No. 79-7 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

DWAYNE FISH and JOHN 

ALDIN HUBBARD, 

Defendants and Appellants. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellants: 

Morrison, Ettien and Barron, Havre, Montana 

Robert Morrison argued, Havre, Montana 

Lawrence A. Anderson argued, Public Defender, 

Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mary B. Troland argued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau County Attorney, Great Falls, Montana 

Tom McKittrick argued, Deputy County Attorney, Great 

Falls, Montana 

Submitted: November 11, 1980 

Decided: EEC 3 0 19@ 

TEc 4 ":q$' Filed: . < 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from a conviction and judgment 

against the defendant Dwayne Morris Fish of attempted burglary and the defendant John Aldin Hubbard of mitigated 

deliberate homicide. The convictions followed a jury trial 

in the District Court of the Eighth Judicial District, 

County of Cascade. 

At approximately 10:OO p.m. on the evening June 27, 

1978, Dwayne Fish and Mary Skelton went to Wally's Bar in 

Black Eagle, Montana, just north and across the Missouri 

River from Great Falls, Montana, where George Miller was 

bartending. While in the bar Fish talked with Miller concerning a past-due money debt Miller owed him. After having 

a drink, Fish and Skelton began to leave. At that time, 

some profanities were exchanged between Miller and Ms. 

Skelton. As a result of the exchange, a fight ensued between Fish and Miller with Miller seemingly getting the 

better of it. After a brief time, a patron of the bar 

grabbed Fish and pulled him away from Miller. The patron 

testified that, as he separated the two men, Fish told 

Miller that he was going to kill him. Fish left the bar 

with Skelton. 

After leaving Wally's Bar Fish took Ms. Skelton home 

and mentioned that he was going back to the bar to continue 

his fight with Miller. Skelton suggested that she should 

call her brother, John Hubbard, for help, but Fish rejected 

the suggestion and told her to stay home. 

Skelton did call her brother, John Hubbard, and related 

what had happened between Fish and Miller. Hubbard agreed 

to help and subsequently met his sister at the ~iverview 

Lounge in Great Falls. 
In the meantime, Fish returned to Wally's Bar. Fish 

parked his car nearby and was approaching the bar when the 

owner confronted him. Fish requested that the owner get 

~iller to come out, but Miller declined and Fish left. 

Skelton and Hubbard, after meeting, left for Wallyfs 

Bar to find Fish. Upon arriving at Wally's, they were 

informed by the owner that Fish had come back but had left 

again. Skelton and Hubbard then went to the Grey Horse Bar 

and Saloon in Black Eagle, where they found Fish. 

Hubbard advised Fish that it would not be wise to 

return to Wally's Bar to fight Miller because the bar was 

full of Miller's friends. Fish stated that the fight was 

between him and Miller and for Hubbard to stay out of it. A 

patron of the bar testified that he heard Fish and Hubbard 

say they were going to get Miller. 

Fearing that Fish would be in for quite a beating if he 

returned to Wally's Bar Skelton and Hubbard left to find 

some friends to even up the odds. Skelton and Hubbard went 

to the Little Chicago Bar, in Black Eagle, where they found 

Dale Lodge, a close friend of John Hubbard. 

Skelton, Lodge and Hubbard went back to the Grey Horse 

where they found Fish sitting at the bar. Skelton, Lodge 

and Hubbard began to play pool while Fish continued to sit 

at the bar. At closing time, Skelton and Fish left the Grey 

Horse and headed towards Wally's Bar in Fish's automobile. 

understanding that there would be a fight between Fish and 

Miller at Wally's, Hubbard and Lodge followed. 

Upon arrival at Wally's Bar, Hubbard parked his truck 

across the street from the bar. While Hubbard was parked, 

Officer Dick Duncan of the Cascade County sheriff's office, 

approached Hubbard's truck. Deputy Duncan asked ~ubbard to 
identify himself and advised Hubbard that there was going to 

be no trouble. 

As Hubbard and Lodge were leaving the area of Wally's 

Bar, as requested by Deputy Duncan, Skelton approached 

Hubbard's truck and asked Hubbard to meet her and Fish at 

Fischer's Trailer Park, where she expected Fish and Miller 

to fight. Miller was a resident of the trailer park. 

Skelton drove Fish's automobile to Fischer's Trailer 

Park but discovered that Miller had not yet arrived. 

Skelton and Fish parked their car adjacent to Fischer's 

Trailer Park. Hubbard and Lodge arrived and parked next to 

Skelton and Fish. 

After twenty to forty minutes of waiting at the trailer 

park, Hubbard decided to go home for the night. Just as he 

was getting ready to leave, however, a car which was believed to be Miller's drove past. Fish and Skelton in one 

car, and Hubbard and Lodge in the other car, proceeded to 

follow. 

The car spotted by the group actually contained Sally 

McCurdy, Miller's fiancee. She was being followed to 

Miller's trailer by a friend, Garth Lenci. Fish, Hubbard, 

Lodge and Skelton were unaware that Miller and a friend of 

his, Steven Triplett, were already inside the trailer when 

McCurdy arrived. 

Upon arriving at Miller's trailer, Skelton parked the 

car a short distance away. Fish got out of the car and 

walked to where Lenci was parked. Sally McCurdy was already 

in the trailer at this time. Immediately after her arrival 

Miller had come to the trailer door and shouted to her to 

come inside. 
Lenci testified that after Fish, Hubbard and Lodge 

walked up to his car Fish told him "they were going to do it 

right and get it done with." Lenci then testified he left 

as all three men approached Miller's trailer with Fish in 

the lead. Fish denies having made any such statement to 

Lenci and testified that Hubbard and Lodge did not arrive at 

Lenci's car until after he had started up the porch steps to 

Miller's trailer. 

When Fish arrived at Miller's front door he began 

knocking. McCurdy, who was inside the trailer at the time, 

testified to seeing Hubbard and Lodge a few feet behind 

Fish. Triplett, who was also inside the trailer, stated he 

noticed an individual standing beside Fish but was unable to 

identify the person. Fish, Hubbard and Skelton testified 

that Lodge and Hubbard had stopped just off a concrete 

landing in front of Miller's trailer and were not on the 

porch with Fish. 

As Fish was knocking on the door, the lights in the 

trailer went out. Fish said he continued to knock and 

shouted to Miller to "come out and get it over with. " Sally 

McCurdy testified that Fish told Miller to come out or he 

would come in. Fish knocked on the door for approximately 

two minutes but testified he never attempted to force open 

the door, nor did he ever grab or handle the door knob in an 

attempt to open the door. 

During this period of time Triplett, Miller and McCurdy 

were in the trailer living room. Without saying anything 

Miller went to his bedroom, obtained a rifle and returned to 

the kitchen to load it. Triplett testified that McCurdy then 

started yelling that they were going to have a shoot-out and 

told him to get in the back bedroom. McCurdy however does 
not remember making any such statement. Triplett immediately left the living room and while on his way to the back 

door, heard Miller fire the rifle. 

At the time the shot was fired by Miller, Fish testified that he had retreated and was standing about ten feet 

from the porch. He had heard the gun being cocked inside 

the trailer, which frightened him. At about the same time 

Fish testified that Lodge ran up on the porch and bumped 

against the door with his foot as the shot was fired by 

Miller. The prosecution presented the testimony of Skelton 

which indicated that Lodge was standing beside Fish when 

Lodge kicked the door two or three times. 

The shot fired by Miller went through the front window 

adjacent to the trailer door and struck Lodge in the throat. 

Lodge's body was later found lying with his feet on the 

trailer door threshold. The door molding on the inside of 

the trailer and the door latch were also found ripped from 

the door casing. Shrapnel (i.e., trailer metal) from the 

shot by Miller struck Fish in the stomach and Hubbard in the 

lip and eye. 

As the shot was fired, Fish and Hubbard ran from the 

vicinity of Miller's trailer. Hubbard retreated to the area 

of a tin shed adjacent to the trailer while Fish fled around 

the back side of the trailer and then headed towards his 

car. At this point, Miller ---- came out of the trailer and 

fired -- two more shots, aiming his r i f l e i n -- the direction of - 

Hubbard. Hubbard then saw Miller run around the opposite 

side of the trailer. 

Hubbard then returned to his truck and drove down to 

the immediate vicinity of the trailer porch. As he reached 

the trailer, Miller appeared and shoved a rifle through the 
window of the truck and threatened Hubbard's life by yelling 

he was going to "blow his f ----- g head off." A struggle for 

the rifle ensued, with Hubbard ultimately gaining possession. 

After taking the rifle away from Miller, Hubbard went 

over to Lodge's body and observed that he had been shot in 

the neck. Hubbard, then seeing Miller moving away, aimed 

and fired the rifle at him. Hubbard stated that when he 

fired at Miller he was aiming at his right leg expecting to 

wing him so as to prevent him from leaving to obtain another 

weapon. 

Fish, having witnessed the struggle over the rifle, 

testified that Hubbard missed Miller with the first shot and 

then fired at him again, Miller falling face down in the 

gravel. Hubbard testified that he hit Miller with the first 

shot and fired another into the ground to clear the chamber. 

A bullet from the rifle struck Miller in the small of the 

back at about belt level. 

McCurdy, who had fled through the back of the trailer 

to get help, returned and went to the spot where Miller lay. 

While there, she testified, she heard Hubbard say, "He 

killed my friend so I killed him." She also testified to 

hearing Fish say, "Yes, we killed him." A deputy sheriff 

who arrived on the scene shortly after the incident also 

testified that Hubbard told him that he shot Miller because 

Miller had shot Lodge. 

Both Lodge and Miller died as a result of wounds received that night. 

Fish and Hubbard were charged jointly by amended information with deliberate homicide, attempted aggravated 

burglary and conspiracy to commit aggravated assault. he 

conspiracy charge was dropped prior to trial and the defendants pleaded not guilty to the remaining counts. 
Defendants filed a motion to dismiss the amended information which was denied by the District Court. Fish then 

filed a motion for separate trial which was also denied. 

 rial by jury commenced on April 4, 1979. On April 20, 

1979, the jury returned a verdict of guilty against defendant Fish for attempted burglary. He was acquitted of 

attempted aggravated burglary and deliberate homicide. The 

codefendant, Hubbard, was convicted of mitigated deliberate 

homicide and acquitted of attempted aggravated burglary and 

attempted burglary. 

Fish was sentenced to confinement in the Montana State 

Prison for a period of seven years and found to be a nondangerous offender. Hubbard was sentenced to prison for a 

period of twenty years and also found to be a nondangerous 

offender. 

Fish and Hubbard both appeal. 

Numerous issues have been raised by defendants on 

appeal, but this Court need only examine the following: 

1. Whether defendant Fish's conviction for attempted 

burglary is supported by substantial evidence? 

2. Whether the trial court properly excluded psychiatric testimony offered by defendant Hubbard? 

To support an attemptedburglarycharge it is essential 

that the prosecution establish, with substantial and credible evidence, and beyond a reasonable doubt, that the defendant attempted to enter an occupied structure with the 

purpose to commit an offense therein. See sections 45-4-103 

and 45-6-204, MCA. 

It is a well-established principle that an attempt must 

consist of more than mere preparation and that there must be 

some overt act committed in furtherance of the offense 
charged. Section 45-4-103(1), MCA; see also State v. Ribera 

(1979) Mont. , 597 P.2d , 36 St.Rep. 1292; 

State v. Rains (1917), 53 Mont. 424, 164 P. 540. 

The only evidence presented at trial indicates that 

Fish was on the front porch of Miller's trailer knocking or 

pounding on the door. Fish testified as he was knocking he 

told Miller to come out and get it over with. There was 

testimony of Sally McCurdy, who was inside the trailer at 

the time, that Fish told Miller to come out or he would come 

in; however, no evidence was ever presented that Fish attempted to force open the door or that he ever grabbed or 

handled the door knob in an attempt to open the door. 

Based upon a review of all of the evidence, in a light 

most favorable to the State, we are clearly unable to find 

that Fish's conduct at any time constituted an overt act 

that could be construed as an attempt to enter Miller's 

trailer. Mere knocking or pounding on a door does not reach 

far enough towards the accomplishment of the alleged desired 

result to gain entry into an occupied structure necessary to 

establish the crime of attempted burglary. 

The State argues that if the actions of Fish do not 

establish attempted burglary, Fish is still guilty of that 

crime on a theory of accountability for the actions of Dale 

Lodge. We again must disagree. 

A person is legally accountable for the conduct of 

another when : 

I' (1) having a mental state described by the 

statute defining the offense, he causes another to perform the conduct, regardless of 

the legal capacity or mental state of another person; 
"(3) either before or during the commission 

of the offense with the purpose to promote 

or facilitate such commission, he solicits, 

aids, abets, agrees, or attempts to aid such 

other person in the planning or commission 

of the offense." Section 45-2-302, MCA. 

The evidence presented at trial upon which the State 

basis its theory of accountability is testimony that after 

Fish stopped knocking on the trailer door, Lodge ran up next 

to Fish and may have kicked the door between one and three 

times before a shot was fired by Miller striking Lodge. 

Fish testified that he had retreated from the porch altogether when Lodge ran up to the door, kicking it with his 

foot as the shot was fired. Additional evidence was presented that the molding around the trailer door and the door 

latch were found torn off the door casing and that Lodge's 

body was found with his feet on the door threshold. However, it should be noted that no evidence was ever presented 

that the door was damaged as a result of any action by Lodge 

or Fish; in fact, no evidence to support how the damage occurred was ever presented. 

Upon reviewing this evidence, again in a light most 

favorable to the State, we are unable to find that the 

prosecution has established those elements required to 

support a theory of legal accountability. There is no 

substantial credible evidence that Fish had any intent to 

enter Miller's trailer or that he solicited or aided Lodge 

when Lodge ran up to the door and allegedly kicked it. 

In further support of the accountability theory, the 

State draws on the time Fish, Hubbard and Lodge were together earlier in the evening and on isolated remarks 

overheard from them, allegedly of anexceedingly violent 

nature and that all three were again present at Miller's 
trailer when Lodge approached the trailer door. Yet, the 

record is bare of any evidence of any preparation by any of 

the three to carry out these alleged threats; no one was 

armed, not even with a stick or a rock. The record is more 

compatible with an intent by Fish to engage in a fist fight-- 

to which he admits. The State admits in the record that no 

weapons were found when the vehicles were searched. Miller 

was the only person armed. We acknowledge that there was an 

uncommon amount of activity that evening that made its way 

into the record, but we are compelled to reject the conclusion reached from this by the State. 

The jury also refused to accept the theory of accountability, as is evidenced by the their inconsistent verdicts. 

They refused to find Hubbard accountable for actions of Fish 

or Lodge by failing to find him guilty of attempted burglary. And, they failed to find accountability again by not 

finding Fish guilty of mitigated deliberate homicide. 

The definition of criminal accountability contemplates 

an active role in facilitating the commission of an offense. 

Consequently, more than mere presence at the scene of a 

crime is necessary to establish criminal responsibility. 

State ex rel. Murphy v. McKinnon (1976), 171 Mont. 120, 556 

P.2d 906. 

The second issue on appeal deals with the trial court's 

refusal to allow a psychiatrist to testify as to defendant 

Hubbard's mental state at the time Miller was shot. 

With respect to either deliberate homicide or mitigated 

deliberate homicide, the State must prove that defendant 

"purposely or knowingly" caused the death of another human 

being. Sections 45-5-102 and 45-5-103, MCA. 
"~urposely or knowingly" are statutory descriptions of 

various states of the human mind. See sections 45-2-lOl(52) 

and 45-2-101(27), MCA. They are particular elements included in the definition of the criminal offenses at issue. 

No element of an offense can be presumed, and, thus, the 

requisite state of mind must be established by the prosecution and believed by the jury beyond a reasonable doubt. 

See Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 

2319, 53 L.Ed.2d 281; In re Winship (1970), 397 U.S. 358, 90 

S.Ct. 1068, 25 L.Ed.2d 368. 

The prosecution must carry the burden of proving the 

requisite mental state of the defendant in this particular 

offense. Therefore, due process demands that the defendant 

be allowed to introduce evidence to rebut said evidence. 

Evidence should be admissible to prove or disprove the 

existence or nonexistence of a defendant's state of mind 

just as any other evidence is admissible to prove other 

elements of the crime charged. 

The offered psychiatric testimony in this instance included a conclusion that Hubbard, under the surrounding circumstances, more than likely did not intend to kill Miller 

when he shot but only intended to stop and apprehend him. 

This testimony goes directly to the elements of "purposely 

or knowingly" and, thus, should have been admitted. 

The State points out that defendant failed to give 

notice to the prosecution that he intended to rely on the 

defense of lack of the particular state of mind forming an 

element of the crime charged, as required by section 46-15- 

301 (2) (a), MCA. 

We acknowledge defendant's failure but note that section 46-15-301(2)(a), MCA, was amended in 1979, with the 
amendment taking effect after defendant's trial. Subsequent 

to this amendment, the section provided that notice is only 

required if the defendant intends to rely on the defense of 

mental disease or defect. See section 95-1803(3) (a), R.C.M. 

The testimony in this instance was not offered to 

support an affirmative defense of mental disease or defect 

but to support a general rebuttal to an allegation that 

defendant purposely and knowingly caused the death of another. This being the case, notice is not required. 

Respondent further argues that even if notice is not 

required, the subject matter of the testimony is not proper 

for opinion testimony by an expert. 

Rule 702, Mont.R.Evid., sets forth a two-prong test in 

determining the propriety of the use of expert testimony: 

(1) Is the subject matter such that it requires expert 

testimony; and (2) Is the particular witness qualified as an 

expert to give an opinion in the particular area of his 

testimony? See Commission Comment, Rule 702, M0nt.R.Evi.d. 

In regard to the subject matter of the expert testimony, general guidelines for admission were set forth in 

Leybold v. Fox Butte Theater Corporation (1936), 103 Mont. 

". . . When . . . it can be said as a matter 

of law that the jurors are equally capable of 

forming an opinion or can draw, or be readily 

directed how to draw, a reasonable inference, 

then the matter is not the subject of expert 

testimony. [Citations omitted. 1 In other 

words, when the conclusions to be drawn from 

the facts stated are within the range of ordinary training, intelligence, and common 

observation, expert testimony is not admissible. . ." 62 P.2d at 226. 
See also Lamb v. Page (1969), 153 Mont. 171, 455 P.2d 337; 

State v. Campbell (1965), 146 Mont. 251, 405 P.2d 978. 

We are unable to find that identification and description of a particular defendant's mental state, at a certain 

point in time, as effected by surrounding circumstances, 

clearly lies within the comprehension of laymen as based on 

common knowledge and expertise. With this being the case as 

to the determination of a defendant's state of mind at the 

time of alleged criminal conduct, expert testimony is proper. 

The subject matter of the testimony being proper for 

expert testimony, and there being no dispute as to the 

qualifications of the psychiatrist, the offered testimony 

was improperly excluded from the jury. Furthermore, such a 

failure is prejudicial and, therefore, reversible error. To 

improperly exclude evidence and testimony offered by defendant as rebuttal to an essential element of the crime 

charged denies defendant a full evidentiary hearing and 

deprives him of his right to a fair trial. See Chambers v. 

Mississippi (1973), 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 

297; Jenkins v. McKeithen (1969), 395 U.S. 411, 89 S.Ct. 

1843, 23 L.Ed.2d 404, reh. denied, 396 U.S. 869, 90 S.Ct. 

35, 24 L.Ed.2d 123. 

The fact that we could reach a decision by treatment of 

a single issue in defendant Hubbard's appeal has no particular significance as to the validity of the remainder of 

the issues presented to this Court for review by Hubbard. 

It is the feeling of this Court that, in the event of another trial, matters that could not or in all probability 

would not again occur are better left alone, which serves 

the best interests of all concerned. 
The conviction and judgment against defendant Fish is 

reversed and the cause dismissed. 

The conviction and judgment against defendant Hubbard 

is reversed and the cause remanded to the District Court for 

.I 

a new trial. 

Justice d 

We concur: 

Chief Justice