STATE v BALLENGER
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No. 86-291 I N THE SUPREME COURT O THE STATE O MONTANA F F 1987 STATE O F MONTANA, P l a i n t i f f and Respondent, -vsTIMOTHY W. BALLENGER, Defendant and A p p e l l a n t . APPEAL F O : R M D i s t r i c t Court of t h e Fourth 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 M i s s o u l a , The Honorable John S. Henson, Judge p r e s i d i n g . COUNSEL O RECORD: F For Appellant: James P. O ' B r i e n a r g u e d , M i s s o u l a , Montana F o r Respondent: 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 P a t r i c k D r i s c o l l a r g u e d , A s s t . A t t y . G e n e r a l , Helena R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a , Montana; Karen Townsend a r g u e d , Deputy County A t t o r n e y Submitted: Decided: Filed: Clerk A p r i l 1 0 , 1987 J u n e 3 0 , 1987 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Timothy Ballenger appeals his conviction in Missoula County District Court for the deliberate homicide of his three-year old stepson, for which he received a 100 year prison term and a dangerous offender designation. Four issues are presented on appeal: (1) Whether the District Court erred by refusing to instruct the jury on the lesser included offenses of aggravated assault and felony assault? (2) Whether the District Court erred by refusing defendant's instructions on the necessary mental state for conviction of deliberate homicide? (3) Whether the State must prove the absence of extreme mental or emotional stress beyond a reasonable doubt in a trial for deliberate homicide, once evidence of the stress has been introduced at trial by the defendant? (4) Whether the District Court erred by refusing defendant's instruction for antisocial conduct? We affirm. On March 1, 1985, Pamela Ballenger brought her three year old son, Beau Mitchell Stanley, to a hospital in Missoula, Montana. The child was comatose, whimpering, exhibited breathing difficulty and had numerous bruises and abrasions on his body. The attending doctor, Dr. Wise, noted that the child appeared to be near death and did not respond to stimuli as expected. Two specialists, Drs. Gary and Snellman, were called in for consultation. Dr. Wise concluded that the child had lost nearly one-fifth of his blood supply through internal bleeding and expressed concern about fresh bruises on the child's forehead and feet. The child was transferred to the intensive pediatric care unit of another Missoula hospital. As the physicians were attempting to alleviate the pressure in the cranial area, the child died. An a u t o p s y r e v e a l e d t h a t t h e c a u s e o f d e a t h was shock and hemorrhage due t o m u l t i p l e b l u n t i n j u r i e s . examiner found t h a t i n j u r i e s t o the trunk, The m e d i c a l feet, and legs were c o n s i s t e n t w i t h t h o s e i n f l i c t e d by a b e l t and a bungi cord. The s h o u l d e r i n j u r i e s were a t t r i b u t e d t o t h e u s e of a hairbrush on the child. The autopsy enforcement o f f i c e r s The r e s p o n d i n g subsequent officer over 140 The h o s p i t a l n o t i f i e d separate injuries t o the child. law to the revealed child's admittance. spoke w i t h t h e mother who e x p l a i n e d t h a t t h e c h i l d had been a t home a l l day w i t h h e r husband, t h e defendant. Upon h e r r e t u r n from work, experiencing breathing d i f f i c u l t y . she heard t h e c h i l d She e x p l a i n e d t h a t she a r g u e d w i t h t h e d e f e n d a n t , who t h e n l e f t t h e r e s i d e n c e . The officer and became followed the discovered arrested suspicious, mother to asked for car where her l y i n g f a c e down i n t h e back both the mother and the s u b s e q u e n t l y changed h e r v e r s i o n o f when s h e r e t u r n e d spanked identification, the from work, child the seat. defendant The o f f i c e r defendant. events. was The mother She s a i d t h a t t h e d e f e n d a n t t o l d h e r he had f o r misbehaving. The mother found the c h i l d g a s p i n g f o r b r e a t h and t o l d t h e d e f e n d a n t t h a t t h e y had t o go t o t h e h o s p i t a l . Defendant r e p l i e d t h a t t h e c h i l d was f a k i n g it and t h a t h e , t h e d e f e n d a n t , would be a r r e s t e d i f they went to the hospital. On t h e way t o the hospital, d e f e n d a n t a p p a r e n t l y t o l d t h e mother t o t e l l t h o s e i n q u i r i n g t h a t t h e y had had a f i g h t and t h a t he had l e f t t h e r e s i d e n c e . A s t a t e m e n t was t a k e n beating the child for from t h e d e f e n d a n t who a d m i t t e d not eating his breakfast. The d e f e n d a n t s a i d he h i t t h e c h i l d w i t h a b e l t , bungi c o r d , and his fists every 5-10 minutes over a f o u r hour p e r i o d . A search warrant was executed and a belt, bungi cord, and hairbrush were recovered from the residence. At trial, the jury heard extensive medical testimony about the injuries sustained and defendant's mental condition, and viewed photographs of the child. Five mental health professionals testified at trial as to defendant's ability to act purposely or knowingly toward the deceased child. Defendant's psychologist testified as to his diagnosis of organic brain syndrome but offered no opinion as to defendant's ability to act purposely or knowingly on the date of the incident. Dr. Hoell, a psychiatrist, testified that the defendant knew he was inflicting punishment on the child but because he was suffering from an organic personality syndrome, he did not realize the severity of the punishment. Dr. Bach, a clinical psychologist, testified that in his opinion defendant's brain was functioning normally when he saw the defendant in July 1 9 8 3 and September 1985. The 1 9 8 5 visit took place approximately six months after the incident. Dr. Bach went on to characterize the defendant ' s actions as "remarkably organized, planful, [and] Dr. Stratford, a psychiatrist, and Dr. reality laden. " Walters, a clinical psychologist, generally agreed with Dr. Bach's assessment and concluded that the defendant was capable of acting purposely or knowingly on the date of the incident. The defendant did not testify at trial, but did raise the defense of mental disease or defect so as to negate the statutory element in deliberate homicide of knowingly or purposely causing the child's death. The jury was instructed on deliberate, mitigated deliberate, and negligent homicide. The defendant requested instructions on felony and aggravated assault as well as antisocial conduct but the instructions were refused. The defendant was convicted of deliberate homicide. The first issue is whether the District Court erred by refusing to instruct the jury on the lesser included offenses of aggravated assault and felony assault. The trial court only has to instruct on lesser offenses to which the evidence is applicable and the jury would be warranted in finding the accused guilty. State v. Koepplin (Mont. 1984), 689 P.2d 921, 925, 41 St.Rep. 1942, 1946. The facts in Koepplin were that the defendant admitted striking the deceased victim six to eight times with blunt force but nonetheless the defendant requested an instruction on negligent homicide. We noted that the evidence precluded any notion that the crime involved an ordinary slapping or beating and therefore an instruction on negligent homicide was not warranted. 689 P. 2d at 925. Similarly, there is little, if any evidence in this case indicating the commission of aggravated assault or felony assault. To the contrary, the evidence reveals a series of calculated, relentless beatings of a helpless child with a belt, bungi cord, hairbrush, and the defendant's fists, resulting in the child's death. As in Koepplin, the defendant admitted that the beatings took place. Since the evidence does not support an instruction on aggravated assault or felony assault, the District Court was correct in refusing defendant's instructions on those offenses. The second issue is whether the District Court erred by refusing defendant's instructions on the necessary mental state for conviction of deliberate homicide. The defendant argues that the State was required to prove that he knew that death would result from his actions. We reject this contention and hold that if an act which causes a death is done purposely or knowingly, deliberate homicide is committed. See State v. Sigler (Mont. 1984), modified, 688 P.2d 749, 758. A defendant acts knowingly when there is proof beyond a reasonable doubt that the defendant is aware of t h e high p r o b a b i l i t y of t h e r e s u l t of h i s conduct. The S t a t e i s n o t r e q u i r e d t o prove t h a t t h e d e f e n d a n t knowingly and p u r p o s e l y i n t e n d e d t h e end r e s u l t . that the defendant knowingly child immense defenseless to and The e v i d e n c e shows purposely personal subjected suffering through a a s e r i e s o f b e a t i n g s which c u l m i n a t e d i n t h e c h i l d ' s a g o n i z i n g death. W h o l d t h a t t h e e v i d e n c e j u s t i f i e d t h e g i v i n g of t h e e court's instruction. The absence third of issue extreme reasonable doubt in i s whether t h e S t a t e must p r o v e t h e mental a trial or emotional stress beyond f o r d e l i b e r a t e homicide, a once evidence of t h e s t r e s s h a s been i n t r o d u c e d a t t r i a l by t h e defendant. The d e f e n d a n t o f f e r e d t h e f o l l o w i n g i n s t r u c t i o n on d e l i b e r a t e homicide: To c o n v i c t t h e Defendant o f D e l i b e r a t e Homicide, the State must prove the following elements: F i r s t , t h a t t h e Defendant a c t s alleged. performed t h e Second, t h a t when he d i d p u r p o s e l y o r knowingly. so, T h i r d , t h a t t h e Defendant d e a t h o f Beau S t a n l e y . he caused acted the F o u r t h , t h a t when he d i d s o , he caused t h e d e a t h p u r p o s e l y o r knowingly. F i f t h , t h e a c t s l e a d i n g t o d e a t h were n o t committed under t h e i n f l u e n c e o f extreme m e n t a l o r e m o t i o n a l d i s t r e s s f o r which t h e r e i s a reasonable explanation o r excuse. I f you f i n d from your c o n s i d e r a t i o n o f a l l t h e evidence t h a t each of t h e s e a elements has been proved beyond r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e defendant g u i l t y . If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty. In essence, the defendant was attempting to place the burden of proof on the State as to the absence of mitigating factors. The trial court rejected the defendant's instruction. It is true that the State must prove every element of the crime charged beyond a reasonable doubt. State v. Gratzer (Mont. 1984), 682 P.2d 141, 41 St.Rep. 727. However, in a prosecution for deliberate homicide in which an instruction for mitigated deliberate homicide is also given, the State does not have to prove absence of mitigation beyond a reasonable doubt. Neither party has the burden of proof as to such mitigating factors. Gratzer, 682 P.2d at 146. Since an instruction for mitigated deliberate homicide was given, the State, as in Gratzer, was not shouldered with the burden of proof as to the absence of mitigating factors. We therefore reject defendant's argument on this issue. The final issue is whether the District Court erred by refusing defendant's instruction for antisocial conduct. The defendant proposed the following instruction: Antisocial conduct is defined as conduct which is marked by behavior deviating from the social norm. Anti-social conduct does not include suicide attempts, masochistic behavior, hallucinations, delusions, disturbed sleeping patterns, emotional lability, or physical complaints. The defendant failed to establish an authoritative basis for his instruction, and the court rejected it, favoring the State's paraphrased version of State v. Watson (Mont. 1984) , [A]s used in this instruction, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or other anti-social conduct. If, however, there is other evidence that the Defendant had a mental disease or defect, you may consider repeated criminal or other anti-social conduct as a manifestation of a mental disease or defect. We agree with the lower court that there is no authority for the giving of defendant's instruction. The court's instruction conforms to Montana law and was properly given to the jury. Affirmed. We Concur: Justices + Honorable G. B. iqcNel1, District Judge
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