                              NO.    90-170

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991



STATE OF MONTANA,
            Plaintiff and
     -vs-
THOMAS TUMBLESON,
            Defendant and



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Edward P. McLean, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                William Boggs, Attorney at Law; Missoula, Montana;
                Wendy Holton, Attorney at Law; Helena, Montana.
            For Respondent:
                Hon. Marc Racicot, Attorney General, Helena Montana;
                Carol E. Schmidt, Assistant Attorney General,
                Helena, Montana ; Robert L. I1Dusty1l Deschamps 111,
                County Attorney, Missoula, Montana;        Fred Van
                Valkenburg, Deputy County Attorney, Missoula,
                Montana.


                                    Submitted on briefs:   May 31, 1991
                                                Decided:   JU&   30, 1991
Filed:



                                Clerk
Justice Fred J. Weber delivered the opinion of the Court.

     A jury trial was held in the ~istrictCourt for the Fourth
Judicial District, Missoula County, and defendant, Thomas Edward
Tumbleson, was convicted of one count of felony theft and one count
of misdemeanor theft.    Defendant appeals.       We affirm.
     The sole issue for our review is whether the District Court
erred by not instructing the jury, on its own motion, on the
defense of consent as it relates to theft.
     Defendant lived with his girlfriend, Donna Hatton               (Ms.
Hatton).   Ms. Hatton testified she allowed defendant to use her
car, a 1983 Chevrolet Citation, when defendant needed it.
     On September 3, 1989, at approximately 1:00 p.m., Ms. Hatton
allowed defendant to use her car to "go to the storew. Ms. Hatton
testified she assumed defendant was going to a local store and
"didn't expect him to be gone real long1'. When defendant had not
yet returned by about 8:00 p.m., she went to the sheriff's office
to report that her car was stolen, including some art supplies that
were in the car. Because it was the Labor Day holiday weekend, Ms.
Hatton gave her statement but was told to return on Tuesday morning
to speak with Detective Jackson.               Subsequent to giving her
statement, Ms. Hatton discovered other items missing, including her
19" Hitachi television. When she returned to the sheriff's office
on Tuesday morning, she reported the television set missing.         Ms.
Hatton testified that defendant had keys to both her car and the
storage unit from which the television was taken and that the
disappearance of   the   car   and       the   television were   probably
                                     2
connected.
     Instead of going to a local store, defendant drove to Great
Falls and two days later sold Ms. Hatton's car to Steve Edwards and
Anita Walraven for $800.     Ms. Walraven paid $100 to defendant as
a down payment and took possession of the car.   She testified that
she was unsure about when and how the title was going to be
transferred to her.
     On September 11, 1989, eight days after the defendant left
Missoula with Ms. Hatton's car, defendant telephoned her from Great
Falls.   When defendant learned from Ms. Hatton that she had
reported her car stolen, he requested that she meet him in Great
Falls to retrieve the car.   When Ms. Hatton told defendant she was
unable to do that, defendant informed her that he left the car with
a friend. Defendant returned to Missoula and was on his way to Ms.
Hatton's house when he was arrested on September 12, 1989.
     Defendant called Ms. Hatton from the jail to let her know
where her car was and how to contact the people who had it.     He
also contacted Mr. Edwards.     The next day, Mr. Edwards and Ms.
Walraven turned the car over to the Cascade County Sheriff's
Department because they "believed that the car did not belong to
the [defendant]".
     Defendant also informed Ms. Hatton that he had sold her
television set at the Circle Square Pawn Shop in Missoula.     Ms.
Hatton relayed this information to Larry Jackson, a detective for
the Missoula County Sheriff's Department.        Detective Jackson
informed Ms. Hatton that her car had been turned in to the Cascade
County sheriff's office and that she could pick it up there.
     Ms. Hatton testified as follows:
     Q.    On this particular occasion did you give [defendant]
     permission to take the car to Great Falls?
     A.    No, Ididn't.
     Q.    Was in your mind that outside the scope of your
     authorized use of the car when he said he was going to
     take it to the store?    [sic]
     A.    Perhaps, but I feel that if I had known that he was
     there, I may not have filed this report as soon as I did.
     Q.    And did you at any time give him permission to sell
     this car?
     A.    No, I didnot.
Ms. Hatton further testified that she had never given defendant
permission to sell her television.
     Defendant was charged with one count of misdemeanor theft and
one count of felony theft.      The jury found him guilty on both
counts.   He was sentenced to 10 years in the Montana State Prison
for the felony with 5 years suspended; and six months in the
Missoula County Jail for the misdemeanor, with the sentences to run
concurrently.     He was also designated a dangerous offender for
parole purposes.    Defendant appeals.
     Defense counsel did not offer an instruction on the defense
of consent.     However, on appeal defendant maintains that it was
reversible error for the District Court to have failed to give such
an instruction on its own motion.        Defendant maintains that the
sale of the car to Mr. Edwards and Ms. Walraven could be better
construed     as    a   conditional   sale    since   the   title   was   not
transferred.       He further argues that the record is clear that he
made no attempt to keep his identity a secret in either the sale
of the car or the television. He maintains that the fact that Ms.
Hatton asked to have the charges dropped after his arrest is
evidence that she consented to the sale of both the car and the
television.
     Section 45-2-211, MCA, provides (in part):
     (1) The consent of the victim to conduct charged to
     constitute an offense or to the result thereof is a
     defense.
Defendant maintains that consent is a complete defense to theft.
He contends that had an instruction on consent been given as it
relates to theft, a rational trier of fact could have concluded
that the sale of the television set was not beyond the scope of his
authority.     He maintains that because consent was raised by the
evidence in this case, the District Court had an obligation to
instruct on that issue regardless of the failure of defense counsel
to request such an instruction.              He relies on case law that
supports the proposition that a district court has a duty to
instruct the jury on every issue or theory having support in the
evidence.
     Instruction No. 10 as given to the jury included the following
provisions of 8 45-6-301(1)(c), MCA:
     (1)   A person commits the offense of theft when he
     purposely or knowingly obtains or exerts unauthorized
     control over property of the owner and:
                                ...
     (c) uses, conceals, or abandons the property knowing
     such use, concealment, or abandonment probably will
     deprive the owner of the property. (Emphasis added).
     The State urges that the jury, by a verdict of guilty, found
beyond a reasonable doubt that defendant had exerted unauthorized
control over the car and television at the time he sold them or
attempted to sell them   --   in other words, he acted without the
consent of the victim.   The State maintains that when viewing the
instructions as a whole, the jury was fully and fairly apprised of
the elements of the crime and thus, the defense of consent.
     Defendant incorrectly contends that consent was raised by the
evidence in this case. A careful review of the record establishes
a failure to present any evidence of consent on the part of Ms.
Hatton to the conduct charged as the offense on the part of the
defendant.     We conclude that the District Court was under no
obligation to instruct on a theory which had not been established
by evidence.
     We hold that the District Court did not err by not instructing
the jury, on its own motion, on the defense of consent as it
relates to theft.
    Affirmed.




We Concur:
w .M
 &- /
  Justices
