NO. 80-340 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS. JAMES THOMAS RITCHSON, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, In and for the County of Cascade. Honorable John McCarvel, Judge presiding. Counsel of Record: For Appellant: Sandra K. Watts argued, GreatFalls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Assistant Attorney General, Helena,

Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

Submitted: June 11, 1981 Decided: 

## JuL2

# -198
Filed: 

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# -19@ =amwp.* ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. James Thomas Ritchson was convicted of one count of aggravated assault and one count of robbery following a jury trial in the District Court of Cascade County. He 

### was sentenced 

### to concurrent 

### terms of 20 years imprisonment on each count and 

### was declared a dangerous offender. Ritchson appeals from the judgment of conviction. We affirm. Ritchson robbed the DailyDouble Bar inGreat Falls in the earlymorning on December 17, 1979. He had been inthe bar for several hours drinking and playing pool. Atclosing 

### time, he pulled a sawed-off shotgun 

### from underneath hisjacket and shot in the direction of the bar behind which stood the bartender, 

### Jim Heaney. The defendant demanded the money from the cash register. The owner of the bar instructed the bartender to give the man the money, whereupon the drawer of the cash register

### was placed on the bar. The defendant took

### most of the money and then proceeded 

### toback out toward the frontdoor. The 

### swamper testified that when he heard the shot he leftthe bar through the frontdoor, locking it behind him. The defendant therefore broke down the frontdoor 

### to make his exit. He 

### was seen getting into a 

### car with two other people and leaving. The investigating 

### police officer found a glove in the 

### street in the area where defendant entered the getaway 

### car. After further investigation, Ritchson 

### was arrested athis home on December 21, 1979, without a warrant. Atthe 

### timeof 

### arrest the officers 

### saw inhishouse a jacket fitting a descriptiongiven by the witnesses. The police returned with a search warrant and seized the jacket, in the pocket of which 

### was found the matching glove. The defendant was charged with aggravated assault, section 45-5-202 

### (l)(c), MCA, and felony robbery, section45-5-401(1)(b), MCA. Notice of intent 

### to relyon the defense of mental disease



### or defect

### was filed on January 11, 1980. The 

### District Courtordered that the defendant be transported to the Montana State Prison to undergo a 45-day psychiatric evaluation. The report apparentlypersuaded the defendant and hiscounsel 

### to abandon the defense of mental illness. Several 

### times during the proceedings, defense counsel moved to dismiss the aggravated assault charge on the basis that aggravated assault is a 

### lesser included offense of robbery under section 46-11-502, MCA. The defense 

### also moved to require the State 

### to 

### elect specific elements of robbery under section 45-5-401 (1) (b)

# . Both motions 

### were denied. Atthe conclusion of the evidence the defense moved to dismiss the charges against defendant due to the illegal 

### arrest of defendant. This motion



### was also denied. On appeal the defendant raised the following issues: 1) Whether section 46-11-502, MCA, prohibits the conviction of thisdefendant of both aggravated assault and robbery. 2) Whether the Statemust 

### elect the specific elementsof robbery, as defined in section 45-5-401 (1) (b)

## ,which the State would attempt to prove. 3) Whether the District Court erred inprohibiting defense counsel from propounding questions 

### to prospective jurors

on their thoughts about severityof the sentence in this

### case. 4) Whether in lightof the recent United States Supreme Court decision in Payton v. New York, there

### was an illegal 

### arrest of the defendant. 5) Whether the defendant received a proper psychiatric examination pursuant to section 46-14-202, MCA. The defendant first argues that aggravated assault 

### is a 

### lesser included offense of robbery and that it was 

### error 

### to impose sentences for both offenses. Section46-11-502, MCA, provides inpart: "When the 

### same transactionmay establish the commission of 

### more than one offense, a person charged with such conduct may be prosecuted foreach such offense. He may not, however, be convicted of 

### more than one offense if: "1)one offense 

### is included in the other.

# .."

The 

### term "included offense" is defined in section46-11-501 (2), MCA, 

### as follows: "(2) An offense 

### is an 'included offense' when: 

### "(a) it is established by proof of the 

### same or 

### less than all the factsrequired to establish the commission of the offense charged; "(b) it consists of an attempt 

### to 

### commit the offense charged or to commit an offense other

### wise included therein; 

### or "(c) it differs from the offense charged only inthe respect that 

### a less serious injury

### or riskof injury 

### to the 

### same person, property, 

### or public interest

### or a lesser kind of culpability suffices

### to establish 

### itscommission

# ." Defendant argues that the State

### relies upon the 

### same 

### act 

### to establish the causing of reasonable apprehension of serious bodily injury, an element of aggravated assault, and the threat



### or fearof bodily injury, an element of robbery. The act of firing the shotgun in the direction of the bartender is the "same transaction"within the meaning of section46-11-502, MCA, according to defendant. He argues that in thiscase robbery can be established by proving the elements of aggravated assaultplus the added ingredient of occurrence in the course of committing a theft. While this Court has not addressed the specific issue of whether aggravated assault is a 

### lesser included offense within robbery, there 

### are several recent opinions concerning the analy

### sis to be followed indetermining if an offense is included within another offense. State v. Close (1981), Mont

# . I 623 P.2d 940, 38 St.Rep. 177; Statev. Coleman (1979), Mont

# .

,605 P.2d 1000, 36 St.Rep. 1134; Statev. Perry (1979), Mont

# . , 590 P.2d 1129, 36 St.Rep. 291; Statev. Davis (1978), 176Mont. 196, 577 P.2d 375; and State

### v. Radi (1978), 176Mont. 451, 578 P.2d 1169. These 

### cases consistentlyapply the 

### test set forth inBlockburger 

### v. United States (1932), 284 U.S. 299, 304,"The applicable rule is that where the same act 

### or transaction constitutes a violation of 

### two distinct statutoryprovisions, the 

### test to be applied 

### to determine whether there 

### are two offenses

### or onlyone, 

### is whether each provision requiresproof 

### --- of a factwhich the otherdoes not." (Emohasis added.) In Statev. Close, supra, 

### it 

### was stated that the Blockburger analysismust be applied with reference 

### to the statutesdefining each offense and not with reference to the factsof the individual 

### case. See also Brown v. Ohio (1977), 432 U.S. 161, 97 Sect. 2221, 53 L.Ed. 2d 187, holding that the emphasis of the Blockburger 

### test is on the elements of the 

### two crimes. The statute defining "included offense" speaks in 

### terms of "the factsrequired 

### to establish the commission of the offense charged." Section 46-11-501 (2) (a),MCA. This language is a reference 

### to the statutoryelements of the 

### crime rather than 

### to the individual factsof each 

### case. The Arizona, California and Oregon 

### cases relied upon by defendant 

### are inapposite. Those 

### states, eitherby statute

### or

case law, have adopted an approach whereby the factsof the individual 

### case rather than the statutoryelementsof the 

### crimes determine whether multiple punishment 

### is allowable. See Statev. Steele (1978), 33 0r.App. 491, 577 P.2d 524; State

### v. Jorgenson (1972), 108Ariz. 476, 502 P.2d 158; People v. Beamon (1973), 105Cal.Rptr. 681, 8Cal.3d 625, 504 P.2d 905. In those jurisdictions the 

### test is 

### to eliminate the facts in the individual



### case which 

### are needed 

### to prove one offense and then to determine if the remaining factswillprove the other offense. See State

v. Mitchell (1970), 106Ariz. 492, 478 P.2d 517. If such an approach were followed in thiscase, the act of firing the shotgun could be used to establishonlyone of the offenses. Montana has never used the factual approach, however, and such an approach is inconsistentwith the statutoryand 

### case lawof this 

### state.The ultimate goal is to determine whether the legislature intended to allowmultiple punishment where the 

### same 

### act violates 

### two statutes. Examination and interpretation of the relevant statutes alone willprovide the answer to the multiple punishment question. Aggravated assault is committed according 

### to section 45-5-202, MCA, when a person 

### "

# ...purposely orknowingly causes: 

### "(a) serious bodily injury 

### to another; 

### "(b) bodily injury 

### to anotherwith 

### a weapon; 

### "(c) reasonable apprehension of seriousbodily injury in another by use of a weapon; 

### or "(d) bodily injury

### to a police officer." The offense of robbery is defined by section 45-5-401, MCA, as follows: "(1) A person 

### commits the offense of robbery if inthe course of committing 

### a thefthe: 

### "(a) inflictsbodily injury upon another; "(b) threatens to inflict bodily injuryupon anyperson 

### or purposely 

### or knowingly puts any person in fearof immediate bodily injury; 

### or "(c) commits orthreatens immediately 

### to commit any felonyother than the£t .I1 

### In order 

### to establish the offense of robbery, the State must prove that the injury

### or threat occurred in the course of committing 

### a theft. In order to establish aggravated assault, the Statemust prove seriousbodily injury and/or the use of a weapon under subsections (a), (b)and 

### (c) 

# . Subsection (d)requires proof of injuryto a police officer. One can commit robbery without inflicting seriousbodily injury and without using a weapon. As noted inMONTCLIRC1sMontana Criminal Code Annotated, pp. 182-184, one can commit robberywith a toy gun. A toy gun does not qualify 

### as a "weapon," 

### as defined in section45-2-101(65), MCA, and 

### as used in the aggravated assault statute. Asthe aggravated assault statuterequires proof of 

### at least one elementthat is not needed to establish the offense of robbery, it is not



### a lesser included offense in the 

### crime of robbery. Two otherjurisdictions have distinguished the offenses of aggravated assault and robbery on the basis that the former requires seriousbodily injurywhile the 

### latter requires

### mere bodily injury. Statev. Stepney (1972), 280 N.C. 306, 185S.E.2d 844 and People v. Newton (1978), 61App.Div.2d 1051, 403 N.Y.S.2d 277. We find that aggravated assault 

### as defined by section 45-5-202, MCA, is not 

### a lesser included offense of robbery 

### as defined by section 45-5-401, MCA. Therefore the District Court did not 

### err in imposing sentences forboth offenses. Defendant's second contention 

### is that the District Court erred in failing to require the State

### to elect between the alternative means of committing robbery 

### set forth in section 45-5-401 (1) (b)

# . The information and the jury instructions included both theories of subsection (b)

# . Defendant argues that failure to 

### elect deprives him of notice and due process because he has no way of knowing which 

### set of elements and which proof willbe required. Further defendant 

### claims thatonlyone of the alternatives requires the mental state "purposely 

### or knowinglyf1 and that therefore the State

### was allowed to prove the offense of robbery without proving intent. Neither of defendant's arguments has any 

### merit. It 

### was established in Statev. Klein (1976), 169Mont. 350, 547 P.2d 75, that a conviction for the 

### crime of robbery requires proof that the accused must have acted purposely orknowingly, regardless of which alternativeelement is proved. The jury instructions as a whole make the intent requirement 

### clear, since InstructionNo. 3



### was given as follows: "To sustain the charge of Robbery, the State must prove that each element of the offense 

### was done purposely 

### or knowingly.

### " Any confusion caused by the wording of the statutewhich 

### wasrepeated in the jury instruction

### was cured by Instruction No. 3. Cf. State v. Dess (1969), 154Mont. 231, 462 P.2d 186. The information 

### was sufficientto notify defendant of the charges brought againsthim. This Court specifically approved the practice of charging in the alternativewithin separate counts in Stateex 

### rel. McKenzie v. District Court (1974), 165 Mont. 54, 525 P.2d 1211. Section 46-11-404(1), MCA, explicitly 

### states that 

### a charge may containdifferent statements of the 

### same offense, and further provides that the prosecution 

### is not required to 

### elect between the differentoffenses

# . Defendant next contends that the District Court erred in refusing 

### to allowhis counsel during voir dire

### to inform the jurors of the penalty forrobbery and then 

### to inquirewhether they feltthe penalty

### was 

### too severe. The court allowed counsel 

### to inquirewhether the jurors 

### were aware of the penalty, and none of the jurors responded in the affirmative

# . Defendant complains that hisrights under section 46-16-304(2) (i), MCA, 

### were violated. A 

### similar argument 

### was raised in Statev. Hallam (1978), 175Mont. 492, 575 P.2d 55, with regard to the prospective jurors1 beliefson capital punishment. Therein it 

### was noted that

a jury having conscientious opinions against the death penalty would not be 

### more likely

### to convict defendant. Similarly, if any of the jurors in this 

### case feltthe penalty forrobbery 

### was too severe, thisbelief could onlywork 

### to the benefit of defendant. The Statemight complain about the restriction of voir dire in thisarea, but the defendant cannot show that the restriction resulted in prejudice to him. On April 15, 1980, prior to the trial in thiscase, the United StatesSupreme Court decided Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, wherein 

### a warrantless, nonconsensual entry into a suspectlshome to make a routine felony

### arrest was held violative of the Fourth Amendment

### to the United States Constitution. Ritchson argues thathis warrantless 

### arrest athishome four days afterthe robbery violated hisrights 

### as enunciated inPayton, and that therefore the charges against him should have been dismissed. The flaw in defendant's argument is that an illegal 

### arrest has never been a bar 

### to prosecution. The Court inPayton noted that the issue presented fordecision

### was whether certain evidence seized 

### as a result of 

### or incident 

### to the 

### arrest was admissible, and not whether defendant must stand 

### trial, because he must stand 

### trial even if the 

### arrest 

### is illegal. Payton v. New York (1980), 445 U.S. at 592, 100 S.Ct. at 1383, 63 L.Ed.2d at



## ,citing U.S. v. 

### Crews (1980), 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed. 2d 537. Defendant concedes that the 

### coat and glove seized from hishome under the search warrant 

### were properly admitted. The defendant s last contention is that the psychiatric examination at the Montana StatePrison did not conform to the requirements of section 46-14-202, MCA. Defense counsel bases her argument on an alleged statement by a member of the prison staff that the prison is not equipped 

### to handle forensic psychiatric examinations and that they conduct merely diagnostic evaluations forplacement purposes. No objection appears in the record to the court's order sending defndant to the prison for examination, and the allegations indefendant's brief 

### are based upon hearsay records outside of the record. Error cannot be predicated on factsnot appearing in the record. Statev. Puzio (19791, Mont

# . ,595 P.2d 1163, 36 St.Rep. 1004. Affirmed

# .

Chief Justice