NO. 90-229 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA 

Plaintiff and Respondent, 

-vsLAWRENCE R. SHEPPARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Boggs, Attorney at Law, Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Joseph Thaggard, Assistant Attorney General 

~obgrt L. Deschamps, 111, Missoula, Montana 

tty Wing, ~e~uty County Attorney 

MAY 11992 Submitted on Briefs: April 4, 1991 

! 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Lawrence R. Sheppard appeals his conviction of sexual 

intercourse without consent, a felony, by a jury sitting in the 

District Court of the Fourth Judicial District, Missoula County. 

We affirm. 

Sheppard presents the following issues on appeal: 

1. Should Montana adopt the California rule that where the 

evidence clearly supports it, a lesser-included offense instruction 

must be given by the District Court sua monte, even if not 

requested by the defense? 

2. Did the District Court's failure to instruct the jury on 

the lesser-included offense of misdemeanor sexual assault deprive 

Sheppard of due process of law by denying him a fair trial? 

In July 1989 Lawrence R. Sheppard and his wife moved from 

Florida to Missoula, Montana. When he arrived in Missoula, 

Sheppard went to Broughtonf s, a Missoula bar. There he met several 

people, including 16-year-old C.K. and Terri Beckstrom. C.K. was 

living with the Beckstrom family after having moved out of her 

parentsf home. Testimony conflicted regarding lewd behavior of 

C.K. and others at the bar that evening. 

After that initial meeting, Sheppard visited the Beckstrom 

household a few times and saw C.K. as one of a group of people 

there. Sheppard treated the group, including C.K., to lunch and on 

another occasion to ice cream. 

On the evening before the alleged offense, Sheppard went out 
1 

.. drinking and stayed out all night. He testified that he came to 

the Beckstrom household on the morning of August 25, allowed 

Beckstrom and others to take his van for a shopping trip, and went 

to sleep in an upstairs bedroom. 

C.K. testified that when she went into the bedroom to find a 

cigarette, Sheppard offered her $5 for a back rub. She gave him a 

back rub, and Sheppard paid her $4. C.K. said that Sheppard then 

offered her $50 to "make him feel good,I1 and that she refused. 

C.K. stated that she thought this offer meant another back rub. 

When Beckstrom and others returned to the house, Sheppard went 

out to his van. After a few minutes, one of Beckstromls children 

told C.K. that Sheppard wanted to talk to her. C.K. went out to 

the van and got in. Sheppard offered to take her for a ride for an 

hour, just to get away from the house and to buy some pants for 

himself. Sheppard said that he again offered C.K. $50 to make him 

feel good. C.K. testified that Sheppard made no mention of the 

$50. 

Sheppard drove the van to a ski area parking lot. Sheppard 

got out and climbed into the carpeted area in the back of the van. 

C. K. stayed in the front passenger seat for a few minutes and then, 

at Sheppardls request, brought him a beer. C.K. then joined 

Sheppard in the back of the van. She was seated with her legs 

folded under her and with her back up against the back of the van. 

Sheppard began making sexual advances, touching C.K.Is leg, 

stomach, and breasts. Sheppard ran his hand between her legs and 

into her crotch area. C.K. stated that she told him several times 
to stop. Sheppard testified that C.K. did not tell him to stop 

until he touched her vaginal area and when he was told to stop, he 

did. C.K. testified that Sheppard lifted her skirt up and put his 

hand inside her panties. Without removing her panties, he inserted 

his finger into her vagina and then penetrated her momentarily with 

his penis. Sheppard denied penetration in any manner. 

Sheppard asked C.K. Itif it was okay if he took care of 

himself, and masturbated on C.K. s leg. Sheppard wiped off her 

leg with a Kleenex which he threw outside the van. The Kleenex was 

later found by police. 

Both testified that Sheppard then drove to the KOA campground 

and let C.K. out. Sheppard stated that he told C.K. that he would 

be back with the $50. C.K. denied that Sheppard told her that. 

Sheppard did not return to pick her up, and C.K. tried to walk to 

a friend's house, but could not find it. After approximately an 

hour, she returned to the KOA store and called Beckstrom who sent 

a friend to give her a ride home. C.K. testified that she was very 

angry when the friend arrived, but that she did not talk to him 

about the rape because she did not know him very well. 

When she returned to Beckstromls, C.K. told Beckstrom about 

the alleged rape and the incident was reported to the authorities. 

When Sheppard was arrested by sheriff Is officers that night, he 

denied any sexual contact with C.K. After Sheppard discovered that 

the Kleenex had been recovered, he gave a second statement saying 

that sexual contact occurred with C.K.'s consent, but that no 

penetration occurred. 
Physical evidence was consistent with events as described by 

either C.K. or Sheppard. Semen was found on the recovered Kleenex. 

From vaginal smears of C.K., two sperm and three sperm heads were 

later found in laboratory examinations. Expert testimony indicated 

that the low number of sperm found could be associated with 

momentary penetration or from intercourse a few days prior to the 

laboratory tests. 

Sheppard was charged with sexual intercourse without consent, 

a felony, in violation of 5 45-5-503, MCA (1989), and was convicted 

by a jury. The District Court sentenced Sheppard to the maximum 

twenty years in prison and enhanced the sentence another ten years 

because of Sheppardls prior criminal record. Fifteen years of the 

thirty-year sentence were suspended. 

I. 

Should Montana adopt the California rule that where the 

evidence clearly supports it, a lesser-included offense instruction 

must be given by the court sua s~onte, even if not requested by the 

defense? 

One matter in addition to the issues raised by the appellant 

requires discussion before we begin our analysis of those issues. 

The State asserts that this Court should decline to review the 

District Court's failure to give the lesser-included offense 

instruction monte because of Sheppardls failure to request the 

instruction or object at trial. Sheppard asserts that 5 46-20- 

701(2), MCA (1989), which places limits on appellate review where 

there has been no objection in the trial court, is inapplicable in 
this case because any sua monte action by a trial court by 

definition takes place without request or objection from trial 

counsel. We decline to consider the applicability of 5 46-20- 

701(2), MCA (1989), to a trial court's duty to act sua s~onte. 

To begin our analysis of the issues to be decided, Sheppard 

urges this Court to adopt the minority rule that a trial court has 

a duty to instruct the jury on a lesser-included offense, even 

absent a request for such an instruction. See, e.g., People v. 

Wickersham (Cal. 1982), 650 P.2d 311; State v. Coward (N.C. App. 

1981), 283 S.E.2d 536. While conceding that this is a case of 

first impression in Montana, he argues that Montana statutory and 

case law both mandate this result. 

Sheppard cites State v. Lundblade (1981), 191 Mont. 526, 625 

P.2d 545 and 5 46-16-401, MCA (1989), for the proposition that in 

Montana the trial judge has a duty to charge the jury on all 

essential questions of law, whether requested or not. Sheppard 

asks this Court to expand this duty by adopting the California rule 

compelling trial courts to instruct monte if the evidence 

supports a conviction for a lesser-included offense. Wickersham, 

650 P.2d at 320. The California Supreme Court based its policy 

requiring sua monte instruction on a lesser-included offense on 

the following rationale: (1) a defendant has no right to an 

acquittal when the evidence is sufficient to convict him of a 

lesser-included offense; (2) the policy ensures that the verdict is 

neither harsher nor more lenient than the evidence merits; (3) the 

policy protects a defendant from poor representation by a lawyer 
who is unaware of possible lesser-included offenses; and (4) the 

policy fully guards the right of the accused to complete 

instructions. Wickersham, 650 P.2d at 319-21. 

We concede that a district court's failure to instruct the 

jury on essential questions of law can amount to error. See, e.g., 

State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. However, 

the general rule in Montana is that the court mav instruct the jury 

sua s~onte if evidence supports such an instruction. State v. 

DeMers (1988), 234 Mont. 273, 280-81, 762 P.2d 860, 864-65. 

Further, the statute on which Sheppard relies denotes the 

trial court's permissive power, rather than a mandatory duty, to 

give the jury a lesser-included offense instruction sua monte. 

Section 46-16-401(1), MCA (1989), provides that the district court 

may instruct the jury as to its duties by means of general 

instructions on that subject. In addition, S 46-16-401(4)(b), MCA 

(1989), refers to the court's role of settling the instructions 

"offered by counsel or ~roposed to be siven to the iurv bv the 

court. (Emphasis added. ) Conversely, S 46-16-401 (4) (a) , MCA 

(1989), clearly requires counsel to offer special instructions to 

the court if counsel desires such instructions to be given to the 

jury. While we agree that the trial court should instruct on all 

essential questions of law and may offer its own instructions, 

46-16-401, MCA (1989), does not expressly impose on the district 

court a duty to instruct the jury on questions of law not requested 

by counsel. 

A lesser-included offense does not fall within the category of 
an Iles~ential~~ question of law because defense counsel may want to 

omit such an instruction as a matter of strategy. Montana 

recognizes that, upon request, a defendant is entitled to an 

instruction about a lesser-included offense if the evidence would 

permit a jury rationally to find him guilty of the lesser offense 

and acquit him of the greater. State v. Ostwald (1979), 180 Mont. 

530, 538, 591 P.2d 646, 651. However, the rule in Montana and the 

overwhelming majority of states is that if a request for such an 

instruction is not made, the appellate court will not overturn the 

conviction absent plain error. State v. Evans (1991), 247 Mont. 

218, 226, 806 P.2d 512, 517; see, e.g., State v. Lucas (Ariz. 

1985), 708 P.2d 81; Robinson v. State (Ga. Ct. App. 1990), 390 

S.E.2d 652; People v. Alvarez (Ill. App. Ct. 1989), 542 N.E.2d 737; 

Huntley v. State (Okla. Crim. App. 1988), 750 P.2d 1134. 

The United States Supreme Court recognizes a defendant's right 

to a lesser-included offense jury instruction if requested, Keeble 

v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 

844, but has not ruled on whether courts must instruct the jury on 

lesser-included offenses sponte. Kubat v. Thieret (7th Cir. 

1989), 867 F.2d 351, 365. Accordingly, federal courts will not 

consider a trial court's failure to instruct on lesser-included 

offenses without a contemporaneous objection unless the omission of 

the instruction constitutes plain error pursuant to Rule 52(b), 

Fed.R.Crim.P. See, e.g., United States v. Lopez Andino (1st Cir. 

1987), 831 F.2d 1164, cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 

100 L.Ed.2d 605 (1988); United States v. Vincent (5th Cir. 1981), 
648 F.2d 1046. The reason usually given is that the trial court is 

not to interfere with strategy of defense counsel who may opt to 

omit a lesser-included offense instruction in order to force the 

jury to find the defendant guilty of the crime charged or acquit 

him. Kubat, 867 F.2d. at 365-66. 

Some courts have held that a defendant not only has a right to 

lesser-included offense instructions on request, but also has a 

right to foreso such instructions for strategic reasons. See Lowez 

Andino, 831 F.2d at 1171. In contrast, the California Supreme 

Court in Wickersham noted that the trial court must instruct sua 

swonte on lesser-included offenses, even when a defendant objects 

for tactical reasons. Wickersham, 650 P.2d at 324 n. 8 (citing 

People v. Sedeno (Cal. 1974), 518 P.2d 913). Not only does such a 

policy impinge on the advocate's role, but the result may be to 

unfairly surprise both the defense and the prosecution. 

We conclude that under our adversarial system of justice, the 

prosecution and defense must have the option of foregoing a lesser 

charge instruction for strategic reasons. Lawyers, not judges, 

should try cases. Although the record does not enlighten us, both 

prosecution and defense counsel may have made a decision to force 

the jury to either convict or acquit of the offense charged without 

being given the opportunity to take the middle ground and convict 

of the lesser charge of misdemeanor sexual assault. Because 

mandatory sua swonte jury instruction on lesser offenses is 

inconsistent with Montana law and our public policy of allowing 

trial counsel to conduct the case according to his or her own 
, & - b. 

strategy, we decline to adopt the minority rule. The District 

Court did not err in failing to instruct the jury sua sponte on the 

lesser offense of misdemeanor sexual assault. 

11. 

Did the District Court's failure to instruct the jury on the 

lesser-included offense of misdemeanor sexual assault deprive 

Sheppard of due process of law by denying him a fair trial? 

The due process clause of the Fourteenth Amendment ensures a 

defendant's right to a fair and impartial trial, which Itrequires a 

factfinding process free of any impermissible extraneous influences 

on the trier of fact." Trujillo v. Sullivan (10th Cir. 1987), 815 

F.2d 597, 601, cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 

L.Ed.2d 246 (1987). Sheppard asserts that the District Court's 

failure in this case to instruct the jury sua swonte on the lesserincluded offense of misdemeanor sexual assault violated his right 

to due process. In support of his argument, Sheppard cites In re 

Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, in 

which the Supreme Court held that the due process clause guarantees 

defendants the full benefit of the reasonable doubt standard. He 

also cites Beck v. Alabama (1980), 447 U.S. 625, 634, 100 S.Ct. 

2382, 2388, 65 L.Ed.2d 392, 400, in which the Supreme Court stated 

that vg[p]roviding the jury with the 'third option' of convicting on 

a lesser included offense ensures that the jury will accord the 

defendant the full benefit of the reasonable-doubt standard." 

Sheppard apparently concludes that, in light of Winship and Beck, 

a lesser-included offense instruction is a right inherent in the 
due process clause and that the trial court's giving of such an 

instruction sua monte is included within that right. 

Beck does not support the conclusions asserted by Sheppard. 

Beck involved a charge of capital murder. The defendant's own 

testimony established that he was guilty of felony murder, a 

noncapital lesser-included offense. The trial court refused 

defense counsel's requested lesser charge instruction in light of 

the Alabama statute prohibiting jury instruction on a lesserincluded offense in a capital case. The jury convicted the 

defendant of the capital offense. 

The Supreme Court struck down the Alabama statute. In holding 

that due process requires that a lesser-included offense 

instruction be given when the evidence warrants such an 

instruction, the Supreme Court stated: 

That safeguard [lesser-included offense instruction] 

would seem to be especially important in a case such as 

this. For when the evidence unquestionably establishes 

that the defendant is guilty of a serious, violent 

offense--but leaves some doubt with respect to an element 

that would justify conviction of a capital offense--the 

failure to give the jury the "third optionw of convicting 

on a lesser included offense would seem inevitably to 

enhance the risk of an unwarranted conviction. 

Such a risk cannot be tolerated in a case in which 

the defendant's life is at stake. As we have often 

stated, there is a significant constitutional difference 

between the death penalty and lesser punishments. . . . 

Beck, 447 U.S. at 637. Given the Beck Court's emphasis on the life 

and death nature of guilt determination in capital cases and "the 

significant constitutional difference between the death penalty and 

lesser punishment^,^^ the due process clause does not necessarily 

require lesser-included offense instructions in noncapital cases as 
Sheppard maintains. Indeed, while praising the value of a lesser 

charge instruction as a means of strengtheningthe reasonable doubt 

standard, the Beck Court specifically declined to decide whether 

defendants have a due process right to such an instruction in 

noncapital cases. Beck, 447 U.S. at 638 n. 14. 

The Supreme Court itself has stated that its decision in Beck 

was based on the Eighth Amendment. "Our holding in Beck, like our 

other Eighth Amendment decisions in the past decade, was concerned 

with insuring that sentencing discretion in capital cases is 

channelled so that arbitrary and capricious results are avoided." 

Hopper v. Evans (1982), 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 

L.Ed.2d 367, 373. Thus, it is possible that the Beck holding was 

based, not on the due process clause of the Fourteenth Amendment, 

but rather on a due process concept rooted in the Eighth Amendment 

prohibition against cruel and unusual punishment which requires a 

higher degree of procedural exactitude in capital cases to ensure 

that the death penalty is not imposed on the basis of caprice or 

emotion. Trujillo, 815 F.2d at 601. Consequently, "[a] majority 

of the circuits considering this difficult issue have held that the 

failure of a state court to instruct on a lesser included offense 

in a noncapital case never raises a federal constitutional 

question.l8 Pitts v. Lockhart (8th Cir. 1990), 911 F.2d 109, 112, 

cert. denied, - U.S. , 111 S.Ct. 2896, 115 L.Ed.2d 1060 

(1991) ; Truiillo, 815 F.2d at 602; see, e.g., Valles v. Lynaugh 

(5th Cir. 1988), 835 F.2d 126; Chavez v. Kerby (10th Cir. 1988), 

848 F.2d 1101 (due process did not entitle defendant charged with 
6 L 

a 

criminal penetration of child under thirteen to lesser-included 

offense involving sexual misconduct short of penetration) ; Perry v. 

Smith (11th Cir. 1987), 810 F.2d 1078. 

Finally, it is important to remember that the defendant in 

Beck requested a lesser-included offense instruction at trial. The 

issue before the Supreme Court was whether in a capital case a 

state could statutorily preclude jury instruction on a lesserincluded offense; the case did not involve whether the trial court 

should have given a lesser-included offense instruction sua sponte. 

At least one federal court has concluded that Beck does not require 

judges, as a matter of due process, to give lesser-included offense 

instructions sua sponte. Kubat, 867 F.2d 351. As the Kubat court 

observed, "[tlhis [the Beck] holding is far from a rule requiring 

judges to sponte instruct the jury on lesser included 

offenses." Kubat, 867 F.2d at 365. 

Sheppard also relies on the Ninth Circuit's decision in Bashor 

v. Risley (9th Cir. 1984), 730 F.2d 1228, cert. denied, 469 U.S. 

838, 105 S .Ct. 137, 83 L.Ed. 2d 77 (1984), to support his contention 

that due process mandates sua sponte lesser-included offense 

instructions by trial courts. Specifically, Sheppard claims that 

in Bashor "the court adopted as a hypothesis that, in certain 

cases, a failure to give a lesser-included offense instruction 

could violate a defendant's due process rights, because it would 

contravene the rule--given constitutional status in the Ninth 

Circuit--that 'a jury must be instructed as to the defense theory 

of the case.111 Sheppard overlooks the limited nature of the Ninth 
Circuit rule which requires the trial court to instruct the jury as 

to the defense theory of the case. This rule was adopted in United 

States v. Kenny (9th Cir. 1981), 645 F.2d 1323, cert. denied, 452 

U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), and pertains to a 

trial court's refusal to give jury instructions offered by a 

defendant. Kennv, 645 F.2d at 1337. Like Beck, Kennv does not 

address whether a due process violation occurs when the court fails 

to give such an instruction sua sponte. Accordingly, we hold that 

the District Court's failure to instruct the jury sua monte on the 

lesser-included offense of misdemeanor sexual assault did not 

deprive Sheppard of his Fourteenth Amendment right to due process. 

The judgment of the District Court is affirmed.