NO. 90-170 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff

-vsTHOMAS TUMBLESON, Defendant and

and

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD: For Appellant: William Boggs,Attorney at Law; Missoula, Montana; Wendy Holton,Attorney at Law; Helena,Montana. For Respondent: Hon.MarcRacicot,AttorneyGeneral, HelenaMontana; Carol E. Schmidt, Assistant Attorney General, Helena, Montana; Robert L. I1Dusty1l Deschamps 111, County Attorney, Missoula, Montana; Fred Van Valkenburg, Deputy County Attorney, Missoula, Montana.

Filed: Submitted on briefs: May 31, 1991 Decided: JU& 30, 1991

ClerkJustice Fred J. Weber delivered the opinion of the Court.

A jury trial was held in the ~istrict Court for the Fourth Judicial District, Missoula County, and defendant, Thomas Edward Tumbleson,was convicted of one count of felonytheft and one count of misdemeanor theft. Defendant appeals. We affirm. The sole issue for our review is whether the District Court erred by not instructing the jury, on its own motion, on the defense of consent as it relates to theft. Defendant lived with his girlfriend, Donna Hatton (Ms. Hatton). Ms. Hatton testified she allowed defendant to use her car, a 1983 Chevrolet Citation,when defendant needed it. On September 3, 1989, at approximately 1:00 p.m., Ms. Hatton allowed defendant to use her car to "go to the storew. Ms. Hatton testified she assumed defendant was going to a local store and "didn't expect him to be gone real long1'. When defendant had not yet returned by about 8:00 p.m., she went to the sheriff's office to report thather carwas stolen, including someart supplies that

were in the car. Because itwas theLaborDayholidayweekend,Ms. Hatton gaveher statementbutwas told toreturn on Tuesdaymorning to speak with Detective Jackson. Subsequent to giving her statement,Ms. Hattondiscoveredother items missing, includingher 19" Hitachi television. When she returned to the sheriff'soffice on Tuesday morning, she reported the television setmissing. Ms. Hatton testified that defendant had keys to both her car and the storage unit from which the television was taken and that the disappearance of the car and the television were probably 2connected. Instead of going to a local store, defendant drove to Great Fallsand twodays later soldMs. Hatton's car to SteveEdwards and Anita Walraven for $800. Ms. Walraven paid $100 to defendant as a downpayment and tookpossession of the car. She testified that she was unsure about when and how the title was going to be transferred to her. On September 11, 1989, eight days after the defendant left Missoula withMs. Hatton's car,defendant telephonedher fromGreat Falls. When defendant learned from Ms. Hatton that she had reported her car stolen, he requested that she meet him in Great Falls to retrieve the car. When Ms. Hatton told defendant shewas unable todo that,defendant informedher thathe left the carwith

a friend. Defendantreturned toMissoula andwas onhisway toMs. Hatton's house when he was arrested on September 12, 1989. Defendant called Ms. Hatton from the jail to let her know where her car was and how to contact the people who had it. He also contacted Mr. Edwards. The next day, Mr. Edwards and Ms. Walraven turned the car over to the Cascade County Sheriff's Department because they "believed that the car did not belong to the [defendant]". Defendant also informed Ms. Hatton that he had sold her television set at the Circle Square Pawn Shop in Missoula. Ms. Hatton relayed this information to Larry Jackson, a detective for the Missoula County Sheriff's Department. Detective Jackson informed Ms. Hatton thather car had been turned in to the CascadeCounty sheriff's office and that she could pick it up there. Ms. Hatton testified as follows: Q. Onthisparticularoccasiondidyougive [defendant] permission to take the car to Great Falls? A. No, Ididn't. Q. Was in your mind that outside the scope of your authorized use of the car when he said he was going to take it to the store? [sic] A. Perhaps,but 

### I feel that if Ihad known that hewas there, Imay not have filed this report as soonas Idid. Q. And did you at any time give him permission to sell this car? A. No, I didnot. Ms. Hatton further testified that she had never given defendant permission to sell her television. Defendantwas charged with one count of misdemeanor theft and one count of felony theft. The jury found him guilty on both counts. He was sentenced to 10 years in the Montana State Prison for the felony with 5 years suspended; and six months in the Missoula CountyJail for themisdemeanor, with the sentencesto run concurrently. He was also designated a dangerous offender for parole purposes. Defendant appeals. Defense counsel did not offer an instruction on the defense of consent. However, on appeal defendant maintains that it was reversible error fortheDistrict Court tohave failed togive such an instruction on its own motion. Defendant maintains that thesale of the car to Mr. Edwards and Ms. Walraven could be better construed as a conditional sale since the title was not transferred. He further argues that the record is clear that he made no attempt to keep his identity a secret in either the sale of the car or the television. Hemaintains that the fact that Ms. Hatton asked to have the charges dropped after his arrest is evidence that she consented to the sale of both the car and the television. Section 45-2-211, MCA, provides (inpart):

(1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense. Defendant maintains that consent is a complete defense to theft. He contends that had an instruction on consent been given as it relates to theft, a rational trier of fact could have concluded that the saleof thetelevision setwasnot beyond the scope ofhis authority. He maintains that because consent was raised by the evidence in this case, the District Court had an obligation to instructon that issue regardlessof the failureof defense counsel to request such an instruction. He relies on case law that supports the proposition that a district court has a duty to instruct the jury on every issue or theory having support in the evidence. InstructionNo. 10 asgiven tothe jury included the following provisions of 8 45-6-301(1)(c), MCA: (1) 

### A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

# ... (c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property. (Emphasisadded). The State urges that the jury, by a verdict of guilty, found beyond a reasonable doubt that defendanthad exerted unauthorized control over the car and television at the time he sold them or attempted to sell them 

## -- in other words, he acted without the consent of thevictim. The State maintains that when viewing the instructions as a whole, the jurywas fully and fairly apprised of the elements of the crime and thus, the defense of consent. Defendant incorrectly contends that consentwas raised by the evidence in this case. A careful review of the record establishes a failure to present any evidence of consent on the part of Ms. Hatton to the conduct charged as the offense on the part of the defendant. We conclude that the District Court was under no obligation to instruct on a theory which had not been established by evidence. We hold thattheDistrictCourt did not errby not instructing the jury, on its own motion, on the defense of consent as it relates to theft. Affirmed.

We Concur:

# w&.-M/

Justices