No. 79-26 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJEAN SORENSON 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

M. F. Hennessey and Leonard J. Haxby, Butte, 

Montana 

M. F. Hennessey argued, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten and Mike McGrath argued, Assistant 

Attorney Generals, Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Michael Wheat argued, Deputy County Attorney, Butte, 

Montana 

Submitted: September 16, 1980 

Filed: MQV 2 4 1980 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Jean Sorenson appeals her conviction of deliberate 

homicide and aggravated assault in the District Court of the 

Second Judicial District, County of Silver Bow, the Honorable Arnold Olsen presiding. We affirm. 

On December 6, 1978, the State filed an information 

charging the defendant, Jean Sorenson, with one count of 

mitigated deliberate homicide and one count of aggravated 

assault. On May 4, 1979, forty-five days prior to trial, 

the State moved the trial court for leave to amend the 

information. The motion was granted. The amended information changed the charge of mitigated deliberate homicide to 

deliberate homicide and retained the charge of aggravated 

assault. 

Defendant was convicted of one count of deliberate 

homicide and one count of aggravated assault following a 

jury trial. The court sentenced defendant to serve twentyfour years' imprisonment on the homicide count and twelve 

years' imprisonment on the aggravated assault count, the 

terms to run concurrently. 

Defendant Sorenson owns and operates the Stockman Bar 

in Butte, Montana. On November 9, 1978, at approximately 

11:45 p.m., Gerald Lojeski, Sam Pernell and Steven Sims 

entered and ordered a round of beers. Defendant refused to 

serve them and ordered them to leave the bar. Sims left, 

but Lojeski and Pernell did not. An argument ensued, during 

which defendant procured a handgun from behind the bar, 

pointed it in the direction of Lojeski and Pernell, and 

fired three shots. One bullet struck Pernell in the shoulder. 

Another struck Lojeski in the face, killing him instantly. 
~efendant maintained she fired in self-defense. She 

claimed she had refused to serve Lojeski, Pernell and Sims 

because they were loud and belligerent. According to defendant, Lojeski became angry and asked if she had refused 

them service because Pernell was a black man. She testified 

that she threatened to call the police and that Lojeski 

thereupon threatened to "kick the s--- out of [her]." She 

then moved down the bar and secured a handgun, and, pointing 

it at Lojeski and Pernell, ordered them to leave. At that 

time, Sorenson contended, the victims attempted to slap or 

strike her, and Pernell threatened to "'whup [her] ass.'" 

She testified she was afraid the victims would "come over 

the bar," so she started shooting. Defendant denied having 

any intent to kill or injure anyone. 

The State presented testimony from three bartenders and 

a bar patron, all of whom had dealt with Lojeski, Pernell, 

and Sims prior to their arrival at the Stockman Bar, and all 

of whom testified that the three men had not been loud, 

belligerent, or aggressive. 

Defendant's testimony also contrasts markedly with the 

testimony of three eyewitnesses. Darrell Halvorson, a truck 

driver and himself a former bartender, was seated at the bar 

within a few feet of defendant, Lojeski and Pernell. He 

testified that the altercation between Sorenson and the 

victims was not serious, that it was a typical barroom 

argument "with a lot of cussing and swearing on both sides." 

Halvorson stated that Lojeski and Pernell had been drinking 

but did not appear to be overly aggressive until Sorenson 

became abusive towards them. According to Halvorson, 

Sorenson called Pernell a "f- ' nigger c--- s ----- .I1 It 

was then that the argument heated up. Halvorson testified 
that neither of the two men at any'time punched or slapped 

at defendant; nor had either ever attempted to "come over 

the bar." At no time, according to Halvorson, did the two 

men place defendant in danger of death or serious bodily 

injury. In his opinion, it was not at all necessary to use 

a gun to eject the men from the premises. 

Two Montana Tech students, Greg LaClaire and Pat 

Rollins, were seated at the opposite end of the bar from 

Halvorson. Their testimony substantially corroborated his. 

LaClaire testified that the victims were "loose" but not 

loud when they entered the bar. He stated that Sorenson 

called Pernell "a m f and a c--- ----- " and told ----- ----- S 

him "to lick his b ---- ." He also testified that the argument between Sorenson and the victims never became physical 

and that the victims never attempted to "climb the bar. " 

Rollins testified that Sorenson started the argument, 

that she used profanity against the victims the whole time 

they were in the bar, and that most of the profanity was 

directed at Pernell. He maintained that neither man 

threatened Sorenson, and that neither "climbed the bar" nor 

attempted to strike Sorenson. Rollins testified, moreover, 

that neither was in a position to strike her. Neither 

Lojeski nor Pernell had brandished a weapon of any kind. He 

identified Sorenson as the aggressor in the confrontation. 

According to Rollins, the argument heated up as the result 

of defendant's profanity. 

Both LaClaire and Rollins testified that Sorenson 

walked from the north end of the bar, where the confrontation with the victims took place, to the south end of the 

bar, where the two students were seated, to procure the gun. 

Both LaClaire and Rollins had worked as bartenders and 
bouncers. Rollins was 6'2" tall and weighed 215 pounds. 

Instead of remaining at the south end of the bar with the 

two students, where she certainly would have been safe from 

any supposed danger posed by Lojeski and Pernell, defendant 

returned with the gun to the north end of the bar. 

Pernell testified that defendant then stationed herself 

directly in front of him but far enough away so that he 

could not have grabbed or struck her even if he had tried. 

Pernell insisted that neither he nor Lojeski made the 

slightest effort to harm defendant and that when the shots 

were fired, defendant was in no danger of death or serious 

bodily injqry. His testimony is corroborated by the absence 

of blood on the bar separating defendant from the victims, 

as well as by the testimony of forensic expert Donald 

Reedman. Based on the pattern of powder burns on Pernell's 

clothing, Reedman testified that the defendant was probably 

four and one-half to five feet from the victims when the 

shots were fired. 

LaClaire testified that, after procuring the handgun, 

Sorenson told the victims to get out but then "almost 

instantaneously" started shooting. Rollins testified that 

defendant fired no warning shots first. Based on their 

personal bartending experiences, Halvorson and the two 

student witnesses all testified, in essence, that the barroom altercation posed no threat of imminent danger to 

Sorenson which would make it necessary for her to defend 

herself. 

Sorenson raises the following issues on appeal: 

1. Did the trial court err in granting the State's 

motion to amend the information changing the charge of 

mitigated deliberate homicide to deliberate homicide? 
2. Did the trial court err in granting the State's 

motion in limine to exclude reference to marijuana use by 

the victims and witnesses twelve hours prior to the shooting? 

3. Did the trial court err in giving Instruction Nos. 

27 and 28 dealing with the use of force in self-defense by 

an aggressor and an aggressor's duty to withdraw? 

4. Did the trial court err in refusing to instruct the 

jury concerning the defense of an occupied structure? 

5. Was there sufficient evidence to support the verdict? 

In her first assignment of error defendant essentially 

argues that the information was violative of both the statutory mandates of section 46-11-403, MCA, and of the constitutional guarantees of 1972 Mont. Const., Art. 11, 520, and 

of the due process clauses of the state and federal constitutions. Her argument has three parts, each of which will 

be discussed separately. 

A. Statutory Argument. 

In her original brief, defendant pursues mainly a 

statutory argument. She relies on this Court's holding in 

State v. Hallam (1978), 175 Mont. 492, 575 P.2d 55, that 

amendments subsequent to pleading are allowed only as to 

matters of form and only when no substantial rights of the 

defendant are prejudiced. She contends that the lower court 

erred in allowing an amendment of substance after she 

pleaded on the original information. 

~efendant's reliance on Hallam is, however, misplaced. 

That case construed the numerical predecessor to section 46- 

11-403, MCA, prior to its amendment in 1977. prior to 1977, 

subsection (1) of the statute permitted amendments of substance only prior to pleading. The 1977 amendment removed 

that limitation, allowing substantive amendments without 
leave of the court at any time not less than five days 

before trial. The procedural safeguards governing substantive amendments of criminal informations are hereafter 

declared by this Court's holding in State v. Cardwell (1980), 

- Mont. - , 609 P.2d 1230, 37 St.Rep. 750, and not by 

Hallam. 

B. Burden Shifting. 

In its brief in support of its motion to amend the 

information, the State listed, as one justification for 

increasing the degree of the offense charged, the fact that 

defendant had failed to supply the State with the names of 

witnesses who would justify retaining the lesser offense of 

mitigated deliberate homicide. As a result, defendant 

contends that the State has attempted to shift its burden of 

proving that defendant committed mitigated deliberate homicide to her. She relies on In Re Winship (1970), 397 U.S. 

358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375. 

Defendant's argument that the State unconstitutionally 

shifted its burden of proving an element of mitigated deliberate homicide to her is unfounded. The burden-shifting 

rationale was developed by the United States Supreme Court 

in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 

44 L.Ed.2d 508, and In Re Winship, supra. Mullaney invalidated a rule of Maine law that a defendant must, to reduce a 

homicide charge to manslaughter, bear the burden of proving 

by a fair preponderance of the evidence that he acted "in 

the heat of passion on sudden provocation." The case held 

that a necessary element of murder, malice, may not be 

presumed, thereby relieving the State of the burden of 

proving every element of the crime beyond a reasonable 

doubt. The Supreme Court applied the same principle in 
winship to invalidate a New York statute providing that, for 

a juvenile to be found guilty of an act which would constitute a crime if committed by an adult, the State need prove 

guilt only by a preponderance of the evidence. 

Mullaney v. Wilbur, supra, does not support defendant's 

position. In 1977 the United States Supreme Court, distinguishing Mullaney, held that a New York law requiring that 

the defendant in a prosecution for second-degree murder 

prove by a preponderance of the evidence the affirmative 

defense of extreme emotional disturbance to reduce the 

offense to manslaughter did not violate the due process 

clause. Patterson v. New York (1977), 432 U.S. 197, 97 

S.Ct. 2319, 53 L.Ed.2d 281. The Court held that a State is 

not required to prove the nonexistence of every fact which 

it is willing to recognize as an exculpatory or mitigating 

circumstance affecting the degree of culpability or the 

severity of the punishment. 432 U.S. at 207-209, 97 S.Ct. 

2319, 53 L.Ed.2d 281. The due process clause does not put 

the states to a choice between abandoning affirmative defenses "or undertaking to disprove their existence in order 

to convict of a crime which otherwise is within its constitutional powers to sanction . . ." 432 U.S. at 208, 97 

S.Ct. 2319, 53 L.Ed.2d 281. 

The Patterson Court noted that Mullaney was distinguishable because the Maine law which Mullaney invalidated 

presumed malice, a requisite element of murder, if the 

defendant did not prove mitigating circumstances. 432 u.S. 

at 215-216, 97 S.Ct. 2319, 53 L.Ed.2d 286. In summary, 

Patterson stands for the proposition that a state may require a criminal defendant to prove mitigating circumstance 

when this circumstance constitutes a defense rather than 
essential elements of the offense. As the Annotator's Note 

to section 45-3-115, MCA, provides: 

" There does not seem to be any federal constitutional problem in establishing a burden 

greater than a 'reasonable doubt' since the 

U.S. Supreme Court has indicated that a state 

need not allow any affirmative defenses at all. 

Patterson v. New York (1977), 432 U.S. 197. 

And, where it chooses to allow such defenses, 

the State may regulate the burden of producing 

evidence and the burden of persuasion as long 

as it does not thereby shift to the defendant 

its own burden of proof as to each of the elements of the offense beyond a reasonable doubt. 

- Id. The Supreme Court has even held that an 

Oregon statute, which required the defendant 

to prove the defense of insanity beyond a reasonable doubt, was not violative of due process. Leland v. Oregon (1952), 343 U.S. 790." 

C. Cardwell Argument. 

After defendant filed her original brief, this Court 

decided State v. Cardwell (1980), - Mont. , 609 P.2d 

1230, 37 St.Rep. 750. In that case, this Court held that 

section 46-11-403, MCA, allowing substantive amendments 

without leave of court, is unconstitutional under 1972 Mont. 

Const., Art. 11, 520. Furthermore, the Court held that the 

constitution requires judicial supervision of the information throughout the course of prosecution and that a substantive change in the information may only be made in 

compliance with certain procedural safeguards. Cardwell, 

609 P.2d at 1233. In her reply brief, defendant contends 

that the Cardwell holding applies to this case. Her argument is twofold. 

Initially, Sorenson contends that the retroactive 

application of the Cardwell rule is not at issue. She 

argues that Cardwell applies directly to the present case 

for essentially three reasons: (1) Cardwell's trial occurred 

before the Sorenson trial; (2) the defendant has consistently contended that the State's amendment of the informa- 
tion was unconstitutional as applied to her (she contends 

that the State impermissibly put the burden on her to justify retaining the charge of mitigated deliberate homicide 

or see the charge increased to deliberate homicide); and (3) 

defendant contends that the doctrine of retroactive application, as announced by State v. Campbell (1979), Mon t . 

, 597 P.2d 1146, 1149, 37 St.Rep. 1264, applies only to 

new, court-created rules, not to statutes which have been 

declared unconstitutional. 

In the alternative defendant argues that if retroactivity is an issue, then, pursuant to the three-pronged 

test of State v. Campbell, supra, the equities favor the 

retroactive application of the Cardwell holding in this 

case. 

Cardwell represents this Court's view that leave of 

court to amend an information will fully protect the criminal 

defendant's rights under 1972 Mont. Const., Art. 11, 520. 

Cardwell identifies two interests protected by that constitutional provision. The first is the requirement that the 

information be supported by probable cause at all stages of 

the proceeding. 609 P.2d at 1233. The second interest is 

the requirement, rooted in the due process clause, that 

defendant have notice of the charge and an opportunity to 

prepare a defense. 609 P.2d at 1233. To protect these 

interests, Cardwell establishes three procedural safeguards 

that must be complied with before a substantive amendment to 

an information is allowed: (1) the amended information must 

be approved by the District Court; (2) the defendant must 

have adequate notice of the charge and an opportunity to 

prepare for trial; and (3) the defendant "should" be rearraigned on the new charge. 609 P.2d at 1233. 
The record in the instant case shows that these three 

procedural prerequisites to substantive amendments of informa tions have been met : 

(1) Here, although section 46-11-403 (I), MCA, did not 

facially require it, the prosecution sought and received 

leave of the trial court before it filed the amended information. On May 4, 1979, the State filed a motion to amend 

the information accompanied by a brief in support of the 

motion. A hearing was held on the motion on May 11, 1979, 

at which defendant was represented by counsel. By its order 

of May 25, 1979, the trial court granted the motion to 

amend. 

(2) Defendant clearly had adequate notice and adequate 

time to prepare her defense. The motion to amend was filed 

on May 4, 1979, some forty-five days prior to the beginning 

of trial on June 18, 1979. Furthermore, the amended information did not change the substantive elements of the 

charge. The State has the burden of proving the same elements under both mitigated deliberate homicide and deliberate 

homicide. The amended information continued to allege that 

defendant purposely or knowingly killed Gerald Lojeski. 

Defendant has not demonstrated how any of her substantial 

rights were prejudiced; nor has defendant explained how she 

was unfairly surprised or rendered incapable of preparing a 

defense by the trial court's leave to amend the information. 

See State v. Stewart (1973), 161 Mont. 501, 505, 507 ~.2d 

1050. If defendant felt she had an inadequate opportunity 

to prepare an adequate defense, she could have requested a 

continuance. 
(3) A minute entry of the District Court dated June 11, 

1979, clearly shows that defendant was rearraigned under the 

amended in£ orma tion. 

Because the leave of court was granted, the procedural 

safeguards of Cardwell were substantially complied with and 

defendant was not prejudiced by the existence of a procedural statute which was later ruled unconstitutional. Since 

she was not injured by the statute, defendant has no standing to argue for the retroactive application of the Cardwell 

rule. 

We find no merit in defendant's first assignment of 

error. 

In her second issue defendant contends that the trial 

court erred in prohibiting the defense from referring to the 

use of marijuana by Pernell, Sims, and Lojeski while en 

route to Butte by bus at a rest stop in Idaho, some twelve 

hours before the shooting. Defendant's arguments are largely 

speculative and conclusory. 

Defendant asserts that the excluded evidence is "extremely relevant" to the question of the fundamental testimonial credibility of the State's two primary witnesses, 

Pernell and Sims. Defendant argues that much of the testimony that these men gave at trial related to events taking 

place on the bus to Butte while they were "undeniably" under 

the influence of both alcohol and marijuana, which could 

have colored their perception of those events. Defendant 

insists that this is an "obvious defect" in their credibility that should have been brought to the attention of the 

jury. Defendant also speculates that the witnesses could 

have again used drugs after their arrival in Butte and could 

have been in a "drug-induced stupor" when they entered the 

Stockman Bar. 
Defendant also implies that the excluded evidence was 

relevant to the "central issue" of her case, presumably her 

theory of self-defense. This contention seems to be premised 

on an assumption that the smoking of marijuana would be 

likely to produce aggressive tendencies. 

The District Court excluded any mention of the use of 

marijuana by Pernell, Sims and Lojeski twelve hours before 

the shooting on the grounds of remoteness. 

In State v. Gleim (1895), 17 Mont. 17, 31, 41 P. 998, 

this Court stated that the mere use of narcotics is not 

admissible to impeach witness credibility "unless it is 

proposed to show that the witness was under the influence of 

the drugs at the time the events happened about which she 

testified." Defendant has laid no foundation tending to 

show that the witnesses were under the influence of drugs at 

the time of the events in question. She merely assumes that 

they were and that their behavior was adversely affected. 

Defendant has, therefore, failed to make the requisite 

showing under Gleim. 

Evidence that a witness was intoxicated is admissible 

on cross-examination to impeach the witness's ability to 

accurately perceive the events about which he has testified. 

)a-efzi3 

2ss=mq V. Sandberg (1918), 54 Mont. 538, 540, 172 P. 132, 

133; State v. Trueman (1906), 34 Mont. 249, 252, 85 P. 1024, 

1025. Evolving a satisfactory rule for cases in which the 

witness uses drugs is considerably more difficult, however. 

Although the psychological effects of alcohol usage are far 

from clear, much less is known about the effect of drugs. 

The multiplicity of drugs and the varying reactions they 

cause have compounded the difficulties. 
Only a minority of state courts has adopted a blanket 

rule of admissibility. Note, 1966 Utah L. Rev. 742, 743; 

see also Annot., 52 A.L.R.2d 848 (1957). Those courts allow 

evidence of drug usage,without requiring proof that the 

witness's testimentary capacities were impaired, usually on 

the theory that a user of drugs is a liar. That is, however, a theory of impeachment which seemingly rests more on 

the witness's character than on his mental capacity. Such a 

theory would now be governed by Rule 608, Mont.R.Evid. 

The majority of state courts has adopted the sounder 

rule that evidence of drug usage is not permitted "unless it 

can also be proved that the use of narcotics has impaired 

the sensory, zetentive, or communicative f %*the 

witness." Note, 1966 Utah L. Rev. 742, 743. 

The federal courts, operating under the Federal Rules 

of Evidence upon which Montana's rules are based, have 

endorsed a variety of approaches. See generally, 3 Weinstein's Evidence, §607[04] (1978). There does not seem to 

be a clear consensus in the federal system. 

State v. Gleim, supra, indicates that Montana has 

endorsed the majority rule requiring a showing that drug 

usage has impaired the witness's facilities before evidence 

of the witness's use of the drug is admissible. Implicit in 

the formulation of the rule in Gleim (drug use is inadmissible unless it is shown that the witness was under the 

influence of drugs ---- at the time the events about which - he 

testifies occurred) is a recognition of the concept of 

remoteness. Here, the trial judge ruled that the smoking of 

marijuana was too remote in time to be admitted. The question of remoteness is directed to the discretion of the 

trial court. State v. Fitzpatrick (1980) , - Mont. 1 
606 P.2d 1343, 1355, 37 St.Rep. 194; State v. Satterfield 

(1943), 114 Mont. 122, 127, 132 P.2d 372. While remoteness 

is a matter that generally goes to the credibility of the 

evidence rather than to its admissibility, Satterfield, 

supra, evidence can be excluded if it is so remote that it 

has no evidentiary value. Satterfield, supra; State v. 

Pemberton (1909), 39 Mont. 530, 535, 104 P. 556. Given 

defendant's failure to lay a proper foundation that the 

witnesses were under the influence of drugs at the time of 

the material events in this case, exclusion of the evidence 

was justified both under the Gleim rule and under the remoteness doctrine. 

The District Court did not err in granting the State's 

motion in limine. 

Defendant next urges that the trial court erred in 

giving the following instructions dealing with an aggressor's 

use of force in self-defense and an aggressor's duty to 

withdraw. 

Instruction No. 27, to which defendant objects, reads: 

"You are instructed that the use of force in 

defense of a person is not available to a person who purposely or knowingly provokes the use 

of force against himself unless such force is 

so great that he reasonably believes that he 

has exhausted every reasonable means to escape 

such danger other than the use of force which 

is likely to cause death or serious bodily 

harm to the assailant." 

Defendant also objects to Instruction No. 28: 

"You are instructed that the use of force in 

defense of person is not available to a person who purposely or knowingly provokes the 

use of force against himself unless in good 

faith, he withdraws from physical contact with 

the assailant and indicates clearly to the 

assailant that he desires to withdraw and 

terminate the use of force but the assailant 

continues or resumes the use of force." 
Defendant presents essentially a two-pronged argument. 

First, there is insufficient evidence to justify giving 

Instruction Nos, 27 and 28. Defendant points selectively to 

evidence in the record which, standing alone, supports her 

contention that she was not the aggressor. She emphasizes 

the fact that she is a 71-year-old woman. She contends that 

she was suddenly confronted by three drunk men in her business. When she refused to serve them alcohol, as she was 

legally obligated to do under section 16-3-301(2), MCA, she 

contends that the men subjected her to threats of physical 

violence. Second, defendant contends that the instructions 

were abstract and incomplete statements of the law. Defendant argues that a person must have the specific intent of 

becoming an aggressor before he or she may be deprived of 

the right of self-defense on the ground of provocation. 

Section 45-3-105(2), MCA, provides that self-defense is 

not available to a person who: 

"(2) purposely or knowingly provokes the use of 

force against himself, unless: 

"(a) such force is so great that he reasonably 

believes that he is in imminent danger of death 

or serious bodily harm and that he has exhausted 

every reasonable means to escape such danger 

other than the use of force which is likely to 

cause death or serious bodily harm to the assailant; or 

"(b) in good faith, he withdraws from physical 

contact with the assailant and indicates clearly 

to the assailant that he desires to withdraw 

and terminate the use of force but the assailant 

continues or resumes the use of force." 

In State v. Buckley (1976), 171 Mont. 238, 242, 557 

P.2d 283, this Court held that "the district court's instructions must cover every issue or theory having support in the 

evidence, and the inquiry of the district court must only be 

whether or not - any evidence exists in the record to warrant 
an instruction . . ." Sufficient evidence is clearly present 

in the record to support the State's theory that defendant 

was the aggressor in her confrontation with the victims. 

The evidence justifies giving Instruction Nos. 27 and 

28. A person can become an aggressor if he or she purposely 

or knowingly provokes the victim verbally. The jury was 

instructed on the requisite mental state in both Instruction 

Nos. 27 and 28. 

As her fourth issue, Sorenson urges that the trial 

court erred in refusing her proffered instructions concerning the defense of an occupied structure. 

Section 45-3-103, MCA, defines the justifiable use of 

force in defense of an occupied structure: 

"A person is justified in the use of force or 

threat to use force against another when and to 

the extent that he reasonably believes that 

such conduct is necessary to prevent or terminate such other's unlawful entry into or 

attack upon an occupied structure. However, 

he is justified in the use of force likely to 

cause death or serious bodily harm only if: 

" (1) the entry is made or attempted in violent, 

riotous, or tumultuous manner and he reasonably believes that such force is necessary to 

prevent an assault upon or offer of personal 

violence to him or another then in the occupied structure; or 

"(2) he reasonably believes that such force is 

necessary to prevent the comission of a forcible felony in the occupied structure." 

This section is derived from Illinois which has substantially the same statute. Ill. C.C. 1961, Title 38, S7-2. 

Before the statute is applicable, Illinois case law 

requires that the entry must be unlawful; hence, the defendant may not assert justification where the victims enter 

upon the premises lawfully but subsequently engages in 

unlawful conduct for which the occupant of the dwelling 

seeks to expel the victim. People v. Chapman (1977), 49 
Ill.App.3d 553, 364 N.E.2d 577; People v. Brown (1974), 19 

Ill.~pp,3d 757, 312 N.E.2d 789; see generally, Annotator's 

Note, Montana Criminal Code Annotated 131-132 (rev. 1980). 

Sorenson's claim is that once she had ordered these 

customers out of her bar, and they refused to go, then their 

continued presence in the bar became an unlawful entry into 

an occupied structure. Based on that syllogism, she maintains she was entitled to instructions based on section 45- 

3-103, MCA. 

By its terms, this section only applies to efforts of a 

defendant to prevent or terminate an unlawful entry into 

occupied premises. It has no application to a lawful entry 

into premises. On the evidence here, without doubt, the 

shooting did not occur while Sorenson was attempting to 

prevent or terminate an entry into her premises. No error 

occurred when the District Court refused instructions based 

upon this section. 

No authority has been found and none was cited by 

defendant that a "tumultuous entry" into a tavern makes the 

entry unlawful. The trial court properly refused defendant's proferred instructions on defense of an occupied 

structure since there was no evidence that the entry was 

unlawful or an attack upon the structure, 

Finally, Sorenson contends that the verdict is not 

supported by sufficient evidence. The contention is frivolous. Defendant merely asserts in a conclusory fashion that 

the cause of the shooting was the victims' insistence on 

being served liquor, that the shooting of the victims was 

entirely justified even when the evidence is viewed in the 

light most favorable to the State, and that she was under 

extreme stress which mitigated the crime. 
The jury is not bound to blindly accept defendant's 

version of the facts. It is free to pick and choose the 

evidence it wishes to believe. State v. Seitzinger (1979), 

Mont. , 589 P.2d 655, 658, 36 St.Rep. 122, 125; 

State v. Fitzpatrick (1973), 163 Mont. 220, 226, 516 P.2d 

605. The jury chose to believe the State's witnesses, not 

Sorenson. 

The verdict is supported by sufficient evidence. 

Af f irmed . 

1 

We concur: 

4AAd @&&&$7 

Chief Justice 

Justices 

~igtrict Judge, sitting in 

place of Mr. Justice Daniel Shea.