*1
STATE OF MONTANA,
Respondent,
Plaintiff and
ROBERT L. ALLUM,
Appellant.
Defendant
No. 04-188.
Submitted on Briefs March
2005.
Decided June
JUSTICE NELSON dissented. Kolesar, Defender, Appellant: For Robert Bozeman. Public McGrath, General; Attorney Mike Respondent: For Honorable Mattioli, General, Helena; Attorney Susan L. Mark W. Assistant Wordal, Attorney’s Office, Bozeman. City Opinion LEAPHART delivered the the Court.
JUSTICE appeals from the District Court’s denial his Robert Alum Municipal ofthe Court. challenging judgment the and sentence appeal We affirm. following the on appeal:
We address issues trial right Alum’s to Municipal 1. Whether the Court violated through jury method of selection. jury its instructions Municipal jury
2. Whether the Court’s trespass correctly the law. elements of criminal stated given have an Municipal Court should 3. Whether instruction. entrapment to authority had to ask Alum leave manager
4. Whether the store premises. vague statute is and overbroad. 5. Whether the criminal prejudiced Alum’s procedural irregularities 6. Whether other trial. granting its discretion in the District Court abused
7. Whether to file its brief. prosecution appellate extra time for the pay ordered Alum to properly Court 8. Whether costs. AND BACKGROUND
FACTUAL PROCEDURAL (Smith’s) in Bozeman Drug grocery store The Smith’s Food and entered this branch on Fargo bank. Alum houses branch of Wells $2,000 that was Alum check January 2002. wanted cash at Wells Alum not hold account Fargo. on Because drawn Wells he that, company policy, him per a teller told Fargo, he it. Alum was on check if cash thumbprint his wished stamp manager. The see the branch outraged by policy and demanded him to manager repeatedly told him that she would not allow cash the object he giving thumbprint. check without When continued just him Allum manager asked to leave the bank. then moved outside leased Smith’s continued Fargo’s of Wells area within his argument personnel. with bank arrived, point police At this had of them went two officers and one tell manager Smith’s about situation. Allum asked one of because, police officers he report explained, to issue as he wanted use report future federal lawsuit. The officer stated that had not bank violated laws he would issue a
report. Smith’s came to scene of Allum’s commotion and asked leave repeatedly Allum to the store. After Allum refused to leave, him arrested officers him criminal trespass. briefly They police detained him in a in the car Smith’s parking lot before he was released. held a July Bozeman trial on
Allum was suspended convicted sentenced to six months and a fine. The also imposed $500 witness and costs Allum of his appealed $952.95 $364.88. conviction to the District Court where appeals his conviction was affirmed. He now to this Court.
STANDARD OF REVIEW We giving jury review the of instructions for “whether the instructions, whole, fully fairly jury as a instruct the on the applicable Cameron, 32, law.” v. 13, 51, State 2005 MT 326 Mont. ¶ ¶ 13, 1189, Bowman, 106 P.3d 13 (citing 119, 49, v. MT State 2004 ¶ ¶ 49). 176, 49, 89 986, 321 Mont. P.3d interpretation of a statute ¶ ¶ a question law that determine of we review to whether the interpretation 160, McNally, 5, is correct. State v. 2002 MT 310 ¶ 396, 5, 1080, Mont. P.3d (citing 253, 50 5 State v. 2001 MT Peplow, ¶ ¶ 17). 17, 172, 17, 922, 307 Mont. P.3d Whether statute is ¶ ¶ ¶ a question Mathis, 112, unconstitutional of State law. v. ¶ 8. ¶ ¶
DISCUSSION ISSUE ONE Whether Municipal byjury the Court violated Allum’s to trial right through jury its method selection. of that right contends the Court violated his to trial jury through selecting jurors. its method of We not reach this do object seating
issue because Allum did not to the the venire at the of Parrish, 112, 12, time v. MT it was sworn. State Mont. ¶ Allowing 12. Allum to to the object selection ¶ ¶ (indeed, case, after the in this after it process impaneling jury the of dismissed) ability “of deprive Municipal been the the the timely to correct error in in a fashion.” State proceedings 517, 27, Ford, ¶ ¶
ISSUE TWO jury regarding the the Court’s instructions Whether trespass correctly the elements criminal stated law. the Municipal In its written instructions Court stated following: in Criminal Trespass Issues Trespass,
To convict the defendant Criminal following prove elements: in an unlawfully
1. That the defendant entered or remained structure; or occupied unlawfully upon in or
2. That defendant entered remained another; premises knowingly; 3. That defendant acted elements, Directly below these the instruction contained some However, in the words “all of these” language. places additional two “any pen necessary” out with and “the of these” were crossed Therefore, them. version read handwritten above revised follows, language parentheses with the stricken emphasized: language handwritten (all you your
If find from consideration evidence that these) necessary beyond been proved elements have doubt, you guilty. then should find defendant reasonable If, hand, your you on the other find from consideration these) not been (any necessary elements have evidence that beyond you then should find a reasonable doubt proved guilty. defendant not guilty find Allum requiring
Allum asserts that elements, allowed the beyond doubt all a reasonable prove. had pick elements the State and choose which themselves, Allum’s reading from a of the elements As is obvious *4 1 and prove The have elements argument is incorrect. State not 2, plus For prove 1 or 3. 2 reasonable doubt. It has beyond and 3 a that we have to assume argument to make sense would Allum’s could necessary “the to mean that it jury have read elements” could 3, merely by or merely finding 1 and but not through convict Allum beyond doubt, finding single a element satisfied a but not reasonable provides of the reason others. Allum no to think reading made tortured of the Instead he have such a instructions. merely held cites to cases where we have that all elements of a crime proved beyond must be doubt. Allum is correct that reasonable we recognized process “requires prove beyond due have that every of a a reasonable element crime a criminal doubt 24, 322 350, McCaslin, v. MT prosecution.” See State Mont. ¶ “every However element” does not mean “all ¶ ¶ gives elements” that are included in a statute when the statute that may underlying alternative elements constitute the offense. Allum’s challenge court’s instruction is merit. without The Dissent contends that this instruction not a correct was specific unanimity statement of law ‘there no instruction given by the argument court in case.” Allum does not raise this on appeal, we therefore decline address the issue. Dissent argues duty we should address the issue because it is of the court give unanimity requested trial instruction even if not parties. However, again, only trial, not raise issue at he but does not it raise here. The cases the cites Dissent for the proposition, unanimity the failure to request instruction does prejudice raising appeal, just the issue all involve that-the raising of the on appeal. Jackson, issue See ¶ Schuff v. 34; Weaver, Mont. 55 P.3d State v. ¶ ¶ 167, 25, 58, 25, 713, 25; Billings Leasing Co. ¶ ¶ Payne (1978), 217, 219, 388. The above do not suggest appellate should, cases an sua sponte, raise the issue.
ISSUE THREE Municipal Whether the should given Court entrapment instruction. Court refused to give proposed
instructions an entrapment defense. He this was argument reversible error. This no merit. manager Both the and the asked bank store Allum to leave and Allum on staying. police insisted Allum contends that the ‘incited officers committing induced” him into store summoning managers the scene the managers so that could ask him to leave. See §45-2- Locating MCA (defining entrapment). person authority dispute property peacefully over resolve a does not inciting inducing constitute action crime. The *5 instructing entrapment. in not was within its discretion FOUR ISSUE authority to ask Allum to leave the manager Whether the store had premises. 45-6-201(1), statute, MCA, the trespass Under the criminal may person” or “authorized ask an individual property
owner of an person” to that an “authorized property. leave Allum asserts Therefore, continues, he be someone with written authorization. prove beyond State did not reasonable doubt that authorized person prove asked him to leave the store because it did not manager of Smith’s authorization. He draws rather had written §70-15-304, states, MCA, “Apower novel claim from which can be only which would sufficient to by executed a written instrument be pass power under the if the pass the estate or interest intended “power” were the actual owner.” A person executing power real separately authority defined as to do some act in relation to “an or an estate therein or or to the creation revocation of property thereon, granting reserving power owner or such charge which the 70-15-301, At might any himself Section MCA. perform purpose.” owner, store, he trial, the who is not the admitted that manager authority ask job description that he had did not know if his stated argues was reasonable doubt property. to leave the Allum there people authority, and therefore manager whether had such committed trespass. reasonable doubt as whether reading this inventive argument has no merit. Under land, governing any concerning act real this State’s statutes estates authorized in involving a non-owner would have property require. real Section writing. property This is not what Montana’s laws real 70-15-304, MCA, the transfer interests in is directed toward interests, easements, leases, executory not the such as or property granting permission agency. or commotion, arrived at the scene of Allum’s police When the an “authorized
they to ascertain who was properly employees located property. We hold that person” to make decisions from the owner explicit authority written store need asking someone to leave power the specific exercise property. FIVE
ISSUE vague and overbroad. the criminal statute is Whether MCA, 45-6-201(1), in full: states Section unlawfully upon any vehicle, A or person enters remains in or structure, licensed, premises invited, when he is occupied or remain privileged Privilege upon or otherwise to do so. to enter by explicit land permission is extended either person by landowner or other authorized the failure of the person post denying entry landowner or other authorized notice onto time private privilege land. be revoked communication personal the landowner or other notice entering person. person authorized vague Allum claims that this statute is and/or He overbroad. person” narrowly that “authorized must be construed so as not to *6 rights process his due speech. person” violate and free If “authorized authority is not limited to mean someone who written from the landowner, continues, term, statute, he and vague thus the and/or overbroad. exception general overbreadth doctrine ‘is an to the rule that light
statutes are evaluated in
of the situation and facts before the
(1994),
258, 264, 875
1036, 1040
court.” State v.Lilburn
265 Mont.
P.2d
(citing
(1992),
377,
Paul
411,
2538,
R.A.V. v. St.
505 U.S.
112 S.Ct.
2558, 120
305, 336
J.,
(White,
concurring)). “[A]
L.Ed.2d
statute which
applied
can be
constitutionally protected speech
expression
be found to
in its entirety,
validly
be invalid
even if it could
apply to
Lilburn,
264,
the situation
the court.”
before
a person explicitly given permission whom the landowner has then, ‘Police, writing prosecutors judges unfettered have undefined decide ability person might what be authorized Allum privilege might landowner to rescind to enter.” How occur say. challenge purely does not Allum’s speculation is based Therefore, not rise to the level of real and substantial. Allum’s challenge overbreadth fails. vagueness. doctrine Related to overbreadth is that “A vagueness give face if a person
statute void for on its it fails to ordinary permit fair intelligence notice that statute does his
370 3, County, Yurczyk conduct.” v. Yellowstone 2004 contemplated ¶ 33, 33, 169, 266, (citing 33 Martel 319 Mont. State v. ¶ ¶ 18). (1995), 150, 45-6-201, MCA, P.2d Section ordinary intelligence fair notice. A who reads gives person of he if he statute will have fair notice that will have committed him to refuses leave a when the of the store asks store leave. SIX
ISSUE trial. procedural irregularities prejudiced Whether other Allum due makes additional claims that his conviction violated (1963), First, Brady Maryland U.S. S.Ct. process. citing v. Allum that he denied access 10 L.Ed.2d Ellenburg, his crucial evidence and witnesses for defense. See State 232, 52, (discussing 2000 MT ¶ ¶ ¶ violations). Brady Brady, a defendant must demonstrate Under “(1) evidence, evidence, impeachment possessed including the State (2) defense; did not the evidence petitioner possess favorable to (3) diligence; nor could he have obtained it with reasonable (4) evidence; and had prosecution suppressed the favorable disclosed, a probability evidence reasonable exists been proceedings Ellenburg, different.” outcome of been ¶ 6, 15, State, 15, 296 Mont. (quoting Gollehon v. ¶ ¶ 15). arrest, 6, 2002, days his filed a February eight On after asking Municipal Court to order the State discovery request *7 his On security day camera the arrest. obtain the video from which, among things, 7,2002, an order other February the court issued after request video. Allum filed the ordered the State to obtain the city prosecutor, who advised discussing length the matter at with the video, a that the copy did possess Allum that the State not copy request for Allum to a would be quickest way obtain days the from District Court. A few after Subpoena the Investigative order, 13,2002, city the February prosecutor the around State received for the manager the the bank and learned had a conversation with digitally in is and that time that the video the bank recorded first after it is recorded. destroyed days is five to fourteen data data, indeed, had discovered that the inquiries made if the addition, city that even prosecutor learned destroyed. In been (no discovery earlier day it received the inquired State had already 8, 2002), the have been lost. February data would than Brady commit a that the did not facts demonstrate State These “suppress” violation the State did not the evidence. Neither knew the State Allum that data be five destroyed nor would after days fourteen the incident. Allum a Brady also claims State committed violation
when successfully quash subpoenas. it moved to some ofAllum’s These subpoenas pretrial for depositions were various witnesses attend granted and trial The Municipal itself. the State’s motion and quashed subpoenas. quashed deposition subpoenas Allum’s It because Allum had not demonstrated that the witnesses be §46-15-201(1), required for trial by Regarding unavailable MCA. trial, subpoenas quashed court them because the anticipated testimony of the witnesses was either irrelevant or duplicative. City Allum to call sought various of Bozeman officials to testify police policies. The court concluded that information was 401-403, M.R.Evid., irrelevant under any Rules and that information they might provide germane that was case was available through other We that witnesses. conclude the State did not commit Brady moving quash because, violation in subpoenas these witness again, evidence, the State did not seek to suppress favorable but was merely raising statutory valid evidentiary concerns. correctly points Allum out not file a sworn
complaint commenced when it prosecution. signed its An officer complaint, it §46-11-102, but was not sworn to. MCA, 46-11-110, MCA, require § State to file a sworn complaint a prosecution. commencement of This is incorrect. 46-11-110, MCA, states, Section a complaint presented ‘When to a charging person offense, with the commission of an the court affidavits, filed, shall complaint examine sworn if filing determine whether cause exists to allow the charge.” not language require This does sworn to be filed. Instead, requires it the court to examine a sworn if one is Furthermore, 46-11-102, MCA, filed. sworn require complaint. prosecution It states that the offenses not by district court “must A complaint.” “sworn” mentioned. our arguing require In statutes a sworn in a case,
prosecution appeals such as the instant Dissent to §46-11- (2001). §46-11-401(3), MCA,along with MCA language §46-11-401(3), legislature Dissent concedes that the 2001 amended However, points legislature replaced “signed MCA. it out that the §46-11-401(3), (1999), officer,” a peace “signed oath MCA *8 (2001). 46-11-401(3), peace Although a sworn officer.” Section MCA legislature eliminated the statute’s with this amendment sworn, by it did requirement complaint peace that a filed a officer be Therefore, §46-11-110, not MCA. reasons the above-quoted alter the fashion, Dissent, amending Tn the 2001 piece-meal statutes statutory conclude legislature confused the scheme” we should 46-11-110, MCA, a alter legislature that because the not However, here peace filed still must be sworn. by officer First, disagree legislature we must Dissent two counts. peace officer obviously change requirement did mean to Court, complaint. swear to a State ex rel. Mazurek District (“It long 18, 22 P.3d been ¶ ¶ statute, that, Legislature presume law we will when amends law.”).Second, existing in the must change it meant to make some we §46-11-110, MCA, itself restate our above conclusion that Therefore, require peace to be we conclude that a sworn. swearing file to it. officer without The Dissent also should be dismissed ¶39 because it was not sufficient to allow the determine the
court to However, this Allum does raise existence cause. argument on therefore decline address the issue. appeal, we fact Court did not Finally, points Municipal ¶40 hold an omnibus §46-13-110, hearing, MCA.This Court required by hearing hold reverse for failure to an omnibus will not a conviction (1994), 267 Mont. showing prejudice. without a State v. Hildreth 771, 774. 423, 427, 884 prejudice Allum has not demonstrated omnibus hearing. of an lack
ISSUE SEVEN extra granting discretion in the District Court abused its Whether appellate its prosecution time brief. file Court, Court to the District appeal In Allum’s from ¶42 the State asked for file The District of time to its brief. extension to file its brief motion and ordered granted this deadline, next and the 11,2002. The State did not make December time. The court day, again for additional December asked had not argues that when the State granted also this motion. Allum 11, the court should of December required filed date its brief 14(c) of the Montana Uniform summarily ruled for Allum. Rule file timely states that failure Appeal Court Rules of by the district appeal summary dismissal “subjects] a brief summary “subject” that the appeal means language court.” This summarily that the district court but does not mean dismissal *9 Summary up the dismissal is to the discretion of the appeal. dismiss court, we conclude that it did not abuse its discretion in district and allowing day an extension one after the State’s brief was due.
ISSUE EIGHT Municipal properly pay Whether the Court ordered Allum costs. Municipal imposed improperly contends him. Allum argument and costs on not make witness did this Court, the and we therefore decline to this address issue.
CONCLUSION We affirm the appeal District Court’s denial challenging judgment the sentence of Court. and the GRAY,
CHIEF JUSTICE JUSTICES RICE and MORRIS concur. JUSTICE NELSON dissents. I and dissent to Issues Two Six. I reverse and
charges in case be dismissed. first, Six Taking disagree Issue I with the Court’s discussion complaint. charged January 29, 2002, Allum was trespass 45-6-203, with criminal in property violation of MCA (2001). charge, The substance written on the standard ‘Notice Appear form, Complaint” states: purposely said defendant did knowingly negligently or or
commit the offense property of criminal towit [sic]: refuse to leave bank/area store when asked. complaint signed by officer;
The is it is not sworn to. §46-11-102(2), points out, MCA, As the Court that all requires offenses not in complaint.” District Court “must be Section MCA, 46-11-110, however, states:
Filing complaint. presented to a court When offense, charging person with the of an the court commission affidavits, examine filed, shall if sworn or filing determine whether cause exists to of a allow the charge. [Emphasis added.]
Moreover, §46-11-401, MCA, part: in provides pertinent (1) writing and in charge. charge
Form of The must be county municipality name of the state or the appropriate charge specify charge court in which the is filed. concise, plain, must be a and definite statement of the offense offense, charged, including the name of the whether the offense felony, charged, is a misdemeanor or person name of as place definitely time and offense can be charge each official or determined. The must state for count the rule, statute, customary regulation, citation of the or other alleged provision of law that the defendant is violated. (3) charge by complaint, signed by If the it must a sworn peace officer, by person having knowledge under oath facts, prosecutor. Legislature amended this statute such a fashion that there peace sign requirement
no is a sworn officer longer Sec. Ch. L. 2001. complaint under oath. Legislature’s eliminate While it have been the intention to
¶49 the need to have oath, peace sign officer under §46-11-110, nonetheless, MCA, which Legislature amend requires the to examine “the clearly unambiguously still language The Court concludes that this does not complaint.” sworn filed, rather, the court requires a sworn to be but it require *10 examine complaint say to a sworn ‘if’one is filed. The statute does to affidavits ‘iffiled.”But requires that. The statute the court examine only complaint, it must be a “sworn if the document filed is complaint.” case if explain charged Court fails to how Allum was in this
¶50 not charged says he by complaint. charging At least the document was And, 102(2), under Appear Complaint.” to §46-11- “Notice document,1 MCA, charging to not suffice as a as Appear” a “Notice will And, noted, requires filing of a as complaint. §46-11- that statute 110, MCA, that is filed must a “sworn requires complaint be complaint.” §46-11-401(3), MCA, the officer must be a “sworn” peace Under §46-11-110, MCA, In complaint be sworn.
officer. Under fashion, Legislature piece-meal in amending statutes statutory scheme. confused complaint does be majority holds that a “sworn” and the in the face of law signed under oath. That conclusion flies person or an to a To means to administer oath
language. “swear” (7th 1999). Dictionary A “sworn Law ed. take an oath. Black’s Black’s, To “swear out” one under oath. given statement” is Garner, Dictionary A upon Bryan A. charge means make oath. (2d 1995). means to ‘Swear” or “sworn” Usage 863 ed. Legal Modern warrant, place simply an arrest but Actually, Appear” takes the ‘Notice was arrested. here Allum solemnly promise utter or take oath or to assert as true or under (10th 1997). Collegiate Dictionary Merriam Webster’s oath. ed. Montana, henceforth, Apparently, document, in a sworn not have judge under A be made oath. is not omit what has been inserted 1-2-101, majority precisely into a statute. Section MCA. The have done writing §46-11-110, MCA, out simply requirement here in sworn-i.e., that a complaint majority made under oath. The is as Legislature. confused Given, however, apply that we must the statutes in confused
state, magistrate probable must examine a sworn for cause allowing filing charges. way before of the I know of no can be “sworn” the court puts person signing unless the complaint magistrate under oath first. The must then examine the probable cause filing charges. to allow the It is undisputed that accomplished was not in this case. if the gets past Even the hurdle complaint, of an unsworn High Country Independent Sacco v. (1995), Press 209, 896 dealt a charging we with document not unlike the one at There,
issue here. the defendant violating §45-6- 301, MCA, said knowingly defendant did or purposely negligently
commit photo offense theft of negatives/proof sheets between Oct. 1989 and 28 June from High Country Independent Press. To wit: photos. wildlife Sacco, 271 Mont. at charge P.2d at 416. On that we stated: here,
The complaint, sets nothing Dighans’ conclusory forth but statement that Sacco photo committed offense of theft of the negatives proof probable sheets. There was no affidavit of cause other written statement of cause the city before judge when the decision was made issue an arrest warrant nor any underlying were there body facts within the *11 magistrate judicial itself from which the could make probable determination of existence cause.
Sacco, 218-19, Mont. at at 496 P.2d We then went on to state: hold that on appeared
We what the face is an basis, law, upon premise insufficient as matter which to [State ex rel. v. Wicks District finding probable cause.
(1972) 434, 437, 1202, 1203-04], 159 Mont. If the officer simply swears to his bald conclusions the defendant orally writing committed the crime in without either or conclusions, swearing magistrate to the factual those basis for statutorily required which to make the legal has no basis on for issuance of of arrest finding of cause the warrant probable (1989)). (§46-6-201, MCA summons or Here, the even Sacco, 219, 496 at P.2d at 417. officer did not 271 Mont. to his swear bald conclusions. 46-11-110, MCA, examine the requires Since court cause, probable existence of
sworn to determine the here, and, boot, inadequate no sworn since there was statement from which the court could determine the existence event, cause, in I hold that the at issue must be dismissed. issue, agree I do Finally, while I would not need to reach the instruction
with our discussion of Issue Two. court’s was guilty of the law. The could have found Allum correct statement (1) or, “unlawfully in an entering remaining occupied or structure” (2) in or out, remaining “unlawfully points entering as the Court upon premises of another”-either both. unanimously agree as to which point is that the had to know, jurors For all three of the charges guilty.
of those we (1) (2); (1), one maybe agreed two agreed and three (2) general unanimity 3 to While there was a instruction both. court specific unanimity given instruction given, there was no Weaver, 22-40, 290 case. State v. this ¶¶ ¶¶ 22-40, 964 P.2d 22-40. ¶¶ specific not raise the the Court is correctAllum did While that, where, here, issue-we, nevertheless,
unanimity have held for trial court not is it is reversible error required, instruction Weaver, 22-40. unanimity sponte. instruction sua give specific ¶¶ Indeed, duty to instruct in all cases. judge’s properly It is the sole instruct adopted £It]he the rule that we have though even there controlling issues in the case properly requested an instruction or the instruction request been no (1978), Payne Mont Billings Leasing Co. v. defective.” added). duty delegated This (emphasis cannot cases important in criminal especially and is counsel Billings Leasing, protections are at issue. fundamental constitutional Jackson, 224-25, P.2d at 390-91. Accord 176 Mont. Schuff 38-39, 38-39, 38- ¶¶ ¶¶ ¶¶ in this judge the trial handed down 39. Because Weaver was specific for a necessity knew or have known case should faulting forgive does not counsel unanimity instruction here Weaver, sponte sua give failure to the instruction lapse. Under *12 reversible error. II, jury right. A unanimous verdict is a fundamental Art. Sec. Const.; Weaver,
Mont. our abrogating We are own fundamental responsibility rights by, of crime uphold those accused of a instead, ignoring genuflecting the Constitution and at the altar of a procedure. mere rule of Unfortunately, it is because of decisions like this that the Weaver prosecution
rule has not sunk with the defense bars simply Harris, the trial courts across the State. State See 1999 MT ¶¶ (and 9-12, 9-12, 35-41, 9-12 ¶¶ ¶¶ ¶¶ Nelson, J., concurring); 63-72, State v. Hardaway, 2001 ¶¶ 63-72, Mont 63-72; v. Pope, ¶¶ ¶¶ (and 66-69,318 66-69,80 66-69 ¶¶ ¶¶ ¶¶ ¶¶ 71-78, Nelson, J., concurring). Our to not decision here deal this obvious, just gives reversible error practicing bar and the courts precedential one more ignoring basis for the Weaver rule. Moreover, the sua of sponte necessary” by addition the words ‘the
the court in the instruction nothing to cure this defect. Half of jurors may thought necessary” that ‘the elements were found (1) (2). (1) and the on other half “necessary elements” are (2). “necessary different than the elements” of all Who knows what jurors agreed to? State, concedes, as the Court prove every of a element charge beyond criminal case, doubt. In this reasonable that meant (1) (2) agree had to that every element both proven. giving specific unanimity Without the instruction we have way no knowing what “necessary elements” the found. In sincerely of this I spite Opinion, hope practitioners do not using start this is, doubt, instruction. It misstates the law. It no And, believe, confusing jury. I giving instruction will eventually require of a reversal future conviction. I charges would reverse against Allum dismissed.