No. 81-464 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

THE STATE OF MONTANA, Plaintiff and Respondent,

JOHN MARSHALL KRAMP,

I Defendant and Appellant.

Appeal from: District Court of the Fifth Judicial District, In and for the County of Beaverhead Honorable Frank Blair, Judge presiding. Counsel of Record: For Appellant: Leaphart Law Firm, Helena, Montana W. WilliamLeaphart argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, Assistant Attorney General, Helena,

Montana W. G. Gilbert, 111, County Attorney, Dillon, Montana

Submitted: May 14, 1982 Decided: September 23, 1982 Filed: 

## SEP

## 24iscL!4r. Justice John C. Sheehy delivered the Opinion of the Court.

John M. Kranlp appeals from a judgment of conviction 

### of felony theft in the District Court, Fifth Judicial District, Beaverhead County. The conviction was based on a jury verdict. Kramp was sentenced to five years in the Plontana State Prison and designated a nondangerous offender for purposes of parole eligibility. In 1980, Red Pine Exploration and Development, Ltd., contracted with Coyote Nining Company, of which Kramp is president to perform $15,000 worth of developmentwork on the Red Pine Mine near Sheridan,Montana. Kramp and his employees arrived at the mine on December 23, 1980 and found themine's air compressorwas not functioning. The agreementbetween the companies allowed Kramp to rent equipmentnecessary for the performance of the development work. Kramp acquired an air compressor valued at $23,000 for use at the mine. The disputed factspertaining to that acquisition are set forthhere. On January 8, 1981, the Beaverhead County Sheriff's Department received a telephone call from a foreman of General Construction Company reporting a stolen Ingersoll Rand Compressor from a construction site. The sheriff later went to the construction site and saw tire tracks indicating that the compressorhad been pulled onto the highway from the General ConstructionCompany site. When a localminer heard the January 10 report of the theft on the radio, he called the sheriff's office to report that he had seen the Xed PineMine's truck pulling an air compressorpast his home at 6:45 a.m., January 

### 7,1981. Another man also reported seeing the Red PineMine's truck pulling an air compressor on the morning of January 

### 7, 1981.On the basis of these reports, the sheriff's officers went to the mine and found the missing air compressorparked

on the side of the road leading to the mine. Kramp testified that he and one of his employees went to a rental agency in Butte, Montana, on January 5, 1981, to rent an air compressor. Kramp spoke to a man in the parking lot at the rental agency who informed Kramp that although he did not have an air compressor for rent, a friend of his did. The man then telephoned the friend, one "Ed," and Kramp negotiated rental terms with Ed over the telephone. Ed agreed to deliver the compressor at the bottom of a hill near the mine on the following day. Kramp agreed to pay Ed $1,000 in cash for onemonth's rental of the compressor. At 5:30 p.m., January 6, 1981, Kramp and one of his employeeswent to the bottom of the hill where they found Ed,with the compressor, and Ed's dual wheel pickup truck which he had used to tow the compressor. Kramp paid Ed $1,000 in cash but received no receipt. Before leaving, Ed agreed orally to return for the compressor in about a month. Kramp hitched the compressor to a truck owned by the 3ed PineMine and began towing the compressor up the hill to the mine. The trailer hitch on the truck broke, however. One of Kramp's employeeswelded the hitch and again they tried to tow the compressor up the hill. The road was too slippery to proceed, so they unhitched the compressor and returned to the mine. Kramp and his employees spent the next few days at the mine site attempting to repair a caterpillar which they would use to pull the compressor the rest of the distance of the mine. Themen were repairing the caterpillar on January 10, when sheriff's deputies arrived at the mine site and placed them under arrest.

### Kramp raises the following issues on appeal: 1. 

### Did the State's suggestion on cross-examination that Kramp had an FBI 

### criminal record constitute prejudicial error? 2. 

### Did the District Court's instructions no. 

### G and 13 create an unconstitutional presumption againstMramp? 3. 

### Is the jury's verdict supported by the evidence? The first issue is a charge of prosecutorialmisconduct. During the trial, the defense called a witness, Barbara Thomas, to testify to the character of Kramp. Her direct examinationwas in essence as follows: "Q. 

### You've known this young man for some time. You knowhis reputation for truth, integrity and veracity? A. 

### Yes, sir. "Q. 

### What is it? A. 

### I think he is honest. "Q. 

### Youwouldn't be here if you didn't think so? A. 

### That's right." On cross-examination, the county attorney asked: "Q. 

### Mrs. Thomas, have you ever heard that John Kramp was arrested for driving while under the influence of alcohol in Denver, Colorado? 

### A. No sir. "Q. 

### Have you ever heard that he was arrested in Sheridan, l.Toiitana? A. 

### No I haven't. "Q. 

### Do you know that the FBI 

### and the State of Colorado both have criminal record files on him? A. 

### No I surely didn't. May I say why I didn't.

"Q. 

### No, just answer yes or no. Obviously you don't know as much about him as you thought you might. A. 

### Well we had a Pinkerton investigation that his father conducted after this and they turned up nothing. "Q. They 

### couldn't find the 

### man who rented him the compressor either,did they? A. I 

### don't guess they could,but they didn't mention the FBI 

### either." Following the examination, therewas a meeting in chamberswith the judge. It developed that on that particular morning of the trial a teletype sheet had been received by

### the county attorney which showed that Kramp had been arrested for driving under the influence of liquor in Colorado, and for a traffic offense in Sheridan,Montana. The teletype printout also showed a Colorado state file number and an FBI file number. Defense counselwas given a copy of the teletype at the conclusion of the conference and he used the information to question Sheriff Later about the significance of an FBI file number. The State argues that any prejudice which may have resulted from the county attorney's referenceswas removed by Later's subsequent testimony: "Q. 

### You're Sheriff Laterwho was previously sworn and testified in this case? 

### A. Yes, sir. "Q. 

### And Sheriff Later, you heard the testimony of the defendant's witnesses 

# . . . and the cross-examinationby the county attorney Mr. Gilbert. You heard that a fewminutes ago? 

### A. Yes, sir. "Q. 

### And you heard the county attorney refer to an FBI number. What does that mean? A. 

### That means that anytime anybody is fingerprinted 

## -- "Q. Then they have an FBI number. A. Well, their fingerprintsare sent into the FBI headquarters in Washington, D.C. and from that, the fingerprints, they are issued an FBI number, basically.

"Q. 

### Would you have an FBI number? 

### A. No. "Q. 

### Would I? I'vebeen in the service. A. I

### believe so. "Q. If 

### I applied for a job, Bruce Matters' job as postmaster, would I have an FBI number. A. 

### I'm not sure-- "Q. 

### In otherwords, having an FBI number doesn't mean that you have some criminal record. A. 

### Well, I'm not sure counselor,how FBI numbers are issued. I 

### think they are issued for everything but I 

### am not positive as far as applicants and that type of thing but it is very possible." The sheriff also testified that "atthis time" they did not have a rap sheet on Kramp, but often times rap sheets

come in for as long as a year after the request.Kramp contends thejury, as a result of the interrogation,

was leftwith the following impressions: 1. That the defendant Kramp did in facthave a criminal filerecord with the FBI, and, 2. That although no evidence of his criminal activity has shown up asyet, other records may stillbe coming in. An offer of evidenceby a defendant of a pertinent traitof his character is admissible, and an offer of evidence by the prosecution torebut the same is alsoadmissible. Rule 404(a)(1),M.R.Evid. The key word to this exception to the general rule that character evidence isnot admissible (Rule 404(a) ) is .theword "pertinent.

### " Itwas pertinent where the charge is felony theft forBarbara Thomas to testify toKramp's general reputation for truth, integrity, honesty and veracity. (Shedidnot quite testify tohis general reputation, but gave her own opinion; thathowever, isnow permissible under Rule 405(a),M.R.Evid.) Itwas impertinent for the prosecution toattempt toestablish an arrest record based on a trafficoffense, or an intoxicated driving violation, because (1)an arrest record has no substance of itself toestablish character, and (2) the traitsof character involved intrafficor drinking offenses do not inherently relate tohonesty orveracity. In Michelson v. United States (1948), 335 U.S. 463, 69 S.Ct. 213, 93 L.Ed. 168, the Supreme Court upheld an inquiry of a reputationwitness about an arrest, upon the ground that an arrestmay impair orcloud one's reputation. The dissent inthatcase argued against turning the defendant's trial for a specificoffense intoone for allof hisprevious misconduct, criminal orotherwise. Recently, however, the supreme court of Pennsylvania considered thelilichelson -decision, and declined to follow, stating that an arrest is equally consonantwith guilt or innocence. Commonwealth v. Scott (Pa. 1981), 436 A.2d 607. The trait of character testified to by a reputation witness limits perforce the type of cross-examination that may be pursued. Under Rule 405(a), M.R.Evid., cross-examination is allowed into "relevant,specific instances of conduct." 

### By this rule, unless the cross-examination is pointed to a "relevant"trait of character testified to on direct examination the cross-examination is not permissible. We find that to be the case here. The State also argues that the testimony of the sheriff removed any taint from the cross-examination. We answer in the words of Statev. Shannon (1933), 95Mont. 280, 288, 26

"It is urged by the State that the above error was not substantial and that under 

# .

# . . our codes this Courtmust regard technical errors or defects which do not go to the substantial rights of the parties. What, then, is a substantial right? Manifestly a right declared by statute must be considered substantial. Section 10668, R.C.M. 1921 provides that awitness may not be impeached by evidence of particular wrongful acts, except that itmay be shown by the examination of the witness, or by the record of the judgment, that he has been convicted of a felony 

# .

# . .

[tlhisCourt reversed convictions because of the asking of questions similar to those propounded to the defendant here 

# . . . the court said: 'The attorney could have had no other object in view than to impeach the defendant or degrade him in the estimation of the jury, and for either purpose the questions are forbiddenby statute,' (citing a case). The rule was announced by this court many years ago. (Citingcases.) In State 

### v. Rogers, supra, the court specifically adhered to the rule, and approved the leading California case on the subjectwith the remark that itwas unnecessary to repeat the discussion (citing a case.)

### "

Here the prosecution's case against the defendant rests upon circumstantial evidence. Imputing to him by indirectiona criminal record, and one related to traits of character not involved in the specific offense for which the defendant

was charged here,was certainly substantial. State v. Shannon, supra, 95Mont. at 289, 26 P.2d at 364. 

### his

means that the defendant did not receive a fair trial, and upon that ground we must reverse. Commonwealth v. Scott, supra. We consider the second issue raised by the defendant because a retrial of this cause appears necessary. The second issue arises from the following instructions presented to the jury: "6. Possession of stolen property shall not constitute proof of the commission of the offense of theft; such facts shallplace a burden on the possessor to remove the effect of such fact as a circumstance to be considered with all other evidence pointing to his guilt.

"13. Possession of stolenproperty is merely one item that you, as jurors,may consider in determining whether the defendant committed the crime of theft. The defendant is not obligated to explain his possession of the stolen property, but in this case the defendant has chosen to do so." Instruction no. 6 is couched in the exact language of section 45-6-304, P4CA. Kramp attacks the instruction and the statute as unconstitutional on its face, in that: (1) it creates a rebuttable presumption, (2)it places a burden of persuasion upon the defendant as to the effect of possession, and (3)it undermines the "beyond a reasonable doubt" standard of proof in that it contains no time constraints (e.q., recentpossession) nor is it limited to "exclusive possession." In support of his contentions, he cites Sandstrom

### v. Xontana (1979),442 U.S. 510; Ulster County,New York v. Allen (1979),442 U.S. 140;Wells v. People (Colo. 1979), 592 P.2d 1321, and People v. Chavez (Colo. 1981), 632 P.2d 574.The Stateanswers that neither the statutenor the instruction create a presumption, and that inany event the instructionsdo not relieve the stateof its burden toprove allelements of the crime charged. The State also relies on UlsterCounty v. Allen, supra, contending therefrom that evidentiary devices such as presumptions and inferences are

a stapleof our adversary system of factfinding. The State's argument that neither a presumption or an inference is createdby instructionno. 6 and its underlying statute isbolstered by instruction no. 13, shown above, which informs the jury thatpossession of stolenproperty is merely one itemof evidencewhich thejury may consider in determining whether defendant committed the crime of theft. An examination of instructions 

### G and 13willdemonstrate that they are, to say the least, contradictory. No. 6 tells thejury that the factof possession shall "place a burden"

on Kramp toremove the effect of such possession. Instruction

no. 13tells the jury that Kramp "isnot obligated toexplain his possession" of the stolenproperty. Instruction no. 6 places a burden on Kramp toexplain thathe possessed the stolenproperty by lawful means. Instruction no. 13tells the jury he does not have toexplainhis possession of the stolenproperty. The District Court can hardly be blamed for the contradictory instructions. It seems evident the DistrictCourt

was merely trying toaccommodate the conflicting statements inour earlier decisions on the subject, and a compelling statute. It sh~uld be obvious that the possession by a defendant chargedwith theft of recently stolenproperty is

a factwhich the jury is entitledtoconsider indeterminingtile guiltof the defendant. A grave problem arises, however, when the instructions on the subject deprive orinterfere with the presumption of innocence which always attaches to the defendant until convicted, and his right toremain silent. In Statev. Greeno (19591, 135Mont. 580, 342 P.2d 1052, Greeno, charged with grand larceny, was convicted afterthejury had been instructed inpart: "You are instructed that the mere possession of stolenproperty, howsoever soon after the taking, unexplained by the person having possession isnot sufficient tojustify conviction. It is however, a circumstance tobe considered in connection with other evidence indetermining the question of innocence orguilt. If you should find from the evidence that the property involved in this casewas stolen, and that thereafter the defendant was found inpossession or claimed tobe the owner of the stolenproperty, such a factwould be a circumstance tending in some degree toshow guilt although not sufficient, standing alone and unsupported by other evidence, towarrant finding him guilty. In addition to proof of possession of such property, theremust be proof of corroborating circumstances tending, of themselves, toestablish guilt. Such corroborating circumstances may consist of the acts, conduct, falsehood, if any, or other declarations, if any, of the defendant, or any otherproved circumstance, tending toshow the guiltof the accused. "One who is found inthe possession of stolen Froperty isbound toexplain such possession in order toremove the effectof that fact as a circumstance, tobe consideredwith allother evidence, pointing tohis guilt, and if he gives a falseaccount of how he acquired thatpossession, or, having reasonable opportunity to show that his possession was honestly acquired, he refuses or failstodo so, such conduct is a circumstance that tends toshow his guilt." The court inGreeno, based on the lastparagraph of the foregoing instr~ction~found that the defendant had been denied a fairtrial and due process upon these grounds:"The defendant, presumed tobe innocent, is not charged with any duty toexplain his possession of any property, stolenorotherwise. Re need not testify atthe trial and this factmay not be commented upon inany way prejudicial tothe defendant. The burden of explaining setout inthe instruction deprives the defendant of his cloak of innocence and forceshim totestify, both results being contrary toexpress statutesof the stateof Montana 

# . .." 135blont. at591, 342 P.2d at 1058. Moreover, inGreeno, thisCourt expressly overruled two earlier cases, "tothe extent they impose upon a defendant a burden toexplain or testify concerning any charge of possessing stolen goods."

. (Itshouldbe noted that thisportion of the Greeno opinion was not concurred inby a majority of the

In Statev. Xose (1980), -Mont. 

### , 608 P.2d 1074, - 37 St.Rep. 642, this Court, where Rose had been convicted of burglary as an accomplice, had before it this instruction: "You areinstructed that one who is found in thepossession of property thatwas stolen from burglarized premises isbound toexplain such possession inorder toremove the effect of that factas a circumstance tobe considered with allother evidence pointing tohis guilt." Although the instruction told thejury that the defendant

was "bound toexplain such possession" inRose we nevertheless approved the instructionupon the ground that it merely told thejury toconsider the defendant's possession of the stolen goods asone factor indicating his guilt, and because he had elected totestify in an attempt toexplain away the circumstance of possession. In Rose, 

### wewere following the lead of Statev. Gray (1968), 152 Mont. 145, 447 P.2d 475, inwhich again on a burglary charge, Gray was convicted after thejury was instructed: "One who was found inpossession of property thatmay have been stolen from burglarized premises, isbound toexplain such possession inorder toremove the effectof that factas a circumstance, to be considered with other evidence, pointing to his guilt 

# .

# . ." In Gray, although the defendant relied on Greeno, this Court pointed out that the discussion of the instructionwas by a minority of the court in Greeno and then determined to follow the lead of Arizona v. Pederson (1967), 102~riz. 60, 424 P.2d 810, cert-den.389 U.S. 867, 88 S.Ct. 138, 19 L.Ed.2d 142. The import of Arizona v. Pedersonwas that if the defendant wished to remove the effect of possessicn of stolen property from the facts to be consideredby the jury, the defendant should have offered some explanation of his possession. It is the rationale and holding in Arizona v. Pederson followed by this Ccurt in Gray that apparently gave birth to the adoption in our criminal code of section 45-6-304, XCA,

as itwas originally enacted in 1973. The defendant, however, brings us to a fresh consideration of the problem in this case, arguing that the effect of the statute and instructionno. 6 is tc create a presumption which is constitutionally improper under the holding of United States Supreme Court in Sandstromv. Montana, supra, and Ulster County 

### v. Allen, supra. In Ulster, the United States Supreme Court said that a presumption "mustnot undermine the factfinder's responsibility at trial, based on evidence adduced by the State to find the ultimate factbeyond a reasonable doubt." Ulster, page 156. The State on the other hand, contends that neither the statute, section 45-6-304,MCA, nor the instruction raises a presumption. It contends that the statute and the instruction do not require an assumption of any fact (herethe theft) to be made from another fact (herethe possessicn) so as to he within the definition of presumption set forth in Rule 301, M.R.Evid.We agree with the State that a presumption is not created by either the statute or the instruction. Neither requires the jury to assume the fact of theft from the fact of possession. The first clause of the statute belies that. Nonetheless, section 45-6-304, MCA, and instruction no. 6 have facial and applicative constitutional defects: they take away defendant's presumption of innocence and force him to testify,by placing a burden on him either to disprove unlawful possession or to prove lawful possession. Certainprinciples adhere. Proof of possession of stolen property standing alone may be as consistentwith innocence as with guilt. Yet the jury ought at least be allowed to consider unexplained possession of stolen property, and from that fact infer that he participated in the theft. The burden of proving every essential element of the theft must always be on the State. The defendant is never required to take the witness stand and furnish an explanation of the possession. If he does testify as to his possession,whether his explanation is credible is amatter to be determined by the jury. Instructions to the jury incorporating these principles should properly inform the jury how to apply the fact of possession in determining the guilt or innocence of the defendant. See State v. Proctor (1969), 153 Mont. 90, 454 P.2d 616. We declare here that section 45-6-304, TCA, is unconstitutional and that any instruction using the language of such statute is prejudicial to a defendant. The possession of the stolenproperty by the defendant in this case is an important facet of the evidence because it is the only direct fact in the evidencewhich indicates the defendant's guilt. The rest of the case against him is

### circumstantial. Because of that situation, it is important that the jury be properly instructed as to the effect itmay give, in considering a verdict, to the defendant's unauthorized possession of the stolenproperty. We would support on retrial, the following instruction

on the point: "Unauthorized control or possession of property belonging to another is ordinarily a circumstance fromwhich the jurymay draw an inference and find, in the light of all the evidence in the case, that the person in possession committed the theft of the property. "Youare permitted but not required to infer from the defendant's possession of the property of another that the defendant is guilty of theft only if in your judgment such an inference is warranted by the evidence as a whole. It is your exclusive province to determinewhether the facts and circumstances shownby the evidence warrant the inference to be drawn by you.

"'Thepossession of the property by the defendant does not shift the burden of proof which is always on the State to prove beyond a reasonable doubt every essential element of the offense with which defendant is charged. "Thedefendant's possession of property belonging to anothermay be satisfactorily explained in the evidence independentlyof any testimony of the defendantpersonally. If defendant does take the witness stand to explain his possession of the property, the weight to be attached to his explanation is exclusively foryou to determine. Even if defendant's possession of the property is unexplained, you cannot find him guilty, if after consideration of all the evidence in the case,you have a reasonable doubt as to his guilt. "Ifunder the evidence, defendant's possession of the property of another is consistentwith his innocence, then the jury should acquit the defendant unless he has been proven guilty beyond a 

### reasonable doubt by other evidence in the case." (See appendix to Wells 

### v. People (Colo. 1979), 592 P.2d 1321, 1326.) It is unnecessary for us to reach the third issue in this case since the cause must be retried. The judgment of conviction is reversed and the cause is

### remanded for retrial of the defendant, consistentwith this opinion. 

### \

\ "L ;.

. 

### Justice

We 

### Concur:

Chief Justice