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,
-vs-
TIMOTHY 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: A p r i l 1 0 , 1987
Decided: J u n e 3 0 , 1987
Filed:
Clerk
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 . The m e d i c a l
examiner found t h a t i n j u r i e s t o the trunk, 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 revealed over 140
separate injuries t o the child. The h o s p i t a l n o t i f i e d law
enforcement o f f i c e r s subsequent to the child's admittance.
The r e s p o n d i n g officer 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, she heard t h e c h i l d
experiencing breathing d i f f i c u l t y . 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 became suspicious, asked for identification, and
followed the mother to her car where the defendant was
discovered l y i n g f a c e down i n t h e back seat. The o f f i c e r
arrested both the mother and the defendant. The mother
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 events. She s a i d t h a t
when s h e r e t u r n e d from work, t h e d e f e n d a n t t o l d h e r he had
spanked the child 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 from t h e d e f e n d a n t who a d m i t t e d
beating the child for 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]
reality laden. " Dr. Stratford, a psychiatrist, and Dr.
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 . The e v i d e n c e shows
that the defendant knowingly and purposely subjected a
defenseless child to immense personal suffering through 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 third issue i s whether t h e S t a t e must p r o v e t h e
absence of extreme mental or emotional stress beyond a
reasonable doubt in a trial f o r d e l i b e r a t e homicide, 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 performed t h e
a c t s alleged.
Second, t h a t when he d i d so, he acted
p u r p o s e l y o r knowingly.
T h i r d , t h a t t h e Defendant caused the
d e a t h o f Beau S t a n l e y .
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
elements has been proved beyond a
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