State v. Lundblade, 79-50

• Decision Date: 24 March 1981
• Docket Number: No. 79-50,79-50
• Citation: 38 St.Rep. 441,625 P.2d 545,191 Mont. 526
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Carl Roger LUNDBLADE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 545

625 P.2d 545

191 Mont. 526

The STATE of Montana, Plaintiff and Respondent, v. Carl Roger LUNDBLADE, Defendant and Appellant.

No. 79-50.

Supreme Court of Montana.

March 24, 1981.

K. M. Bridenstine argued, Polson, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Allan Chronister argued, Asst. Atty. Gen., Helena, Richard P. Heinz argued, County Atty., Polson, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant Carl Roger Lundblade appeals from a felony theft conviction, following a jury trial in District Court, Lake County. We reverse the conviction and remand the cause to District Court for a new trial.

The defendant operated a diesel repair shop in Polson, Montana, for a time prior to his arrest in December 1978. One of his regular customers was the complaining witness in this case, Warren G. Harding, d/b/a Mission Valley Concrete Industries, Inc. In April 1978, one of Harding's trucks blew an engine. Defendant installed a new engine for Harding, using several parts from the blown engine. Harding apparently wanted to get the engine repaired, but Lundblade determined that the blown engine could not be fixed and simply kept it at his shop.

Shortly after this engine work was done, defendant posted a notice in his shop that he was increasing his hourly rate to $16/hour in-shop and $17.50/hour out-of-shop. Mr. Harding, who had been paying $10/hour, advised Lundblade that he could not pay the new rates. Conflicting testimony was presented at trial as to the outcome of this discussion. Harding testified that Lundblade agreed to continue to charge him at the $10 hourly rate; Lundblade testified that it was agreed that Harding would get a "break" and $14 an hour straight across the board was agreed upon.

Despite this dispute over rates, Lundblade continued to do miscellaneous repair work for Harding in June, July, and August 1978. By early September, Harding's bill totalled $2,624. Harding paid $1,000 but refused to pay any more, indicating that he was "getting a runaround on (the) work."

After several unsuccessful attempts to collect the bill, Lundblade contacted a Polson attorney to assist him in making the collection. After several letters back and forth between Harding's and Lundblade's attorneys, defendant contends that he requested his attorney to file suit, but no action was taken. Lundblade testified that on advice of counsel, he held the engine to protect his cause of action. He also testified that he understood that if he sold the engine, the debt would be extinguished and he would no longer have grounds to file suit.

In November 1978, Lundblade contacted Wendell Jones in Missoula concerning a sale of his equipment and the engine because he was forced to go out of business. A sale of the equipment and engine was consummated on November 27, 1978. Jones testified that $750 was allocated to the purchase price of the engine; Lundblade testified that $600 represented the price for the engine. Both testified that it would cost more to rebuild the engine than it would to purchase a used engine. Jones testified that the $750 price was "more than fair."

Lundblade testified that it was standard practice in the repair business to sell a customer's property if an account could not be collected. He admitted that he wrote off the entire balance owing, although he did not inform Mr. Harding of this until after he was arrested in December 1978 for felony theft of the disassembled engine.

We find that defendant's conviction must be reversed because improper jury instructions denied him a fair trial. The remaining issues raised by the parties need not be addressed in this opinion as they will not arise on retrial.

The jury instructions constituted reversible error for two reasons: (1) the jury was not advised of the statutory elements of the crime, and (2) the jury was instructed on defendant's civil remedy of an agister's lien, permitting the inference that he was guilty of theft for failure to pursue that remedy.

The State contends that we should not consider the question of failure to give an "elements of the crime" instruction, citing well-settled principles of appellate review. The State correctly points out that failure to object at trial to the giving or refusal to give a jury instruction normally renders the issue nonappealable. State v. Harvey (1979), Mont., 603 P.2d 661, 665, 36 St.Rep. 2035, 2038, and the record here shows that appellant never offered an instruction setting out the elements of the crime. But this Court has indicated that in some situations we will nonetheless review jury instructions "for the purpose of determining whether or not the jury was properly instructed." State v. Watson (1965), 144 Mont. 576, 582, 398 P.2d 949, 952. In this case, because we determine that failure to instruct on the elements of the crime constitutes "plain error" pursuant to section 46-20-702, MCA, we will take cognizance of the jury instruction question. State v. Poncelet (1980), Mont., 610 P.2d 698, 702, 37 St.Rep. 760, 763.

At a minimum, the District Court must explain or define the crime for the jury. State v. Campbell (1972), 160 Mont. 111, 114, 500 P.2d 801, 803. In determining whether the instructions did this, we are guided by certain settled principles. First, we must view the instructions as a whole, State v. Caryl (1975), 168 Mont. 414, 430, 543 P.2d 389, 398, and we will find no error if the instructions as a whole fully and fairly instruct on the law applicable to the case. State v. Higley (1980), Mont., 621 P.2d 1043, 1054, 37 St.Rep. 1942, 1953; State v. Campbell, supra, 160 Mont. at 116, 500 P.2d at 804.

The State contends that the instructions as a whole adequately apprised the jury of the substantive law applicable to this case. We disagree. Even considering Instructions Nos. 5, 6, 8, and 11, as the State urges us to do, we are unable to determine that the jury knew that the State had to prove every element of the crime beyond a reasonable doubt.

The pertinent portions of the instructions as given provide as follows:

"... in order to convict him of the crime charged, every material fact or element necessary to constitute the crime must be proved by the State of Montana by competent evidence beyond a reasonable doubt; and, if the jury entertains a reasonable doubt on any fact or element necessary to constitute the crime charged, it is your duty to give the defendant the benefit of such doubt and acquit." (No. 5)

"In every crime or public offense the State must establish each element described by the statute defining the offense, and the State must further establish that the Defendant acted while having the mental state required by the statute defining the offense." (Emphasis added.) (No. 6)

"In this case the Defendant has been charged with committing the crime of THEFT, committed as follows, to-wit: That on or about November 27, 1978, at the County of Lake, in the State of Montana, the Defendant, CARL ROGER LUNDBLADE, purposely or knowingly obtained or exerted unauthorized control over property, to-wit: one GMC 6V 53 diesel engine model number 6V 53N, of a value of more than One Hundred Fifty Dollars ($150.00) owned by Mission Valley Concrete Industries, Inc., with the purpose of depriving the owner of the property."

". . .

"The statutes under which this Information is filed, and the Defendant charged, or as many as are applicable in this particular case, are given in the following instructions." (No. 8)

(We note that no further instructions were given concerning the statutes under which the Information was filed, or under which the defendant was charged.)

"Reasonable doubt is not a mere possible doubt, because everything relating to human affairs, and depending on evidence, is open to some possible or imaginary doubt. A reasonable doubt exists when you jurors cannot say that you feel an abiding conviction to a moral certainty of the truth of the charge." (No. 11)

In these instructions, the jury was told that each element of the crime as...