No. 81-464 

IN THE 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. William Leaphart 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 24 iscL 
!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 development work on 

the Red Pine Mine near Sheridan, Montana. 

Kramp and his employees arrived at the mine on December 

23, 1980 and found the mine's air compressor was not functioning. 

The agreement between the companies allowed Kramp to rent 

equipment necessary for the performance of the development 

work. Kramp acquired an air compressor valued at $23,000 

for use at the mine. The disputed facts pertaining to that 

acquisition are set forth here. 

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 compressor had been pulled onto the highway from 

the General Construction Company site. 

When a local miner 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 Pine Mine's truck pulling an air 

compressor past his home at 6:45 a.m., January 7, 1981. 

Another man also reported seeing the Red Pine Mine'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 compressor parked 

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 one month's rental of the compressor. 

At 5:30 p.m., January 6, 1981, Kramp and one of his 

employees went 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 

Pine Mine and began towing the compressor up the hill to the 

mine. The trailer hitch on the truck broke, however. One 

of Kramp's employees welded 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. The men 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 against Mramp? 

3. Is the jury's verdict supported by the evidence? 

The first issue is a charge of prosecutorial misconduct. 

During the trial, the defense called a witness, Barbara 

Thomas, to testify to the character of Kramp. Her direct 

examination was in essence as follows: 

"Q. You've known this young man for some time. 

You know his reputation for truth, integrity and 

veracity? A. Yes, sir. 

"Q. What is it? A. I think he is honest. 

"Q. You wouldn'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, there was a meeting in 

chambers with 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 counsel was 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 references was 

removed by Later's subsequent testimony: 

"Q. You're Sheriff Later who 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-examination by the county attorney Mr. 

Gilbert. You heard that a few minutes 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 fingerprints are 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've been 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 other words, 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 "at this 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 the jury, as a result of the interrogation, 

was left with the following impressions: 

1. That the defendant Kramp did in fact have a criminal 

file record with the FBI, and, 

2. That although no evidence of his criminal activity 

has shown up as yet, other records may still be coming in. 

An offer of evidence by a defendant of a pertinent 

trait of his character is admissible, and an offer of evidence 

by the prosecution to rebut the same is also admissible. 

Rule 404(a)(1), M.R.Evid. The key word to this exception to 

the general rule that character evidence is not admissible 

(Rule 404 (a) ) is .the word "pertinent. " It was pertinent 

where the charge is felony theft for Barbara Thomas to 

testify to Kramp's general reputation for truth, integrity, 

honesty and veracity. (She did not quite testify to his 

general reputation, but gave her own opinion; that however, 

is now permissible under Rule 405(a), M.R.Evid.) It was 

impertinent for the prosecution to attempt to establish an 

arrest record based on a traffic offense, or an intoxicated 

driving violation, because (1) an arrest record has no 

substance of itself to establish character, and (2) the 

traits of character involved in traffic or drinking offenses 

do not inherently relate to honesty or veracity. 

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 reputation witness about an arrest, upon the ground 

that an arrest may impair or cloud one's reputation. The 

dissent in that case argued against turning the defendant's 

trial for a specific offense into one for all of his previous 

misconduct, criminal or otherwise. Recently, however, the 

supreme court of Pennsylvania considered the lilichelson - 
decision, and declined to follow, stating that an arrest is 

equally consonant with 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 State v. Shannon (1933), 95 Mont. 280, 288, 26 

"It is urged by the State that the above error 

was not substantial and that under . . . our 

codes this Court must 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 a witness may not be 

impeached by evidence of particular wrongful 

acts, except that it may be shown by the examination 

of the witness, or by the record of the judgment, 

that he has been convicted of a felony . . . [tlhis Court 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 forbidden by statute,' (citing 

a case). The rule was announced by this court 

many years ago. (Citing cases.) In State v. 

Rogers, supra, the court specifically adhered to 

the rule, and approved the leading California 

case on the subject with the remark that it was 

unnecessary to repeat the discussion (citing 

a case. ) " 

Here the prosecution's case against the defendant rests 

upon circumstantial evidence. Imputing to him by indirection 
a 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, 95 Mont. 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 shall place 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 stolen property 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., 

recent possession) 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 State answers that neither the statute nor the 

instruction create a presumption, and that in any event the 

instructions do not relieve the state of its burden to prove 

all elements of the crime charged. The State also relies on 

Ulster County v. Allen, supra, contending therefrom that 

evidentiary devices such as presumptions and inferences are 

a staple of our adversary system of factfinding. 

The State's argument that neither a presumption or an 

inference is created by instruction no. 6 and its underlying 

statute is bolstered by instruction no. 13, shown above, 

which informs the jury that possession of stolen property is 

merely one item of evidence which the jury may consider in 

determining whether defendant committed the crime of theft. 

An examination of instructions G and 13 will demonstrate 

that they are, to say the least, contradictory. No. 6 tells 

the jury that the fact of possession shall "place a burden" 

on Kramp to remove the effect of such possession. Instruction 

no. 13 tells the jury that Kramp "is not obligated to explain 

his possession" of the stolen property. Instruction no. 6 

places a burden on Kramp to explain that he possessed the 

stolen property by lawful means. Instruction no. 13 tells 

the jury he does not have to explain his possession of the 

stolen property. 

The District Court can hardly be blamed for the contradictory instructions. It seems evident the District Court 

was merely trying to accommodate the conflicting statements 

in our earlier decisions on the subject, and a compelling 

statute. It sh~uld be obvious that the possession by a 

defendant charged with theft of recently stolen property is 

a fact which the jury is entitled to consider in determining 
tile guilt of the defendant. A grave problem arises, however, 

when the instructions on the subject deprive or interfere 

with the presumption of innocence which always attaches to 

the defendant until convicted, and his right to remain 

silent. 

In State v. Greeno (19591, 135 Mont. 580, 342 P.2d 

1052, Greeno, charged with grand larceny, was convicted 

after the jury had been instructed in part: 

"You are instructed that the mere possession 

of stolen property, howsoever soon after the 

taking, unexplained by the person having 

possession is not sufficient to justify 

conviction. It is however, a circumstance 

to be considered in connection with other 

evidence in determining the question of 

innocence or guilt. If you should find from 

the evidence that the property involved in 

this case was stolen, and that thereafter the 

defendant was found in possession or claimed 

to be the owner of the stolen property, such 

a fact would be a circumstance tending in some 

degree to show guilt although not sufficient, 

standing alone and unsupported by other evidence, 

to warrant finding him guilty. In addition to 

proof of possession of such property, there must 

be proof of corroborating circumstances tending, 

of themselves, to establish guilt. Such corroborating 

circumstances may consist of the acts, conduct, 

falsehood, if any, or other declarations, if any, 

of the defendant, or any other proved circumstance, 

tending to show the guilt of the accused. 

"One who is found in the possession of stolen 

Froperty is bound to explain such possession in 

order to remove the effect of that fact as a 

circumstance, to be considered with all other 

evidence, pointing to his guilt, and if he gives 

a false account of how he acquired that possession, 

or, having reasonable opportunity to show that 

his possession was honestly acquired, he refuses 

or fails to do so, such conduct is a circumstance 

that tends to show his guilt." 

The court in Greeno, based on the last paragraph of the 

foregoing instr~ction~found that the defendant had been 

denied a fair trial and due process upon these grounds: 
"The defendant, presumed to be innocent, is 

not charged with any duty to explain his possession 

of any property, stolen or otherwise. Re need not 

testify at the trial and this fact may not be 

commented upon in any way prejudicial to the defendant. 

The burden of explaining set out in the instruction 

deprives the defendant of his cloak of innocence and 

forces him to testify, both results being contrary 

to express statutes of the state of Montana . . ." 

135 blont. at 591, 342 P.2d at 1058. 

Moreover, in Greeno, this Court expressly overruled two 

earlier cases, "to the extent they impose upon a defendant a 

burden to explain or testify concerning any charge of possessing 

stolen goods." . (It should be noted that this portion of the 

Greeno opinion was not concurred in by a majority of the 

In State v. 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 are instructed that one who is found in 

the possession of property that was stolen 

from burglarized premises is bound to explain 

such possession in order to remove the effect 

of that fact as a circumstance to be considered 

with all other evidence pointing to his guilt." 

Although the instruction told the jury that the defendant 

was "bound to explain such possession" in Rose we nevertheless 

approved the instruction upon the ground that it merely told 

the jury to consider the defendant's possession of the 

stolen goods as one factor indicating his guilt, and because 

he had elected to testify in an attempt to explain away the 

circumstance of possession. 

In Rose, we were following the lead of State v. Gray 

(1968), 152 Mont. 145, 447 P.2d 475, in which again on a 

burglary charge, Gray was convicted after the jury was 

instructed: 

"One who was found in possession of property 

that may have been stolen from burglarized 

premises, is bound to explain such possession 

in order to remove the effect of that fact 
as 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 instruction was 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. Pederson was that if 

the defendant wished to remove the effect of possessicn of 

stolen property from the facts to be considered by 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 it was 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 instruction no. 6 is tc create a presumption 

which is constitutionally improper under the holding of 

United States Supreme Court in Sandstrom v. Montana, supra, 

and Ulster County v. Allen, supra. 

In Ulster, the United States Supreme Court said that a 

presumption "must not undermine the factfinder's responsibility 

at trial, based on evidence adduced by the State to find the 

ultimate fact beyond 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 (here the theft) to 

be made from another fact (here the 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. 

Certain principles adhere. Proof of possession of 

stolen property standing alone may be as consistent with 

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 a matter 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 stolen property by the defendant 

in this case is an important facet of the evidence because 

it is the only direct fact in the evidence which 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 it may 

give, in considering a verdict, to the defendant's unauthorized 

possession of the stolen property. 

We would support on retrial, the following instruction 

on the point: 

"Unauthorized control or possession of property 

belonging to another is ordinarily a circumstance 

from which the jury may 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. 

"You are 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 determine whether the 

facts and circumstances shown by the evidence 

warrant the inference to be drawn by you. 

"'The possession 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. 

"The defendant's possession of property 

belonging to another may be satisfactorily 

explained in the evidence independently of 

any testimony of the defendant personally. If 

defendant does take the witness stand to 

explain his possession of the property, the weight 

to be attached to his explanation is exclusively 

for you 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. 

"If under the evidence, defendant's possession of 

the property of another is consistent with 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, consistent with this 

opinion. 

\ \ "L ;. . 

Justice 

We Concur: 

Chief Justice