U.S. Const. amend V; Mont. Const. art. II, § 25. ¶ 37 In this regard, we stated in State v. Kramp, 200 Mont. 383, 651 P.2d 614 (1982): In Kramp, the Court declared unconstitutional § 45-6-304, MCA (1979).
State v. Lamere (1983), 202 Mont. 313, 318-19, 658 P.2d 376, 379. Kelley also correctly notes that evidence of possession of stolen property, standing alone, may be as consistent with innocence as with guilt. State v. Kramp (1982), 200 Mont. 383, 396, 651 P.2d 614, 621. However, the evidence that Kelley possessed the stolen property did not stand alone.
The "unauthorized control or possession of property belonging to another is a circumstance from which the jury may draw an inference and find that the person in possession committed the theft of the property, if such an inference is warranted by the evidence as a whole." State v. Kelley, 2005 MT 200, ¶ 21, 328 Mont. 187, 119 P.3d 67 (citing State v. Kramp, 200 Mont. 383, 397, 651 P.2d 614, 621-22 (1982)). Moreover, it is the jury's exclusive province to determine whether the evidence warrants such an inference.
While mere possession of stolen property as insufficient to support a conviction of burglary, it is a strong circumstantial indication of guilt which may be considered by the jury. State v. Kramp (1982), 200 Mont. 383, 396, 651 P.2d 614, 621 and State v. Deeds (1952), 126 Mont. 38, 40, 243 P.2d 314, 315. Defendant's possession of the necklace, taken with the other incriminating circumstances presented by the State, will sustain the burglary conviction.
" On retrial this instruction, which is taken from section 456-304, MCA, should not be used. This Court in State v. Kramp (1982), 200 Mont. 383, 651 P.2d 614, 39 St.Rep. 1819, declared section 45-6-304, MCA, unconstitutional and held that any instruction using the language of that statute was prejudicial to a defendant. This is another ground for reversal.
Possession of stolen property shall not constitute proof of the commission of the offense of theft; such facts shall place a burden on the possessor to remove the effect of such fact as a circumstance to be considered with all other evidence pointing to his guilt. State v. Kramp, 200 Mont. 383, 391, 651 P.2d 614, 619 (1982). Relying on the pre- Francis v. Franklin decisions of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and Ulster County v. Allen, the Montana court held the instruction unconstitutional because it took "away [the] defendant's presumption of innocence and force[d] him to testify, by placing a burden on him either to disprove unlawful possession or to prove lawful possession."
Furthermore, the discretion of the district court to give or refuse jury instructions is always subject to the overriding requirement that they fully and fairly instruct the jury on the applicable law. State v. Kramp, 200 Mont. 383, 396, 651 P.2d 614, 621 (1982); Dale v. Three Rivers Telephone Cooperatives, Inc., 2004 MT 74, ¶¶ 15-16,320 Mont. 401, 87 P.3d 489; McAlpine, ¶¶ 25-26; Tarlton, ¶¶ 24, 28-30. ¶ 43 We conclude that the jury instructions given here as a whole did not fully and fairly inform the jury of the applicable law.
If under the evidence, defendant's possession of the property of another is consistent with his [or her] innocence, then the jury should acquit the defendant unless [the state proves his or her guilt] beyond a reasonable doubt by other evidence in the case.State v. Kramp, 200 Mont. 383, 651 P.2d 614, 622 (1982) (emphasis supplied). In reversing the trial court on sufficiency of evidence grounds the Court of Appeals concluded that in this case the circumstances did not support a reasonable inference that Fortson knew the property was stolen.
The principle of criminal law is that the State has the burden of "establish[ing] the necessary criminal intent beyond a reasonable doubt." State v. Watson, 211 Mont. 401, 415, 686 P.2d 879, 886 (1984); See § 46-16-601, MCA; State v. Kramp, 200 Mont. 383, 651 P.2d 614 (1982); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970); U.S. Const. Amend. XIV. Although I agree with the majority that this burden can be met through inference, nonetheless the standard still exists.
Two recent cases have specifically abandoned the rule in the situation involved here, where cross-examination has been allowed concerning arrests which did not result in convictions. See State v. Kramp, 200 Mont. 383, 651 P.2d 614, 618 (1982), and Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981); cf. also People v. Roberts, 133 Ill. App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386, 390-391 (1985); Facyson v. State, 35 Md. App. 202, 370 A.2d 158 (1977). Commonwealth v. Scott, supra, is the more instructive of these cases.