No. 12893 INTHE SUPRENE COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

GARY EUGENE RADL

## , Defendant and Appellant.

Appeal from: District Court of theThirteenth 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 

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Filed: 

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## !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 earlyMarch 1974, Radi and several others including John Miner, were in attendance ata localnight spot inBillings, Montana. Sometime during thecourse of the evening, they were introduced to a man called "Pat" who mentioned that he was from Red Lodge and lived inan 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 dollarbill. The waitress took the billand laterreturned 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 theman "Pat" had disappeared. Approximately ten days later, Radi invited John Miner and
one Daniel Cinnamon toaccompany him toRed Lodge inan attempt to
I1 locate this Pat" and recover the money. It 

### is atthis point that appellant's storybegins toconflictwith the officialpolice version. Police suspicions were first aroused on that evening, when they observed tracks in the freshly fallen snow, in an alleybehind theB & P Hardware store inRed Lodge. The tracks led to the back door of the store, stopped, and continued up the alley. The police followed the tracks tothe rear of a neighboring Safeway store, where they spotted Radi and Miner inthe general area of some abandonedapartments located above the store. The two men were ordered downstairs and asked to stand against thebuilding. Radi suddenly ran down the alley, but was later apprehended severalblocks away. During his run, an object fellfrom his person which later
was identified as a .22 caliberpistol, A search of Miner resulted in the recovery of a twelve-inch crowbar carriedup 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 toburgle the B & P Hardware store. Allthreewere 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. Attrialappellant attempted toexplain that his presence in the alleyon the evening of March 17, 1974, was only for the
It purpose of locating pat" inthe hope of recovering his money. The Carbon County jury refused toaccept this story and 

### its adverse verdict engendered this multi-issue appeal. Attrialappellant consistently denied any intent tocommit the offense. On appeal he firstcontends that the evidencewas insufficient to support his conviction and sustain a finding of criminal intent. 

### In Montana, a person commits the offense of burglary ifhe
IIknowingly enters orremains unlawfully inan occupied structure with the purpose tocommit an offense therein." Section 94-6-204, 

### R.C.M. 1947. The charge of attempted burglary will liewhere a person has done

### any 

# - act toward the commission of the burglary if the requisite specific purpose can alsobe established. Section 94-4-103(1), R.C.M. 1947. The Montana "attempt" statute is somewhat unique in that it expressly provides fora 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 shallnot be liableunder this section, ifunder 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 ifguilty atall, 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 storewas 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 ata walking pace and his "activity" atthe hardware storewas not interruptedby 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 asa matter of law. The record 

### is sufficient todemonstrate an entry into the B Q P Hardware storehad been attempted through the use of
a crowbar on the back door. Footprints in the snow demonstrated that several individuals had entered the alleyand approached the door. The arresting officers followed these footprints in the alley to the place where appellant and his associatewere apprehended. Finally we consider the crowbar which was seized from John Miner. It can hardlybe 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 shallnot be a defense toa charge of attempt that because of a misapprehension of the circumstances itwould have been impossible for the accused to commit the offense attempted.IIIn the instant case the jury might have reasonably concluded the burglary was terminated because the participants found their efforts tobe futile or for any number of reasons other than voluntary abandonment. This Court has often stated the jury isthe solejudge of theweight tobe accorded the testimony and that where substantialevidence exists to support 

### its determination, it

### willstand. State

### v. Merseal, Mont

# . , 538 P.2d 1366, 32 St.Rep. 823; Statev. Gleim, 17Mont. 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 thejury chose tobelieve, and we decline to disturb 

### its findings on appeal. Appellant next contends the district court erred by failing to instruct thejury on the offense of criminal trespass, which he terms a lesser included offense, Atthe 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 isargued appellant never offered this instruction at the trial level and therefore this issue israised for the first time
on appeal. Generally, this Court willrefuse torule 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 inpertinent part: "When the evidence isconcluded, if either party desires special instructions tobe given to the jury, such instructions shallbe reduced towriting, numbered, and signed by the party, orhis attorney, and delivered to the court. 11 The statute 

### iswritten 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; Statev. Donges, 126Mont. 341, 251 P.2d 254; Statev, Maciel, 130Mont. 569, 305 P.2d 335. The next issueraised 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 actionwas toexclude allthe defensewitnesses 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:

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### Witnesses notunder examination may be excluded. If 

### either party requires it, 

### thejudge 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 otherwitnesses, 11 

### Although section 93-1901-2 was enacted under ~ontana's civilcode, it 

### has longbeen held toapply tocriminal trialsalso. Statev. McDonald, 51Mont. 1, 149 P. 

### 279. The motion to sequester orexcludewitnesses not currently under examination from the courtroom 

### isnot granted as a matter of right, but is addressed tothe sound discretion of the trialcourt. The motion may be granted when such action is

### necessary to insure the spontaneity and reliability of the witnesses by limiting their opportunity tobe influendby each other's testimony. See Anno. 32 ALR2d 358-361; 23 C.J.S. 

### Criminal Law, 

### 5 1010, pp. 1072,1073. We citewith approval the language in Statev. 

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

11 

### is 

### a salutaryprovision, especially in felony cases in the aid of
a fairtrialtowhich every defendant is 

### entitled." McLeod also clearly statesthat the action of the trialjudge cannot be disturbed
on appeal absent a showing of manifest abuse of discretion and prejudice.InMontana, certain types of witnesses have traditionally been exempted from the operation of thewitness exclusionary rule, including attorneys of the court, court officerswho happen tobe witnesses and whose attendance in the courtroom 

### is necessary, and police officers assisting in preparation of the prosecution's case, Statev. Walsh, 72 Mont. 110, 232 P. 194; State v, Fitzpatrick, 149 Mont. 400, 427 P.2d 300. The trialcourt, by incorporating one of these exceptions into 

### its ruling, was correctly following the law of this stateand therefore did not err. State
v. Meidinger, 160 Mont. 310, 320, 502 P.2d 58; Statev. Love, 151Mont. 190, 440 P.2d 275. While the record here evidences
no prejudicial harm, we direct in the fut~re where the trialjudge grants a motion to sequester, that in the spirit of fairness, all witnesses who are totestifybe excluded from the courtroom. Appellant's fourth specification of error refers this Court to the denial by the trialcourt 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 atorjust outside the courtroom door, to appellant's prejudice. The evidence as to the exact place of arrest 

### is in conflict, as 

### iswhether any of the jurors knew what went on. The trialjudge 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 willnot reverse a decision of the trial court unless prejudice 

### is shown, and such prejudice willnot be presumed but must be affirmatively shown. Statev. Love, 151Mont. 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 issuewith what he characterizes as
1'certain opinion evidence1'given by the police officers as to thecrowbar 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 theweapon and ammunition clip, which fellto the ground during his attempted escape from custody,
was improper and prejudicial when offered for the purpose of allowing thejurors toin&ercriminal intent therefrom. Appellant's contehthnn cannot be sustained under the pertinent Montana case law, especiallyunder the facts presented by this case. The judgment of the district court 

### is affirmed.

.- Justice

We concur:



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