No. 14700 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

STATE OF MONTANA, Plaintiff and Respondent,

-vsSTEVEN DUANE HARDY, a/k/a WILLIAM EDWARD IVERSON, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, HonorableWG~ Bennett, Judge presiding. Counsel of Record: For- Appellant: Calvin J. Erb argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten appeared, Assistant Attorney General,

Helena, Montana Charles Graveley argued, County Attorney, Helena, Montana

Submitted: September 10, 1979 Decided: 

## AN

# -3

## 1979 'SF[ =

## 3 rm Filed:Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant Steven Hardy was convicted of burglary following a jury trial in Lewis and Clark County DistrictCourt. 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 alarmwas set off at approximately 6:05 a.m. Two officers in a squad car arrived at approximately 6:09 a.m. The bottom section of a glass door,which

was the back door of the store,was broken and the officers observed thedefendant 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 officerpositioned himself outside the frontdoor 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 crawled halfway outwhen the officersordered him to put his hands behind his back. The defendant refused and then tried to grab the officers,atwhich point a struggle ensued. Defendantwas 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 thewindows. The defendantwas removed from the squad car and escorted by foot to the police station. Themanager of the Globe Clothing Store testified that the defendantdid not have permission to enter the store and that

a fire extinguisher had been removed from its customaryplace. Theofficers, in the course of their investigation,did not discover any itemsmissing from the store. The defendant took the stand in his own behalf and testified that he had consumed a pint of Seagram's Seven, followed by a fifthof 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 earlymorning hours. At somepoint in the earlymorning 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 cabdriver to stop and let him off by a bank. The defendant then entered the Globe Store although he could not remember why he had entered the store. The defendant's sole defense throughout the trialwas that he was incapable of forming the requisite intent to commit the crime of theft due to an extreme state of intoxicationbrought 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." Defendantwas charged by informationwith the burglary of the Globe Clothing Store in Helena,Montana. The jury found that the defendantwas able to form the requisite intent and returned a verdict of guilty onNovember 14, 1978. The defendantmoved a for/new trial on the ground that therewas insufficient evidence to support a finding of guilty. Thatmotion was denied on January 3, 1979. Defendant appeals from the judgment of conviction enteredon the jury verdict and from the denial of hismotion for a new trial. Defendantraises 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 Statedid not prove beyond a reasonable doubt that the defendantwas 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 defendanthad, at the time of entry, the required mental state to commit the offense of theft. (4) Did the giving of the Sandstrom instruction constitute reversible error? Defendant's first specificationof error is that the Dis4 trict Court refused to admit testimony of lawwitnesses concerning defendant's state of intoxication. Defendantpoints out two examples of this: (1) where defense counsel,on cross-examination, asked one of the arrestingpolice officerswhether he thought defendant was on drugs;and, (2)where defense counsel on crossexamination asked a parttime security officer for the City of Helenawhether he thought defendantwas on drugs or drunk. Prosecution objections to these questions as calling for conclusions were sustained in each instance. Opinion testimony from lay witnesses concerning intoxication is converselypermitted. 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. Fivewitnesses including the defendant testified at length regarding defendant's actions -4-and behavior. Under such circumstances,the refusal of the District Court topermit the witnesses to state their opinions

as to whether defendant appeared to be under the influenceof 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 reasonabledoubt that he was capable of forming the requisite intent due to his extreme state of intoxication. Throughout the trial,his defensewas 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 conditionmay be taken into consideration in determining the existence of a mental statewhich 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; Statev. Medicine Bull (1968), 152Mont. 34, 39, 445 P.2d 916, 919. Thedefendant introduced evidence, through his own testimony and that of the State's witnesses, concerning his actions and physical condition. The defendantwas able to get all of his evidence concerning intoxication before the jurywith the exceptionof the unsupported conclusions solicited from the otherwitnesses,and his own expert witness testified as to the effects of drugs and alcohol. The jury heard that testimony and was properly instructed onhow to treat such expert testimony. The jury considered the evidence and concluded that the defendantwas capable of forming the requisite intent to commit

an offensewithin the Globe Clothing Store. Where the jury hasbeen properly instructed and there is sufficient credible evidence to support its findings, the question of the relationship of voluntary intoxication to specific intent will not be reconsidered upon appeal. Statev. Gone (1978)

## , Mont

# . , 587 P.2d 1291, 1296, 35 St.Rep. 1540, 1545. We hold there is sufficient 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 requiredmental state to commit the offense of theftatherein. The defendant further contends that the State presented no evidence other thanhis unlawfulpresence in the Globe Clothing Store. The State carries the burden of showing that the defendant, chargedwith 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. Statev. 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; Statev. Gone, supra, Mont

# . , 587 P.2d at 1296, 35 St.Rep. at 1545. Intentmay be inferred by the jury fromwhat the defendant does and says and fromall the facts and circumstances involved in the transaction. State v. Jackson, supra, 589 P.2d at 1015, 36 St.Rep. at 176. Flightby the defendantmay be considered by the jury as a circumstance tending to prove consciousness of guilt. Statev, Gone, supra, 587 P.2d at 1295, 36 St-Rep. at 1544. Defendant's attempts at flightby running around the store seeking an unmanned exit serves a like purpose. The defendant,who took the stand in his own behalf, testified that he had entered the Globe Clothing Store without the owner's consent. Hefurther testified in detail as to where he hacl heen and what he had done formany hours prior to the time he entered the Globe Clothing Store. The defendant testified that he remembered entering the store,but couldn't rememberwhy he had entered. When thepolice officers arrived at the back door of the Globe Clothing Store, they observed the defendant inside the store. When the defendantnoticed 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 thispoint he turned around and ran toward the back of the store. When apprehended,the defendant fought with the policemen, and when placed in the squad car,he kicked out one of the windows. The defendant's testimony indicated thathe remembered in detail his fightwith 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 exitwould presumably be made. Only rarely can intent be proved by direct evidence. The use of circumstantial evidence is an acceptable and often convincingmethod of proving criminal intent. Statev. Pascgo (1977)

## , Mont

# . , 566 P.2d 802, 805, 34 St.Rep. 657, 661. An examination of the evidence in the instant case shows that thepolice arrived at the storewithin approximately four minutes after the silentalarmwas set off. The defendant attempted to flee from the officers, fought with the officers, and kicked out one of thewindows in the police car. The defendanthad little difficulty in recounting in detail all of the events which occurred prior, during,and subsequent tohis 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. Theweight to be given the testimony ofthe expert witness, and the interpretationof such testimony, is for the jury. Statev. O'Donnell (1972), 159Mont. 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 Storewith the requisite intent to commit theft. The resolution of factualmatters is for the jury and if there is substantial evidence to support the judgment, this Court must affirm the decision of the jury. Statev. McKenzie (1976), 171Mont. 278, 557 P.2d 1023. Examining the record and the totality 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 Sandstromv. Montana (1979), U.S. I 99 S.Ct. 2450, 61 L Ed 2d 39. Here the court instructed the jury: "Youare instructed that the lawpresumes that a person intends the ordinary consequences of his voluntary acts." This instructionwas recently ruled unconstitutional in Sandstromv. Montana, supra. No objectionwasmade to this instruction at the trial court level. We decline to involve the "plainerror" rule because the instructiondid not go to the essence of this case. See U.S. ex rel. Collinsv. 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. Affirmed.

,,-,--,--- --,-J

## -------------- Chief JusticeWe concur:



## ............................. JusticesJustice 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 nothingmore. 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 remainsunlawfully in an occupied structure "withthe 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: "Wereiterate thatwe 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 therewas an intent to commit something,undetermined at the time of entry." 462 P.2d at 401. In Statev. Austad (1975), 166 Mont. 425, 533 P.2d 1069, this Court upheld a convictionof 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 jawswas found in the defendant's carwhich 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 courtrecognized that the defendantwould 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 isnothing 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 extinguisherwas found on the floor after the defendant was arrested,removed from itsproper place on a wall in the store. The defendant is not connected to its removal exceptby inference, for the extinguisherwas not even tested for fingerprints. Nothing in the storewas touched. There is no telling from the evidencewhat he intended to do in the store,and his erratic behavior before and after the entry only further confuses what his intentmay have been. Before the entry, in the early morning hours, he had somehowcut 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 tomake the intellectual leap required tomake this one fact of evidence rise to the level of moral certainty or beyond a reasonabledoubt to support the defendant's conviction of unlawful entry "with the purpose to commit an offense therein."

Justice 

### V

Mr. Justice Daniel J. Sheawill file a separate opinion later.