No. 14700 

IN THE 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, 

Honorable WG~ 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 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 6:09 a.m. The bottom section of a glass door, which 

was the back door of the store, was broken and the officers observed 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 crawled halfway out when the officers ordered him to put his hands behind 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 discover any items missing 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 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 defendant 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 constitute reversible error? 

Defendant's first specification of error is that the Dis4 

trict Court refused to admit testimony of law witnesses concerning 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 crossexamination 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 conclusions 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 including 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 intoxication. 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 determining 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 intoxication 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 evidence to support its findings, the question of the relationship 

of voluntary intoxication to specific intent will not be reconsidered upon appeal. State v. 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 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 defendant, 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 circumstances 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 consciousness 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 defendant, 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 hacl heen and what he 

had done for many hours prior to the time he entered the Globe 

Clothing Store. The defendant testified that he remembered entering the store, but couldn't remember why he had entered. When 

the police officers arrived at the back door of the Globe Clothing 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 policemen, 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 802, 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 attempted 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 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 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 consequences 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.