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No. 98-400 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1999 MT 204 

295 Mont. 457

984 P.2d 157

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

JODY LYNN LONGSTRETH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin,

The Honorable John Christensen, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Brian P. Fay, Angel Law Firm; Bozeman, Montana

Jennifer Wendt Bordy, Attorney at Law; Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Marty Lambert, Gallatin County Attorney; Todd Whipple,

Deputy County Attorney; Bozeman, Montana

For Amicus:

Scott Albers, Attorney at Law; Great Falls, Montana 

Submitted on Briefs: May 27, 1999 

Decided: August 31, 1999 

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Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

● ¶Jody Lynn Longstreth was charged by information in the Eighteenth Judicial 

District, Gallatin County, with deliberate homicide for stabbing her boyfriend 

during an argument and causing his death. During a jury trial, she relied on the 

affirmative defense of justifiable use of force. However, on March 5, 1998, the jury 

convicted her of the lesser-included offense of negligent homicide. She appeals 

from several of the court's rulings. We affirm.

● ¶The following issues are raised in this appeal:

● ¶1. Did the District Court's instructions on justifiable use of force deny Longstreth 

her right to due process?

● ¶2. Did the District Court err when it denied Longstreth's motion for a directed 

verdict? 

FACTUAL BACKGROUND 

❍ ¶On December 19, 1997, Longstreth was charged by information with the 

crime of deliberate homicide, in violation of § 45-5-102, MCA. The State 

alleged that she killed Johnny Lee Tudor on December 14, 1997, by stabbing 

him with a knife.

❍ ¶Longstreth and Tudor were living together for approximately two years, 

during which time Tudor was twice convicted of partner assault as a result of 

physically abusing Longstreth. The abuse followed a general pattern in which 

Tudor would assault Longstreth physically after he became intoxicated. The 

evidence established that Longstreth suffered physical injuries on several 

occasions. As a result, Longstreth would temporarily move in with friends, 

but always return to live with Tudor.

❍ ¶On the evening of the stabbing, Longstreth and Tudor were arguing at a bar. 

Tudor was intoxicated. At about 8:30 p.m., they left the bar together; 

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however, Tudor proceeded to another bar while Longstreth drove home to the 

trailer where they lived. At home, Longstreth made herself a rum-and-coke 

and watched a movie. She testified that she kept her boots on and her keys in 

her pocket in case Tudor caused a problem when he came home. Tudor 

arrived home by taxi between 9:15 and 9:30 p.m., and immediately went to 

bed. Approximately 15 minutes later, Longstreth looked into the bedroom, 

saw Tudor lying on the bed, and returned to the living room. Ten minutes 

later, Tudor came into the living room, began screaming at Longstreth and 

threw couch cushions at her. Then, he went back to bed. Longstreth sat down 

at the kitchen table to work on a crossword puzzle. While she was sitting 

there, Tudor allegedly came into the kitchen and hit her. According to 

Longstreth, she tried to escape from the kitchen but Tudor blocked her. She 

testified that out of fear she grabbed a butcher knife and held it out at arm's 

length. She thought that by seeing the knife Tudor would back off. Instead, 

she testified, Tudor came forward and walked into the knife. Longstreth 

further testified that Tudor then backed off, turned toward the living room, fell 

down, got back up, walked toward her again, then turned toward the phone. 

Longstreth said she assumed Tudor would call for help.

❍ ¶After she wiped off the knife, she took it with her and she left the trailer and 

drove to a bar where she contacted an acquaintance. The acquaintance drove 

her to his residence. 

❍ ¶At the acquaintance's residence, Longstreth made several telephone calls, 

including two to the Bozeman police in which she used the name "Sarah 

Parker." In her first call, which she made at 11:38 p.m., she reported a 

domestic disturbance at the trailer, but she did not identify the trailer as theirs. 

In her second call, she asked the police if everything was okay at the trailer. 

She did not request medical assistance for Tudor in either call.

❍ ¶Two police officers were dispatched to the trailer, where they found Tudor 

dead on the floor wearing only underwear with a stab wound to his chest. The 

knife entered Tudor just below his left clavicle to a depth of five inches and 

severed the subclavian vein. There was evidence in the trailer that a struggle 

had taken place.

❍ ¶There was conflicting testimony as to Longstreth's condition. The testimony 

was inconsistent as to whether Longstreth showed signs of injury. The 

testimony suggested, however, that Longstreth did not appear intoxicated and 

when she was given a breath analysis test at 6:43 a.m., she had a blood 

alcohol concentration of .000. Longstreth told the police that she did not 

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intend to kill Tudor. 

❍ ¶On January 20, 1998, Longstreth filed notice of her intention to rely upon the 

affirmative defense of justifiable use of force. On March 5, 1998, after a fourday jury trial, Longstreth was found guilty of the lesser-included offense of 

negligent homicide.

❍ ¶The District Court committed Longstreth to the Montana Department of 

Corrections for a term of five years, subject to suspension on the condition 

that Longstreth apply and be accepted for admission to the Department's 

prerelease diversion program. Longstreth also was sentenced to a consecutive 

term of two years for the use of a weapon, which was suspended. Longstreth 

was released on bail on June 2, 1998, pending her appeal.

❍ ¶Longstreth rests her appeal on the District Court's instructions regarding her 

defense of justifiable use of force. Also, Longstreth appeals the District 

Court's denial of her motion for a directed verdict.

STANDARD OF REVIEW 

■ ¶If the district court's jury instructions, reviewed as a whole, fully and 

fairly present the law to the jury, then the jury has been properly 

instructed. See State v. Stone (1994), 266 Mont. 345, 349, 880 P.2d 

1296, 1299. The test to be applied is whether, when an instruction is 

considered as a part of the whole body of instructions, the instruction is 

prejudicial to the appealing party. See Stone, 266 Mont. at 350, 880 

P.2d at 1299 (citing State v. Graves (1981), 191 Mont. 81, 96, 622 P.2d 

203, 211-12). 

■ ¶We review the district court's denial of a motion for a directed verdict 

to determine whether the district court abused its discretion. See State v. 

Berger, 1998 MT 170,¶ 25, 298 Mont. 78, ¶ 25, 964 P.2d 725, ¶ 25; 

State v. Miller, 1998 MT 177, ¶ 21, 290 Mont. 97, ¶ 21, 966 P.2d 721, 

¶ 21. A directed verdict of acquittal is appropriate only when no 

evidence exists to support a guilty verdict. See State v. Clay, 1998 MT 

244, ¶ 29, 967 P.2d 370, ¶ 29. We find no abuse of discretion if, after 

viewing the evidence in a light most favorable to the prosecution, a 

rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. See Berger, ¶ 25; Miller, ¶ 21.

ISSUE 1 

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■ ¶Did the District Court's instructions on justifiable use of force 

deny Longstreth her right to due process?

■ ¶After instructing the jury on the statutory elements of deliberate, 

mitigated, and negligent homicide, the District Court further 

instructed the jury on Longstreth's defense of justifiable use of 

force. Longstreth challenges several of these instructions, 

essentially arguing that the instructions improperly allocate the 

burden of proof. 

■ ¶She focuses on Instruction Nos. 18 and 19, in particular. 

Instruction No. 18, offered as State's Proposed Instruction No. 9, 

provided:

The defendant has the burden of producing sufficient evidence of 

justification in the use of force to raise a reasonable doubt of her 

guilt. You are to consider the following requirements of the law 

in determining whether the use of force claimed by defendant was 

justified:

(1) The defendant must not be the aggressor;

(2) The danger of harm of the defendant must be a present one 

and not

made by a person without the present ability to carry out the 

threat;

(3) The force threatened against the defendant must be unlawful;

(4) The defendant must actually believe that the danger exists, 

that is, use

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of force by her is necessary to avert the danger and that the kind 

and

amount of force which defendant uses is necessary; and

(5) The defendant's belief, in each of the aspects described, is 

reasonable

even if it is mistaken.

You are further advised that even if you determine the use of 

force by defendant was not justified, the state still has the duty to 

prove each of the elements of the crime charged beyond a 

reasonable doubt.

Instruction No. 19, offered as State's Proposed Instruction No. 8, 

provided:

The defense of justifiable use of force is an affirmative defense 

and the defendant has the burden of producing sufficient evidence 

on the issue to raise a reasonable doubt of her guilt.

If you find that she was justified in the use of force, you must find 

her not guilty.

■ ¶At the settlement of instructions, Longstreth objected to 

these instructions contending that they were prejudicial, 

illogical and that they prevented her from fairly presenting 

her theory of the case because they failed to properly 

allocate the burden on the State to prove an absence of 

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justification beyond a reasonable doubt. Although 

Longstreth does not contest her own burden of producing 

sufficient evidence to support a finding of justification, she 

contends that the State should have the burden to prove that 

a justifiable use of force did not exist. Longstreth contends 

that in the absence of the State's burden, she was denied her 

right to due process of law.

■ ¶The State first argues that Longstreth failed to object to 

both instructions. Our review of the transcript, however, 

discloses that, although somewhat confusing, the defendant 

sufficiently objected to the instructions. Thus, we conclude 

that Longstreth has sufficiently preserved this issue for 

appeal. 

■ ¶The State next contends on a substantive basis that 

Longstreth's burden of proof argument lacks any support 

under Montana case law. Indeed, this Court has 

consistently stated over the years that justifiable use of 

force is an affirmative defense and that only the defendant 

has the burden of producing sufficient evidence to raise a 

reasonable doubt of her guilt. See, e.g., Miller, ¶ 5; State v. 

Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173, 181; 

Graves, 191 Mont. at 92-93, 622 P.2d at 210; State v. 

Cooper (1979), 180 Mont. 68, 72-73, 589 P.2d 133, 136;

State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681, 

684. In Daniels, 210 Mont. at 15-16, 682 P.2d at 181, we 

held that as an affirmative defense, justifiable use of force 

requires the defendant to produce sufficient evidence on the 

issue to raise a reasonable doubt of his guilt and that the 

State's burden is to prove beyond a reasonable doubt the 

elements of the offense charged, which does not include the 

absence of justification. 

■ ¶Longstreth cites State v. Azure (1979), 181 Mont. 47, 591 

P.2d 1125, and Graves, and argues that our cases have 

confused this issue. In Azure, 181 Mont. at 54, 591 P.2d at 

1130, we stated the jury should be instructed that the State 

must prove the absence of justification beyond a reasonable 

doubt; however, we sustained the refusal of an instruction 

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to that effect because other instructions had covered the 

subject. Subsequently in Graves, 191 Mont. at 92-93, 622 

P.2d at 210, this Court referred to the statement made in 

Azure without disavowing it, but also recognized that 

justifiable use of force is an affirmative defense rather than 

an element of deliberate homicide. 

■ ¶We addressed both of these cases in our opinion in 

Daniels and clarified any uncertainties they may have 

caused. More recently in Miller, ¶ 23, we reiterated that 

although the State retains the burden of proving the 

underlying offense beyond a reasonable doubt, the 

defendant who raises justifiable use of force assumes the 

burden of producing sufficient evidence on the issues to 

raise a reasonable doubt of his guilt. Although Longstreth 

and amicus urge us to revisit the propriety of our prior case 

law in regard to affirmative defenses and the relative 

burdens of the state and the defendant, we are not inclined 

to do so at this time. We conclude that the District Court 

committed no error in its use of Instructions Nos. 18 and 19.

■ ¶Closely related to Longstreth's objections to Instructions 

Nos. 18 and 19 is her objection to Instruction No. 14(a). 

Instruction No. 14(a) provided:

In a deliberate homicide, knowledge or purpose may be 

inferred from the fact that the accused committed a 

homicide and no circumstances of mitigation, excuse or 

justification appear.

The authority for this instruction is § 45-5-112, MCA. 

Longstreth asserts that by allowing the jury to make an 

inference as to her mental state as a result of her own 

failure to produce sufficient evidence to establish a 

justification, and without an instruction that the State had 

the burden to prove an absence of justification, Instruction 

No. 14(a) impermissibly shifted the burden of proving an 

essential element of the crime charged to her. She relies on 

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two United States Supreme Court cases for the proposition 

that the burden of proof may not shift to the defendant by 

allowing the jury to presume or infer the presence of one 

element based simply upon proof of another. See Francis v. 

Franklin (1985), 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 

2d 344; Patterson v. New York (1977), 432 U.S. 197, 97 S. 

Ct. 2319, 53 L. Ed. 2d 281. She also relies on State v. 

Woods (1983), 203 Mont. 401, 414, 662 P.2d 579, 585, 

where we recognized that in determining the effect of an 

instruction, the appropriate question is whether that 

instruction has the effect of allocating to the defendant 

some part of the burden of proof that properly rests on the 

State throughout the trial. To remedy the alleged burden of 

proof problem prompted by Instruction No. 14(a), 

Longstreth again suggests that the District Court should 

have instructed the jury that the State has the burden to 

prove the absence of justification.

■ ¶In State v. Coleman (1979), 185 Mont. 299, 394, 

605 P.2d 1000, 1052, cert. denied, 446 U.S. 970, 100 

S. Ct. 2952, 64 L. Ed. 2d 831 (1980), reh'g denied, 

448 U.S. 914, 101 S. Ct. 34, 65 L. Ed. 2d 1177 

(1980), we pointed out that § 45-5-112, MCA, allows 

for a permissive inference by the jury rather than a 

mandatory inference. We stated that the critical 

question is whether the permitted inference, when 

read with the other instructions in the case, relieves 

the State of its burden of proof to convict the accused 

beyond a reasonable doubt. See Coleman, 185 Mont. 

at 394, 605 P.2d at 1052. Just as in Coleman, the 

District Court here instructed the jury that the State 

had the burden of proving the guilt of the defendant 

on the charge beyond a reasonable doubt and that the 

defendant was presumed innocent until otherwise 

proven guilty. Our review of the instructions when 

considered in their entirety did not effectively relieve 

the State of its obligation to prove every element of 

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the offense charged.

■ ¶We have repeatedly followed the rationale of 

Coleman in cases such as Woods, 203 Mont. at 412-

15, 662 P.2d at 585-86; State v. Gratzer (1984), 209 

Mont. 308, 317, 682 P.2d 141, 145-46; and State v. 

Moore (1994), 268 Mont. 20, 64, 885 P.2d 457, 484-

85. In Gratzer, 209 Mont. at 317, 682 P.2d at 145-46, 

a mitigated homicide case, we specifically stated that 

"to require the State in a deliberate homicide case to 

negate mitigation beyond a reasonable doubt before 

the jury may infer purpose or knowledge" was not 

necessary. In our view, this statement applies equally 

to the State's burden on the issue of justification.

■ ¶We have previously stated that a defendant's burden 

of presenting evidence of justifiable use of force as 

an affirmative defense does not unconstitutionally 

place a burden of proof upon the defendant. See State 

v. Warnick (1982), 202 Mont. 120, 130, 656 P.2d 

190, 195. In State v. Lopez (1980), 185 Mont. 187, 

195-96, 605 P.2d 178, 183, we recognized the 

following language written by the United States 

Supreme Court:

[T]he long-accepted rule was that it was 

constitutionally permissible to provide that various 

affirmative defenses were to be proved by the 

defendant. This did not lead to such abuses or to such 

widespread redefinition of crime and reduction of the 

prosecution's burden that a new constitutional rule 

was required . . . . Nor does the fact that a majority of 

the States have now assumed the burden of 

disproving affirmative defenses for whatever reasons 

mean that those States that strike a different balance 

are in violation of the Constitution. Patterson, 432 U.

S. at 211, 97 S. Ct. at 2327, 53 L. Ed. d at 292-93.

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We also recognized the language in Leland v. Oregon

(1952), 343 U.S. 790, 794-96, 72 S. Ct. 1002, 1006, 

96 L. Ed. 1302, 1306-1307, in which the United 

States Supreme Court upheld the defendant's burden 

in regard to an affirmative defense so long as the 

instructions given to the jury made it clear that the 

burden of proof of guilt, and all the necessary 

elements of guilt, were placed squarely on the State.

■ ¶ In the final analysis, we conclude that the 

jury was properly instructed on the law of 

justifiable use of force, and that Longstreth was 

not denied her right to due process. 

ISSUE 2 

■ ¶Did the District Court err when it 

denied Longstreth's motion for a directed 

verdict?

■ ¶At the close of the State's case, 

Longstreth moved for a directed verdict, 

arguing that the State failed to prove the 

necessary elements of deliberate 

homicide, which was the only crime for 

which she was charged. Longstreth 

asserts that the State failed to introduce 

evidence necessary to establish that she 

possessed the mental state of purpose or 

knowledge to cause the death of another.

■ ¶In support of her argument, Longstreth 

again cites to § 45-5-112, MCA. 

Longstreth argues that the State was 

required to prove its case 

circumstantially through the inference 

allowed by § 45-5-112, MCA, which 

provides that, in a deliberate homicide 

case, an accused's mental state can be 

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inferred only when there is no evidence 

of mitigation, excuse, or justification. 

Since the State's case-in-chief 

established proof of the abuse Longstreth 

suffered, the danger she faced, and her 

justification for killing Tudor, Longstreth 

argues that her mental state could not 

have been inferred and that the jury 

should not have been able to consider 

any of the other circumstantial evidence 

presented. 

■ ¶The State responds that although the 

evidence it presented could have 

supported Longstreth's justification 

defense, § 45-5-112, MCA, does not 

preclude the jury from considering other 

circumstantial evidence that bears on the 

issue of Longstreth's mental state. In 

support of its argument, the State cites § 

45-2-103(3), MCA, which allows a jury 

to infer the existence of a mental state 

from the acts of the accused and the facts 

and circumstances connected with the 

offense. The State argues that § 45-5-

112, MCA, does not render § 45-2-103

(3), MCA, inoperative. 

■ ¶Section 45-5-112, MCA, permits the 

jury in a deliberate homicide case to 

infer a defendant's mental state so long 

as two conditions are met: (1) the 

accused committed a homicide; and (2) 

no circumstances of mitigation, excuse, 

or justification appear. There is nothing 

in § 45-5-112, MCA, however, which 

suggests that knowledge or purpose may 

be inferred only in the absence of 

evidence of justification. Furthermore, 

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we have held that the ultimate 

determination of mental state is left to 

the finder of fact. See Moore, 268 Mont. 

at 64, 885 P.2d at 484. As we previously 

have stated, "criminal intent, being a 

state of mind, is rarely susceptible of 

direct or positive proof and therefore 

must usually be inferred from the facts 

testified to by witnesses and the 

circumstances as developed by the 

evidence." State v. Ortega (1984), 209 

Mont. 285, 289, 679 P.2d 793, 795 

(citation omitted). 

■ ¶We conclude that all the evidence the 

State presented, both direct and 

circumstantial, was properly considered 

by the jury. Therefore, the District Court 

did not err when it denied Longstreth's 

motion for a directed verdict.

■ ¶Affirmed.

/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

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