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: DistrictCourt of theTwelfth JudicialDistrict, In and fortheCounty 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: 

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## 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 commissionbasis. Young was in the storewhen Duane Stephenson of Fort Benton came to the store. Since Beck was busy, Young discussed with Stephenson the purchase of the guitar. Stephensondid notbuy the guitar at the time because he wanted both of his daughters to take guitar lessons,and if either maintained a.ninterest 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 Stephensonbeauty suppliesand 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 fromYoung for $106.54) was attempted to be delivered to Beck, Beck testified no such attemptsweremade. 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 ofmisdemeanor theft; and, (2)that the evidence for the jury to find a value of the guitar, strap and case in excess of $150.00was insufficientto 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 ofmisdemeanor 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 casewas $183.00. When Beckmade sales through employees, those sales were made on a commj-ssionbasis. The employees had a 20 percent discount from listprice within which tomake 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, strapand case to Beckwas 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 therewasno reasonabledoubt. Section 46-16-602,MCA. When this instruction was offered, the following colloquy between court and counsel occurred: 

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# .. I am going to refuse number 10because there was no greater or lesser included in this. It's either a felonyor it'snothing. "MR. DRIVENESS: [Counsel for the State] Well, Your Honor, we have talked about that. It's my opinion that there is an element that isnot 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 ahundred and fiftyor less, then they are going to acquit. Ifyouwanted amisdemeanor,you should have charged the guywith amisdemeanor. "MR. DRIVENESS: We couldn't charge him with both, couldwe?

"THECOURT: Not in DistrictCourt. No. "MR. DRIVENESS: Thenwe are foreclosed fromhaving a findingthat he is guilty of amisdemeanor? "THE COURT: That's right. You have alleged a felony and I don't considerthat amisdemeanor is a lesser includedunder the circumstancesbecause 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 afelony. He is either convicted or acquitted. Okay.. 

# . .I' Young contends that under the evidence on value in this

case the jury could rationallyhave 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; Sansonev. 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.tionallyto find him guilty of the lesser offense and acquithim of the greater. Keeble, supra, 412U.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. 

### 233,557P.2d

## m;Statev. Radi (1978),176Mont. 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 SupremeCourt saying: 

# ".

. .A defendant is entitled to a lesser offense instruction

# .. . precisely because he should not be exposed to the substantialrisk 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 appearsbeyond 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 aboutwhich 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 invalue, but amisdemeanor if the property isvalued at $150.00 or less. Section 45-6-301(5), MCA. "Value" is defined as "themarket 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 factquestion,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. Statev. Taylor, supra, 163Mont. at 115,515 P.2d at 701. The Sta.tefurther contends that Young's counseldid not object to the refusal of instructionno. 10and thereforemay not raise the issue on appeal. That is not a correct interpretation of criminalprocedure. 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 counseldid not offer any further instructionto the District Court on the lesser-included offense of misdemeanor theft. It is apparent, however, that the DistrictCourtwould 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 anew trial.We Concur: