NO. 83-231 

IZJ THE SUPREI4l3 COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICKY LEE YOUNG, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable J. Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark A. Suagee, Havre, Montana 

For Respondent : 

lion. Mike Greely, Attorney General, I-lelena, 

Montana 

Ronald W. Smith, County Attorney, Havre, Montana 

Submitted on Briefs: July 21, 1983 

Decided: September 15, 1983 

Filed: SEP !. 5 1983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Ricky Lee Young appeals from a judgment of conviction 

against him of felony theft. He was tried in the District 

Court, Twelfth Judicial District, Hill County. We reverse 

and remand for a new trial. 

Young was charged with the felony theft of a Hondo-180 

acoustic guitar with strap and case, with a manufacturer's 

suggested retail price of $183, from Village Music store in 

Havre, operated and owned by Roger Beck. Young was not a 

regular employee of the store, but had previously done work 

for Beck on a commission basis. Young was in the store when 

Duane Stephenson of Fort Benton came to the store. Since 

Beck was busy, Young discussed with Stephenson the purchase 

of the guitar. Stephenson did not buy the guitar at the time 

because he wanted both of his daughters to take guitar 

lessons, and if either maintained a.n interest in the lessons, 

he would then buy a guitar. Young went to Beck after his 

conversation with Stephenson and asked if he could take the 

guitar home in order to get it ready to sell to Stephenson. 

Beck agreed, and Young took the guitar home. 

A week or two later, Beck saw Young and asked whether 

Stephenson had purchased the guitar. Young replied that 

there had been no purchase and that he had returned the 

guitar to the store. Later Beck took an inventory and 

discovered that the guitar was missing. In the meantime, 

Young was using the guitar to give lessons to one of 

Stephenson's daughters. On March 11, 1982, Stephenson 

entered into a deal with Young whereby Young purchased from 

Stephenson beauty supplies and cleaning products for $106.54. 

In return, Stephenson purchased the guitar from Young for 
$149.95. Stephenson delivered a check to Beck for the 

difference over the cost of the goods purchased by Young in 

the sum of $43.46. 

Although Young contended that the full amount of $149.95 

(the Stephenson check for $43.46, plus a check from Young for 

$106.54) was attempted to be delivered to Beck, Beck 

testified no such attempts were made. 

In May 1982, Stephenson came to the Village Music store 

looking for Young. There Beck, questioning Stephenson, 

learned that Young had sold the guitar to Stephenson. The 

criminal charges against Young ensued. 

Young raises two issues on appeal: (1) That the jury 

should have been instructed as to the lesser-included offense 

of misdemeanor theft; and, (2) that the evidence for the jury 

to find a value of the guitar, strap and case in excess of 

$150.00 was insufficient to justify the verdict. 

We dispose of this case on the ground that the District 

Court should have instructed the jury on the lesser-included 

offense of misdemeanor theft. 

We summarize the evidence on the value of the guitar, 

strap and case as follows: The manufacturer's suggested 

retail price of the guitar, strap and case was $183.00. When 

Beck made sales through employees, those sales were made on a 

commj-ssion basis. The employees had a 20 percent discount 

from list price within which to make a sale. The difference 

between the 20 percent discount price and the final 

purchaser's price was the employee's commission. Thus, in 

this case, Beck would. have ratified any sale made by Young 

less than $36.60 from the suggested retail price. If Young 

had an offer to sell the materials at less than 20 percent 

discount, he had to have the approval of Beck. Young 
actually sold the guitar to Stephenson for $149.95, within 

the discount range. The replacement cost of the guitar, 

strap and case to Beck was approximately $100.00. 

At the time for settlement of the instructions during 

the trial, defendant Young offered his instruction no. 10 

which would have instructed the jury that if there was 

reasonable doubt as to whether he wa.s guilty of a given 

offense or one or more lesser-included offenses, Young could 

only be convicted of the greatest-included offense about 

which there was no reasonable doubt. Section 46-16-602, MCA. 

When this instruction was offered, the following colloquy 

between court and counsel occurred: 

". . . I am going to refuse number 10 because there 

was no greater or lesser included in this. It's 

either a felony or it's nothing. 

"MR. DRIVENESS: [Counsel for the State] Well, 

Your Honor, we have talked about that. It's my 

opinion that there is an element that is not listed 

in the offense, but it is in the whole statute, and 

that's the value, and I think it's a jury question 

for them to determine the value. Therefore it's a 

lesser included offense. 

"THE COURT: The way the State has brought the 

prosecution, you have prosecuted a felony over a 

hundred. and fifty (150) . You have to prove that. 

If you don't prove it, it fails. It's up to the 

jurv. If the jury finds it' s less than a hundred 

or a hundred and fifty or less, then they are going 

to acquit. If you wanted a misdemeanor, you should 

have charged the guy with a misdemeanor. 

"MR. DRIVENESS: We couldn't charge him with both, 

could we? 

"THE COURT: Not in District Court. No. 

"MR. DRIVENESS: Then we are foreclosed from having 

a finding that he is guilty of a misdemeanor? 

"THE COURT: That's right. You have alleged a 

felony and I don't consider that a misdemeanor is a 

lesser included under the circumstances because the 

cutoff is a hundred and fifty (150) or less for a 

misdemeanor, and your obligation is to prove that 

it was over a hundred and fifty (150). That's the 

way I am looking at it. It will go straight on a 
felony. He is either convicted or acquitted. 

Okay.. . . I' 

Young contends that under the evidence on value in this 

case the jury could rationally have found that the value of 

the guitar, strap and case did not exceed $150.00 and in that 

situation, the jury should have been allowed to consider 

whether he committed the crime of misdemeanor theft. Young 

relies on Keeble v. United States (1973), 412 U.S. 205, 93 

S.Ct. 1993, 36 L.Ed.2d 844; Sansone v. United States (1965), 

380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882; Berra v. 

United States (1956), 351 U.S. 131, 134, 76 S.Ct. 685, 100 

L.Ed. 1013, to the effect that the defendant is entitled to 

instruction on a lesser-included offense if the evidence 

would permit a jury ra.tionally to find him guilty of the 

lesser offense and acquit him of the greater. Keeble, supra, 

412 U.S. at 208, 93 S.Ct. at 1995, 36 L.Ed.2d at 847. Young 

further relies on our decisions in State v. Taylor (1973), 

163 Mont. 10 515 P.2d 695; State v. Buckley (1976), 171 

Mont. 233, 557 P.2d m; State v. Radi (1978), 176 Mont. 451, 

578 P.2d 1169; and State v. Jackson (1979), 180 Mont. 1-95, 

589 P.2d 1009. He cites Taylor, supra, to the effect that 

the District Court is bound to instruct the jury on the 

lesser-included offense since the weight to be given the 

evidence is a question for the jury. Taylor, supra, 163 

Mont. at 115, 515 P.2d at 701. 

The State responds that the evidence in this case is 

that the guita.r, strap and case had a value in excess of 

$150.00, namely $183.00, and that the conviction cannot be 

overturned in the light of that evidence. The State further 

contends that at the time that defendant offered proposed 

instruction no. 10 and it was rejected by the trial court, 
Young shou1.d have then made further objections or offered 

further instructions. 

It is evident from the foregoing colloquy between court 

and counsel at the time Young's instruction no. 10 was 

offered that the court assumed that if the value of the items 

did not exceed $150.00, beyond a reasonable doubt, the jury 

would acquit the defendant, and thus the defendant was not 

entitled to instructions on lesser-included offense. This 

assumption, however, was answered in Keeble, supra, with the 

Supreme Court saying: 

". . . A defendant is entitled to a lesser offense 

instruction . . . precisely because he should not 

be exposed to the substantial risk that the jury's 

practice will diverge from theory." 412 U.S. at 

212, 93 S.Ct. at 1998, 36 L.Ed.2d at 850. 

Section 46-16-602, MCA, provides: 

"When it appears beyond a reasonable doubt that the 

defendant has committed an offense but there is 

reasonable doubt as to whether he is guilty of a 

given offense or one or more lesser included 

offenses, he may only be convicted of the greatest 

included offense about which there is no reasonable 

doubt. " 

Under our statutes, a person who commits the offense of 

theft of property commits a felony if the property exceeds 

$150.00 in value, but a misdemeanor if the property is valued 

at $150.00 or less. Section 45-6-301(5), MCA. 

"Value" is defined as "the market value of the property 

at the time and place of the crime, or if such cannot be 

satisfactorily ascertained, the cost of the replacement of 

the property within a reasonable time after the crime." 

Section 45-2-101 (69) (a), MCA. 

Since value is an element of the crime of theft, and is 

a fact question, the question of value must be decided by the 

jury. Section 46-16-103 (2), MCA. Even though the District 

Court here may have considered the evidence of value less 
than $150.00 weak and inconclusive, it was still bound to 

instruct the jury on the lesser-included offense of 

misdemeanor theft, since the weight to be given to the 

evidence is a question for the jury. State v. Taylor, supra, 

163 Mont. at 115, 515 P.2d at 701. 

The Sta.te further contends that Young's counsel did not 

object to the refusal of instruction no. 10 and therefore may 

not raise the issue on appeal. That is not a correct 

interpretation of criminal procedure. It is, of course, the 

duty of counsel for the parties to object with specificity to 

instructions which are offered by the other side in criminal 

cases. Section 46-16-401 (4) (b) , MCA. When, however, a 

party's offered instructions are refused by the court in 

criminal cases, there is no duty on the part of that party's 

counsel to make further objections for the record. No 

exceptions are necessary to the rulings of the court on the 

settlement of instructions. Section 46-16-402(4)(c), MCA. 

Young's counsel did not offer any further instruction to 

the District Court on the lesser-included offense of 

misdemeanor theft. It is apparent, however, that the 

District Court would have refused such instructions. 

On the basis therefore, that under the evidence of this 

case the defendant was entitled to instructions on the 

lesser-included offense of misdemeanor theft, we reverse the 

conviction of the defendant for felony theft and remand the 

case for a new trial. 
We Concur: