-
ed halfway out when the officers ordered him to put his hands be-
hind his back. The defendant refused and then tried to grab the
officers, at which point a struggle ensued. Defendant was pushed
to the ground, and it took three officers to handcuff him. The
officers then pulled the defendant the rest of the way through the
door. Defendant, when placed in the squad car, started to fight
and kicked out one of the windows. The defendant was removed
from the squad car and escorted by foot to the police station.
The manager of the Globe Clothing Store testified that
the defendant did not have permission to enter the store and that
a fire extinguisher had been removed from its customary place. The
officers, in the course of their investigation, did not dis-
cover any items missing from the store.
The defendant took the stand in his own behalf and test-
ified that he had consumed a pint of Seagram's Seven, followed
by a fifth of whiskey, and that he had consumed two hits of LSD
at approximately 11:OO p.m. Defendant further testified that he
left a bar at 2:00 a.m. and purchased another fifth of whiskey.
Defendant also testified that he consumed two additional hits of
LDS at some time during the early morning hours.
At some point in the early morning hours of July 22, 1978,
the defendant cut his hand, flagged down a car and went to the
hospital. While at the hospital, the defendant received 25 stitches
in his hand and called a cab. Defendant instructed the cab driver
to take him to his brother's home, but while on his way home he
asked the cab driver to stop and let him off by a bank. The de-
fendant then entered the Globe Store although he could not remember
why he had entered the store.
The defendant's sole defense throughout the trial was that
he was incapable of forming the requisite intent to commit the
crime of theft due to an extreme state of intoxication brought on
by the use of alcohol and drugs. Various witnesses testified as
to the defendant's behavior. The testimony indicated that the
defendant was acting erratically, wild, was yelling and screaming
and that the defendant appeared to be "hyper."
Defendant was charged by information with the burglary of
the Globe Clothing Store in Helena, Montana. The jury found that
the defendant was able to form the requisite intent and returned
a verdict of guilty on November 14, 1978. The defendant moved
a
for/new trial on the ground that there was insufficient evidence
to support a finding of guilty. That motion was denied on January
3, 1979. Defendant appeals from the judgment of conviction entered
on the jury verdict and from the denial of his motion for a new
trial.
Defendant raises these specifications of error:
(1) The District Court committed reversible error in
refusing to allow opinion testimony concerning the defendant's
state of intoxication.
(2) The State did not prove beyond a reasonable doubt
that the defendant was capable of forming the requisite intent
due to an extreme state of intoxication.
(3) The State did not prove beyond a reasonable doubt
that the defendant had, at the time of entry, the required mental
state to commit the offense of theft.
(4) Did the giving of the Sandstrom instruction consti-
tute reversible error?
Defendant's first specification of error is that the Dis-
4
trict Court refused to admit testimony of law witnesses concern-
ing defendant's state of intoxication. Defendant points out two
examples of this: (1) where defense counsel, on cross-examination,
asked one of the arresting police officers whether he thought
defendant was on drugs; and, (2) where defense counsel on cross-
examination asked a parttime security officer for the City of
Helena whether he thought defendant was on drugs or drunk.
Prosecution objections to these questions as calling for conclu-
sions were sustained in each instance.
Opinion testimony from lay witnesses concerning intoxication is
conversely permitted. State v. Trueman (1906), 34 Mont. 249, 85
P. 1024; also see Commission Comment, Rule 701, Mont.R.Evid., and
cases cited therein. In this case the witnesses were permitted to
testify as to defendant's erratic actions, responses, appearance,
and condition. Defendant called an expert witness who testified
concerning the effect of alcohol and drugs. Five witnesses includ-
ing the defendant testified at length regarding defendant's actions
- 4 -
and behavior. Under such circumstances, the refusal of the
District Court to permit the witnesses to state their opinions
as to whether defendant appeared to be under the influence of
drugs or intoxicated is at most harmless error not affecting
the substantive rights of the defendant. See Rule 14, Mont,R.App.
Civ.P.
Defendant's second specification of error is that the
State did not prove beyond a reasonable doubt that he was capable
of forming the requisite intent due to his extreme state of intoxi-
cation. Throughout the trial, his defense was that he could not
have possibly formed the requisite intent to commit an offense
once inside the Globe Clothing Store by virtue of his voluntary
intoxication. Section 45-2-203, MCA, provides that an intoxicated
or drugged condition may be taken into consideration in determin-
ing the existence of a mental state which is an element of an
offense.
This Court has consistently held that the factual issue
of intoxication is to be determined by the jury. State v. Austad
(1975), 166 Mont. 425, 530, 533 P.2d 1069, 1071; State v. Medicine
Bull (1968), 152 Mont. 34, 39, 445 P.2d 916, 919. The defendant
introduced evidence, through his own testimony and that of the
State's witnesses, concerning his actions and physical condition.
The defendant was able to get all of his evidence concerning in-
toxication before the jury with the exception of the unsupported
conclusions solicited from the other witnesses, and his own expert
witness testified as to the effects of drugs and alcohol. The
jury heard that testimony and was properly instructed on how to
treat such expert testimony.
The jury considered the evidence and concluded that the
defendant was capable of forming the requisite intent to commit
an offense within the Globe Clothing Store. Where the jury has
been properly instructed and there is sufficient credible evi-
dence to support its findings, the question of the relationship
of voluntary intoxication to specific intent will not be recon-
sidered upon appeal. State v. Gone (1978), Mont . , 587
P.2d 1291, 1296, 35 St.Rep. 1540, 1545. We hold there is suf-
ficient credible evidence to support the jury's finding on the
question of the defendant's state of intoxication.
Defendant's third specification of error is that the State
did not prove beyond a reasonable doubt that he had, at the time
of entry, the required mental state to commit the offense of
theftatherein. The defendant further contends that the State
presented no evidence other than his unlawful presence in the
Globe Clothing Store.
The State carries the burden of showing that the defen-
dant, charged with burglary, possessed the requisite intent to
commit an offense at the time of his unlawful entry into the store,
even though there was no proof that anything had been stolen from
the store. State v. Austad, supra, 166 Mont. at 428, 533 P.2d at
1070-1071.
The question of intent is a question for the jury. State
v. Jackson (1979), Mont . , 589 P.2d 1009, 1015, 36 St.Rep.
169, 176; State v. Gone, supra, Mont . , 587 P.2d at 1296,
35 St.Rep. at 1545. Intent may be inferred by the jury from what
the defendant does and says and from all the facts and circum-
stances involved in the transaction. State v. Jackson, supra, 589
P.2d at 1015, 36 St.Rep. at 176. Flight by the defendant may be
considered by the jury as a circumstance tending to prove conscious-
ness of guilt. State v, Gone, supra, 587 P.2d at 1295, 36 St-Rep.
at 1544. Defendant's attempts at flight by running around the
store seeking an unmanned exit serves a like purpose. The defen-
dant, who took the stand in his own behalf, testified that he had
entered the Globe Clothing Store without the owner's consent. He
further testified in detail as to where he h c heen and what he
al
had done for many hours prior to the time he entered the Globe
Clothing Store. The defendant testified that he remembered enter-
ing the store, but couldn't remember why he had entered. When
the police officers arrived at the back door of the Globe Cloth-
ing Store, they observed the defendant inside the store. When
the defendant noticed the officers at the back door, he ran to
the front of the store. When the defendant arrived at the front
of the store, he observed another officer outside the front door;
and at this point he turned around and ran toward the back of
the store. When apprehended, the defendant fought with the police-
men, and when placed in the squad car,he kicked out one of the
windows. The defendant's testimony indicated that he remembered
in detail his fight with the officers. Additionally, the record
reveals that a fire extinguisher, customarily anchored to a wall
inside the store, had been removed from its customary position and
placed on the floor near the back door of the store from which
entry was accomplished and exit would presumably be made.
Only rarely can intent be proved by direct evidence.
The use of circumstantial evidence is an acceptable and
often convincing method of proving criminal intent. State v.
Pascgo (1977), Mont . , 566 P.2d 8 0 2 , 805, 34 St.Rep. 657,
661. An examination of the evidence in the instant case shows
that the police arrived at the store within approximately four
minutes after the silent alarm was set off. The defendant attempt-
ed to flee from the officers, fought with the officers, and kicked
out one of the windows in the police car. The defendant had little
difficulty in recounting in detail all of the events which occurred
prior, during, and subsequent to his entry of the store except for
why he had entered the store. Additionally, a fire extinguisher
had been removed from its customary location and placed near the
back door of the store. The weight to be given the testimony of
the expert witness, and the interpretation of such testimony,
is for the jury. State v. O'Donnell (1972), 159 Mont. 138, 144,
496 P.2d 299, 303. In the instant case the jury considered all
of the evidence, along with the defendant's version of the incident,
and concluded that the defendant had entered the Globe Clothing
Store with the requisite intent to commit theft.
The resolution of factual matters is for the jury and if
there is substantial evidence to support the judgment, this Court
must affirm the decision of the jury. State v. McKenzie (1976),
171 Mont. 278, 557 P.2d 1023. Examining the record and the total-
ity of the circumstances, we hold that the verdict of the jury
convicting the defendant of burglary is supported by substantial
evidence.
The final specification of error concerns the giving of
the Sandstrom instruction. We will review this alleged error even
though it was raised for the first time in oral argument on appeal
as the briefs were filed prior to the decision of the United States
Supreme Court in Sandstrom v. Montana (1979), U.S. I
99 S.Ct. 2450, 61 L Ed 2d 39.
Here the court instructed the jury: "You are instructed
that the law presumes that a person intends the ordinary conse-
quences of his voluntary acts." This instruction was recently
ruled unconstitutional in Sandstrom v. Montana, supra.
No objection was made to this instruction at the trial
court level. We decline to involve the "plain error" rule
because the instruction did not go to the essence of this case.
See U.S. ex rel. Collins v. Crist (D. Mont. 1979), 473 F.Supp.
1354. The error is harmless beyond a reasonable doubt. Chapman
v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705.
Af firmed.
,,-,- -,-J -
-
- , ----------------
Chief Justice
We concur:
.............................
Justices
Justice John C. Sheehy dissenting:
On the record, the defendant is guilty of a violation
of section 45-6-203, MCA, criminal trespass to property, and
perhaps a violation of section 45-6-101, MCA, criminal
mischief and nothing more.
There is no evidence to support his conviction of
burglary under section 45-6-204, MCA.
As noted in the majority opinion, the offense of
burglary is committed when a person knowingly enters or
remains unlawfully in an occupied structure "with the
purpose to commit an offense therein." Section 45-6-204,
MCA. The State proved the defendant's unlawful entry, but
it failed to prove his purpose to commit an offense therein.
In State v. Rood (Ariz. 19691, 462 P.2d 399, 401, it is
stated:
"We reiterate that we have held that the
entry in this case alone does not generate
an inference of an intent to steal. We also
believe that the State must prove that an
intent to commit a specific crime existed
and not just that there was an intent to
commit something, undetermined at the
time of entry." 462 P.2d at 401.
In State v. Austad (1975), 166 Mont. 425, 533 P.2d
1069, this Court upheld a conviction of burglary under our
former statute, where the evidence showing the specific
intent to steal included the following: a pair of bolt
cutters with a padlock inside its jaws was found in the
defendant's car which had been backed up to the side door of
the structure entered; a group of tools had been stacked
near the door of the structure in anticipation of removal;
an eyewitness had seen defendant and another individual
depart from the structure. In that case, while the court
recognized that the defendant would not be guilty of burglary
if he broke in for the purpose of trespass only, it found
sufficient supporting evidence of his intent to commit
larceny under the former statute section 94-901, R.C.M.,
1947.
In this case, beyond the fact that he was unlawfully in
the premises, there is nothing to support any inference of
his intent to commit a further crime. The single fact to
which the State can point is that a fire extinguisher was
found on the floor after the defendant was arrested, removed
from its proper place on a wall in the store. The defendant
is not connected to its removal except by inference, for the
extinguisher was not even tested for fingerprints. Nothing
in the store was touched. There is no telling from the
evidence what he intended to do in the store, and his erratic
behavior before and after the entry only further confuses what
his intent may have been. Before the entry, in the early
morning hours, he had somehow cut his hand, gone to the
hospital, had 25 stitches taken in his hand, called a cab
and was dropped off near the store where he entered. After
his arrest, he was erratic, wild, yelling, screaming and had
to be subdued by the officers.
I am unable to make the intellectual leap required
to make this one fact of evidence rise to the level of
moral certainty or beyond a reasonable doubt to support the
defendant's conviction of unlawful entry "with the purpose
to commit an offense therein."
Justice V
Mr. Justice Daniel J. Shea will file a separate opinion later.