### No. 14824 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS. 

### DALE A SHERIFF, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Stacey and Nye, Billings, Montana Calvin J. Stacey argued,Billings, Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana John Maynard argued,AssistantAttorney General,

Helena,Montana Harold Hanser, County Attorney, Billings, Montana

Submitted: February 20, 1980 Decided: 

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### Filed: --

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### Mr. Justice John Conway Harrison delivered the Opinion of the Court.



### c his is an appeal arising out of defendant's conviction of the crimes of attempted deliberate homicide and aggravated burglary in the DistrictCourt of the Thirteenth Judicial District, in and for the County of Yellowstone, the Honorable Charles Luedke presiding. The facts as presented by the parties upon appeal are the following: On the night of June 26, 

### 1978,Ms. Joyce Ann Lamb awoke in the bedroom of her Billings, Montana, residence to find a man standing beside her in the dark. She immediately screamed at the sight of the man, and the man, in response also screamed. The man then proceeded to her bed and positioned himself so that he was straddled over her. In an effort to seek the help of her neighbors,Ms. Lamb began hitting her hand against the wall. The man then struck her and continued striking her for approximately one minute, atwhich time he raised up, backed against a closet, stood and looked at her, and finally turned and ran out of the room. Theman apparently had difficulty in leaving the residence,because Ms. Lamb heard him hit something as he went through the back door. At 

### this point, Ms. Lamb realized that shewas bleeding. She left her house, sought help from her neighbors, and was taken to the hospital, where itwas determined that she suffered 11 stabwounds in total. Sometime later, an officer of the Billings Police Department stopped the defendant after a tip had been obtained from one of Ms. Lamb's neighbors that a man had just been seen peeking into her windows. The defendantwas asked for his identification, and, after some brief questioning,

### was released. Atthe 

### timeof the stop, defendant had a knife attached tohisbelt. Defendant's residence 

### was later searched by the police pursuant to defendant's consent. Upon the basis of the search, defendant

### was taken into custody and advised of his constitutional rights. Atthe police station, defendant gave 

### a statement to the police which reflected thathe had been 

### atMs. Lamb's residence thatnight, but that he could not remember hitting her or stabbing her, or, for thatmatter, having any involvement in the crime. Defendant also stated that he did have a knife, that he always carried 

### itwith him, and that he washed 

### it off and placed 

### it ina drawer underneath the television afterreturning home thatnight. Defendant was charged by information on July 5, 1978 with the crimes of attempt (deliberatehomicide) and aggravated burglary. Defendant entered a plea of not guilty to both charges, and 

### trialwas held on February 26, 1979. The jury returned 

### a verdict of guiltywith respect to both charges, and defendant was sentenced to a 50 year sentence for the 

### crime of attempt and 

### a 20 year sentence for the crime of aggravated burglary, said 

### terms to be served concurrently. From these judgments, defendant appeals. Defendant originallyraised two issues for our consideration upon this appeal. However, during oral argument, counsel for defendant admitted that one of these issues had been resolved by thisCourt ina prior decision. Thus, we find it only necessary to consider the remaining issue-- whether the trial courterred ingiving the following instruction to the jury: "If you find that the defendant, DaleA. Sheriff, attempted to commit a homicide and no circumstances of mitigation, excuse orjustificationappear, then you may infer that the attempted homicide was committed knowingly or purposely." Atthe outset, 

### we note two observations with respect to the above instruction. The first

### is that the instruction goes only tothe crime of attempted deliberate homicide and not to the crime of aggravated burglary. Defendant's conviction of the latter charge must, therefore, stand. The second 

### is that

### we have previously decided inanother case that an instruction identical to the one challenged here 

### was not error inthe contextof other instructions given. See, Statev. Coleman (1979) Mont. -1 -P.2d 36 St.Rep. 2237. Although Coleman may therefore have persuasive application to this case, there 

### still remains the need for thisCourt to independently determine the effectof the challenged instruction inthe context of the instructions given here. Defendant's sole contention upon this appeal 

### is that the instruction, on the basis of Sandstrom v. Montana (1979)1 U.S. 99 S.Ct. 2450, 61 L.Ed.2d 39, has the effectof relieving the Stateof 

### itsburden toprove each and every element of the offense beyond a reasonable doubt or shifting the burden of proof to the defendant. The threshold inquiry inascertaining whether the State has been relieved of 

### itsburden of proof, according to the United States Supreme Court inSandstrom, requires "careful attention to the words actually spoken to the jury 

# . .

# . for whether a defendant has been accorded his constitutional rights depends upon the way inwhich a reasonable jury could have interpreted the instruction." Sandstrom, 99 S0Ct.at 3453, 61 L.Ed.2d 

### at45. In Sandstrom, the jury was instructed that "the 

### lawpresumes that 

### a person intends the ordinary consequences of hisvoluntary acts." This instruction

### related to a presumption of law and was mandatory by its very terms. There was no discretion allowed on the part of the jurors. In contrast, the jurorswere told here that they "may infer" 

### amaterial element of the crime, namely that the attempted homicide was committed knowingly or purposely. This instructionreferred to an inference of fact and was, by its express terms, permissive. Ulster County Court v. Allen (1979), U.S. 

## , 99 S.Ct. 2213, 60L.Ed.2d 777. The jurors were given discretion with respect to the finding of intent and were free to follow or not to follow the instruction. The language of the instruction,did not involve either a conclusive or burdenshifting presumption, aswas involved in Mullaney v. Wilbur (1975)r 421U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; Sandstrom, supra; or Morrissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. Nor did the instructionhave the effect of allocating to the defendant some part of the burden of proof thatproperly rested on the State throughout the trial. That the burden remained on the State in proving the elements of the offense ismade clear by the other instructions given by the trial court in this case. On appeal,we consider the instructionsas 

### awhole. Statev. Farnes

(1976)t 171Mont. 368, 558 P.2d 472. "The whole of the law on a subject cannotbe given in one instruction. In determining the effect of given instructions, all instructions must be considered as a whole and if they fairly tender the case to the jury, the fact that one or more instructions, standing alone, is not as full or accurate as itmight have been is not reversible error. [Citations omitted.]" State v. Caryl (1975), 168 Mont. 414, 430, 543 P.2d 389, 398.

### Here, InstructionNo. 21 stated that, in order to sustain the charge of attempted deliberate homicide, the State had to prove intent as one of the elements of the offense. InstructionNo. 2 

### provided that the defendantwas afforded a presumption of innocence and that the burden of proof was upon the prosecution to establish every material allegation of the information beyond a reasonabledoubt. InstructionNo. 5 

### reiterated the defendant's presumption of innocence. InstructionNo. 10 stated that the defendant could not be convicted on conjecture,probability or suspicion, but rather only on evidence which established his guilt beyond a reasonabledoubt. InstructionNo. 12 stated in pertinent part: "Inorder to prove the charge of COUNT I: ATTEMPT (FELONY)and COUNT 11: AGGRAVATED BURGLARY as alleged in the Information,

## the Statemust prove beyond

### g reasonable doubt 

## -- that each element of the offense, all necessarily included offenses,

- -- - 

### was committed or perpetrated knowingly by the defendant as a?oluntary act.

"Purposeor knowledge are manifested 

## & -- the circumstance~connected with 

## -- the offense 

## -- and need not be proved by the direct evidence but mx be -- 

### -- 

### inferred 

## -- from acts, conduct,and circumstances appearing 

### - in evidence. "There are two classes of evidence recognized and admitted in courts in the State of Montana. One is 'direct evidence,' the other is 'circumstantial evidence.' In 'directevidence' the witnesses testify directly of their own knowledge of the main fact or facts to be proved,while 'circumstantial evidence' is the proof of certain facts and circumstances in a given case fromwhich the jury may infer other connecting factswhich usually and reasonably follow according -- 

### to the common experiences of 

### -mankind. 

# . ." (Emphasisadded.) InstructionNo. 7 

### also provided: "Where the case of the State rests substantially or entirely on circumstantial evidence, you are notpermitted to find the defendant guilty of any crime charged against him unless the provedcircumstances arenot only consistent with the theory that the defendant 

### isguiltyof the 

### crime, but cannot be reconciled with any other rational conclusion and each factwhich 

### isessential toa complete 

### set of circumstances necessary toestablish the defendant's guilthas been proved beyond a reasonable doubt. "Also, if the evidence, astoany particular count, is susceptibleof two reasonable interpretations, one of which points to the defendant's guilt and the other tohis innocence, 

### it 

### isyour duty toadopt that interpretation which points to the defendant's innocence, and reject the other which points tohis guilt. If, on the other hand, one interpretation of the evidence appears toyou tobe reasonable and the other interpretation unreasonable, 

### it would be your duty to accept the reasonable interpretation and to reject the unreasonable." Defendant submits, however, that these instructions



### were nevertheless inadequate. He argues that, while the jury 

### was instructed that they could infer intent from the acts, conduct, or circumstances appearing inevidence, the jury should have alsobeen instructed that they need 

### -- not make such inference. Apparently, defendant's argument 

### is that this qualification should have been included asan addendum tothe challenged instructionor submitted as an entirely separate instruction. In support defendant 

### relies

on Statev. Bryant (Tenn. 1979), 585 S.W.2d 586; and State

v. Roberts (Wash. 1977), 562 P.2d 1259. We disagree. In Roberts an instruction

### was given tothe jury creating a presumption of second-degree murder where no excuse

orjustification appeared. The courtheld inthat case that, where an instruction

### was silent

### as tohow the presumptionmight be overcome, the jury should be further instructed regarding the clear operation of the presumption. Roberts, 562 P.2d at1261-62. InBryant an instructionwas given to the effect that, if 

### a person entered the premises of another disguised or inmask, thejury could consider that

### act asprima facieevidence of the person's intent to commit 

### a felony. The court held that the inclusion of that instructionwas error where no express instructionswere given 

### as to the effectof the inference. Bryant, 585 S.W.2d at590. We find here that there was no duty on the part of the trialcourt to submit any qualifications or additions to the instructionswhich were given, because the terms of the instructionsmade clear the effectand operation of the inference. As such, this case 

### isdistinguishable. Bryant and Roberts do not control. The jury was told invery explicit

### termsby Instruction Nos. 7 and 12what kind of evidence could be considered inmaking the inference and what kind of logical stepswere permissible to take. InstructionNo. 12allowed the jury to infer purpose or knowledge from circumstantial evidence submitted by the State. InstructionNo. 7 furtherdirected the jurors that, where circumstantial evidence is susceptible of two reasonable interpretations, and one of the interpretations points to defendant's innocence, they should find the defendant innocent. These instructions, taken together with other instructions regarding defendant's presumption of innocence and the State's burden of proof, made clear the operation and effect of the inference. We find, therefore, that the trialcourtproperly instructed thejury and that there

### was no error. The language of the challenged instructionwas permissive. The words "may infer" connoted inplain 

### terms and inplain understanding to the jurors that they had discretion to follow or not to follow the instruction. Further, the operation and effectof the inference 

### was clearly explained to the jury. The instruction did not have the effectof

### allocating to the defendant some part of the burden of proof that properly rested on the State throughout the trial. Accordingly, the judgment of the District Court is affirmed.

We concur: 

# W&A~ Chief ~usfice



# -4. 

# u Justices

Mr. Justice Daniel J; Shea dissents and will file a written dissenr later.