No. 85-198
INTHE SUPREME COURT OF THE STATE OF MONTANA
1987

STATE OF MONTANA,
Plaintiffand Respondent,-VSJERRY ELWIN TIBBITTS,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof theEighthJudicialDistrict, Inand forthe Countyof Cascade, The HonorableJoel G. Roth, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: John Keith, GreatFalls, Montana
ForRespondent:
Hon. MikeGreely, AttorneyGeneral, Helena, Montana KimberlyKradolfer, Asst. Atty. General, Helena PatrickL. Paul, CountyAttorney, GreatFalls, Montana

Submittedon Briefs: Jan. 8, 1987 Decided: March 10, 1987

Filed:

# MAR10

## 1987

8 

# 25k.4

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ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

Appellant Jerry Tibbits was found guilty of deliberate homicide by bench trial in the District Court of the Eighth Judicial District, Cascade County. Mr. Tibbitts was then sentenced by the District Court to serve 100 years in the Montana State Prison. We affirm. The issuesare: 1. Did the District Court err when it found that Mr. Tibbitts acted knowingly in causing the death of the decedent? 2. Did the District Court abuse its discretion when sentencingMr. Tibbitts? In July 1984,Mr. Tibbitts and several other men worked for three or four hours at a supply store and thenpurchased
some beer and drank it behind a Great Falls grocery store. The decedent joined their group and got in a discussionwith Mr. Tibbitts over some beer and cigarettes. An argument ensued and Mr. Tibbittspicked up a bottle and hit the decedent twice with the bottle. Mr. Tibbitts then kicked the decedent and attempted to light his hair while he was stretched out on the ground. Two eye witnesses testified to this assault. Three Great Falls police officers and an ambulance crew all arrived at the scenewithin secondsof each other andMr. Tibbitts was read the Miranda warning. At least four law enforcement officers heard Mr. Tibbitts confess to the killing at the scene and at the hospitalwhere he was taken fora blood-alcohol sample. One of the officers also testified that Mr. Tibbitts specifically stated that he knew what had happened and that he had hit the victim with a beer bottle. Mr. Tibbitts testified during the bench trial that the decedent began grabbing beer and cigarettes fromhim and thathe became "enraged" and began hitting and kicking the decedent. Mr. Tibbitts testified that he had been previously diagnosed as schizophrenic and thathe had previously committed himself tomental institutions. Mr. Tibbitts also testified thathe did not act in self defense. The doctorwho performed the autopsy testified that the decedent had bruises and lacerations, a broken nose, and a fractured sternum from a blow to the chest which almost separated the decedent's breast bone into two pieces. The doctor stated that the cause ofdeathwas a laceration to the left atrium which caused bleeding into the pericardium sac surrounding theheart. This lacerationwas causedby ablunt force blow to the chest, such as the onewhich fractured the decedent's sternum. A staff psychiatrist at Warm Springs State Hospitalwho examined Mr. Tibbitts testified that the defendant suffered from paranoid schizophreniabut that he did understand what was happening around him and was capable of assisting in his defense. The psychiatrist also testified that Mr. Tibbitts could become psychotic at times but that in his opinion the defendant's state of mind did fit within the "knowingly" definitionof § 45-2-101(33),MCA. TheDistrict Court concluded as amatter of law:

2. That the State did prove beyond a reasonable doubt and to a moral certainty that the defendant committed the crime of Deliberate Homicide, a Felony, under MCA section 45-5-201, by knowingly causing the injuries which caused the death ofKent Blackburn. 3. That the evidence of the defendant's mental disease or defect showed that he did have the particular state of mind, that being knowledge under MCA section 45-2-101(33), when the crime occurred. 4. That the defendant'smental condition,while not rising to a defense of the crime charged andproved, can be considered at sentencing under MCA section 46-14-311 and section 46-14-312.
As a result of the initial sentencing order, a question was raised regarding the defendant's ability to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law at the time of the offense. This Court remanded the case to the DistrictCourt with instructions to determine for purposes of sentencing the mental status ofMr. Tibbitts under S 46-14-311 and -312,MCA. The lower court then entered an order clarifying the sentencing order which stated:

The Court now clarifies the Sentencing Order by stating that, pursuant to Section 46-14-311 MCA, the defendant,at the timeof the commissionof the offense of which he was convicted (Deliberate Homicide, a felony), was suffering from a mental disease or defect, namely paranoid schizophrenia, but that said mental disease or defect did not render him unable to appreciate the criminality of his conduct or render him unable to conform his conduct to the requirementsof law. The DistrictCourt sentencedMr. Tibbitts to 100years in the Montana StatePrison. I Did the District Court err when it found that Mr. Tibbitts acted knowingly in causing the death of the decedent? The standard of review is that set forth in Jacksonv. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560,573:
[W] hether, 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.

(Emphasisinoriginal.)This standard was adopted by Montana in State v. Rodriguez (Mont. 1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781. Using this standard, we consider Mr. Tibbitts' specific contentions. First,Mr. Tibbittsmaintains that the evidence does not support the District Court's determination that he acted knowingly in causing the death of thedecedent. Thedeliberate homicide statute, 5 45-5-102, MCA, provides that Mr. Tibbitts must have acted knowingly or purposely to be convicted ofdeliberatehomicide. The DistrictCourt found that Mr. Tibbitts had acted knowinglywhen he caused the death of the decedent. The "knowingly" definition found at 5 45-2-101 (33)provides:
[A] person acts knowingly with respect to conduct or to a circumstancedescribed by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct describedby a statutedefining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existenceof aparticular fact isan elementof an offense, such knowl-edge is established if a person is aware of a high probability of its existence. Equivalent terms suchas "knowing" or "with knowledge" have the samemeaning.

Mr. Tibbitts argues that he was unable to form the requisite criminal stateofmind becausehe suffered from the mental disease of paranoid schizophrenia and was in a psychotic state at the time of the offense. Finally, Mr. Tibbittsmaintains that theDistrictCourt's sentencing order
was deficient. This last argumentwas specifically addressed by this Court when we remanded with instructions to the District Court to clarify its sentencingorder. TheDistrict Court then wrote a clarificationorder. As a result,we find no basis for this argument.The District Court concluded that Mr. Tibbitts met the knowingly requirement of 5 45-2-101(33), MCA, that he was able to appreciate the criminality of his conduct,and that his mental disease or defect did not negate this ability to appreciate the criminality of his conduct. The psychiatrist from Warm Springs State Hospital testified Mr. Tibbitts understood what was happening around him, was capable of assisting in his defense, and that in his opinion Mr. Tibbitts knew that it was highly probable that he would become involved in violent actions ifhe drank. Finally,the psychiatrist testified that in his opinion Mr. Tibbitts' state of mind did fit within the "knowingly" definition of 5 45-2-101(33), MCA, when he committed the homicide. In addition, several law enforcement officers who were at the
scene of the homicide right after it occurred testified that Mr. Tibbitts confessed to the crime. One officer specifically testified Mr. Tibbitts stated he knew what he had done. The District Court had all the evidence and testimony before it when making the determination that Mr. Tibbitts acted knowingly when he caused the decedent's death. Using the Jackson test,we find that "any rational trier of fact could have found the essential elements of [deliberate homicide] beyond a reasonabledoubt." We thereforeaffirm theDistrict Court on this issue.

Did the District Court abuse its discretion when sentencingMr. Tibbitts? Mr. Tibbitts argues that the District Court abused its discretion when imposinghis sentenceby failing to properly consider the mental disease or defect at the time of the offense. Relying on 

### 5 46-14-312(2), MCA,and Statev. Korell

(Mont. 1984), 690 P.2d 992, 41 St.Rep. 2141, the defendant maintains that he should be placed in Warm Springs StateHospital due to his mental defect. Although the District Court found that Mr. Tibbitts was suffering from a mental disease or defect at the time of the commission of the offense, it also found that the mental disease or defect "did not render him unable to appreciate the criminality of his conduct or render him unable to conform his conduct to the requirements of the law." As this Court stated in State v. Doney (Mont. 1981), 636 P.2d 1377, 1385, 38 St.Rep. 1707,

Before such commitment (to Warm Springs) will be ordered, defendant must prove to the satisfaction of the sentencing court that "at the time of the commissionof the offense of which hewas convicted he was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conformhis conduct to the requirements of law.l1 Sections 46-14-311 and 46-14-312,MCA. The sentencing judge is not limited to a consideration of evidencepresented at the trial. A determination of the existence ofmental disease or defect under these sections rests within the discretionof the sentencing judge.

A defendant can be sentenced to imprisonment if the sentencing judge finds that the defendantwas able to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. SeeKorell, 690P.2d at 996. Mr. Tibbitts argues that the District Court failed to consider his psychotic mental state at the time of the commission of the offense and thus hisprison sentence should be vacated with instructions forhim to be placed at Warm Springs. We affirm the District Court's conclusion that Mr. Tibbitts was able to appreciate the criminality of his conduct or conform his conduct to the requirements of the lawat the time of the commission of the offense in accordancewith Doney and Korell. A police officer testified that Mr. Tibbitts seemed to understand what was going on around himfollowing the incident. Mr. Tibbitts also testified in a calm and understanding manner of the events leadingup to the attack and the examining psychiatrist testified that he believed Mr. Tibbitts fit within the "knowingly" definition of 45-2-101(33), MCA, when he committed the homicide. Accordingly the requirements 

### of 55 46-14-311 and -312, MCA, have beenmet. We affirm the District Court.

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