No. 14255 

IN THE SUP= CCUI~T OF THE STATE OF mmm 

1978 

STATE OF ICNIYUA, 

Plaintiff ax3 Respondent, 

-VSWlLLIAM ORIE COOPER, 

Defendant and Appellant. 

Appeal frm: District Court of the Eighteenth Judicial District, 

 nora able Jack D. Shanstran, Judge presiding. 

Counsel of Record: 

For Appllant: 

Michael Sand argued, Bozeman, Mntana 

For Reqmndent : 

Hon. Mike Greely, Attorney General, Helena, mntana 

Sheri K. Sprigg argued, Assistant Attorney General, Helena, 

Mntana 

Donald White, County Attorney, Bozgnan, mntana 

Gregory R. Todd argued, Deputy County Attorney, Bozm, mntana 

Sdmitted: October 23, 1978 

Decided: dkf? -- "3 a", 

, r--t - .! 

1 I> , _ >-I - Filed: --I 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

~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 six months on Count 11, the sentences 

to run 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 in Three Forks, Montana. 

Shortly thereafter, three Mexican-American brothers, Paul, 

David, and Caesar Villarreal, entered the bar from the 

upstairs where they were staying. A fourth Mexican-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." He apparently walked over to the men muttering 

things about "spics" and "wetbacks" and proceeded to knock 

the six-pack out of the hands of Paul Villarreal. A scuffle 

ensued and one of the Mexican-American brothers had a 

knife. Soon bar stools and pool cues were being used as 

weapons. After a short time, defendant left the bar, went 

to a car, and picked up a gun. He fired at least one shot 

while on the sidewalk next to the bar entrance. He then 

reentered the bar pointing the gun and helped one of his 

friends out of the bar. 

Defendant drove to Bozeman and while enroute threw the 

gun away. It was never recovered. The next afternoon, 
Detective Bruce LaRue of the Gallatin County sheriff's 

department found a .25 caliber automatic colt pistol cartridge case near the top of the stairs where a witness had 

seen defendant fire the 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 Instruction No. 20 concerning the defense of justifiable use of 

force. 

2. Whether the District Court erred in giving Instruction No. 9 concerning intent. 

3. Whether the District Court erred in excluding the 

testimony of two defense witnesses. 

4. Whether the District Court erred in refusing to 

give defendant's offered Instruction No. 12. 

5. Whether defendant was denied his right to a fair 

and impartial trial because of errors on the part of the 

District Court. 

6. Whether there was sufficient evidence to support 

the verdicts of guilty. 

Instruction No. 20 read: 

"You are instructed that a defense of justifiable use of force is an affirmative defense 

and that the defendant has the burden of producing sufficient evidence 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 State contends this instruction places 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 to prove 

that defense by a preponderance of the evidence." 
The United States Supreme Court, in the landmark case 

of In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 

1073, 25 L Ed 2d 368, 375, explicitly held that "the Due 

Process Clause protects [an] accused against conviction 

except upon proof beyond a reasonable doubt of every fact 

necessary - to constitute the crime with which he is charged." 

(Emphasis added.) Subsequently, in a Maine homicide case, 

the Supreme Court held that "the Due Process Clause requires 

the prosecution to prove beyond a reasonable doubt the 

absence of the heat of passion on sudden provocation when 

the issue is properly presented in a homicide case." (Emphasis added.) Mullaney v. Wilbur (1975), 421 U.S. 684, 

Defendant relies on Mullaney by analogy and argues the 

State should be required to prove the absence of the "justifiable use of force" to convict defendant of aggravated 

assault. Such a contention ignores the distinction between 

the statutory scheme outlined in the Mullaney case and the 

statutory scheme present in Montana. A similar distinction 

was addressed by the Supreme Court in Patterson v. New York 

(1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L Ed 2d 281. In 

Patterson the issue was "the constitutionality under the . . 

. Due Process Clause of burdening the defendant in a New 

York State murder trial with proving the affirmative defense 

of extreme emotional disturbance as defined by New York 

law." Patterson, 432 U.S. at 198, 97 S.Ct. at 2320, 53 L Ed 

2d at 284. In finding that requiring the defendant to prove 

his affirmative defense by a preponderance of the evidence 

did not violate due process, the Supreme Court stated: 

"We . . . decline to adopt as a constitutional 

imperative, operative countrywide, that a state 

must disprove beyond a reasonable doubt every 

fact constituting any and all affirmative de- 
fenses related to the culpability of an accused. 

Traditionally, due process has required that 

only the most basic procedural safeguards be 

observed; more subtle balancing of society's 

interests against those of the accused have 

been left to the legislative branch. We therefore will not disturb the balance struck in 

previous cases holding that the Due Process 

Clause requires the prosecution to prove beyond 

a reasonable doubt all of the elements included 

in the definition of the offense of which the 

defendant is charged. Proof of the nonexistence 

of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and 

apply it to the statutory defense at issue here." 

Patterson, 432 U.S. at 210, 97 S.Ct. at 2327, 

53 L Ed 2d at 292. 

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 affirmative defense, and if 

not put in issue by the prosecution's evidence, 

the defendant, to raise 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 to prove 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 evident when 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 assault when 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 assault when he (1) purposely or 

knowingly, (2) causes apprehension of serious bodily injury 

in another, (3) by use of a weapon, (4) when such apprehen- 
sion is reasonable. Clearly, absence of justification is 

not an element of either of these offenses. That being the 

case, we are left with the task of reviewing Instruction No. 

20 to see if it is consistent with Montana law. 

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

681, 684, this Court stated: 

"The law in Montana 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 to raise a reasonable doubt of his guilt." 

Clearly then, the District Court did not err in giving 

Instruction No. 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 to prove his affirmative 

defense by a preponderance of the evidence. In support of 

this contention the Association points out that this Court 

has already imposed that burden for other affirmative defenses. State v. ~cKenzie (1978), Mont . , 581 

P.2d 1205, 1233, 35 St.Rep. 759, 795 (mental disease or 

defect); and State v. 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 to be 

used when considering the affirmative defense of selfdefense is "the burden of producing sufficient evidence on 

the issue to raise a reasonable doubt of his guilt." Grady, 

166 Mont. at 175, 531 P.2d at 684. We reaffirm that holding 

and hold that when 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 to raise a reasonable doubt of his guilt. 

Defendant's second issue for consideration concerns 

Instruction No. 9: 

"You are instructed 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 State responds first by pointing out that 

defendant did not object to the giving of this instruction 

at trial; second by pointing out that this instruction has 

been approved by this Court 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 State v. McKenzie, 581 P.2d at 1222, 35 St.Rep. 

at 780. Therefore, we conclude the District Court did not 

err in giving Instruction No. 9 to the jury. 

Defendant's third issue concerns whether the District 

Court erred in excluding the testimony of two witnesses, 

Charles Robinson and Mark Davis. Robinson's testimony, that 

he had been attacked in the bar by Mexican-Americans three 

months prior to the incident involved in this case, was 

excluded as being too remote in time and because Robinson 

could not identify the persons who attacked him. Additionally, there was no proof whatsoever that the parties 

involved in the altercations were the same. This testimony 

was properly excluded. Robinson did not witness the fight 

involved in this case. His testimony, 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 statements made 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 condition made while 

the declarant was 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 testimony was 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 are hereby instructed that after considering 

and weighing the evidence and reconciling any 

discrepancies in the evidence, if there is any 

reasonable hypothesis upon which you can base a 

verdict of not guilty it is your duty to return 

a verdict of not guilty." 

Defendant cites State v. Fitzpatrick (1974), 163 Mont. 

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 the bar was never recovered. He had 

argued that the gun was a harmless teargas pistol and not a 

real gun. 

However, in Fitzpatrick the State proved its case 

totally by circumstantial evidence. In the instant case the 

great majority of evidence offered at trial was 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 is not error to refuse circumstantial 

evidence instructions if there is direct evidence introduced 

against the defendant. State v. White (1965), 146 Mont. 

Defendant's fifth issue, regarding the effect of errors 

by the District Court, is merely a summary of arguments we 

have already addressed in the previous four issues. We find 

no merit in this contention that defendant was denied a fair 

trial. 

Finally, defendant contends there was not sufficient 

evidence to support the verdicts of guilty entered against 
him. Again, defendant is primarily concerned with the 

evidence supporting his contention that he acted in a justified manner. But, "[wlhether the circumstances were such as 

to justify 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: 

~4A8 %&?Q 

Chief Justice