No. 14639 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JOHN ADOLPH MARTINEZ, 

Defendant and Appellant. 

.1 from: District Court of the Eighth Judicial District, 

In and For the County of Cascade, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniel Donovan argued, Legal Services, Great Falls, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson argued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls Montana 

Filed: 

Submitted: March 24, 1980 

Decided: JUW 1 i 7980 

/ 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

John Adolph Martinez, defendant and appellant, was convicted of felony theft by jury verdict in the Cascade County 

District Court. This appeal attacks the judgment of conviction 

on the following grounds: (1) insufficiency of the evidence; 

(2) the impropriety of allowing several prejudicial hearsay 

statements over objection; (3) the denial of a fair trial and 

adequate assistance of counsel because of the court's restrictions on defendant's opening statement, and (4) the giving of a 

jury instruction commonly known as the "Sandstrom instruction." 

On May 30, 1978, defendant Martinez removed several components of stereo equipment owned by Scott Polotto from a residence occupied by defendant and Ray Lenz in Great Falls, Montana. 

Martinez transported the equipment to his mother's address in 

Great Falls and contacted Joyce Lange. He told Ms. Lange that he 

wanted to sell the equipment so he could get out of town and that 

it was not stolen, Ms. Lange agreed to purchase the equipment. 

She picked it up at Martinez' mother's house. On her way home Ms. 

Lange was stopped and questioned by two police officers about the 

equipment. She told them that she had purchased the equipment 

from the defendant. 

Scott Polotto, the owner of the stereo equipment, was in 

the Cascade County jail when it was taken. His bail had been set 

at $50,000. After informing Polotto that his stereo had been 

taken, the police officers asked him several questions. In response to a question, Mr. Polotto informed the police that he had 

not given anyone permission to take the equipment. Scott Polotto 

later said that he understood that the defendant's purpose was to 

raise his bail. 

At trial defense counsel, after objection by the prosecutor, was twice stopped during his opening statement. He was 
attempting to discuss the elements of the crime, the burden 

of proof, and the presumption of innocence. The prosecution's 

objections were sustained on the basis that defense counsel was 

arguing the case which is improper in the opening statement. 

The transcript reveals the following narrative with respect to 

defense counsel's opening statement. 

"MR. LANG: Thank you. Ladies and gentlemen of 

the jury. At this time the defendant, through 

myself as his counsel, is permitted to make an 

opening statement also to the jury panel, and 

members. The State of Montana has filed an information in this case, by which they have charged 

the defendant, Mr. Martinez, with the crixe oE 

felony theft. Now, I discussed with you on the voir 

dire examination about some of the underlying principles of the law, and about the presumption of 

innocence, and the burden of proof, and proof beyond a reasonable doubt, and I would just like to 

go over those again with you again at the present 

time--- 

"MR. BROWNING: If your honor please, we object to 

this on the ground that counsel is now arguing the 

case before the jury, instead of telling the jury 

what he intends to prove in his case. This is not 

an opening statement that counsel is now making to 

the members of the jury. 

"THE COURT: The court will sustain the objection. 

The purpose of an opening statement is to give the 

jurors a preview of the evidence which will be 

presented, and not an argument. 

"MR. LANG: Ladies and gentlemen of the jury, at this 

time the State of Montana has the obligation of proving each and every element of the offense charged 

in the information. Now, as you will recall, the 

judge had instructed you, just prior to your leaving 

for lunch, and the judge did recite the charge that 

the State has made against the defendant. Now, the 

State has the obligation of proving each and every 

element of the offense, and that was that Mr. Martinez 

did, purposely and knowlingly--- 

"MR. BROWNING: We will again object, your honor, that 

counsel is arguing the case to the jury. 

"MR. LANG: Your honor, at this time the State of 

Montana has indicated what they will prove, and I 

intend to show to the jury each of the items that 

they should look for, as the testimony progresses 

in the case, and that if any of those items should 

be missing, I would ask that the members of the jury 

be careful to note the fact that there is certain 

evidence which has not been presented, and which the 

State has to prove. 
"THE COURT: Well, Mr. Lang, I think that would be 

for final argument. I think that counsel is misconstruing the purpose of an opening statement. 

Once again the purpose of an opening statement is 

to present to the jurors a preview of the evidence 

that is to be presented by the defendant. You, of 

course, will be given an opportunity in your final 

argument to argue the points that you are now raising. The objection is sustained. 

"MR. LANG: Well, then, your honor, at this time, 

and because of the court's ruling, I have no opening 

statement to make and would object to the court's 

ruling. 

"THE COURT: The record may so show. 

"MR. LANG: I feel that a review of the charges, in 

light of---a review of the charges in a light that 

is viewed by the defendant would be in order for the 

jury, and I would request the opportunity to explore 

each and every one of these items and elements with 

the jury, in the light that is most favorable to the 

defendant. 

"THE COURT: The court will sustain the objection and 

overrule the motion of defendant. 

"MR. LANG: Ladies and gentlemen, I have merely a short 

statement to make to you. I would ask that you listen 

to the evidence carefully, and that you listen also to 

not only what you do hear, but also to what you do not 

hear, because it is the position of the defendant that 

the State of Montana cannot prove each and every 

element of this charge. Thank you." 

During the course of the trial Scott Polotto testified 

that he had loaned the equipment to Ray Lenz, the defendant's 

roommate, and that he and Mr. Lenz had a reciprocal agreement to 

sell any of the other's property if the other needed to raise 

bail. He further testified that he had talked with two police 

officers, Detective Warrington and Detective Macek, when he was 

in jail, regarding his equipment and that he had never "directly" 

given Martinez permission to take the equipment. Upon crossexamination Polotto stated that he now understands that the defendant removed the equipment in an attempt to raise his bail and 

that knowing the details, he now authorizes the defendant's conduct. The last statements were admitted over the State's objection on the basis that Polotto's state of mind was in issue because 
of the "unauthorized control" element of theft set forth in 

section 45-6-301, MCA. On redirect examination the prosecution 

questioned Polotto concerning a conversation with Detective 

Warrington, and he testified that he told Detective Warrington 

that he had given no one permission to take the stereo equipment. 

After Scott Polotto testified, the State several times 

was allowed, over hearsay objections, to obtain testimony from 

two police officers concerning Polotto's statements to them. The 

State called Detective Warrington and questioned him concerning 

the conversation with Scott Polotto. Detective Warrington testified that he had asked Scott Polotto if he had given anyone permission to take the equipment. The State's question of "What was 

his [Polotto's] response" was objected to as hearsay. The objection was overruled after the Deputy County Attorney stated 

that the defense had put Polotto's state of mind in issue. The 

transcript indicates that the following testimony was admitted 

after the defense's objection: 

"MR. BROWNING: All right, then, what was the content 

of the conversation that you had with Scott Polotto, 

Detective Warrington? A. Well, Scott Polotto was 

very irritated that anybody would have been there, 

taking his stereo equipment. He stated that he did 

not give permission for anybody to remove his stereo 

equipment from that residence, where we had arrested 

him. " 

Following Detective Warrington's testimony, the State 

called Detective Macek, who was present at the time the conversation between Detective Warrington and Scott Polotto took place. 

Macek testified, without further objection, to the same conversation that Scott Polotto and Detective Warrington had already 

testified to. 

The State rested its case after Detective Macek's testimony. The defendant then moved for a directed verdict "on the 

grounds that the testimony shows that the defendant, Mr. Martinez, 

did not exert unauthorized control over the alleged stolen stereo 

equipment, but, in fact, this control was subsequently ratified 
by Mr. Polotto, and it is a well known rule of agency that a 

principal can subsequently ratify a contract which was originally 

unauthorized, and that such ratification relates back to the time 

of the contract, and renders such contract authorized." 

The defendant's motion was denied and the District Court 

refused to give the following proposed instruction. 

"You are instructed that ratification is the 

adoption or affirmance by a person of a prior 

act which was done or professed to be done on 

his account. If one ratifies another's unauthorized act, on his behalf, the act is given effect 

as if originally authorized. It is equivalent to, 

or a substitute for, and has the effect of curing 

the absence of, original authority. Ratification 

relates back to the time when the act was done, 

and supplies original authority to do the act. 

Therefore, if you find that Scott Polotto, subsequent to May 30, 1978, ratified the acts of John 

Adolph Martinez, you must find that John Adolph 

Martinez did not obtain or exert unauthorized 

control over the stereo equipment, and you must 

find the defendant, Mr. Martinez, not guilty." 

The following jury instruction was given by the court: 

"You are instructed that the law presumes that a 

person intends the ordinary consequences of his 

voluntary acts." 

The defendant did not take the stand, and the only evidence 

in the record of his intent in taking the equipment were two contradictory statements; he told Ms. Lange he needed the money to 

get out of town, and Scott Polotto testified that Mart-inez' purpose 

was to raise his bail. 

The jury found Martinez guilty of felony theft and he was 

sentenced to four years in the Montana State Prison. 

The following issues have been raised on appeal: 

1. Whether the District Court committed reversible error 

by giving a "Sandstrom instruction". 

2. Sufficiency of the evidence to sustain the conviction. 

3. Did the admission of hearsay constitute reversible 

error? 

4. Did the District Court so restrict defendant's opening 
statement that he was denied adequate assistance of counsel and a 

fair trial? 

We note that defendant was convicted of felony theft under 

section 45-6-301, MCA, which provides in pertinent part: 

"(1) A person commits the offense of theft when 

he purposely or knowingly obtains or exerts unauthorized control over property of the owner and: 

"(a) has the purpose of depriving the owner of the 

property ; 

"(b) purposely or knowingly uses, conceals, or 

abandons the property in such manner as to deprive 

the owner of the property; or 

"(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably 

will deprive the owner of the property. 

This Court has stated in another felony theft case: 

"'The element of felonious intent in every contested 

criminal case must necessarily be determined from 

facts and circumstances of the particular case--this 

for the reason that criminal intent, being a state 

of mind, is rarely susceptible of direct or positive 

proof and therefore must usually be inferred from the 

facts testified to by witnesses and circumstances as 

developed by the evidence . . .' 

"'The question of intent is a question for the jury.'" 

State v. Farnes (1976), 171 Mont. 368, 372-373, 558 

P.2d 472, 475. 

The jury was given the following instruction on the element 

of intent: 

"You are instructed that the law presumes that a 

person intends the ordinary consequences of his 

voluntary acts." 

This is the same instruction that was declared to be an 

unconstitutional denial of due process in Sandstrom v. Montana 

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L Ed 2d 39. The basis of 

Sandstrom is that the instruction shifts the burden of proof on 

the element of intent and deprives the defendant of the presumption of innocence. However, the United States Supreme Court 

expressly left open the issue of whether or not the giving of this 
instruction may be harmless error. 

The State, in the present appeal, contends that this 

Court should not review this instruction because of defendant's 

failure to object. .It is further contended that the "plain 

error" rule should not be invoked and even if it is, the error 

constitutes harmless error. We disagree. 

Montana's "plain error" rule is contained in section 46- 

20-702, MCA, which provides: 

"46-20-702. Types of errors noticed on appeal. 

Any error, defect, irregularity, or variance which 

does not affect substantial rishts shall be disregarded. Defects affecting j;risdictional or 

constitutional rights may be noticed although they 

were not brought to the attention of the trial cour 

(Emphasis added.) 

As determined in Sandstrom the instruction given is a 

defect affecting constitutional rights and we may review the issue 

under the "plain error" rule even though it was not brought to the 

attention of the trial court. However, under Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705, not all 

constitutional errors require reversal; the error may be harmless 

under the facts and circumstances of a case even though it is of 

constitutional magnitude. 

This Court has been called to determine whether the giving 

of the Sandstrom instruction constitutes harmless error in several 

cases since Sandstrom. In these cases this Court has had to determine on a case-by-case basis whether the error was harmless 

within the guidelines that have evolved at the federal level in 

the cases of Fahy v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 

229, 11 L Ed 2d 171; Chapman v. California, supra; Harrington v. 

California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L Ed 2d 284; 

and Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 

L Ed 2d 1. 

Our decisions reveal that in following the federal case law 

we must view all the evidence in determining whether the instruction 
had an impact on the jury. In State v. Hamilton (1980), Mont . 

, 605 P.2d 1121, 1132, 37 St.Rep. 70, 82, we stated " . . . 

the appellate court determines the impact of the error upon a 

reasonable jury. If the impact of the instruction could not have 

reasonably contributed to the verdict, then the error is harmless." 

We found the Sandstrom instruction to be harmless error in 

Hamilton since the evidence of intent was overwhelming and in 

light of the facts, "the impact of the instruction upon the jury 

could not have reasonably contributed to the verdict." Mont. 

at , 605 P.2d at 1133, 37 St.Rep. at 83. State v. McKenzie 

(1980) I Mont . , 608 P.2d 428, 37 St.Rep. 325, in following the rationale of Hamilton, also found harmless error in the 

giving of a Sandstrom instruction as a result of overwhelming 

evidence of intent. 

This Court has found the giving of a Sandstrom instruction 

to be reversible error in the cases of State v. Sandstrom (1979), 

Moil t. . , 603 P.2d 244, 36 St.Rep. 2099; State v. Wogamon (1980), 

Mont . P.2d -I - , 37 St.Rep. 840 and State v. Poncelet 

(1980) Mont . -1 - P. 2d , 37 St.Rep. 760. In each of 

these cases there was no overwhelming evidence of intent and this 

Court was unable to state that the error did not contribute to the 

verdict beyond a reasonable doubt. 

In our present case, the evidence of intent is contradictory; Martinez told Ms. Lange he needed the money from the sale of 

the stereo to get out of town, and Scott Polotto testified that the 

purpose was to raise bail. On the basis of this evidence we cannot determine that the giving of a Sandstrom instruction did not 

contribute to the verdict. The element of intent was at least one 

of the principal issues at trial. Although the jury certainly could 

have found a felonious intent if properly instructed, there was no 

overwhelming evidence of defendant's intent. As a result, we conclude that the "plain error" rule is invoked because of the use of 
a constitutionally defective jury instruction and that the 

error cannot be considered harmless. We reverse the conviction 

and remand the cause for a new trial. For the guidance of the 

District Court on retrial, we address the remaining issues which 

may recur at the second trial. 

Defendant contends that sufficient evidence does not 

exist to establish the "unauthorized control" over Polotto's 

property or a "purpose of depriving" Polotto of his property 

which are essential elements of theft under section 45-6-301, 

MCA. The basis of this contention is Scott Polotto's testimony that once he understood Martinez' purpose was to raise bail 

he condoned the act thereby precluding a finding of either of these 

elements. 

In addressing the test to be applied in issues involving 

the sufficiency of the evidence, it is well-established that 

questions of fact must be determined solely by the jury and that 

given a certain legal minimum of evidence, this Court will not 

substitute its judgment for that of the jury. In determining 

whether the verdict is supported by substantial evidence, we must 

examine the evidence in the light most favorable to the prevailing party. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." State v. Merseal (1975), 167 Mont. 412, 415-416, 

538 P.2d 1366, 1367-1368; State v. Pendergrass (1978), Mon t . 

-1 - , 586 P.2d 691, 697-698, 36 St.Rep. 1512, 1520. 

The testimony of Scott Polotto merely reveals that although he did not "directly" give Martinez permission he ratified 

the c~:~?uct after he learned that the purpose was to raise bail. 

With regard to defendant's unauthorized control argument, 

it is clear that a victim cannot ratify a criminal act after the 

crime has been completed. See Davis v. Government of Canal Zone 
(5th Cir. 1924), 299 F. 256; Hill v. State (1972), 253 Ark. 521, 

487 S.W.2d 624. The testimony of Scott Polotto establishes that 

he condoned the act of the defendant only after he learned that 

Martinez had taken the equipment to raise bail. This testimony 

goes to the element of wpurpose of depriving the owner of the 

property" instead of unauthorized control (consent). If defendant had the requisite mental state, that is a purpose to deprive, at the time the equipment was taken, it makes no difference 

that the victim later condones the act on a belief that the defendant did not have the intent to commit a crime. If the defendant 

had the intent to deprive Polotto of the stereo when it was taken, 

the crime was completed at that time and a subsequent ratification 

has no legal effect. If, on the other hand, the defendant did not 

have the requisite purpose he would be entitled to acquittal and 

the subszquent consent would be irrelevant. A purpose to deprive 

the owner of his property is a question for the jury to decide 

upon proper instruction. We find sufficient evidence to support a 

conviction as a result of Scott Polotto's and Joyce Lange's testimony. 

The defendant also asserts on appeal that the District 

Court improperly admitted several prejudicial hearsay statements 

over objection. The hearsay statements of which he complains in 

this appeal all relate to Scott Polotto's statement that he had 

not given anyone permission to take his stereo equipment. Testimony concerning this statement was admitted into evidence when 

Scott Polotto was on the stand, and later when detectives Warrington and Macek testified. 

Turning first to Scott Polotto's testimony, he testified 

on direct examination by the prosecution that "I didn't give him 

[Martinez] directly permission." On cross-examination he stated 

that he now authorizes the conduct. Then on redirect examination 

the following narrative, which is the basis of the defendant's 
allegation of error with regard to this witness, occurred: 

"Q. [By Deputy County Attorney] And didn't you, 

in fact, tell Detective Dave Warrington--- 

"MR. LANG [Defense counsel]: Your honor, I am 

going to object to this as hearsay. 

"THE COURT: Well, he didn't finish the question--- 

"MR. BROWNING: Yes, I would like to finish my question, if the court please. 

"THE COURT: Overruled. 

"MR. BROWNING: Didn't you, in fact, tell Detective 

Dave Warrington that you were the owner of this 

stereo equipment, and that you did not give anyone 

permission to take the stereo equipment? A. Yes 

sir. " 

This testimony, when dissected, includes two statements 

which must be analyzed within the hearsay rules: "I, Scott Polotto, 

made a statement to the police officers that I had not made a 

statement to anyone authorizing them to take my stereo equipment." 

This testimony bears directly upon the element of "unauthorized 

control" and is offered "to prove the truth of the matter asserted" 

within Rule 801, Mont.R.Evid. The fact that he had not made a 

statement authorizing anyone to remove the equipment is admissible 

under the "state of mind" exception to the hearsay rule. Rule 

803(3), Mont.R.Evid. The first part of this testimony, that he 

had told the police, is not hearsay by reason of Rule 801(d)(1), 

Mont. R. Evid. , which provides : 

"(d) Statements which are not hearsay. A statement is not hearsay if: 

"(1) Prior statement by witness. The declarant 

testifies at the trial or hearing and is subject 

to cross-examination concerning the statement, 

and the statement is (A)inconsistent with his 

testimony, or (B) consistent with his testimony 

and is offered to reht an express of implied 

charge against him of subsequent fabrication, improper influence or motive . . ." 

Thus, even if a proper objection had been made, the testimony would have been admissible. The statement, in this context, 

was not hearsay under Rule 801(d)(l), Mont.R.Evid. The statement 
was inconsistent with his prior testimony on cross-examination 

that he now authorizes the conduct and is consistent with his 

original statement on direct examination that he did not directly 

give the defendant permission, and it was also offered to rebut 

the State's implied charge of subsequent fabrication, improper 

influence or motive. 

Turning next to the testinony of the two police officers, 

the following took place when Detective Warrington was on the 

stand. 

"Q. [By Deputy County Attorney] And as a result 

of your call from dispatch, what did you do? A. 

Well, Detective Sergeant Macek and myself went to 

the jail holding facilities at the city police 

station to make transfers of the three people that 

we had to transfer to the county, and in doing so, 

I talked with Scott Polotto, and I asked him if he 

gave permission for anybody to remove his stereo 

equipment from their lodging, where we had made the 

arrest on him. 

"Q. What was his response? A. Negative--- 

"MR. LANG: Objected to, your honor, as being 

hearsay. " 

The objection was overruled on the basis of the "state 

of mind" exception to the hearsay rule, and the prosecution was 

allowed to restate the question and receive a more detailed 

answer. First it must be pointed out that the objection appears 

from the transcript to be proper, since it seems that the police 

officer gave a very quick response and defense counsel cut off 

the answer as quickly as possible. See Hackenson v. City of 

Waterbury (1938), 124 Conn. 679, 2 A.2d 215; Wightman v. Campbell 

(1916), 217 N.Y. 479, 112 N.E. 184. In analyzing the content of 

this testimony Detective Warrington was actually saying "Scott 

Polotto told me that he had not told anyone that they were authorized to take the stereo equipment." In this instance the declarant, 

Scott Polotto, was not on the stand; therefore, Rule 801(d)(l), 

does not apply, and we have "hearsay included within hearsay." 
Rule 805, Mont.R.Evid., requires the exclusion of multiple hearsay 

unless "each part of a combined statement conforms with an exception to the hearsay rule. . ." 

No exception to the hearsay rule applies to the first part 

of this combined statement; therefore, it is inadmissible. Scott 

Polotto had previously given the same testimony and, as the declarant, was subject to cross-examination concerning the statement. 

This safeguard of cross-examination, which is the essence of the 

hearsay rule, did not exist when Detective Warrington was on the 

stand. 

Detective Macek's testimony was very similar to Detective 

Warrington's; however, a proper objection was not made. The District Court properly admitted Macek's testimony, since no objection was made. 

The defendant also contends that he was denied a fair trial 

and the adequate assistance of counsel as a result of the District 

Court's restrictions on his opening statement. In reviewing the 

District Court's rulings on defense counsel's motion, we find no 

error. The proper function of an opening statement is to outline 

the defense and the evidence that the defendant intends to produce. 

It is improper to expound or argue legal theories or to attempt to 

instruct the jury as to the law of the case. 23A C.J.S. Criminal 

- Law S1086; ABA Standards, The Defense Function S7.4 (Approved 

Draft, 1971). In this case the defense counsel was attempting to 

argue legal theories and instruct the jury. As a result, the restrictions were proper. 

The judgment of conviction is vacated and the cause remanded 

to the District Court for a new trial. 

Chief Justice 
We concur: