No. 14255 

### INTHESUP= CCUI~T OF THE STATE OF

## mmm 1978

STATE OFICNIYUA, Plaintiff ax3Respondent,

-VSWlLLIAMORIECOOPER, Defendant 

### and Appellant.

Appeal frm: DistrictCourt of theEighteenth Judicial District, nora able Jack D. Shanstran, Judge presiding. Counselof Record: For Appllant: Michael Sand argued, Bozeman, Mntana For Reqmndent: Hon. Mike Greely, Attorney General, Helena, mntana Sheri K. Spriggargued, AssistantAttorney General, Helena,

Mntana Donald White, CountyAttorney, Bozgnan, mntana Gregory R. Todd argued, Deputy CountyAttorney, Bozm,mntana

Sdmitted: 

### October 23, 1978 Decided: 

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## "3 a",

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### - .! 1

### I>, _ >-I - Filed: --IMr. Justice John Conway Harrison delivered the Opinion of theCourt.

~efendant was charged by information with one count of aggravated assault and one count of assault. A jury trial

was held on January 26 and 27, 1978, the Honorable Jack D. Shanstrom presiding. After the jury returned a guilty verdict on both counts, defendant

### was sentenced to five years on Count I and sixmonths on Count 11, the sentences torun concurrently. One and one-half years 

### were then suspended. Defendant appeals. Between 1:00 and 1:30 a.m. on December 9, 1977, defendant and five friends entered the Sacajawea Bar, located in the basement of the Sacajawea Motel inThree Forks, Montana. Shortly thereafter, threeMexican-American brothers, Paul, David, and Caesar Villarreal, entered the bar from the upstairs where they 

### were staying. A fourthMexican-American, named Tano, entered sometime later. When defendant saw these men order a six-pack of beer and noticed one 

### was not wearing a shirt, he remarked: "No shirt, no shoes, no service." Heapparentlywalked over to the men muttering things about "spics" and "wetbacks" and proceeded toknock the six-pack outof thehands of Paul Villarreal. A scuffle ensued and one of theMexican-American brothers had a knife. Soon bar stools and pool cues 

### werebeing used as weapons. After a short time, defendant leftthe bar, went to a car, and picked up a gun. Hefired atleast one shot while on the sidewalk next tothebar entrance. Hethen reentered thebar pointing the gun and helped one of his friends outof the bar. Defendant drove toBozeman and while enroute threw the gun away. Itwas never recovered. The next afternoon,Detective Bruce LaRue of the Gallatin County sheriff's department found a .25 caliber automatic coltpistol cartridge case near the top of the stairswhere a witness had seen defendant firethe gun the night before. Defendant presents six issues for review which can be summarized and stated in the following manner: 1. Whether the District Court erred in giving InstructionNo. 20 concerning the defense of justifiable use of force. 2. Whether the District Court erred ingiving InstructionNo. 9 concerning intent. 3. Whether the District Court erred inexcluding the testimony of two defense witnesses. 4. Whether the District Court erred inrefusing to give defendant's offered InstructionNo. 12. 5. Whether defendant was denied his right to a fair and impartial trialbecause of errors on the part of the District Court. 6. Whether therewas sufficient evidence to support the verdicts of guilty. InstructionNo. 20 read: "You areinstructed that a defense of justifiableuse of force is an affirmative defense and thatthe defendant has the burden of producing sufficientevidence on the issue to raise a reasonable doubt of his guilt." Defendant contends this instruction places the burden of proving self-defense on him. The Statecontends this instructionplaces the "burden of producing evidence" on defendant but not the "burden of persuasion". The Montana County Attorneys Association, appearing as amicus curiae, argues that "a criminal defendant asserting the affirmative defense of justifiable use of force [should be] required toprove thatdefense by a preponderance of the evidence."The United States Supreme Court, inthe landmark case of In

### reWinship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L Ed 2d 368, 375, explicitlyheld that "the Due Process Clause protects [an] accused against conviction except upon proof beyond a reasonable doubt of every fact necessary - toconstitute the crime with which he is charged." (Emphasis added.) Subsequently, ina Maine homicide case, the Supreme Court held that "theDue Process Clause requires theprosecution toprove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue isproperly presented ina homicide case." (Emphasis added.) Mullaney v. Wilbur (1975), 421U.S. 684,

Defendant relies on Mullaney by analogy and argues the State should be required toprove the absence of the "justifiableuse of force" toconvict defendant of aggravated assault. Such a contention ignores the distinction between the statutory scheme outlined inthe Mullaney case and the statutory scheme present inMontana. A 

### similardistinction

was addressed by the Supreme Court inPatterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L Ed 2d 281. In Patterson the issuewas "the constitutionalityunder the 

# . .

. Due Process Clause of burdening the defendant in a New York Statemurder trialwith proving the affirmative defense of extreme emotional disturbance asdefined by New York law." Patterson, 432 U.S. at198, 97 S.Ct. at2320, 53 L Ed 2d at284. In finding thatrequiring the defendant toprove his affirmativedefense by a preponderance of the evidence did not violatedue process, the Supreme Court stated: "We 

# . . .decline toadopt as a constitutional imperative, operative countrywide, that a state must disprove beyond a reasonable doubt every fact constituting any and allaffirmative de-fenses related tothe culpability of an accused. Traditionally, due process has required that only themost basic procedural safeguards be observed; more subtlebalancing of society's interests against those of the accused have been leftto the legislativebranch. We thereforewillnot disturb thebalance struck in previous cases holding that the Due Process Clause requires the prosecution toprove beyond a reasonable doubt allof the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of allaffirmativedefenses has never been constitutionallyrequired; and 

### we perceive no reason tofashion such a rule in this case and apply it tothe statutory defense atissue here." Patterson, 432 U.S. at210, 97 S.Ct. at2327, 53 L Ed 2d at292. Section 94-3-112, R.C.M. 1947, provides that "[a] defense of justifiable use of force, based on the provisions of this chapter is an affirmative defense." The accompanying commission comment affords further clarification: "A defense based upon any of the provisions of this chapter is an affirmativedefense, and if not put in issueby the prosecution's evidence, the defendant, toraise 

### it as an issue, must present some evidence thereon." By denominating the justifiable use of force as an affirmative defense, Montana's statutory scheme does not require the prosecution toprove the absence of affirmative defenses beyond a reasonable doubt as though their absence

were an element of the crime charged. This point is even

more evidentwhen the elements of the crimes charged are distilled from the statutes defining the offenses. Under section 94-5-201 (1) (c)

## , R.C.M. 1947, a person commits the offense of assaultwhen he (1)purposely or knowingly, (2) makes physical contact with an individual, (3) when the contact is of an insulting or provoking nature. Under section 94-5-202(1) (c),R.C.M. 1947, a person commits the offense of aggravated assaultwhen he (1)purposely or knowingly, (2) causes apprehension of serious bodily injury inanother, (3)by use of a weapon, (4) when such apprehen-sion isreasonable. Clearly, absence of justification is not an element of either of these offenses. That being the case, we are leftwith the task of reviewing Instruction No. 20 to see if it 

### is consistent with Montana law. In Statev. Grady (1975), 166Mont. 168, 175, 531 P.2d 681, 684, this Court stated: "The law inMontana is that although the burden of persuasion remains on the State, in order to avail himself of the affirmative defense of selfdefense, the defendant has the burden of producing sufficient evidence on the issue toraise a reasonable doubt of his guilt." Clearly then, the District Court did not err ingiving InstructionNo. 20. It is a clear statement of the law in Montana. The Montana County Attorneys Association argues that a greater burden should be placed on a defendant--that is, a defendant should be required toprove his affirmative defense by a preponderance of the evidence. In support of this contention the Association points out that this Court has already imposed thatburden for other affirmative defenses. Statev. ~cKenzie (1978), Mont

# . , 581 P.2d 1205, 1233, 35 St.Rep. 759, 795 (mentaldisease or defect); and Statev. Stuit (1978), Mont. 

## , 576 P.2d 264, 267, 35 St.Rep. 313, 317 (section 94-3-110, R.C.M. 1947, compulsion). This Court has expressly stated that the test tobe used when considering the affirmative defense of selfdefense is "theburden of producing sufficient evidence on the issue toraise a reasonable doubt of his guilt." Grady, 166Mont. at175, 531 P.2d at684. Wereaffirm that holding and hold thatwhen a criminal defendant seeks to avail himself of the affirmative defense of the use of force in defense of a person pursuant to section 94-3-102, R.C.M.1947, he has the burden of producing sufficient evidence on the issue toraise a reasonable doubt of his guilt. Defendant's second issue for consideration concerns InstructionNo. 9: "You areinstructed that the law presumes that a person intends the ordinary consequences of his voluntary acts." Defendant argues this instruction creates a conclusive presumption of criminal intent and is therefore unconstitutional. The Stateresponds firstby pointing out that defendant did not object to the giving of this instruction attrial; second by pointing out that this instruction has been approved by thisCourt on a number of previous occasions; and third by arguing that giving the instruction was not prejudicial. We have in the past considered this instruction and have decided that 

### it 

### is a proper instruction in a criminal

case. See Statev. McKenzie, 581 P.2d at1222, 35 St.Rep. at780. Therefore, 

### we conclude the District Court did not

err ingiving InstructionNo. 9 to the jury. Defendant's third issue concerns whether the District Court erred inexcluding the testimony of two witnesses, Charles Robinson and Mark Davis. Robinson's testimony, that he had been attacked inthe bar by Mexican-Americans three months prior to the incident involved in this case, was excluded asbeing too remote in time and because Robinson could not identify thepersons who attacked him. Additionally, therewas no proof whatsoever that the parties involved inthe altercations were the same. This testimony

was properly excluded. Robinson did not witness the fight involved inthis case. Histestimony, offered in support of defendant's defense of justifiable use of force, was irrelevant under these circumstances.

### Davis' testimony, that he had seen a man named Tim Van Luchen leave the bar a week before this incident with a broken jaw, was also excluded by the District Court. Defendant argues that Davis should have been allowed to testify with respect to statementsmade at that time by Van Luchen concerning how his jaw had been broken under Rule 803, 

### Mont.R.Evid. The portions of that rule cited by defendant read:"The following are not excluded by the hearsay rule, even though the declarant is available as a witness. "(1) Present sense impression. A 

### statement describing or explaining an event or condition made while the declarant was perceiving the event or condition,or immediately thereafter. "(2) 

### Excited utterance. A 

### statement relating to a startling event or conditionmade while the declarantwas under the stress of excitement caused by the event or condition." The time element is important under either of these exceptions. The fact that Davis did not perceive the event which caused the injury creates a problem with respect to this time element. Thus, the District Court's determination to exclude the testimony was not clearly erroneous. Assuming, for the moment, that the testimony should not have been excluded as hearsay, the testimonywas clearly irrelevant. Like Robinson's testimony, Davis' testimony was offered as proof of defendant's state of mind when he entered the bar. But defendant's own testimony indicated that these prior events were either unknown to him or had no effect on his state of mind. Therefore, defendant was not prejudiced by the exclusion of Davis' testimony. Defendant's fourth issue concerns the District Court's refusal to give defendant's offered instruction number 12:"You arehereby instructed that after considering and weighing the evidence and reconciling any discrepancies inthe evidence, if there 

### is any reasonable hypothesis upon which you can base a verdict of not guilty it 

### is your duty toreturn a verdict of not guilty." Defendant cites Statev. Fitzpatrick (1974), 163Mont. 220, 225, 516 P.2d 605, 609, for the proposition that "to justify conviction on circumstantial evidence, the facts and circumstances must not only be entirely consistent with theory of guilt, but must be inconsistent with any other rationale (i.e. reasonable) conclusion." In this regard, defendant is concerned with the fact that the gun he used when he reentered thebar was never recovered. Hehad argued that the gun was a harmless teargas pistol and not a real gun. However, inFitzpatrick the Stateproved its case totally by circumstantial evidence. In the instant case the greatmajority of evidence offered attrialwas direct evidence. Circumstantial evidence instructions are only required in a case which depends entirely on circumstantial evidence. State

### v. Mah Sam Hing (1931), 89 Mont. 178, 186, 295 P. 1014, 1017. It isnot error torefuse circumstantial evidence instructions if there is direct evidence introduced against the defendant. Statev. White (1965), 146Mont.

Defendant's fifthissue, regarding the effect of errors by the District Court, ismerely a summary of arguments we have already addressed inthe previous four issues. We find

no meritinthis contention thatdefendant was denied a fair trial. Finally, defendant contends therewas not sufficient evidence to support the verdicts of guilty entered againsthim. Again, defendant isprimarily concerned with the evidence supporting his contention that he acted ina justifiedmanner. But, "[wlhether the circumstances

### were such as tojustify defendant's actions 

### is clearly a question of fact for the jury." State

### v. Larson (1978), Mont. I 574 P.2d 266, 269, 35 St.Rep. 69, 73. Defendant's conviction is affirmed.

We Concur: 

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# %&?Q Chief Justice