No. 12893 

IN THE SUPRENE COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

GARY EUGENE RADL , 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record : 

For Appellant : 

Robert L. Stephens, Jr. argued, Billings, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, argued, 

Helena, Montana 

Arthur Ayers, County Attorney, argued, Red Lodge, 

Montana .. 

Filed : 5 !pE 

Submitted: September 25, 1975 

Decided : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the district court, Carbon County. 

Gary Eugene Radi appeals from a June 25, 1974, jury verdict finding 

him guilty of attempted burglary, pursuant to sections 94-4-103 

and 94-6-203, R.C.M. 1947. 

From appellant's point of view, the record presents 

this factual setting: In early March 1974, Radi and several 

others including John Miner, were in attendance at a local night 

spot in Billings, Montana. Sometime during the course of the 

evening, they were introduced to a man called "Pat" who mentioned 

that he was from Red Lodge and lived in an apartment just above 

a Safeway store. Radi purchased a round of drinks for those at 

his table, and several witnesses testified that he paid for the 

drinks with a one hundred dollar bill. The waitress took the 

bill and later returned with the change. She observed that several 

of those present, including Radi, had left the table to dance. 

She placed both the drinks and the change on the table. Upon 

~adi's return he discovered that his change and the man "Pat" had 

disappeared. 

Approximately ten days later, Radi invited John Miner and 

one Daniel Cinnamon to accompany him to Red Lodge in an attempt to 

I1 locate this Pat" and recover the money. It is at this point 

that appellant's story begins to conflict with the official police 

version. 

Police suspicions were first aroused on that evening, when 

they observed tracks in the freshly fallen snow, in an alley behind 

the B & P Hardware store in Red Lodge. The tracks led to the back 

door of the store, stopped, and continued up the alley. The police 

followed the tracks to the rear of a neighboring Safeway store, where 

they spotted Radi and Miner in the general area of some abandoned 
apartments located above the store. The two men were ordered 

downstairs and asked to stand against the building. Radi 

suddenly ran down the alley, but was later apprehended several blocks 

away. During his run, an object fell from his person which later 

was identified as a .22 caliber pistol, A search of Miner resulted 

in the recovery of a twelve-inch crowbar carried up the sleeve of 

his coat. The third participant, Cinnamon, was apparently standing 

in the front stairway to the apartments and was later apprehended at 

a nearby motel. The police established that the crowbar found on 

Miner was very similar to the one which had been used in an attempt 

to burgle the B & P Hardware store. All three were arrested and 

charged with aggravated burglary. The charges against Pliner and 

Cinnamon were later dropped and the charge against Radi was reduced 

to attempted burglary. 

At trial appellant attempted to explain that his presence 

in the alley on the evening of March 17, 1974, was only for the 

It purpose of locating pat" in the hope of recovering his money. The 

Carbon County jury refused to accept this story and its adverse 

verdict engendered this multi-issue appeal. 

At trial appellant consistently denied any intent to commit 

the offense. On appeal he first contends that the evidence was insufficient to support his conviction and sustain a finding of criminal 

intent. 

In Montana, a person commits the offense of burglary if he 

I I knowingly enters or remains unlawfully in an occupied structure 

with the purpose to commit an offense therein." Section 94-6-204, 

R.C.M. 1947. The charge of attempted burglary will lie where a 

person has done any - act toward the commission of the burglary if 

the requisite specific purpose can also be established. Section 

94-4-103(1), R.C.M. 1947. The Montana "attempt" statute is somewhat 

unique in that it expressly provides for a complete defense under 

circumstances where an abandonment of criminal purpose can be established. Section 94-4-103(4), R.C.M. 1947, provides: 
"A person shall not be liable under this section, 

if under circumstances manifesting a voluntary and 

complete renunciation of his criminal purpose, he 

avoided the commission of the offense attempted by 

abandoning his criminal effort. " 

Appellant suggests that only two possible inferences 

could be drawn from the record as a matter of law: 1) That there 

was a complete renunciation and abandonment of the attempt to 

commit any offense; and 2) that if guilty at all, appellant could 

have committed no crime more serious than a criminal trespass 

under section 94-6-203, R.C.M. 1947. In support of his contention 

appellant emphasizes he was never seen attempting to enter the 

store, that in fact the store was never entered and that he was 

apprehended two buildings away. Appellant refers us to the uncontroverted fact the tracks followed by the police could only have 

been made at a walking pace and his "activity" at the hardware 

store was not interrupted by the police, but abandoned voluntarily. 

We agree the aforementioned factors give rise to the 

possible inference of a voluntary abandonment. But, we do not 

find that they constitute conclusive evidence of abandonment as a 

matter of law. The record is sufficient to demonstrate an entry 

into the B Q P Hardware store had been attempted through the use of 

a crowbar on the back door. Footprints in the snow demonstrated 

that several individuals had entered the alley and approached the 

door. The arresting officers followed these footprints in the 

alley to the place where appellant and his associate were apprehended. 

Finally we consider the crowbar which was seized from John Miner. 

It can hardly be said that under these circmstances a conclusion 

of voluntary abandonment is mandated as a matter of law. Section 

94-4-103 (2), R.C.M. 1947, states : 

"It shall not be a defense to a charge of attempt 

that because of a misapprehension of the circumstances 

it would have been impossible for the accused to commit 

the offense attempted. I I 
In the instant case the jury might have reasonably 

concluded the burglary was terminated because the participants 

found their efforts to be futile or for any number of reasons 

other than voluntary abandonment. 

This Court has often stated the jury is the sole judge 

of the weight to be accorded the testimony and that where substantial evidence exists to support its determination, it will stand. 

State v. Merseal, Mon t . , 538 P.2d 1366, 32 St.Rep. 823; 

State v. Gleim, 17 Mont. 17, 29, 41 P. 998; State v. White, 146 

Mont. 226, 405 P.2d 761; State v. Stoddard, 147 Mont. 402,408, 

412 P.2d 827. The record before us substantially supports that 

which the jury chose to believe, and we decline to disturb its 

findings on appeal. 

Appellant next contends the district court erred by failing 

to instruct the jury on the offense of criminal trespass, which he 

terms a lesser included offense, At the outset, we note the 

probable issue of whether the offense of criminal trespass may in 

fact be considered a lesser included offense of burglary. But we 

need not reach that issue. 

It is argued appellant never offered this instruction at 

the trial level and therefore this issue is raised for the first time 

on appeal. Generally, this Court will refuse to rule on issues which 

were not presented to the district court and this rule is especially 

applicable to the instant case. The Montana Code of Criminal 

Procedure, section 95-1910 (d) , R.C.M. 1947, provides in pertinent 

part : 

"When the evidence is concluded, if either party 

desires special instructions to be given to the 

jury, such instructions shall be reduced to writing, 

numbered, and signed by the party, or his attorney, 

and delivered to the court. 11 

The statute is written in mandatory language and therefore should 

be construed as such. State v. Cook, 42 Mont. 329, 112 P. 537; State 

v. Dougherty, 71 Mont. 265, 229 P. 735; State v. Sawyer, 71 Mont. 
269, 229 P. 734; State v. Donges, 126 Mont. 341, 251 P.2d 254; 

State v, Maciel, 130 Mont. 569, 305 P.2d 335. 

The next issue raised by appellant concerns a request to 

exclude prospective witnesses from the courtroom. The court 

granted this motion, but exempted, sua sponte, the officers from 

the Red Lodge police department. The net effect of this action was 

to exclude all the defense witnesses and none of the prosecution 

witnesses. Appellant now contends the district court committed 

prejudicial error in exempting the prosecution witnesses. 

Section 93-1901-2, R.C.M. 1947, states: 

11 Witnesses not under examination may be excluded. 

If either party requires it, the judge may exclude from 

the courtroom any witness of the adverse party, not at 

that time under examination, so that he may not hear the 

testimony of other witnesses, 11 

Although section 93-1901-2 was enacted under ~ontana's civil code, 

it has long been held to apply to criminal trials also. State v. 

McDonald, 51 Mont. 1, 149 P. 279. 

The motion to sequester or exclude witnesses not currently 

under examination from the courtroom is not granted as a matter of 

right, but is addressed to the sound discretion of the trial court. 

The motion may be granted when such action is necessary to insure the 

spontaneity and reliability of the witnesses by limiting their 

opportunity to be influend by each other's testimony. See Anno. 

32 ALR2d 358-361; 23 C.J.S. Criminal Law, 5 1010, pp. 1072,1073. 

We cite with approval the language in State v. McLeod, 

131 Mont. 478, 492, 311 P.2d 400, to the effect section 93-1901-2 

11 is a salutary provision, especially in felony cases in the aid of 

a fair trial to which every defendant is entitled." McLeod also 

clearly states that the action of the trial judge cannot be disturbed 

on appeal absent a showing of manifest abuse of discretion and prejudice. 
In Montana, certain types of witnesses have traditionally 

been exempted from the operation of the witness exclusionary rule, 

including attorneys of the court, court officers who happen to be 

witnesses and whose attendance in the courtroom is necessary, and 

police officers assisting in preparation of the prosecution's 

case, State v. Walsh, 72 Mont. 110, 232 P. 194; State v, Fitzpatrick, 149 Mont. 400, 427 P.2d 300. The trial court, by incorporating one of these exceptions into its ruling, was correctly 

following the law of this state and therefore did not err. State 

v. Meidinger, 160 Mont. 310, 320, 502 P.2d 58; State v. Love, 

151 Mont. 190, 440 P.2d 275. While the record here evidences 

no prejudicial harm, we direct in the fut~re where the trial judge 

grants a motion to sequester, that in the spirit of fairness, all 

witnesses who are to testify be excluded from the courtroom. 

Appellant's fourth specification of error refers this 

Court to the denial by the trial court of his motion for mistrial, 

a motion precipitated by a rather unusual chain of events. 

Appellant alleges that the defense witness Daniel Cinnamon 

was arrested at or just outside the courtroom door, to appellant's 

prejudice. The evidence as to the exact place of arrest is in 

conflict, as is whether any of the jurors knew what went on. The 

trial judge did not observe what took place, and when appellant's 

counsel made an issue of what happened, he allowed argument and 

I I then ruled there was no prejudice", We find no error. 

In State v. Bentley, 155 Mont. 383, 405,406, 472 P.2d 864, 

this Court stated: 

"This Court will not reverse a decision of the trial 

court unless prejudice is shown, and such prejudice 

will not be presumed but must be affirmatively shown. 

State v. Love, 151 Mont. 190, 440 P.2d 275; State v. 

Walker, 148 Mont. 216, 419 P.2d 300; State v. Heiser, 

146 Mont. 413, 407 P.2d 370." 

Next appellant takes issue with what he characterizes as 

1' certain opinion evidence1' given by the police officers as to the 
crowbar and the marks found in the door of the hardware store. 

We find no error. State v. Collins, 88 Mont. 514, 294 P. 957. 

Two evidentiary issues remain for consideration, Appellant alleges that the admission of the weapon and ammunition clip, 

which fell to the ground during his attempted escape from custody, 

was improper and prejudicial when offered for the purpose of 

allowing the jurors to in&er criminal intent therefrom. Appellant's 

contehthnn cannot be sustained under the pertinent Montana case law, 

especially under the facts presented by this case. 

The judgment of the district court is affirmed. 

.- Justice 

We concur: 

.................................... Chief Justice 

'/ '7 /. 3 ' -----I -------- ,--l-:L-J-f2-, ------ 1 / 

??iWE%%?€X% Justices .