No. 86-291 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTIMOTHY W. BALLENGER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. O'Brien argued, Missoula, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Patrick Driscoll argued, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana; Karen Townsend argued, Deputy County Attorney 

Filed: 

Submitted: April 10, 1987 

Decided: June 30, 1987 

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 autopsy revealed that the cause of death was shock 

and hemorrhage due to multiple blunt injuries. The medical 

examiner found that injuries to the trunk, feet, and legs 

were consistent with those inflicted by a belt and a bungi 

cord. The shoulder injuries were attributed to the use of a 

hairbrush on the child. The autopsy revealed over 140 

separate injuries to the child. The hospital notified law 

enforcement officers subsequent to the child's admittance. 

The responding officer spoke with the mother who explained 

that the child had been at home all day with her husband, the 

defendant. Upon her return from work, she heard the child 

experiencing breathing difficulty. She explained that she 

argued with the defendant, who then left the residence. The 

officer became suspicious, asked for identification, and 

followed the mother to her car where the defendant was 

discovered lying face down in the back seat. The officer 

arrested both the mother and the defendant. The mother 

subsequently changed her version of events. She said that 

when she returned from work, the defendant told her he had 

spanked the child for misbehaving. The mother found the 

child gasping for breath and told the defendant that they had 

to go to the hospital. Defendant replied that the child was 

faking it and that he, the defendant, would be arrested if 

they went to the hospital. On the way to the hospital, 

defendant apparently told the mother to tell those inquiring 

that they had had a fight and that he had left the residence. 

A statement was taken from the defendant who admitted 

beating the child for not eating his breakfast. The 

defendant said he hit the child with a belt, bungi cord, and 

his fists every 5-10 minutes over a four hour period. 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 1983 and September 

1985. The 1985 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 the high probability of the result of his conduct. The 

State is not required to prove that the defendant knowingly 

and purposely intended the end result. The evidence shows 

that the defendant knowingly and purposely subjected a 

defenseless child to immense personal suffering through a 

series of beatings which culminated in the child's agonizing 

death. We hold that the evidence justified the giving of the 

court's instruction. 

The third issue is 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. The defendant offered the following instruction 

on deliberate homicide: 

To convict the Defendant of Deliberate 

Homicide, the State must prove the 

following elements: 

First, that the Defendant performed the 

acts alleged. 

Second, that when he did so, he acted 

purposely or knowingly. 

Third, that the Defendant caused the 

death of Beau Stanley. 

Fourth, that when he did so, he caused 

the death purposely or knowingly. 

Fifth, the acts leading to death were not 

committed under the influence of extreme 

mental or emotional distress for which 

there is a reasonable explanation or 

excuse. 

If you find from your consideration of 

all the evidence that each of these 

elements has been proved beyond a 

reasonable doubt, then you should find 

the defendant guilty. 
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