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. Marc Racicot, Attorney General, Helena Montana; 

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 

Clerk 
Justice 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 felony theft 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 that her car was stolen, including some art supplies that 

were in the car. Because it was the Labor Day holiday weekend, Ms. 

Hatton gave her statement but was told to return on Tuesday morning 

to speak with Detective Jackson. Subsequent to giving her 

statement, Ms. Hatton discovered other items missing, including her 

19" Hitachi television. When she returned to the sheriff's office 

on Tuesday morning, she reported the television set missing. 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 

2 
connected. 

Instead of going to a local store, defendant drove to Great 

Falls and two days later sold Ms. Hatton's car to Steve Edwards and 

Anita Walraven for $800. Ms. Walraven paid $100 to defendant as 

a down payment and took possession 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 with Ms. Hatton's car, defendant telephoned her from Great 

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 she was 

unable to do that, defendant informed her that he left the car with 

a friend. Defendant returned to Missoula and was on his way to Ms. 

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 that her car had been turned in to the Cascade 
County sheriff's office and that she could pick it up there. 

Ms. Hatton testified as follows: 

Q. On this particular occasion did you give [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 I had known that he was 

there, I may not have filed this report as soon as I did. 

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. 

Defendant was 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 County Jail for the misdemeanor, with the sentences to 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 for the District Court to have failed to give such 

an instruction on its own motion. Defendant maintains that the 
sale 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. He maintains 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 (in part): 

(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 sale of the television set was not beyond the scope of his 

authority. He maintains that because consent was raised by the 

evidence in this case, the District Court had an obligation to 

instruct on that issue regardless of the failure of 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. 

Instruction No. 10 as given to the 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. (Emphasis added). 

The State urges that the jury, by a verdict of guilty, found 

beyond a reasonable doubt that defendant had 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 the victim. The State maintains that when viewing the 

instructions as a whole, the jury was fully and fairly apprised of 

the elements of the crime and thus, the defense of consent. 

Defendant incorrectly contends that consent was 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 that the District Court did not err by not instructing 

the jury, on its own motion, on the defense of consent as it 

relates to theft. 

Affirmed. 

We Concur: 
w&.-M/ 

Justices