### 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

## 41980Mr. Justice John Conway Harrison delivered the Opinion of the Court. Jean Sorenson appeals her conviction of deliberate homicide and aggravated assault inthe DistrictCourt of the Second Judicial District, County of Silver Bow, the HonorableArnold Olsen presiding. Weaffirm. On December 6, 1978, the State filedan information charging the defendant, Jean Sorenson, with one count of mitigated deliberatehomicide and one count of aggravated assault. On May 4, 1979, forty-five days prior to trial, the Statemoved the trialcourt for leave toamend the information. The motion was granted. The amended information changed the charge of mitigated deliberatehomicide to deliberatehomicide 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 torun concurrently. Defendant Sorenson owns and operates the Stockman Bar inButte, Montana. On November 9, 1978, atapproximately 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 toleave the bar. Sims left, butLojeski and Pernell did not. An argument ensued, during which defendant procured a handgun from behind the bar, pointed it inthe direction of Lojeski and Pernell, and fired three shots. One bullet struck Pernell inthe shoulder. Another struck Lojeski inthe face, killing him instantly.~efendant maintained she fired inself-defense. She claimed she had refused toserveLojeski, Pernell and Sims because they were loud and belligerent. According todefendant, Lojeski became angry and asked if she had refused them servicebecause Pernell was a black man. She testified that she threatened tocallthe police and thatLojeski thereupon threatened to "kick the 

### s--- outof [her]." She then moved down the bar and secured a handgun, and, pointing it atLojeski and Pernell, ordered them to leave. Atthat 

### time, Sorenson contended, the victims attempted to slapor strikeher, and Pernell threatened to "'whup [her] ass.'" She testified she was afraid the victims would "come over thebar," so she started shooting. Defendant denied having any intent tokillor injure anyone. The Statepresented testimony from three bartenders and

a bar patron, allof whom had dealtwith Lojeski, Pernell, and Sims prior totheir arrivalatthe Stockman Bar, and all of whom testified that the threemen had notbeen loud, belligerent, or aggressive. Defendant's testimony also contrastsmarkedly with the testimony of three eyewitnesses. Darrell Halvorson, a truck driver and himself a former bartender, was seated atthe bar within a few feetof defendant, Lojeski and Pernell. He testified that the altercationbetween Sorenson and the victims was not serious, that it

### was a typicalbarroom argument "with a lotof cussing and swearing on both sides." Halvorson stated thatLojeski and Pernell had been drinking but did not appear tobe overly aggressiveuntil Sorenson became abusive towards them. According toHalvorson, Sorenson calledPernell a "f- 

### ' nigger c--- s

# -----.I1 It

was then that the argument heated up. Halvorson testifiedthatneither of the two men 

### atany'timepunched or slapped atdefendant; nor had either ever attempted to "come over thebar." Atno 

### time, according toHalvorson, did the two

men place defendant indanger of death or serious bodily injury. In his opinion, it

### wasnot atallnecessary touse

a gun toejectthemen from the premises. Two Montana Tech students, Greg LaClaire and Pat Rollins, 

### were seated atthe opposite end of the bar from Halvorson. Their testimony substantiallycorroborated his. LaClaire testified that the victims 

### were "loose" but not loud when they entered the bar. He stated thatSorenson called Pernell "a

### m f and a c--- 

## -----" and told 

# ----- ----- S him "tolick hisb 

## ----

# ." 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 inthe bar, and thatmost of the profanity was directed atPernell. Hemaintained thatneither man threatened Sorenson, and thatneither "climbed the bar" nor attempted to strikeSorenson. Rollins testified, moreover, thatneither 

### was ina position to strikeher. Neither Lojeski nor Pernell had brandished a weapon of any kind. He identified Sorenson asthe aggressor inthe confrontation. According toRollins, 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 confrontationwith the victims took place, to the south end of the bar, where the two students

### were seated, toprocure the gun. Both LaClaire and Rollins had worked asbartenders andbouncers. Rollinswas 6'2" tall and weighed 215 pounds. Instead of remaining atthe south end of the bar with the two students, where she certainlywould 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 thatdefendant then stationed herself directlyinfrontof him but far enough away so thathe could not have grabbed or struck her even if he had tried. Pernell insisted thatneither he nor Lojeski made the slightest efforttoharm defendant and thatwhen the shots

were fired, defendantwas inno danger of death or serious bodily injqry. Histestimony is corroborated by the absence of blood on the bar separating defendant from the victims,

aswell asby 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 feetfrom the victims when the shots

### were fired. LaClaire testified that, afterprocuring the handgun, Sorenson told the victims togetoutbut then "almost instantaneously" started shooting. Rollins testified that defendant fired no warning shots first. Based on their personal bartending experiences, Halvorson and the two studentwitnesses alltestified, inessence, that the barroom altercationposed 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 erringranting the State's motion to amend the information changing the charge of mitigated deliberate homicide todeliberate homicide?2. Did the 

### trial courterr ingranting the State's motion in limine toexcludereference tomarijuana use by the victims and witnesses twelve hours prior tothe shooting? 3. Did the trial court 

### err ingiving InstructionNos. 27 and 28 dealing with the use of force in self-defense by an aggressor and an aggressor's duty towithdraw? 4. Did the trial court 

### err inrefusing toinstruct the jury concerning the defense of an occupied structure? 5. Was there sufficient evidence to support the verdict? Inher firstassignment of error defendant essentially argues thatthe information was violative of both the statutorymandates of section 46-11-403, MCA, and of the constitutional guarantees of 1972Mont. Const., Art. 11, 520, and of the due process clauses of the stateand federal constitutions. Herargument has threeparts, each of which 

### will be discussed separately. A. StatutoryArgument. In her originalbrief, defendant pursues mainly a statutory argument. She 

### relies on thisCourt's holding in Statev. Hallam (1978), 175Mont. 492, 575 P.2d 55, that amendments subsequent topleading areallowed only as to matters of form and only when no substantialrights of the defendant areprejudiced. She contends that the lower court erred inallowing 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 itsamendment in 1977. prior to 1977, subsection (1)of the statutepermitted amendments of substance only prior topleading. The 1977 amendment removed thatlimitation, 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 itsmotion to amend the information, the State listed, as one justification for increasing the degree of the offense charged, the fact that defendanthad 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 inMullaney v. Wilbur (1975),421U.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 suddenprovocation." 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 actwhich 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 supportdefendant'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. Pattersonv. New York (1977),432U.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 factwhich it iswilling to recognize as an exculpatory or mitigating circumstanceaffecting 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 notput the states to a choice between abandoning affirmative defenses "orundertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction

# .. ." 432U.S. at 208, 97 S.Ct. 2319, 53 L.Ed.2d 281. The Patterson Court noted thatMullaney was distinguishable because the Maine law which Mullaney invalidated presumed malice, a requisite element of murder, if the defendant did notprove 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 thanessential elements of the offense. As the Annotator's Note to section 45-3-115, MCA, provides: 

### " There does not 

### seem tobe any federal constitutionalproblem inestablishing a burden greater than a 'reasonable doubt' since the U.S. Supreme Court has indicated that a state need not allow any affirmative defenses atall. Patterson v. New York (1977), 432 U.S. 197. And, where it chooses to allow such defenses, the Statemay regulate the burden of producing evidence and the burden of persuasion as long as it does not thereby shiftto the defendant 

### its own burden of proof as toeach 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 toprove 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 filedher original brief, this Court decided Statev. Cardwell (1980), -Mont. 

## , 609 P.2d 1230, 37 St.Rep. 750. In thatcase, this Court held that section 46-11-403, MCA, allowing substantive amendments without leave of court, isunconstitutional under 1972Mont. 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 substantivechange inthe information may only be made 

### in compliance with certainprocedural safeguards. Cardwell, 609 P.2d at1233. In her reply brief, defendant contends that the Cardwell holding applies to thiscase. Her argument 

### is twofold. Initially, Sorenson contends that the retroactive applicationof the Cardwell rule isnot atissue. She argues thatCardwell applies directly to the present case for essentially three reasons: (1)Cardwell's trialoccurred before the Sorenson trial; (2) the defendant has consistently contended that the State's amendment of the informa-tion was unconstitutional as applied toher (shecontends that the State impermissibly put the burden on her tojustifyretaining the charge of mitigated deliberate homicide

or see the charge increased todeliberate homicide); and (3) defendant contends that the doctrine of retroactive application,as announced by Statev. Campbell (1979), Mont

# .

, 597 P.2d 1146, 1149, 37 St.Rep. 1264, applies only to new, court-created rules, not to statuteswhich have been declared unconstitutional. In the alternativedefendant argues that if retroactivityis an issue, then, pursuant to the three-pronged test of Statev. Campbell, supra, the equities favor the retroactive application of the Cardwell holding inthis

case.Cardwell represents thisCourt's view that leave of court to amend an information willfullyprotect the criminal defendant's rights under 1972 Mont. Const., Art. 11, 520. Cardwell identifies two interests protected by that constitutional provision. The firstis the requirement that the information be supported by probable cause atall stages of the proceeding. 609 P.2d at1233. The second interest is the requirement, rooted inthe 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 thatmust be complied with before a substantive amendment to

an information is allowed: (1)the amended information must be approved by the DistrictCourt; (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 inthe instantcase shows that these three procedural prerequisites to substantive amendments of informations 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 courtbefore 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, atwhich defendant was represented by counsel. By its order of May 25, 1979, the 

### trial court granted themotion to amend. (2) Defendant clearlyhad adequate notice and adequate time toprepare her defense. The motion to amend was filed

on May 4, 1979, some forty-five days prior to the beginning of trialon June 18, 1979. Furthermore, the amended information did not change the substantive elements of the charge. The Statehas the burden of proving the same elements under both mitigated deliberatehomicide and deliberate homicide. The amended information continued to allege that defendant purposely orknowingly 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), 161Mont. 501, 505, 507 ~.2d 1050. If defendant feltshe had an inadequate opportunity toprepare an adequate defense, she could have requested a continuance.(3) A minute entryof the District Court dated June 11, 1979, clearly shows thatdefendant was rearraigned under the amended in£ ormation. Because the leave of court

### was granted, the procedural safeguards of Cardwell 

### were substantiallycomplied with and defendant was not prejudiced by the existence of a procedural statutewhich 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 meritindefendant's firstassignment of

error. In her second issue defendant contends that the trial court erred inprohibiting the defense from referring to the

use of marijuana by Pernell, Sims, and Lojeski while en route toButte by bus ata 

### rest stop in Idaho, some twelve hours before the shooting. Defendant's arguments arelargely speculative and conclusory. Defendant asserts that the excluded evidence is "extremely relevant" to the question of the fundamental testimonial credibilityof the State's two primary witnesses, Pernell and Sims. Defendant argues thatmuch of the testimony that thesemen gave attrialrelated to events taking place on the bus toButte while they were "undeniably" under the influence of both alcohol and marijuana, which could have colored theirperception of those events. Defendant insists that this is an "obvious defect" intheir 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 inButte and could have been ina "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 Statev. Gleim (1895), 17Mont. 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 aboutwhich she testified." Defendanthas laid no foundation tending to show that the witnesses were under the influence of drugs at the time of the events in question. Shemerely 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 aboutwhich 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 considerablymore 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 alsoAnnot., 52A.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 impeachmentwhich 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 notpermitted "unless it

can also be proved that the use of narcotics has impaired %*the the sensory, zetentive,or communicative f 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 facilitiesbefore evidence of the witness's use of the drug is admissible. Implicit in the formulationof the rule in Gleim (druguse is inadmissible unless it is shown that the witness was under the influence of drugs ---- at the time the events aboutwhich 

### - 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), 114Mont. 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 evidentiaryvalue. 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. InstructionNo. 27, to which defendant objects, reads: "Youare 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 reasonablemeans to escape such danger other than the use of forcewhich is likely to cause death or serious bodily harm to the assailant." Defendant also objects to Instruction No. 

### 28: "Youare instructed that the use of force in defense of 

### person is not available to a 

### personwho purposely or knowingly provokes the use of force againsthimself unless in good faith,he withdraws from physical contactwith 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 tojustify giving Instruction Nos, 27 and 28. Defendant points selectively to evidence inthe record which, standing alone, supports her contention that she was not the aggressor. She emphasizes the factthat she isa 71-year-old woman. She contends that she was suddenly confronted by three drunk men inher business. When she refused to serve them alcohol, as she was legally obligated todo 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 intentof 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 orknowingly provokes the use of force against himself, unless: "(a) such force is sogreat that he reasonably believes thathe is inimminent danger of death or serious bodily harm and that he has exhausted every reasonable means toescape such danger other than the use of force which is likely to cause death or seriousbodily harm to the assailant; or "(b)ingood faith, he withdraws from physical contact with the assailant and indicates clearly to the assailantthat he desires towithdraw and terminate the use of force but the assailant continues orresumes the use of force." In Statev. Buckley (1976), 171Mont. 238, 242, 557 P.2d 283, thisCourt held that "the districtcourt's instructionsmust cover every issue or theory having support inthe evidence, and the inquiry of the district courtmust only be whether or not 

### - any evidence exists in the record towarrantan instruction

# . .

# ." Sufficientevidence isclearlypresent inthe record to support the State's theory that defendant

was the aggressor inher confrontation with the victims. The evidence justifies giving Instruction Nos. 27 and 28. A person can become an aggressor if he or she purposely

orknowingly provokes the victim verbally. The jury was instructed on the requisitemental state inboth Instruction Nos. 27 and 28. As her fourth issue, Sorenson urges that the trial court erred inrefusing her proffered instructions concerning the defense of an occupied structure. Section 45-3-103, MCA, defines the justifiable use of force indefense of an occupied structure: "A person isjustified inthe use of force or threat touse force against another when and to the extent thathe reasonably believes that such conduct isnecessary toprevent or 

### terminate such other's unlawful entry into or attack upon an occupied structure. However, he isjustified inthe use of force likely to cause death or serious bodily harm only if: 

### "(1)the entry ismade or attempted inviolent, riotous, or tumultuous manner and he reasonably believes that such force isnecessary to prevent an assault upon 

### or offer of personal violence tohim or another then in the occupied structure; or "(2)he reasonably believes that such force is necessary toprevent the comission of a forcible felony inthe occupied structure." This section is derived from Illinoiswhich has substantially the same statute. Ill. C.C. 1961, Title 38, S7-2. Before the statute isapplicable, Illinois case law requires thatthe entrymust be unlawful; hence, the defendantmay not assertjustification where the victims enter upon the premises lawfully but subsequently engages in unlawful conduct forwhich the occupant of the dwelling seeks toexpel the victim. People v. Chapman (1977), 49Ill.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 outof her bar, and they refused to go, then their continued presence inthe bar became an unlawful entry into

an occupied structure. Based on that syllogism, she maintains she was entitled toinstructionsbased on section 45- 3-103, MCA. By its terms, this sectiononly applies toefforts of a defendant toprevent or terminate an unlawful entry into occupied premises. It has no application to a lawful entry intopremises. 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 DistrictCourt 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 trialcourtproperly refused defendant's proferred instructions on defense of an occupied structure since therewas no evidence that the entry was unlawful or an attack upon the structure, Finally, Sorenson contends that the verdict isnot supported by sufficient evidence. The contention is frivolous. Defendant merely asserts ina conclusory fashion that the cause of the shooting was the victims' insistence on being served liquor, that the shooting of the victims was entirelyjustified even when the evidence isviewed inthe lightmost favorable tothe State, and that she was under extreme stresswhich 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 itwishes 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. Aff

### irmed

# .

1

We 

### concur: 

# 4AAd@&&&$7 Chief Justice

Justices

~igtrict Judge, sitting in place of Mr. Justice Daniel Shea.