No. 14656 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

MICHAEL KEVIN KYLE, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniel Donovan argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Maynard argued, Assistant Attorney General, Helena, 

Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted: March 24, 1981 

Decided: April 20, 1981 

Filed: APR 2 0 1981 

m 

Y ' Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

On September 11, 1980, this Court granted defendant 

Michael Kevin Kyle's petition for rehearing of his appeal 

decided by this Court. See, State v. Kyle (No. 14656, Decided 

August 13, 1980, 37 St.Rep. 1447.) In our order granting 

rehearing, we limited the issue for review to whether the 

Sandstrom jury instruction, given at defendant's District 

Court trial, amounted to prejudicial constitutional error. 

We hold that the use of the instruction was error and we 

reverse the judgment of the District Court. 

The facts presented at defendant's trial, leading to 

his conviction of theft and burglary, are provided in our 

opinion in defendant's appeal: 

"At approximately 11:OO p.m. on the night of 

March 15, 1978, Sergeant Bowen of the Great 

Falls Police Department observed a pickup 

truck parked in the emergency lane of Tenth 

Avenue South in Great Falls. Slowing to 

investigate, Bowen observed the defendant, 

Michael Kevin Kyle, standing in the open doorway 

of a mobile home. The mobile home was situated 

about five to ten feet from the pickup, on a 

mobile home sales lot. The defendant was holding 

what appeared to be a bundle of clothing or bedding. 

Sergeant Bowen radioed for assistance. He then 

proceeded to turn his patrol car around and parked 

in a position to observe defendant. Defendant 

drove off in the truck and Sergeant Bowen stopped 

him about six blocks away, at which time Bowen noted 

items of bedding in the cab of the truck, and bed 

springs, pillows, and other bed parts in the back 

of the truck. The defendant was subsequently arrested 

and charged with burglary and theft." State v. Kyle 

(1980), 37 St.Rep. at 1448. 

Throughout the trial, defendant relied on two defenses 

to assert his innocence to the burglary and theft charges: 

1. Theft from an unsold, unoccupied mobile home is not 

theft from an "occupied structure" as the term is used in 

the burglary statute (section 45-6-204, P4CA); and, 

2. Defendant did not purposely or knowingly commit the 

alleged crimes because he was in a "voluntary intoxicated 
condition" at the time the incident occurred, depriving him 

of the mental capacity to appreciate the criminality of his 

conduct (section 45-5-203, MCA.) 

In his appeal to this Court, defendant argued that the 

mobile home involved did not satisfy the burglary statute's 

"occupied structure" requirement. We disagreed, holding 

that theft from the mobile home constituted theft from an 

occupied structure. Defendant did not raise the voluntary 

intoxication issue or the Sandstrom instruction issue in his 

appeal. The trial court record reveals however, that defendant's 

mental state was a crucial issue before the District Court. 

At trial, defendant claimed that two days before the 

burglary occurred, he had attempted suicide by ingesting 

approximately 50 tablets of Valium-5. Defendant testified 

this suicide attempt affected his normal thought processes. 

Defendant told the jury that he could not remember the 

events of the night of the burglary. Defendant said he could 

not explain his actions after the suicide attempt, and could 

remember only experiencing periods of drowsiness and lethargy 

until the morning after the burglary. Defendant's account 

of his behavior and the aftereffects of the overdose was 

corroborated by testimony given from members of defendant's 

family. In order to rebut this evidence, the prosecution 

presented evidence that defendant acted normally following 

the suicide attempt. The prosecution asked each of the 

police officers involved with defendant's capture and arrest 

to describe defendant's mental state to the jury. Each 

officer testified that defendant seemed to be mentally alert 

and coherent during the night of the burglary. 

Following the presentation of evidence at the trial, 

the District Court judge and counsel adjourned to chambers 

to devise instructions of law for the jury. The prosecution's 
proposed instruction no. 7 was offered and unopposed, and 

was later read to the jury: "You are instructed that the 

law presumes that a person intends the ordinary consequences 

of his voluntary acts." 

We hold that the use of this Sandstrom instruction in 

this case amounts to prejudicial constitutional error. 

In 1979, the United States Supreme Court discussed the 

constitutional ramifications of instructing the jury that 

"the law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana 

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. In 

Sandstrom v. Montana, the Supreme Court examined this instruction 

as a reasonable juror might interpret its meaning. The 

Court held the instruction could violate a criminal defendant's 

constitutional right to due process, given a jury's interpretation of the instruction. If the jury interprets the 

instruction either as a conclusive presumption in favor of 

the prosecution on the element of intent, or as a mechanism 

to shift the burden of proof of intent to the defendant, 

requiring him to prove that he lacks the requisite mens -- rea, 

the instruction violates the Fourteenth Amendment's requirement 

that the prosecution prove every element of a criminal 

accusation beyond a reasonable doubt. Mullaney v. ~ilbur 

(1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; In re 

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

The Supreme Court remanded the case to this Court for 

its consideration of the effect of the use of the instruction. 

On remand, we ordered that David Sandstrom be retried, 

finding that we could not assert beyond a reasonable doubt 

that the use of the instruction was not error. State v. 

Sandstrom (1979), Mont . , 603 P.2d 244, 36 St.Rep. 

2099. 

-4- 
Since the delivery of our second Sandstrom decision, 

this Court has discussed the prejudicial nature of the 

instruction in a number of cases. See, e.g. Parker v. Crist 

(1980) Mont. , 621 P.2d 484, 37 St-Rep. 2048; 

State v. Dolan (1980), Mont. , 620 P.2d 355, 37 

St.Rep. 1860; State v. Wogamon (1980), - Mon t . - , 610 

P.2d 1161, 37 St.Rep. 840; State v. Poncelet (1980), - 

Mont . , 610 P.2d 698, 37 St.Rep. 760; State v. Sunday 

(1980), - Mont . , 609 P.2d 1188, 37 St.Rep. 561; State 

v. Fitzpatrick (1980), - Mont. - , 606 P.2d 1343, 37 

St-Rep. 194; State v. ~amilton (1980), Mont . - , 605 

P.2d 1121, 37 St.Rep. 70; and State v. Bad Horse (1980), - 

Mont . , 605 P.2d 1113, 37 St.Rep. 45. We first determine 

whether the use of the instruction was error. If there was 

error, we next examine the case to determine whether the error 

could have reasonably contributed to the jury verdict, causing 

prejudice to defendant. In only a few cases have we found 

prejudicial error in the use of the instruction. 

In a number of cases in which Sandstrom instructions 

were given to the jury, we have found no error. See, State 

v. Bad Horse, supra; State v. Fitzpatrick, supra. In these 

cases, we held that the Sandstrom instruction and accompanying 

jury instructions, raised only a "permissive inference" 

rather than a conclusive presumption regarding defendant's 

mental state not affecting the prosecution's burden of 

proof. The employment of a Sandstrom-type instruction never 

operated to shift the burden of proof of intent to defendant. 

The defendant's due process guarantees were never violated 

under the reasoning of the United States Supreme Court's 

holding in Ulster County Court v. Allen (1979), 442 U.S. 

140, 99 S.Ct. 2213, 60 L.Ed. 2d 777. 
In State v. Sunday, supra, we held that the use of a 

Sandstrom-type instruction was irrelevant and could not amount 

to constitutional error. In the Sunday case, there was no 

issue of intent for the jury to decide. In Sunday, defendant 

admitted to killing the victim, but claimed self-defense. 

The jury was not called upon to decide as an issue of fact 

whether Sunday possessed the requisite intent to commit 

criminal homicide. In Sunday, the Supreme Court's analysis 

in Sandstrom v. Montana was not relevant to the issues reviewed 

on appeal. 

In other cases, we have held that the use of a Sandstromtype instruction was constitutional error. We reversed the 

District Court if that error was not harmless. In our 

second Sandstrom opinion, we explained our analysis for 

harmless error as follows: 

"Before a federal constitutional error can be 

held harmless, the court must be able to 

declare a belief that it was harmless beyond a 

reasonable doubt. Chapman v. State of California 

(1967), 386 U.S. 18, 87 S.CE 824, lTL.~d.2d 

705. In so holding, the Supreme Court in 

Chapman reaffirmed-its holding in -- Fahy v. State 

- of Connecticut (19631, 375 U.S. 85, 86-87, 84 

S.Ct. 229, 230, '11 ~i~d.2d 171, 173: ' [tlhe 

question is whether there is a reasonable possibility that the evidence complained of might 

have contributed to the conviction.' 

"Under Fahy and Chapman, unless we can find 

harmless error, the conviction must be reversed. 

- To constitute harmless error, we ---- must be able 

- to assent as -- a Court that -- the offensive instruction 

could not reasonably have -- contributed -- to the 

jury verdi-nsidering the instruction, and 

--- the fact that intent was --- the main issue -- in the - 

District Court -- trial, we cannot make -- that 

assertion." (~mphasisTdded.1 

In State v. Hamilton, supra, and in State v. Dolan, 

supra, we held that the use of a Sandstrom-type instruction 

was error, but that the error was harmless. In both cases, 

we carefully reviewed the record and found that the use of 

the instruction could not reasonably have contributed to the 

jury verdict because the evidence of intent was overwhelming. 
The instruction's probable impact upon the jury, given the 

overwhelming evidence, was so unsubstantial that the use of 

the instruction constituted harmless error. 

In State v. Poncelet, supra, and State v. Wogamon, 

supra, we held that the use of a Sandstrom-type instruction 

was prejudicial error and reversed the judgment of the 

District Court. In both cases, the instruction was not 

worded to be merely a permissive inference and the use of 

the instruction was not properly explained to the jury in 

other instructions. In both cases, defendant's intent was 

a crucial fact question and the evidence of intent was not 

overwhelming. 

The Sandstrom question presented by this case is identical 

to the questions presented in Poncelet and Wogamon. Permissible 

use of the Sandstrom-type instruction was not properly 

explained to the jury by the jury instructions given in these 

cases. None of the instructions contained language explaining 

that the Sandstrom instruction is merely a permissive inference 

that does not act to shift the mental state burden of proof to 

defendant. The jury could have easily viewed the instruction 

as mandatory and the instruction could have had a critical 

effect in its deliberations. Sandstrom v. Montana, supra. 

(J. Rehnquist, concurring.) The use of the instruction was 

error. 

Further, the error cannot be labeled harmless. In this 

case, as in Poncelet and Wogamon, the question of intent was 

a crucial fact question and the evidence of intent in this case 

was not overwhelming. We cannot assert that the error could 

not have reasonably contributed to the jury's verdict. 
We reverse the judgment of the District Court and 

remand this case for a new trial. 

Justice (I 

We Concur: 

Chief Justice