NO. 94-369
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles F. Moses, Moses Law Firm,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg W. Coughlin, Assistant Attorney General,
Helena, Montana
Thomas J. Esch, Flathead County Attorney,
Kalispell, Montana
Submitted on Briefs: April 27, 1995
Decided: August 11, 1995
Filed:
@lerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Chad Rothacher, was charged in the District
Court for the Eleventh Judicial District in Flathead County with
deliberate homicide, in violation of 5 45-5-102, MCA. Following a
trial by jury, Rothacher was convicted of mitigated deliberate
homicide in violation of § 45-5-103, MCA. Rothacher appeals from
his conviction. We affirm the judgment of the District Court.
Rothacher raises the following issues on appeal:
1. Did the District Court err when it instructed the jury
that it was not necessary for the State to prove that Rothacher
intended to cause the death of the victim?
2. Was Rothacher's conviction of mitigated deliberate
homicide supported by substantial evidence?
FACTUAL BACKGROUND
On February 10, 1993, Rothacher was charged by information
with deliberate homicide. He denied that he was guilty of the
crime charged, and therefore, proceeded to trial on February 15,
1994.
At trial, Michael LeClere, an employee and friend of the
victim, Ron Raper, testified to the events that occurred on the
evening of Raper's death. He stated that on December 11, 1992, he
went with Raper and Susan Michael to the Palace Bar in Whitefish.
LeClere and Raper played pool with Rothacher and Rothacher's
friend. Raper and Rothacher began arguing about the pool game. As
the argument escalated, Raper and Rothacher agreed to go outside.
2
As LeClere joined them outside, he saw Rothacher hit Raper in the
side of the head and then hit Raper in the nose. After he was hit
with the second punch, Raper fell on his back and hit his head hard
on the ice. LeClere testified that Raper's head hit the ice with
such an impact that it sounded like a bowling ball falling off of
a table onto a hard floor. As Raper began to pick himself up from
the ground, Rothacher kicked him in the head. Rothacher was then
restrained by his friends and together they left the scene. Raper
was taken to Kalispell Regional Hospital, where he was treated by
Dr. James Mahnke, a neurosurgeon.
Dr. Mahnke testified that when he first saw Raper, he was
comatose. A CT-scan revealed extensive bruising on his brain, and
Dr. Mahnke determined that this was a serious injury. He performed
surgery to remove portions of Raper's skull and relieve pressure on
the brain. However, Raper's injuries were so great that the
surgical procedure was unsuccessful. When asked if, in his
opinion, Rothacher's kick to Raper's head caused his death, Dr.
Mahnke replied, "1 think that it most likely did." The defendant
did not object to Mahnke's opinion regarding the cause of Raper's
death.
Dr. Gary Dale, the State Medical Examiner, and a forensic
pathologist, performed a post-mortem examination of Raper at the
request of the Flathead County Coroner. It was his opinion, as
expressed at trial, that Raper died because of complications from
blunt impact injuries to the head.
3
Witnesses called by the defendant did not deny that Raper was
hit in the head by Rothacher, that as a result, he fell to the
ground and struck his head, nor that Raper was subsequently kicked
in the head by Rothacher.
The jury found Rothacher guilty of mitigated deliberate
homicide. His motions for judgment notwithstanding the verdict and
for a new trial were denied.
The District Court sentenced Rothacher to 16 years in the
Montana State Prison, with all but six years suspended. Rothacher
appeals from the judgment of the District Court.
ISSUE 1
Did the District Court err when it instructed the jury that it
was not necessary for the State to prove that Rothacher intended to
cause the death of the victim?
The standard of review of jury instructions in criminal cases
is "[wlhether the instructions, as a whole, fully and fairly
instruct the jury on the law applicable to the case." State v. Brandon
(Mont. 1994), 870 P.2d 734, 737, 51 St. Rep. 244, 246 (citing state
v.Lundblade (1981), 191 Mont. 526, 529-30, 625 P.Zd 545, 548).
Rothacher contends that based on historical and commonly
accepted notions of criminal jurisprudence, and on the plain
language of this State's penal code, the crime of intentional
homicide requires a "specific intent" to cause another's death and
that the District Court erred when it instructed the jury
otherwise. The specific instruction to which Rothacher objects is
4
the court's Instruction No. 14 by which the jury was advised as
follows :
In order to convict the defendant of Deliberate
Homicide, it is not necessary for the State to prove that
the defendant intended to cause [the1 death of [the1
victim. Death may not be the intended result, but, if
the act which causes the death is done purposelv, and no
circumstances of mitigation, excuse or justification
appear, deliberate homicide is committed unless the
result is too remote or accidental to have a bearing on
the offender[']s liability or on the gravity of the
offense.
(Emphasis added.)
"It is no longer necessary to prove specific intent as an
element of the crime unless the statute defining the offense
requires as an element thereof specific purpose." State v. Van Dyken
(1990), 242 Mont. 415, 434, 791 P.2d 1350, 1362, cert. denied (1990),
498 U.S. 920, 111 s. ct. 297, 112 L. Ed. 2d 251 (citing State v. Starr
(198X), 204 Mont. 210, 218, 664 P.2d 893, 897). Section 45-5-102,
MCA, provides in relevant part that: "(1) A person commits the
offense of deliberate homicide if: (a) he purposely or knowingly
causes the death of another human being . . . .'
To prove that a person acts knowingly with regard to a result
of his conduct does not require that he intended the specific
result, but only that he be aware of a high probability that the
result will be caused by his conduct. Section 45-2-101(33), MCA.
A person acts purposely with respect to a result when it is his or
her conscious object to cause that result. Section 45-2-101(58),
MCA. However, the statutory meaning of both states of mind must be
5
read in combination with § 45-2-201, MCA, which provides in
relevant part that:
(2) If purposely or knowingly causing a result is
an element of an offense and the result is not within the
contemplation or purpose of the offender, either element
can nevertheless be established if:
. . .
(b) the result involves the same kind of harm or
injury as contemplated but the precise harm or injury was
different or occurred in a different way, unless the
actual result is too remote or accidental to have a
bearing on the offender's liability or on the gravity of
the offense.
For these reasons, we held in Van Dyken that:
[A] defendant can properly be convicted of deliberate
homicide even though he may not have intended that the
death result from the act where he contemplated the same
kind of harm or injury to the victim.
VanDyken, 791 P.2d at 1362 (citing Statev.Sigler (1984), 210 Mont. 248,
265, 688 P.2d 749, 757).
Therefore, while our statutory law does not require proof that
Rothacher intended the specific result of his act, it does at least
require that he intended a similar kind of harm. It is not
sufficient, as indicated in Instruction No. 14, that the act which
caused the harm be done purposely without regard to whether any
harm was intended. Instruction No. 14 is, however, a correct
reflection of our prior decisions on this subject.
Our seminal case, which we conclude has been misapplied in
subsequent cases, was Sigler In that case, the defendant was
charged with and convicted of deliberate homicide for causing the
death of a IY-month-old child who was left in his care. The child
6
died as a result of blunt force trauma to the abdomen which
perforated the small bowel in two places and caused peritonitis.
The evidence was that the most likely source for the trauma was a
blow from a fist or foot. On appeal, the defendant argued that the
district court's instructions erroneously permitted the jury to
convict him simply for purposely engaging in the conduct of
striking the child, without requiring the jury to find that he
intended the child's death. After discussing the purposeful and
knowing requirement of the deliberate homicide statute in relation
to causation, as explained in 5 45-5-201(b), MCA, we held that:
Applying 5 45-Z-201 to this case, the proof is
beyond any doubt that the conduct which brought about the
perforations to the child's bowels caused the death of
the child, and that without such conduct, the death would
not have occurred. In addition, the result involves the
same kind of harm or injury as contemplated by the
conduct even though the precise harm, the death, was
different or occurred in a different way. In other
words, if Sigler voluntarily, as the jury found, punched
with his fist or kicked with his foot the stomach of the
child, even though he may not have intended that death
result from the act, he contemplated "the same kind of
harm or injury" to the child, that is, harm or injury to
the abdominal area of the child.
Sigh, 688 P.2d at 754-55.
On that basis, we held that it was not necessary for the
district court to have instructed the jury in that case that the
defendant had a specific intent to cause the child's death. We
cited with approval our prior decision in State v. Starr (1983), 204
Mont. 210, 218, 664 P.2d 893, 897, where we held that:
We do not agree with Starr, however, on his
contention that it was the duty of the State to prove
Starr's speciJicintent to transfer a dangerous substance then
or at a subsequent time. Since Montana revamped its
criminal statutes in 1973 by adopting in essence the
Model Penal Code, specific intent is not an elemental
concept, unless the statute defining the offense requires
as an element thereof a specific purpose.
Sigler , 688 P.2d at 755.
Up to that point, our reasoning was correct, although insuffi-
cient to affirm the actual instructions given by the district
court. We then added the following language, which was incorrect:
Our criminal law proscribes purposely doing an act
which causes the death of another [actually our criminal law
proscribes doing an act which purposely causes the death of another] ; it
also proscribes doing an act with the conscious object of
causing the death of another. In the former, death may
not be the intended result, but if the act which causes
the death is done purposely, deliberate homicide is
committed. In the latter, death is the intended result,
and any act of the defendant which leads to that intended
result is deliberate homicide.
Sigler , 688 P.2d at 755.
Two members of the Court objected to this additional language
and pointed out that: "By judicial fiat, the law in Montana is
that a defendant who acts with purpose and accidently causes the
death of another, is guilty of deliberate homicide." Sigher , 688
P.2d at 756.
Sigler petitioned for rehearing based on the language that the
dissent found objectionable. He correctly contended that the
language broadened the definition of deliberate homicide to include
the crime of negligent homicide. His point was so obvious that the
State agreed that the language was inappropriate, but suggested
that Sigler's conviction be affirmed anyway. Chagrined by the fact
8
that both parties agreed that language in its opinion was
inaccurate and objectionable, the majority, in its memorandum in
response to the petition for rehearing, stated that:
The Attorney General has thus conceded the major
premise of the minority opinion filed with the original
in this case. A concession of such broad dimensions does
not wring from the Attorney General an admission that
Sigler is entitled to a new trial however. Instead the
State continues to contend that the jury in the Sigler
case was "adequately instructed."
Sigh, 688 P.2d at 756-57.
In spite of objections by Sigler, which were concurred in by
the State, this Court rejected the criticism of its opinion, but
clarified its import as follows:
It should be clear, following our original Sigler
opinion, that deliberate homicide is committed when a
person purposely or knowingly causes the death of another
human being; and that the word "causes" in the statutory
definition of deliberate homicide must be read in
conjunction with section 45-z-201, MCA, which describes
what constitutes a causal relationship between the
conduct and the result. The original opinion states
again what had been stated in Coleman (Mont. 19791, 605
P.2d 10001, that a person acts knowingly when there is
proof beyond a reasonable doubt that he is aware of the
high probability of the result of his conduct. Finally,
there is a causal relationship though the result is not
within the contemplation of or purpose of the defendant,
where the same kind of harm or injury is contemplated by
him though the precise harm or injury is different or
occurred in a different way.
Sigler , 688 P.2d at 758.
That explanation did little to address the objectionable
language. However, given the State's concurrence in the
defendant's objection, the opinion was amended by inserting "or
knowingly" in the objectionable part of the majority Opinion So
9
that it then read "but if the act which causes the death is done
purposely or knowingly deliberate homicide is committed."
While the reasoning on which this Court's decision in Sigler was
based was sound, the objectionable language which was referred to
in the petition for rehearing, and which the State acknowledged was
incorrect, had no place in the opinion and did not logically follow
from the preceding reasoning. Nevertheless, it is that language
which has found its way into subsequent opinions and formed the
basis for Instruction No. 14. See Stare V. nilcKimmie (1988) , 232 Mont.
227, 231, 756 P.2d 1135, 1138; Statev.Byers (1993), 261 Mont. 17, 41,
861 P.2d 860, 875.
It is time to clear up this misperception of the state of mind
which must be proven to establish deliberate or mitigated
deliberate homicide before a significant injustice results. OLlr
prior construction is clearly contrary to the plain language in the
homicide statute and may, in the future, lead to serious and unjust
perversion of its purpose.
For these reasons, we conclude that the District Court erred
when it instructed the jury that the State merely needed to prove
that Rothacher acted purposely, without regard to the result that
he intended. To the extent that our prior decisions in Sigh,
McKimmie, and Byers are inconsistent with this opinion, they are
overruled. District courts should not give a similar instruction
in the future.
10
However, our conclusion that the instruction was erroneous is
simply the first part of our analysis. A district court judgment
will not be reversed for error which is harmless. Section
46-20-104, MCA. The potential prejudice from Instruction No. 14
could occur where a defendant acted purposefully, but intended no
harm. However, there were no facts presented in this case from
which an argument could be made that when Rothacher struck his
victim in the face and kicked him in the head while he was laying
on the ground, he intended no harm. Therefore, Instruction No. 14
was, at worst, superfluous.
Our decision is consistent with decisions of the United States
Supreme Court in which that Court has concluded that even
instructions which violate the Federal Constitution may be harmless
if, based on the entire record, the court concludes that the error
was harmless beyond a reasonable doubt.
For example, in Chapmanv. California (1967), 386 U.S. 18, 87 S. Ct.
824, 17 L. Ed. 2d 705, the trial judge instructed the jury that it
could draw inferences from the defendant's failure to testify.
That instruction was consistent with a provision in California's
state constitution at the time of trial. After trial, but before
Chapman's appeal had been considered by the California Supreme
Court, the U.S. Supreme Court decided Griffin y. California (1965), 380
U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, in which it held that
California's constitutional provision was invalid on the ground
that it penalized a person's invocation of his Fifth Amendment
11
right to not incriminate himself. On appeal, the California
Supreme Court held that the instructional error was harmless, The
U.S. Supreme Court granted certiorari. On review, it concluded
that while some errors are never harmless (such as coerced
confessions, right to counsel, or an impartial judge), other
constitutional errors, "in the setting of a particular case . . .
[may1 be deemed harmless," consistent with the Federal
Constitution. Chapman, 386 U.S. at 22. However, that court held
that "before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless
beyond a reasonable doubt." Chapman, 386 U.S. at 24. In that case,
the court concluded that the instructional error was not harmless
and reversed the California Supreme Court.
The court applied the Chapman test in Rose v. Clark (1986), 478
U.S. 570, 579-80, 106 S. Ct. 3101, 3106-07, 92 L. Ed. 2d 460,
471-72, to another situation of instructional error. In that case,
the trial court gave an instruction to the jury which impermissibly
shifted the burden to the defendant to prove that he acted without
malice. In Rose, the defendant was charged with first and second
degree murder of his former girlfriend and her new boyfriend in
violation of Tennessee law. Malice was an element of second degree
murder in Tennessee. The trial court instructed the jury that all
homicides are presumed malicious, absent evidence to rebut the
presumption, and that, if the state proved beyond a reasonable
12
doubt that a killing occurred, it is presumed to have been done
maliciously.
The issue was whether the harmless error standard in Chapman
applied to jury instructions which violate the principles set forth
in S a n d s t r o m v. M o n t a n a (1979), 4 4 2 U.S. 510, 99 S. Ct. 2450, 61
L . Ed. 2d 39. The Court held that it did, and stated that an
"otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt." Rose,
478 U.S. at 576. The Court recognized that "constitutional errors
may be harmless 'in terms of their affect on the fact-finding
process at trial."' Rose, 478 U.S. at 578 (citing Delawarev. VanArsdall
(1986), 475 U.S. 673, 681). The Court concluded that "[wlhere a
reviewing court can find that the record developed at trial
establishes guilt beyond a reasonable doubt, the interest in
fairness has been satisfied and the judgment should be affirmed."
Rose, 478 U.S. at 579.
The Court noted in Rose that the defendant had the opportunity
to introduce evidence, and was tried by a fairly selected,
impartial jury which was supervised by an impartial judge. Other
than the malice instruction, the jury was instructed that it had to
find the defendant guilty of every element beyond a reasonable
doubt and "[pIlaced in context the erroneous malice instruction
does not compare with the kind of errors that automatically require
I.3
reversal of an otherwise valid conviction." Rose, 478 U.S. at 579.
The Court observed that when a jury is instructed to presume malice
from predicate facts, the jury must still find that the predicate
facts exist.
In many cases, the predicate facts conclusively establish
intent, so that no rational jury could find that the
defendant committed the relevant criminal act but did not
intend to cause injury. In that event the erroneous
instruction is simply superfluous: the jury has found
. . 'every fact necessary' to establish every element
of the offense beyond a reasonable doubt.
Rose, 478 U.S. at 580-81 (citation omitted). The court held that
the test was whether, based on the whole record, the error was
harmless beyond a reasonable doubt, and remanded for that
determination. Rose, 478 U.S. at 583-84.
More recently, the Court reiterated the harmless error
analysisand set forth the following two-part test in Yatesv. Evvatt
(1991), 500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d
432, 449: (1) the court must ask what evidence the jury actually
considered in reaching its verdict, and (2) the court must weigh
the probative force of that evidence against the probative force of
the presumption.
This Court has followed Chapman. State v, McKenzie (1980) , 186
Mont. 481, 608 P.2d 428. 1n McKenzie, we held that a case must be
reviewed as a whole, rather than by examining one component in
isolation. Looking only at an instructional error over-emphasizes
the instructions in relation to the evidence. McKenzie, 608 P.2d at
14
458. Evidence was overwhelming and uncontradicted that McKenzie
purposely and knowingly killed his victim; a reasonable juror could
not have found otherwise based on the proof, notwithstanding
improper instructions regarding rebuttable presumptions. We held
that the unconstitutional jury instruction was harmless beyond a
reasonable doubt, in the context of the undisputed evidence, and
concluded that the assigned error could not have contributed to the
verdict. McKenzie, 608 P.2d at 459.
In this case, the jury was correctly instructed by the court's
Instruction No. 12 on the meaning of deliberate homicide, and in
Instruction No. 17 regarding the lesser included offense of
mitigated deliberate homicide. In the court's Instruction No. 30,
the jury was fully informed of that part of § 45-2-201, MCA, which
provides that the requirement of purposeful and knowing causation
can occur without intending a specific result, so long as the same
type of harm or injury was contemplated.
Because Instruction No. 14 did not apply to any facts which
were offered as proof in this case (e.g., a negligent homicide
situation that could become deliberate homicide as a result of the
erroneous language), we conclude, after considering the record as
a whole, that the error was harmless beyond a reasonable doubt.
ISSUE 2
Was Rothacher's conviction of mitigated deliberate homicide
supported by substantial evidence?
15
The standard of review for sufficiency of the evidence is
"'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."' State
v. Arlington (19941, 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting&&?
v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122).
Rothacher was charged with deliberate homicide, but was
convicted of mitigated deliberate homicide. Section 45-5-103(l),
MCA, provides that:
A person commits the offense of mitigated deliberate
homicide when he purooselv or knowinqlv causes the death
of another human beinq but does so under the influence of
extreme mental or emotional stress for which there is a
reasonable explanation or excuse.
(Emphasis added).
We have already discussed what must be shown to prove that a
result is "knowingly caused." In this case, Rothacher, himself,
admitted hitting and kicking Raper.
Dr. Mahnke testified that, in his opinion, the kick to the
head was the blow that most likely killed Rapes. While the
defendant now objects to that opinion on the basis that Dr. Mahnke
was not properly qualified to express it, there was no objection to
Dr. Mahnke's opinion at trial. We have held that ' [aln issue will
not be reviewed if it is raised for the first time on appeal." In
reA4arriageofCrnib (Mont. 1994), 880 P.2d 1379, 1387, 51 St. Rep. 937,
942 (citing Erlerv. Erler (1993), 261 Mont. 65, 73, 862 P.2d 12, 18).
16
However, assuming arguendo, that the defendant had made a timely
objection on this basis, the result would be the same. We have
held that the determinations of qualifications and competency of
expert witnesses are within the trial court's discretion and will
not be disturbed absent an abuse of that discretion. Cottrell v.
Burlington Northern (1993), 261 Mont. 296, 301, 863 P.2d 381, 384
(citing Foremanv. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210,
1212). Dr. Mahnke testified that he earned his undergraduate
degree from Harvard, his medical degree from the University of
Washington, and interned at the University of Minnesota. Dr.
Mahnke also testified that he was on the faculty at Yale and
University of California-Irvine medical schools. He testified that
he is board certified by the American Board of Neurological Surgery
and is licensed to practice in Washington, Connecticut, California,
Colorado, New Mexico, and Montana. We conclude that the District
Court did not abuse its discretion when it allowed Dr. Mahnke to
express his opinion in this case regarding the cause of his
patient's death.
Dr. Gary Dale, the state Medical Examiner, stated that, in his
opinion, Raper died as a result of head injuries.
We have held that witness credibility and the weight to be
assigned to their testimony is to be determined by the trier of
fact, and "disputed questions of fact and credibility will not be
disturbed on appeal." Statev. Moreno (1990), 241 Mont. 359, 361, 787
17
P.2d 334, 336 (citing %atev. Green (19841, 212 Mont. 20, 23, 685 P.2d
370, 371-72).
In this case, numerous witnesses testified about Rothacher's
conduct and its relationship to the injuries Raper received. The
jury heard sufficient evidence to determine that Rothacher
purposely or knowingly caused Raper's death, but that Rothacher was
under extreme stress at the time. We conclude that there was
sufficient evidence to support Rothacher's conviction for mitigated
deliberate homicide.
The judgment of the District Court is affirmed.
Jus ‘ce
/
We concur:
Chief Justice
18
Justice Fred J. Weber specially concurs as follows:
I concur with the result in Issue I, and concur with all of
Issue 2.
Under Issue I, the opinion quotes only Instruction No. 14. I
believe it essential to consider the following additional
instructions which were given:
INSTRUCTION NO. 28
A person acts knowinqly:
1. when he is aware of his conduct or
2. when he is aware under the circumstances that
his conduct constitutes a crime or
3. when he is aware there exists the hish
probability that his conduct will cause a specific
result. [Emphasis supplied.]
INSTRUCTION NO. 29
A person acts puroosely with respect to a result or
to conduct described by a statute defining an offense if
it is the oerson's conscious obiect to enqaqe in that
conduct or to cause that result. [Emphasis
supplied.1
Instructions No. 28 and 29 should be considered along with
Instruction No. 14. The pertinent portions of Instruction No. 14
are:
INSTRUCTION NO. 14
In order to convict the defendant of Deliberate
Homicide, it is not necessary for the State to prove that
the defendant intended to cause death of the victim.
Death may not be the intended result, but, if the act
which causes the death is done ourooselv, . . .
deliberate homicide is committed unless the result is too
remote or accidental . . [Emphasis supplied.]
The opinion then reached the following conclusions:
Therefore, while our statutory law does not require
proof that Rothacher intended the specific result of his
act,it does at least require that he intended a similar
19
kind of harm. It is not sufficient, as indicated in
Instruction No. 14, that the act which caused the harm be
done purposely without regard to whether anv harm was
intended. . .
The conclusion emphasizes it is not sufficient to prove the act was
done purposely without regard to whether any harm was intended. I
conclude that Instruction No. 29 satisfies that requirement because
it states that a person acts purposely "if it is the person's
conscious object to engage in that conduct or to cause that
result." As a result, I do not agree with the foregoing conclusion
of the opinion.
The same basic idea is again set forth in the key conclusion
of the opinion as follows:
For these reasons, we conclude that the District
Court erred when it instructed the jury that the State
merely needed to prove that Rothacher acted purposely,
without regard to the result that he intended. To the
extent that our prior decisions in Sialer, McKimmie, and
a
Byers
r e inconsistent with this opinion, they are
overruled. District courts should not give a similar
instruction in the future.
I disagree with the foregoing conclusion that the District Court
erred when it instructed the jury that the State merely needed to
prove that Rothacher acted purposely without regard to the result
he intended. The matter of the result which Rothacher intended is
covered by Instruction No. 29. Under that instruction Rothacher
acted purposely if it was his conscious object to engage in that
conduct (hitting and kicking the deceased) or to cause the death
(of the deceased). When the instructions are read together, I do
not conclude that there is a disregarding of the result which
Rothacher intended
I would also emphasize that Instruction No. 28, which defines
knowingly, emphasized that it would apply to Rothacher where he is
aware there exists a high probability that his acts will cause a
specific result--death in this case.
I would affirm the District Court on Issue 1 on the foregoing
rationale by considering all instructions given as we are required
to do.
Chief Justice J.A. Turnage concurs in. the foregoing special
concurrence.
21