                                       No.       14656

                 I N T E SUPREME COURT O T E STATE O M N A A
                      H                 F H         F OTN

                                           1981



T E STATE O MONTANA,
 H         F

                               P l a i n t i f f and Respondent,

           VS.

MICHAEL K E V I N KYLE,

                               D e f e n d a n t and A p p e l l a n t .



Appeal from:      D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f Cascade
                  Honorable J o e l G . Roth, J u d g e p r e s i d i n g .

Counsel o f Record:

    For Appellant:

         D a n i e l Donovan a r g u e d , G r e a t F a l l s , Montana

    For Respondent:

         Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
         John Maynard a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
          Montana
         J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana



                                         Submitted:           March 24, 1 9 8 1
                                             Decided:        A p r i l 20,   1981

Filed:   APR 2 0 1981




                        Y                  ' m

                                                 Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

     On September 11, 1980, this Court granted defendant
Michael Kevin Kyle's petition for rehearing of his appeal
decided by this Court.   See, State v. Kyle (No. 14656, Decided
August 13, 1980, 37 St.Rep. 1447.)   In our order granting
rehearing, we limited the issue for review to whether the
Sandstrom jury instruction, given at defendant's District
Court trial, amounted to prejudicial constitutional error.
We hold that the use of the instruction was error and we
reverse the judgment of the District Court.
     The facts presented at defendant's trial, leading to
his conviction of theft and burglary, are provided in our
opinion in defendant's appeal:
     "At approximately 11:OO p.m. on the night of
     March 15, 1978, Sergeant Bowen of the Great
     Falls Police Department observed a pickup
     truck parked in the emergency lane of Tenth
     Avenue South in Great Falls. Slowing to
     investigate, Bowen observed the defendant,
     Michael Kevin Kyle, standing in the open doorway
     of a mobile home. The mobile home was situated
     about five to ten feet from the pickup, on a
     mobile home sales lot. The defendant was holding
     what appeared to be a bundle of clothing or bedding.
     Sergeant Bowen radioed for assistance. He then
     proceeded to turn his patrol car around and parked
     in a position to observe defendant. Defendant
     drove off in the truck and Sergeant Bowen stopped
     him about six blocks away, at which time Bowen noted
     items of bedding in the cab of the truck, and bed
     springs, pillows, and other bed parts in the back
     of the truck. The defendant was subsequently arrested
     and charged with burglary and theft." State v. Kyle
     (1980), 37 St.Rep. at 1448.
     Throughout the trial, defendant relied on two defenses
to assert his innocence to the burglary and theft charges:
     1.   Theft from an unsold, unoccupied mobile home is not
theft from an "occupied structure" as the term is used in
the burglary statute (section 45-6-204, P4CA); and,
     2.   Defendant did not purposely or knowingly commit the
alleged crimes because he was in a "voluntary intoxicated
condition" at the time the incident occurred, depriving him
of the mental capacity to appreciate the criminality of his
conduct (section 45-5-203, MCA.)
     In his appeal to this Court, defendant argued that the
mobile home involved did not satisfy the burglary statute's
"occupied structure" requirement.   We disagreed, holding
that theft from the mobile home constituted theft from an
occupied structure.    Defendant did not raise the voluntary
intoxication issue or the Sandstrom instruction issue in his
appeal.   The trial court record reveals however, that defendant's
mental state was a crucial issue before the District Court.
    At trial, defendant claimed that two days before the
burglary occurred, he had attempted suicide by ingesting
approximately 50 tablets of Valium-5.   Defendant testified
this suicide attempt affected his normal thought processes.
Defendant told the jury that he could not remember the
events of the night of the burglary. Defendant said he could
not explain his actions after the suicide attempt, and could
remember only experiencing periods of drowsiness and lethargy
until the morning after the burglary.   Defendant's account
of his behavior and the aftereffects of the overdose was
corroborated by testimony given from members of defendant's
family.   In order to rebut this evidence, the prosecution
presented evidence that defendant acted normally following
the suicide attempt.    The prosecution asked each of the
police officers involved with defendant's capture and arrest
to describe defendant's mental state to the jury.   Each
officer testified that defendant seemed to be mentally alert
and coherent during the night of the burglary.
     Following the presentation of evidence at the trial,
the District Court judge and counsel adjourned to chambers
to devise instructions of law for the jury.   The prosecution's
proposed instruction no. 7 was offered and unopposed, and
was later read to the jury:         "You are instructed that the
law presumes that a person intends the ordinary consequences
of his voluntary acts."
        We hold that the use of this Sandstrom instruction in
this case amounts to prejudicial constitutional error.
        In 1979, the United States Supreme Court discussed the
constitutional ramifications of instructing the jury that
"the law presumes that a person intends the ordinary con-
sequences of his voluntary acts."          Sandstrom v. Montana
(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.           In
Sandstrom v. Montana, the Supreme Court examined this instruction
as a reasonable juror might interpret its meaning.           The
Court held the instruction could violate a criminal defendant's
constitutional right to due process, given a jury's inter-
pretation of the instruction.        If the jury interprets the
instruction either as a conclusive presumption in favor of
the prosecution on the element of intent, or as a mechanism
to shift the burden of proof of intent to the defendant,
requiring him to prove that he lacks the requisite mens-
                                                   - rea,

the instruction violates the Fourteenth Amendment's requirement
that the prosecution prove every element of a criminal
accusation beyond a reasonable doubt.         Mullaney v. ~ i l b u r
(1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; In re
Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
        The Supreme Court remanded the case to this Court for
its consideration of the effect of the use of the instruction.
On remand, we ordered that David Sandstrom be retried,
finding that we could not assert beyond a reasonable doubt
that the use of the instruction was not error.          State v.
Sandstrom (1979),        Mont   .      ,   603 P.2d 244, 36 St.Rep.
2099.
                                      -4-
       Since the delivery of our second Sandstrom decision,
this Court has discussed the prejudicial nature of the
instruction in a number of cases.       See, e.g. Parker v. Crist

(1980)           Mont.       , 621 P.2d 484, 37 St-Rep. 2048;
State v. Dolan (1980),          Mont.      , 620 P.2d 355, 37
St.Rep. 1860; State v. Wogamon (1980), - Mon t          . -,   610
P.2d 1161, 37 St.Rep. 840; State v. Poncelet (1980), -
Mont   .     ,   610 P.2d 698, 37 St.Rep. 760; State v. Sunday

(1980), - Mont       .     , 609 P.2d 1188, 37 St.Rep. 561; State
                                ,
v. Fitzpatrick (1980), - Mont. - 606 P.2d 1343, 37
St-Rep. 194; State v. ~amilton (1980),           Mont   . -, 605
P.2d 1121, 37 St.Rep. 70; and State v. Bad Horse (1980), -
Mont   .     ,   605 P.2d 1113, 37 St.Rep. 45.   We first determine
whether the use of the instruction was error.           If there was
error, we next examine the case to determine whether the error
could have reasonably contributed to the jury verdict, causing
prejudice to defendant.        In only a few cases have we found
prejudicial error in the use of the instruction.
       In a number of cases in which Sandstrom instructions
were given to the jury, we have found no error.           See, State
v. Bad Horse, supra; State v. Fitzpatrick, supra.          In these
cases, we held that the Sandstrom instruction and accompanying
jury instructions, raised only a "permissive inference"
rather than a conclusive presumption regarding defendant's
mental state not affecting the prosecution's burden of
proof.     The employment of a Sandstrom-type instruction never
operated to shift the burden of proof of intent to defendant.
The defendant's due process guarantees were never violated
under the reasoning of the United States Supreme Court's
holding in Ulster County Court v. Allen (1979), 442 U.S.
140, 99 S.Ct. 2213, 60 L.Ed. 2d 777.
     In State v. Sunday, supra, we held that the use of a
Sandstrom-type instruction was irrelevant and could not amount
to constitutional error.   In the Sunday case, there was no
issue of intent for the jury to decide.    In Sunday, defendant
admitted to killing the victim, but claimed self-defense.
The jury was not called upon to decide as an issue of fact
whether Sunday possessed the requisite intent to commit
criminal homicide.   In Sunday, the Supreme Court's analysis
in Sandstrom v. Montana was not relevant to the issues reviewed
on appeal.
     In other cases, we have held that the use of a Sandstrom-
type instruction was constitutional error.    We reversed the
District Court if that error was not harmless.    In our
second Sandstrom opinion, we explained our analysis for
harmless error as follows:
     "Before a federal constitutional error can be
     held harmless, the court must be able to
     declare a belief that it was harmless beyond a
     reasonable doubt. Chapman v. State of California
     (1967), 386 U.S. 18, 87 S . C E 824, lTL.~d.2d
     705. In so holding, the Supreme Court in
     Chapman reaffirmed-its holding in - -v. State
                                           Fahy
     of Connecticut (19631, 375 U.S. 85, 86-87, 84
     -
     S.Ct. 229, 230, '11 ~ i ~ d . 2171, 173: ' [tlhe
                                    d
     question is whether there is a reasonable pos-
     sibility that the evidence complained of might
     have contributed to the conviction.'
     "Under Fahy and Chapman, unless we can find
     harmless error, the conviction must be reversed.
     - constitute harmless error, we - -be able
     To                                - must -
     to assent - -a Court - - offensive instruction
     -           as           that the
     could not reasonably - - contributed - -
                              have             to the
     jury v r i n i e i g
           ed-sdrn                     the instruction, and
     the fact that intent was - - issue - - -
     ---                      - the main         in the
     District Court --                   --
                        trial, we cannot make that
     assertion." (~mphasisTdded.1
     In State v. Hamilton, supra, and in State v. Dolan,
supra, we held that the use of a Sandstrom-type instruction
was error, but that the error was harmless.    In both cases,
we carefully reviewed the record and found that the use of
the instruction could not reasonably have contributed to the
jury verdict because the evidence of intent was overwhelming.
The instruction's probable impact upon the jury, given the
overwhelming evidence, was so unsubstantial that the use of
the instruction constituted harmless error.
     In State v. Poncelet, supra, and State v. Wogamon,
supra, we held that the use of a Sandstrom-type instruction
was prejudicial error and reversed the judgment of the
District Court.   In both cases, the instruction was not
worded to be merely a permissive inference and the use of
the instruction was not properly explained to the jury in
other instructions.     In both cases, defendant's intent was
a crucial fact question and the evidence of intent was not
overwhelming.
     The Sandstrom question presented by this case is identical
to the questions presented in Poncelet and Wogamon.   Permissible
use of the Sandstrom-type instruction was not properly
explained to the jury by the jury instructions given in these
cases.   None of the instructions contained language explaining
that the Sandstrom instruction is merely a permissive inference
that does not act to shift the mental state burden of proof to
defendant.   The jury could have easily viewed the instruction
as mandatory and the instruction could have had a critical
effect in its deliberations.    Sandstrom v. Montana, supra.
(J. Rehnquist, concurring.)    The use of the instruction was
error.
     Further, the error cannot be labeled harmless.    In this
case, as in Poncelet and Wogamon, the question of intent was
a crucial fact question and the evidence of intent in this case
was not overwhelming.   We cannot assert that the error could
not have reasonably contributed to the jury's verdict.
     We reverse the judgment of the District Court and

remand this case for a new trial.




                                                         (I
                                             Justice

We Concur:




       Chief Justice
