                                                    No.    82-329

                     I N THE SUPREME COURT O THE STATE O M N A A
                                            F           F OTN

                                                           1984




STATE O MONTNqA,
       F

                          P l a i n t i f f and R e s p o n d e n t ,

    -vs-
BRUCE A.    DESILVA,

                          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 Sixteenth 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 C a r t e r ,
                          The H o n o r a b l e A l f r e d B. C o a t e , J u d g e p r e s i d i n g .


COUNSEL O -CORD:
         F


         For Appellant:

                          Thomas E .       R i c h a r d s o n a r g u e d , B u t t e , Montana


         F o r 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
                          M a r g a r e t M. J o y c e J o h n s o n a r g u e d , A s s t . A t t y . G e n e r a l
                          R i c h a r d 0 . I I a r k i n s , County A t t o r n e y , E k a l a k a , Montana




                                                    Submitted:           October 2 4 ,        1983

                                                       ~ ~ c i d e d : A p r i l 9 , 1934



Filed:      P\c)~;   J     . 304
            - 1
             ,       c,        V




                                                    Clerk
Mr. Justice Daniel J.              Shea delivered the Opinion of the
Court.

       Defendant, Bruce de Silva, appeals from a Carter County
District Court judgment entered on a jury verdict finding him
guilty    of   the    felony of       issuing a      bad    check.     He was
sentenced to ten years in prison, five years suspended on the
condition that he refrain from selling or buying livestock in
Montana, and prohibiting him               from maintaining a checking
account.    We affirm.
       Although not so set forth in his brief, defendant raises
five     issues.      First, he          claims    that    the   evidence   was
insufficient to support a jury finding that he knew, at the
time of issuing the checks, that they would not be honored by
the bank.         Second, he claims that the jury i-nstructions
defining the elements of the offense were inconsistent and
that the jury may therefore have found defendant guilty by
use of less than a reasonable doubt standard.                        Third, he
claims     that      the    trial     court       improperly     refused    his
instructions on his defense that the person to whom he had
written the checks had implied1.y consented to accepting a
check that may not be backed up by sufficient funds.                   Fourth,
he claims that the State made prejudicial remarks during its
opening statement that destroyed his credibility because the
jury   could      infer that the State had                even more damaging
evidence that the court would not let the State introduce
into    evidence.          Fifth   and    finally, he       argues that the
sentence was excessive and that the trial court impermissibly
set the sentence to set an example for others who may be
inclined to take advantage of Montana stockgrowers in similar
situations.
     On    September 26, 1980, defendant, an Iowa livestock
broker,    purchased     approximately      530   sheep     from    Delbert
Dinstel, an eastern Montana rancher.                The defendant had
already made arrangements to sell half the sheep to Richard
Clark in Missouri, and the defendant received $14,860 in
advance for payment.         Defendant testified that he believed he
had a commitment from a farmer in Michigan to buy the other
truckload.      In     contrast, Dinstel        testified    that   before
defendant    arrived    to    pick   up   the   sheep, defendant told
Dinstel that the Michigan farmer backed out of the sale.
    The defendant gave the sheep rancher two checks for the
sheep, each check representing one truckload.             The two checks
were in the amount of $13,456 and $14,250.             They were drawn
on an Iowa bank account opened just the day before, September
25, 1980.     The advance payment that the defendant received
would have been sufficient to cover either of the two checks
but not both.        However, both checks were twice returned to
the rancher because of insufficient funds.            After the checks
were returned, the rancher called the defendant, and the
defendant promised to send a cashier's check to cover the two
returned checks.       The cashier's check was never sent.
     In October 1980, the rancher went to Iowa to confront
the defendant, and found 120 sheep still in the defendant's
possession.   At the rancher's insistence, the sheep were sold
and $5,160 received in the sale of the sheep was given to the
rancher.    The defendant then offered the rancher $3,000 and a
promissory note for the balance of approximately $23,000, but
the rancher refused the offer.
    Criminal charges were filed in Carter County on October
21, 1980, alleging vj.olation of section 45-6-316, MCA, our
statute making it a felony to issue a bad check.             The statute
requires that the person issuing the check know, at the time
of issue, that the check will not be paid by the bank.             Also,
failure to pay the check within 5 days of notice that the
check has not been paid, is prima facie evidence that the
person knew, at the time of issue, that the check would not
be paid.      Section 45-6-316, MCA.
       Defendant     first   contends    that   the    evidence     was
insufficient to convict him of the felony of issuing a bad
check.      Defendant argues that he believed the checks would be
paid by the bank and that the State did not prove that he
knew, at the time of issuing the check, that it would not be
honored by the bank.         The evidence supports the verdict.
       To convict the defendant, the jury was required by
Instruction 2 to find that defendant knew, at the time of
writing the check, that it would not be paid by the bank.            By
Instruction 3, the jury was further required to find that
defendant had no arrangement or understanding with the bank
to pay the checks when presented, nor sufficient funds to pay
the checks.
       The    evidence   shows   that   the   defendant   opened    the
checking account using the advance payment from Clark, but he
made   no    other   deposits.    The   evidence also     shows that
defendant had no firm commitment to sell the second load of
sheep and that he had no other potential buyers.               Despite
this situation, the defendant continued to write checks on
the new Iowa account.        Accordingly, when defendant's checks
to Dinstel a-rrived at the Iowa bank for payment, defendant's
account had      insufficient    funds to pay    them.     The bank,
therefore, returned the checks to Dinstel        -   unpaid.   Clearly
this evidence is sufficient to support the jury's verdict.
       Defendant next contends that the instructions defining
the elements of the offense (Instructions 2 and 3) are in
conflict, and that if the jury followed Instruction 2 only,
it could    have     found him    guilty by    use of       Less than a
reasonable doubt standard.         Instruction 2, offered by the
State, sets forth the elements of the offense as contained in
section 45-6-316, MCA.      Instruction 3, offered by defendant,
does the same, but also incorporates certain facts of the
case and tells the jury that it must find the defendant
guilty beyond a reasonable doubt.            Defendant contends that
the jury may have followed Instruction 2 and not 3, and
therefore that the jury may have convicted defendant by using
less than a reasonable doubt standard, and therefore that the
jury   could   have   convicted him     even    if    the    jury had    a
reasonable doubt of his guilt.
       Instructions 2 and 3, however, are not inconsistent,
although Instruction 3 elaborates on the statute defining the
offense by reciting some facts of the case and by telling the
jury that it cannot convict unless it finds defendant guilty
beyond a reasonable doubt.        If only Instruction 3 contained
the reasonable doubt standard, defendant's position would be
more plausible.       However, the jury was fully informed by
other instructions (Instructions 4 and 4A) that before it
could find defendant guilty, j-t must believe that he was
guilty beyond a reasonable doubt.        Instruction 4 directed the
jury   to   acquit    defendant    if   it   was     not    satisfied   of
defendant's guilt beyond a reasonable doubt, and Instruction
4A defined what is meant by reasonable doubt.               The jury was
properly and fairly instructed on the elements of the offense
and on the burden faced by the State in order to convict.
        Defendant also contends that the trial court improperly
refused his instructions relating to the defense of consent
as   contained      in     section      45-2-211,   MCA.      This     statute,
contained in the general- liability part of our criminal code,
provides that:       "The consent - - victim - conduct charged
                                  of the     to

- constitute - offense - - - result thereof - -
to           an        or to the            is a
defense. "         Defendant      relied    on    consent    as   a    defense.
Defendant testified that he told Dinstel that both checks
would not clear until the second load of sheep had been sold,
and therefore Dinstel had consented to taking checks that he
knew would not or at least might not be paid.                          Dinstel,
however, testified that he accepted the checks thinking they
were immediately payable and he testified that he would not
have sold the sheep to defendant if he knew the bank would
not immediately pay the checks.
        Based on his version that Dinstel knew the checks would
not clear, defendant offered an                  instruction      (defendant's
refused Instruction 41, which               stated in essence that to
sustain      a   conviction       the    evidence    must    show     beyond   a
reasonable doubt that at the time Dinstel accepted the check,
he had no knowledge that the checks would not be immediately
paid.     The court refused this instruction, but did instruct
the jury (Instruction 12) that "under Montana law the consent
of the victim is a defense to a criminal charge."                          This
instruction properly reflects section 45-2-211, MCA, which
provides that consent of the victim is a defense.
        Although defendant's refused Instruction 4 refers solely
to the question of Dinstel's consent when he accepted the
checks,      the    jury    did      receive     similar    instructions       in
Instruction 3.       The pertinent part of that Instruction states
that in order to find defendant guilty, the State must prove
beyond a reasonable doubt that Dinstel received the checks
without knowing they would not be pa.id by the bank upon
presentment.      De Silva had only to raise a reasonable doubt
regarding Dinstel's consent when he accepted the checks; the
State had the burden of proof beyond a reasonable doubt that
Dinstel did not consent.         There was contradictory testimony
regarding Dinstel's consent to accepting and holding a check
not immediately payable, and the jury found that Dinstel did
not consent in that he did not knowingly accept the checks
with    the knowledge they might not clear.               The jury was
sufficiently instructed on the State's burden of proof on the
issue    of    consent,   and    we   find   no   error    in   refusing
defendant's offered instructions.
       The    defendant next     contends    that the     State made   a
prejudicial remark in its opening statement that destroyed
his credibility with the jury.          The State's prosecutor made
the following statement to the jury which we find a little
confused:
       "I believe we will also be presenting evidence
       concerning peripheral issues.    - - -of the
                                        Now, some -
       evidence that I was going to present - -  has been
       excluded.   The -JUG  and the-defense  counsel may
       make objections to some of the statements made by
       counsel.   If that occurs I wa.nt you to disregard
       any of the information sa.id by         a witness
       inadvertently.   I have told my witnesses and I
       don't think any of this information will come in.
       It has nothins to do with the case before us."

       Defense counsel focuses only on the underlined sentence,
and     argues    that    this     remark     destroyed     defendant's
credibility, so that the jury did not believe defendant or
his explanation.     When read in context, we do not believe the
comment destroyed defenda.ntls
                             credibility.
       Finally, the defendant contends that he was improperly
sentenced because he was sentenced to set an example.               The
offense of issuing a bad check carries with it a maximum
$50,000 fine, a maximum          ten year prison term, or both,
section 45-6-316, MCA.      The trial court imposed. the statutory
maxi.mum prison term, but suspended five years with conditions
imposed.   The sentence was based on the presentence report
that revealed the defendant's history of bad              checks and
bankruptcy, and his law enforcement background.            The report
revealed that the defendant had a history of arrests without
conviction for bad checks within the past two or three years
in Iowa, and that the defendant filed for bankruptcy in Iowa
on September 20, 1980, six days before he wrote the two bad
checks to Mr. Dinstel.          The report revealed that when the
defendant filed for bankruptcy, eleven debts for livestock
          *
purchases were listed, totalling over $64,000.             Since the
time the defendant filed for bankruptcy and wrote the two bad
checks to Dinstel, the defendant wrote            7 additional bad
checks on 4 different hanks in Iowa for livestock purchases
totalling over $49,000.          The defendant's history      in law
enforcement indicated he had been a deputy sheriff in one
county in Iowa and Chief of Police in two different towns in
Iowa.
     Although    the    trial    court   did   mention   "setting    an
example" when imposing the sentence, when viewed in context,
it is not sufficient reason to remand. for resentencing.            The
purposes   of   any    l.aw setting punishment for a crime are
prevention and reformation.         Article 11,   §   28, Mont.Const.
The trial court gave sufficient reasons for its sentence, a.nd
we find no impropriety in the manner of sentencing.
We Concur:


 2kMpLd.      a*
      Chief Ju&tlce
