NO. 80-340 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

JAMES THOMAS RITCHSON, 

Defendant and Appellant. 

Appeal from: District Court 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, Great Falls, 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 : JuL 2 - 198 

Filed: JUL C - 19@ 

=amwp.* 

Clerk 
Mr. 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 Daily Double Bar in Great Falls in the 

early morning on December 17, 1979. He had been in the bar for 

several hours drinking and playing pool. At closing time, he 

pulled a sawed-off shotgun from underneath his jacket 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 

to back out toward the front door. The swamper testified that 

when he heard the shot he left the bar through the front door, 

locking it behind him. The defendant therefore broke down the 

front door 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 at his 

home on December 21, 1979, without a warrant. At the time of 

arrest the officers saw in his house a jacket fitting a description given 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, sect ion 

45-5-202 (l)(c), MCA, and felony robbery, section 45-5-401(1)(b), 

MCA. Notice of intent to rely on the defense of mental disease 

or defect was filed on January 11, 1980. The District Court 
ordered that the defendant be transported to the Montana State 

Prison to undergo a 45-day psychiatric evaluation. The report 

apparently persuaded the defendant and his counsel 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. At the 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 this defendant of both aggravated assault and robbery. 

2) Whether the State must elect the specific elements of 

robbery, as defined in section 45-5-401 (1) (b) , which the State 

would attempt to prove. 

3) Whether the District Court erred in prohibiting 

defense counsel from propounding questions to prospective jurors 

on their thoughts about severity of the sentence in this case. 

4) Whether in light of 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. Section 46-11-502, MCA, 

provides in part: 

"When the same transaction may establish the 

commission of more than one offense, a person 

charged with such conduct may be prosecuted for 
each 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 section 46-11-501 (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 facts required to establish 

the commission of the offense charged; 

"(b) it consists of an attempt to commit the 

offense charged or to commit an offense otherwise included therein; or 

"(c) it differs from the offense charged only 

in the respect that a less serious injury or 

risk of injury to the same person, property, or 

public interest or a lesser kind of culpability 

suffices to establish its commission ." 

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 fear of 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 section 46-11-502, MCA, 

according to defendant. He argues that in this case robbery can 

be established by proving the elements of aggravated assault plus 

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 analysis to be followed in determining if an offense is included 

within another offense. State v. Close (1981), Mont . I 

623 P.2d 940, 38 St.Rep. 177; State v. Coleman (1979), Mont . , 605 P.2d 1000, 36 St.Rep. 1134; State v. Perry (1979), 

Mont . , 590 P.2d 1129, 36 St.Rep. 291; State v. Davis (1978), 

176 Mont. 196, 577 P.2d 375; and State v. Radi (1978), 176 Mont. 

451, 578 P.2d 1169. These cases consistently apply the test set 

forth in Blockburger 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 statutory provisions, the test to be 

applied to determine whether there are two 

offenses or only one, is whether each provision 

requires proof --- of a fact which the other does 

not." (Emohasis added.) 

In State v. Close, supra, it was stated that the Blockburger analysis must be applied with reference to the statutes defining 

each offense and not with reference to the facts of 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 facts required to establish the commission of the offense 

charged." Section 46-11-501 (2) (a), MCA. This language is a 

reference to the statutory elements of the crime rather than to 

the individual facts of each case. 

The Arizona, California and Oregon cases relied upon by 

defendant are inapposite. Those states, either by statute or 

case law, have adopted an approach whereby the facts of the individual case rather than the statutory elements of the crimes 

determine whether multiple punishment is allowable. See State v. 

Steele (1978), 33 0r.App. 491, 577 P.2d 524; State v. Jorgenson 

(1972), 108 Ariz. 476, 502 P.2d 158; People v. Beamon (1973), 

105 Cal.Rptr. 681, 8 Cal.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 facts will prove the other offense. See State 

v. Mitchell (1970), 106 Ariz. 492, 478 P.2d 517. If such an 

approach were followed in this case, the act of firing the 

shotgun could be used to establish only one of the offenses. 

Montana has never used the factual approach, however, and such an 

approach is inconsistent with the statutory and case law of this 

state. 
The ultimate goal is to determine whether the legislature 

intended to allow multiple punishment where the same act violates 

two statutes. Examination and interpretation of the relevant 

statutes alone will provide the answer to the multiple punishment 

question. 

Aggravated assault is committed according to section 

45-5-202, MCA, when a person 

" . . . purposely or knowingly causes: 

"(a) serious bodily injury to another; 

" (b) bodily injury to another with a weapon; 

"(c) reasonable apprehension of serious bodily 

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 

in the course of committing a theft he: 

"(a) inflicts bodily injury upon another; 

"(b) threatens to inflict bodily injury upon 

any person or purposely or knowingly puts any 

person in fear of immediate bodily injury; or 

"(c) commits or threatens immediately to commit 

any felony other 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 State must prove serious bodily injury and/or the use of a 

weapon under subsections (a), (b) and (c) . Subsection (d) requires proof 

of injury to a police officer. One can commit robbery without 

inflicting serious bodily injury and without using a weapon. As 

noted in MONTCLIRC1s Montana Criminal Code Annotated, pp. 

182-184, one can commit robbery with a toy gun. A toy gun does 

not qualify as a "weapon," as defined in section 45-2-101(65), 

MCA, and as used in the aggravated assault statute. As the 

aggravated assault statute requires proof of at least one element 
that is not needed to establish the offense of robbery, it is not 

a lesser included offense in the crime of robbery. 

Two other jurisdictions have distinguished the offenses of 

aggravated assault and robbery on the basis that the former 

requires serious bodily injury while the latter requires mere 

bodily injury. State v. Stepney (1972), 280 N.C. 306, 185 S.E.2d 

844 and People v. Newton (1978), 61 App.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 for both 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 

will be required. Further defendant claims that only one 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 State v. Klein (1976), 169 Mont. 350, 547 P.2d 75, 

that a conviction for the crime of robbery requires proof that 

the accused must have acted purposely or knowingly, regardless of 

which alternative element is proved. The jury instructions as a 

whole make the intent requirement clear, since Instruction No. 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 statute which was 
repeated in the jury instruction was cured by Instruction No. 3. 

Cf. State v. Dess (1969), 154 Mont. 231, 462 P.2d 186. 

The information was sufficient to notify defendant of the 

charges brought against him. This Court specifically approved 

the practice of charging in the alternative within separate 

counts in State ex 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 contain different statements of the same 

offense, and further provides that the prosecution is not 

required to elect between the different offenses . Defendant next contends that the District Court erred in 

refusing to allow his counsel during voir dire to inform the 

jurors of the penalty for robbery and then to inquire whether 

they felt the penalty was too severe. The court allowed counsel 

to inquire whether the jurors were aware of the penalty, and none 

of the jurors responded in the aff irmative . Defendant complains 

that his rights under section 46-16-304(2) (i), MCA, were 

violated. 

A similar argument was raised in State v. Hallam (1978), 

175 Mont. 492, 575 P.2d 55, with regard to the prospective 

jurors1 beliefs on 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 felt the penalty for robbery was too 

severe, this belief could only work to the benefit of defendant. 

The State might complain about the restriction of voir dire in 

this area, but the defendant cannot show that the restriction 

resulted in prejudice to him. 

On April 15, 1980, prior to the trial in this case, the 

United States Supreme 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 suspectls home to make a 

routine felony arrest was held violative of the Fourth Amendment 
to the United States Constitution. Ritchson argues that his 

warrantless arrest at his home four days after the robbery 

violated his rights as enunciated in Payton, 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 in Payton noted 

that the issue presented for decision 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 his home under the search warrant were properly 

admitted. 

The defendant s last content ion is that the psychiatric 

examination at the Montana State Prison 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 for placement purposes. No object ion appears in the 

record to the court's order sending defndant to the prison for 

examination, and the allegations in defendant's brief are based 

upon hearsay records outside of the record. Error cannot be predicated on facts not appearing in the record. State v. Puzio 

(19791, Mont . , 595 P.2d 1163, 36 St.Rep. 1004. 

Affirmed . 

Chief Justice