                                No. 8 5 - 3 8 4
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1986




STATE OF MONTANA,
                 Plaintiff and Respondent,
         -VS-

CLYDE LEWIS,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                 Allen Beck, Billings, Montana

         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Judy Browning, Asst. Atty. General, Helena, Montana
                 Harold Hanser, County Attorney, Billings, Montana




                                    Submitted on Briefs: Jan. 23, 1 9 8 6
                                       Decided: March 20, 1 9 8 6


Filed:   !'MK 2 U' 1986



                 -
                                    Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


        Appellant, Lewis, appeals from his Yellowstone County
District Court jury trial conviction and sentence of 30 years
in the Montana State Prison.
        We affirm.
        The issues raised by defendant and a-ppellant are:
        1.   Whether the District Court erred in granting the
State's motion in limine precluding introduction of evidence
concerning defendant's physical condition?
        2.   Whether there was sufficient evidence to support the
jury's finding that defendant put his victim in fear of
immediate bodily injury?
        3.   Whether the District Court's jury instruction on
direct and circumstantial evidence was proper?
        4.   Whether defendant's sentence is disproportionate to
any reasonable construction of the facts in the case?
        On June 8, 1984 at 1:00 a-.m. there occurred a robbery at
a Kwik Way store in Fillings.        Defendant, his brother, and
two women      spent the evening riding around the city and
drinking.       At approximately 1:00 a.m. they stopped at the
Kwik Way.      There is conflicting testimony as to what occurred
next.
     According to the clerk on. duty that night, and other
State ' s witnesses, defend.antl brother Don entered the store
                               s
and. a.sked about the price of beer.      Don left and returned
with the defendant.     Both men went to the cooler and came out
with a case of beer and two bottles of wine.
        As the clerk rang up the sale, he noticed. Don go to the
door of the store and look outside.      Suspecting that the men
were a b o u t t o s t e a l t h e b e e r and wine, t h e c l e r k r e a c h e d f o r

a h a s e b a l l b a t kept beneath t h e counter.                 A t t h i s p o i n t Don

s a i d something t o t h e d e f e n d a n t who t h e n r e a c h e d back w i t h

h i s arm,     and b r o u g h t h i s arm forward a s i f t o p u t something

under h i s c o a t .      With one hand under h i s c o a t , d e f e n d a n t t o l d

t h e c l e r k t h a t h e w a s n Y g o i n g t o pay f o r t h e b e e r and wine

and t h a t he wanted what was i n t h e t i l l .                 Although t h e c l e r k

n e v e r saw a gun, he t e s t i f i e d t h a t he b e l i e v e d t h e d e f e n d a n t

had a gun and f e l t t h r e a t e n e d .       The d e f e n d a n t ' s hand remained

under h i s c o a t t h e r e s t o f t h e t i m e h e was i n t h e s t o r e a s

w e l l a s when he l e f t t h e s t o r e .

       While        the   r o b b e r y was   occurring,        two men       in     a   truck

pulled i n t o t h e s t o r e ' s parking l o t .            The d e f e n d a n t saw t h e

t r u c k and t o l d t h e c l e r k he wanted t h e money f a s t .              The c l e r k

emptied t h e t i l l , i n c l u d i n g a marked f i v e d o l l a r b i l l .              The

d e f e n d a n t t o o k t h e money and t o l d t h e cl-erk n o t t o l e a v e t h e

store.        Don t o o k t h e b e e r and wine 2nd t h e two men f l e d t h e

store.

       J e f f Reed, one o f t h e p e r s o n s i n t h e t r u c k , n o t i c e d t h e

defendant        running      o r w a l k i n g away     from t h e     s t o r e w i t h one

hand     in    his    coat     pocket.         The    clerk     grabbed       Reed       as    he

entered the          store,    and a s k e d him t o g e t t h e l i c e n s e p l a t e

number o f d e f e n d a n t ' s   car.       Reed o b s e r v e d t h e l i c e n s e p l a t e

number, t h e c a r ' s make and c o l o r .           They f o l l o w e d t h e c a r , b u t

could n o t c a t c h it.

       As     the    defendant      and h i s b r o t h e r     l e f t the    store,         and

headed toward t h e i r c a r , one o f th.e women i n t h e c a r , Diana

Loomis,       saw t h e d e f e n d a n t hand h i s b r o t h e r some money.                The

o t h e r woman i n t h e c a r , Cindy Sawyer, t e s t i f i e d t h a t t h e two

men came r u n n i n g o u t o f        t h e convenience          s t o r e and b o t h o f

them screamed a t h e r t o g e t o u t o f t h e r e .
       After leaving the st-ore, the defendant and his brother
noticed that they were being followed.                The brothers then
handed Cindy Sawyer some items which she threw from the car.
Shortly thereafter they were stopped by police.               The police
later recovered the beer, wine, and currency thrown from the
car, including the marked five dollar bill.
       According to the testimony of defendant and his brother,
who pled guilty to the robbery, the decision to rob the store
was made unilaterally by Don 1,ewis.           When the defendant and
Don were at the counter, Don said he would not pay for the
beer   and    wine     and    demanded money   from    the   till.    The
defendant had nothing to do with initiating or carrying out
the robbery.         The reason he placed his hand under his coat
was because of a physical condition causing him pain in the
abdominal area.        The defendant was angry with Don for robbing
the store, and the two argued intensely about the robbery
after leaving the Kwik Way.
       The first issue raised by the defendant is whether the
District Court erred in granting the State's motion in limine
precluding          introduction    of   evidence      concerning     the
defendant's physical condition.            The defendant claims he
suffers      from    abdominal problems    causing     him   severe   and
continuous pain.             He alleges that his physical condition
explains why         he had    his hand under his coat during the
robbery.      Therefore, the evidence was relevant, and granting
the State's motion in limine was prejudicial. to his defense.
Defendant's argument is not persuasive.
       First, the District Court did not grant the State's
motion in limine, it was denied.          Instead, when the defendant
attempted to elicit testimony from the defendant's mother
concerning the nature of his illness, the State objected to
the   relevance   of   the    testimony   and   the    objection      was
sustained.   Nevertheless, defendant's mother was allowed to
mention throughout her testimony that defendant was ill.
      Second, the defendant and his sister were both allowed
to testify concerning the specific nature of his illness, and
the fact that defendant often placed his hand on his side
because of the pain.    Defendant further testified that if he
did have one hand on his side during the robbery, it was
because of his illness.
      We hold that evidence concerning defendant's physical
condition was relevant, and it was error for the trial court
to sustain the State's objection to the mother's testimony.
?.Jevertheless, the error was harmless.          The defendant was
still able to introduce abundant evidence concerning his
physical   condition through the testimony of his brother,
sister, and himself.         The jury chose not to believe the
defendant, and there is substantial evidence on the record to
support the jury's decision.
      Defendant's second issue is whether there was sufficient
evidence to support the jury's finding that the defendant put
his victim in fear of immediate bodily injury.           The defendant
was convicted of robbery under        4 5 - 5 - 4 0 1 (1) (b), MCA.   That
section states:
      A person commits the offense of robbery if in the
      course of committing a theft he:


      (b) threatens to inflict bodily injury upon any
      person or purposely or knowingly puts any person in
      fear of immediate bodily injury     . . ..
      Defendant argues that there was insufficient evidence to
support a    finding that he placed        the clerk in          fear of
immediate bodily         injury.      We disagree.         There is amp1.e
evidence in the record to support such a finding.
        The clerk testified that the defendant swiftly place6
h.is hand under his coat and demanded the money in the till..
The clerk stated that he believed the defendant had a gun and
that his life was in jeopardy.              The defendant's actions were
sufficient to         support the     jury's    finding that defendant
purposely or knowingly placed the clerk in fear of immediate
bodily    injury.        The   jury   may    use   common experience to
conclude that a particular situation would cause a person to
experience fear.         State v. Case (Mont. 1980), 621 ~ . 2 d1066,
1069, 37 St.Rep. 2057, 2059-60.             An actual weapon need not be
used.     See Criminal Law Commission Comments on 5 45-5-401,
MCA.      There was sufficient evidence to support the jury's
conclusion that the defendant placed the clerk in fear of
immediate bodily injury.
        The   third    issue on     appeal     is whether the District
Court's       jury    instruction     on    direct   and    circumstantial
evidence was proper.           The trial court offered the following
instruction regarding circumstantial evidence:
       There are two classes of evidence recognized and
       admitted in courts in the State of Montana. One is
       "direct evidence," and the other is "circumstantial
       evidence."   In "direct evidence," the witnesses
       testify directly of their own knowledge of the main
       fact or facts to be proven, while "circumstantial
       evidence" is the proof of certain facts and
       circumstances in a given case from which the jury
       may infer other connecting facts which usually and
       reasonably   follow   according   to   the   common
       experiences of mankind.
        The defendant objected to this instruction, and instead
offered       the    following instruction which       the trial court
refused to give:
       Acts may be proven by circumstantial evidence as
       well as by direct testimony of eye witnesses, but
       the facts and circumstances in evidence should be
      consistent with each other and with the guilt of
      the defendant, and inconsistent with any reasonable
      theory of the defendant's innocence.
      Both direct evidence and circumstantial evidence
      are acceptable as means of proof.       Neither is
      entitled to greater weight than the other.
      The trial court refused defendant's instruction because
the case did not hinge upon circumstantial evidence.                     The
District Court stated:
      There were only three people in that store at the
      time of the holdup.      All three of them have
      testified, and that's direct evidence.
     We have addressed this issue before in State v. Gould
(Mont. 1985), 704 P.2d 20, 42 St.Rep. 946, and State              77.   Bean
(1959), 135 Mont. 135, 337 P.2d 930.            In those cases we held
that an instruction such as that proposed by the defendant is
only appropriate where all of the evidence is circumstantial.
Where there is substantial. direct evidence, a district court
may properly refuse to give such an instruction.            Gould, 704
P.2d at 31-32; Bean,      135 Mont. at 137.
     The District Court instructed the jury on the definition
of direct and circumstantial evidence, and on the equal
weight of each.       It was not error for the District Court in
this case to refuse to give defendant's proffered instruction
as   there was      substantial direct evidence of defendant ' s
guilt.
     Finally,       defendant    argues    that    his    sentence        is
disproportionate to any reasonable construction of the facts
in the case.     Defendant's sentence was within the permissable
statutory range, and, in the absence of clear abuse of
discretion     is   properly    reviewed   by    the   Sentence     Review
Division.      Here, there was no abuse of discretion by the
District Court, and this issue is a matter for the Sentence
Review D i v i s i o n ,     and. n o t t h i s C o u r t .   S t a t e v.   Beach   (Mont.

1.985),    705 P . 2 d     94,   107, 4 2 St.Rep.         1080, 1094.

        For t h e r e a s o n s s t a t e d above, we a f f i r m t h e c o n v i c t i o n

and s e n t e n c e o f t h e d e f e n d a n t .




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