No. 80-424 

IN THE SUPREME COURT OF THE STATE OF MONWTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

LESLIE D. HOWARD, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert L. Stephens, Jr. argued, Billings, Montana 

Stephens and Cole, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen Chronister argued, Assistant Attorney General, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Corbin Howard argued, Deputy County Attorney, Billings, 

Montana 

Filed: No\ 2 5 198; 

Submitted: September 17, 1981 

Decided : m! 2 5 %I 

r Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Leslie Howard was charged in Yellowstone County with 

attempted homicide, aggravated kidnapping and sexual intercourse 

without consent. He was tried by a jury and on April 11, 1980, 

convicted of the lesser included offenses of aggravated assault 

and kidnapping. He was sentenced to concurrent terms of ten and 

twenty years at Montana State Prison and was designated a 

dangerous offender. The dangerous designation was removed by the 

Sentence Review ~ivision. Howard appeals his conviction. We 

af f irm. 

The testimony of the victim and defendant was con£ licting , 

and the verdict indicates that the jury believed portions of both 

stories. The victim, Debbra Aldridge, testified that she was 

working as a prostitute near the Western Bar in Billings, 

Montana, on the night of August 30, 1979. She met Howard, they 

agreed on her services, and she went with him in his car. 

Instead of stopping at Aldridgels house to consummate the 

agreement, Howard drove by it and stopped at a vacant lot. 

Howard informed her the act of intercourse would take place 

there, and over her protest dragged her out of the car. An 

altercation ensued in which Howard beat her, choked her, dragged 

her across the lot and attempted to rip off her clothing. At one 

point he was sitting on top of her and pulling her neck backwards 

with both hands. Aldridge testified, "I thought he was trying to 

break my back or my neck." He hit her on the side of the head 

and she lost consciousness. When she regained consciousness she 

was in the trunk of Howard's car. She had lost her purse and 

shoes in the struggle. The car stopped at South Bridge over the 

Yellowstone River. Howard pulled her out of the trunk, took off 

her dress, dragged her under the bridge and raped her. She 

managed to get away and ran toward the car, but Howard stopped 

her and started strangling her with her pantyhose. Aldridge 

finally broke free, dove into the river, and made her way to a 
road where she found a ride to the hospital. She told the police 

about her shoes and purse, but they were unable to find them. 

Later, Aldridge and her husband found the vacant lot where her 

shoes and purse were located, and they notified the police. 

Leslie Howard testified that he picked up a prostitute, 

Debbra Aldridge, near the Northern Hotel and drove her to her 

home where they had sexual intercourse. Howard offered to take 

her downtown so she could return to work. Aldridge then demanded 

payment but Howard refused, saying he was broke. Aldridge 

expressed concern that her pimp would be upset. Aldridge 

attacked him while he was driving and he stopped the car, went to 

the passenger door and opened it. She got out and they got into 

a fight. He admits hitting Aldridge but denies that she became 

unconscious. Howard test if ied that Aldridge had his glasses and 

he was attempting to get them back. He took off her dress and 

drove away, leaving her in the lot. He went back to her house to 

smooth things over and get his glasses and return her dress. 

Aldridge asked him to take her downtown. He drove her downtown 

but she told him to keep driving and eventually told him to pull 

over at the South Bridge. She got out of the car, ran down to 

the river, removed her dress and went swimming. Howard took her 

dress because Aldridge still had his glasses, and he left her 

there. 

A search of Howard's residence revealed wet, sandy jeans 

and shoes. The victim's torn dress was found in the trunk of the 

car Howard had been driving. The police found the victim's shoes 

and purse and the defendant's glasses in the vacant lot after 

being notified by the victim of the lot's correct location. The 

victim identified Howard from a photo line-up and also in the 

courtroom. 

Dr. Stephen Elliott was the attending emergency room 

physician who examined the victim on the night of the incident. 

He testified that she had strangulation marks on her neck, a 
bluish tinge to her face and many petechiae, which are tiny 

purple spots caused by hemorrhaging of capillaries as a result of 

strangulation. She also had bruises and an injury to the eye. 

Several photographs were introduced into evidence which graphically portrayed her condition. Dr. Elliott testified he was 

"surprised to see a person with this much injury still alive ," 

" [slhe looked like she should have been dead," and "if you get 

strangled badly you get [petechiae] like that." In addition, he 

gave the following testimony: 

"Q. Dr. Elliott, based upon your examination of 

the injuries that you saw on Debbie on the early 

morning of August 31, do you have an opinion as 

to what the force that was applied to her was 

designed to do? 

"MR. STEPHENS: Well, I object, Your Honor. 

That invades the province of the jury. 

"THE COURT: Overruled. You may answer. 

"A. Well, yeah, I have an opinion. I think 

that somebody tried to murder her. You know, I 

just can1 t believe that you can sustain that 

much trauma with any other intent." 

On appeal Howard raises three issues: 1) Whether the 

District Court erred in allowing the doctor to testify as to the 

intent of the victim's assailant; 2) whether the ~istrict Court 

erred in failing to instruct the jury on the necessity of finding 

a specific intent; and 3) whether the District Court erred in 

refusing the defendant1 s proposed instructions on artificially 

placed or tampered evidence. 

The objection made by defense counsel to the question 

calling for the doctorls opinion on intent was that it "invades 

the province of the jury." This objection is not adequate to 

justify exclusion of the testimony. ~t is merely another way 

of saying that the testimony embraces an ultimate issue to be 

decided by the jury. Rule 704 of the Montana Rules of Evidence 

provides : 

"Testimony in the form of an opinion or 

inference otherwise admissible is not objectionable because it embraces an ultimate issue 

to be decided by the trier of fact." 
This rule reflects long-established law in Montana. State v. 

Petko (1978), 177 Mont. 229, 581 P.2d 425; McGuire v. Nelson 

(1975) , 167 Mont. 188, 536 P.2d 768; Rude v. Neal (1974), 165 

Mont. 520, 530 P.2d 428; State v. Campbell (1965), 146 Mont. 251, 

405 P.2d 978; State v. Shannon (1933) , 95 Mont. 280, 26 P.2d 360; 

v. John R. Daily Co. (1919), 56 Mont. 63, 181 P. 326. 

Thus, the fact that the doctor's opinion on intent went to an 

ultimate issue is no basis for its exclusion. 

Under Rule 704 the testimony must be "otherwise admissible ." The admissibility of expert testimony is governed by 

Rule 702, Montana Rules of Evidence: 

"If scientific, technical, or other specialized 

knowledge will assist the trier of fact to 

understand the evidence or to determine a fact 

in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify thereto in the form of an 

opinion or otherwise ." 

According to this rule, Dr. Elliott was clearly qualified to 

testify as to the nature and extent of the victim's injuries. 

Whether he could then extrapolate from this data and give an opinion is determined by whether the opinion would assist the trier 

of fact. Stated another way, the test is: 

" . . . whether the subject is one of such common knowledge that men of ordinary education 

could reach a conclusion as intelligently as the 

witness, or whether the matter is sufficiently 

beyond common experience that the opinion of an 

expert would assist the trier of fact ." State 

v. Campbell (1965)r 146 Mont. 251, 258, 405 P.2d 

978, 983. 

Dr. Elliott inferred from the nature of the injuries that the 

person who in£ licted them did so with an intent to murder. We 

find that under the circumstances of this case, the jury was as 

qualified as the doctor to draw an inference from the circumstantial evidence as to intent, and therefore the doctor's opinion on 

intent was inadmissible under Rule 702, Montana Rules of 

Evidence. 

We further find that, for a number of reasons, the error 

was harmless under both the Montana and the federal constitu- 
tional tests. Montana statutes provide that no cause of action 

shall be reversed by reason of any error committed by the trial 

court unless the record shows that the error was prejudicial, 

section 46-20-701, MCA; and that any error which does not affect 

substantial rights shall be disregarded, section 46-20-702, MCA. 

The federal constitutional test for harmless error is whether 

there is a reasonable possibility that the evidence complained of 

might have contributed to the conviction, Fahy v. Connecticut 

(1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; or whether the 

reviewing court can declare a belief that the error was harmless 

beyond a reasonable doubt. Chapman v. California (1967) , 386 

U.S. 18, 87 Sect. 824, 17 L.Ed.2d 705. 

First, it is evident that the jury did not rely on the 

doctor's opinion because it returned a verdict of guilty of 

aggravated assault and kidnapping rather than guilty of attempted 

deliberate homicide. The crime of attempted deliberate homicide 

requires an intent or purpose to cause death; section 45-5-102, 

MCA; while neither aggravated assault nor kidnapping require an 

intent to cause death. Sections 45-5-202 and 45-5-3021 MCA. See 

State v. Gone (1978), 179 Mont. 271, 587 P.2d 1291. 

Second, the evidence is overwhelming that the defendant 

purposefully or knowingly inflicted bodily injury on the victim 

with a weapon. Dr. Elliott testified from his examination of the 

victim that she had been strangled with an instrument and that 

the strangulation had been severe. Dr. Elliott tes ti£ ied that, 

while the bruises, abrasions and petechiae were not in and of 

themselves "serious bodily injury" according to the statutory 

definition, section 45-2-101(53), MCA, they were "bodily injury" 

within the definition given to him from section 45-2-101(5), MCA. 

Debbra Aldridge testified that the defendant strangled her with 

her pantyhose and that when she was being strangled she thought 

her life was over. A pair of pantyhose may be considered a 

"weapon" under the definition of section 45-2-101(65), MCA, which 
includes "any instrument, article, or substance which, regardless 

of its primary function, is readily capable of being used to produce death or serious bodily injury." A jury could have inferred 

from all the evidence that the defendant acted purposely, i.e. 

with the conscious object to engage in the conduct; or knowingly, 

i.e. with awareness of his conduct. 

Finally, we note that the intent of the assailant was not 

a major issue in the trial. The major issue was the identity of 

the perpetrator. The defense theory was that the victim's pimp 

was the assailant. 

We hold the admission of the doctor's opinion on intent 

was not prejudicial to the defendant, did not affect the substantial rights of the defendant, and was harmless beyond a reasonable doubt. 

Defendant next argues the trial court erred in refusing to 

instruct the jury on the necessity of finding specific intent as 

an element of the crime. At common law, certain crimes were 

referred to as "specific intent crimes" because they required, in 

addition to a general criminal intent, a more particular or spec if ic mental state. See Perkins on Criminal Law ( 2d. Ed. 19 69 ) , 

Chapter 7, Section 3. For example, common law burglary required 

an intentional or knowing breaking and entering into the dwelling 

of another with the specific purpose of committing a felony 

therein. The "general intent" of the defendant could be inferred 

from the doing of the act, while the "specific intent" was 

required to be proved by the prosecution. It is this distinction 

between general and specific intent which the defendant urges 

upon this Court, arguing that "purposely" and "knowingly" refer 

to general intent and that the State failed to prove the specific 

intent which is an element of aggravated assault. 

The fatal flaw in defendant's argument is that aggravated 

assault is not a specific intent crime. Aggravated assault is defined by section 45-5-202(1) , MCA, as follows: 
"A person commits the offense of aggravated 

assault if he purposely or knowingly causes : 

"a) serious bodily injury to another; [or] 

"b) bodily injury to another with a weapon . . ." 

The legislature did not intend to require any other mental state 

in addition to "purposely or knowingly." If it had so intended, the 

legislature would have defined the specific intent in language 

similar to that used elsewhere in the criminal code. For 

example, see the definitions of solicitation, section 45-4-101, 

MCA ("with the purpose that an offense be committed" ) ; burglary, 

section 45-6-204, MCA ("with the purpose to commit an offense 

therein" ) ; and forgery, section 45-6-325, MCA ("with purpose to 

defraud"). The hierarchy of mental states used by the Montana 

Criminal Code is patterned after the Model Penal Code, and as we 

stated in State v. Sharbono (1977), 175 Mont. 373, 563 P.2d 61; 

and in State v. Klein (1976), 169 Mont. 350, 547 P.2d 75, was 

designed to alleviate the difficulties caused by the use of 

numerous terms describing culpability which were largely 

undefined. The Model Penal Code drafters abandoned the distinction of "general" and "specific" intent, commenting: 

I' . . . we can see no virtue in preserving the 

concept of 'general intent' which has been an 

abiding source of ambiguity and of confusion in 

the penal law." Model Penal Code 2.02. 

Comment (Tentative Draft No. 4, 1955, p. 128). 

The court's instructions on "purposely and knowinglyv1 were suff icient instructions on the intent necessary to convict on the 

crimes of aggravated assault and kidnapping. 

Defendant's final argument is that the District Court 

erred in refusing his proposed instructions relating to the def inition of tampered evidence and the use by the State of artificially placed evidence. The defense theory at trial was that the 

victim's pimp was her assailant and that they later planted evidence in an attempt to wrongly implicate Howard. 

It is true that the police could not find the shoes, purse 
and glasses at first. From her hospital bed the victim had given 

them an incorrect location of the vacant lot. Later she found 

the lot a block away, found the evidence therein and notified the 

police. At best, defense counsel created a suspicion that the 

evidence might have been planted. Debbra Aldridge testified that 

she had not planted the evidence. There was insufficient evidence to support a logical inference that the evidence was 

planted, and therefore insufficient evidence to support an 

instruction on that theory. State v. Kirkaldie (1978), 179 Mont. 

283, 587 P.2d 1298; State v. Miner (1976)r 169 Mont. 260, 546 

P.2d 252. 

Affirmed . 

Chief Justice 

We concur: