### 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, Judgepresiding. 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

## 5198; Submitted: September 17, 1981 Decided: 

## m!25

### %I

r 

### ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Leslie Howard was charged inYellowstone 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 atMontana StatePrison and was designated a dangerous offender. The dangerous designation was removed by the Sentence Review ~ivision.Howard appeals his conviction. We aff

### 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 inhis car. Instead of stopping atAldridgelshouse to consummate the agreement, Howard drove by it and stopped ata 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 inwhich Howard beat her, choked her, dragged her across the 

### lot and attempted 

### to ripoff her clothing. Atone point he was sittingon topof her and pulling her neck backwards with both hands. Aldridge testified, "Ithought he was trying to breakmy back 

### or my neck." He hither on the side of the head and she lostconsciousness. When she regained consciousness she

was in the trunk of Howard's car. She had losther purse and shoes in the struggle. The 

### car stopped atSouth 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 toget away and ran toward the 

### car, but Howard stopped her and started strangling her with her pantyhose. Aldridge finallybroke free, dove into the river, and made her way to aroad 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 thathe 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 herdowntown 

### so she could return 

### to work. Aldridge then demanded payment but Howard refused, saying he 

### was broke. Aldridge expressed concern thather 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 hittingAldridge but denies that she became unconscious. Howard testif ied thatAldridge had hisglasses and he 

### was attempting toget them back. He took off her dressand drove away, leaving her in the 

### lot. He went back 

### to her house 

### to smooth thingsover and gethisglasses and return her dress. Aldridge asked him to take her downtown. He drove her downtown but she told him tokeep driving and eventuallytold 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 dressbecause Aldridge still had hisglasses, and he lefther there. A search of Howard's residence revealed 

### wet, sandyjeans and shoes. The victim's torn dress

### was found inthe 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 victimof the lot's 

### correct location. The victim identifiedHoward from a photo line-up and also inthe courtroom. Dr. Stephen Elliott

### was the attending emergency 

### room physician who examined the victimon the night of the incident. He testified that she had strangulationmarks on her neck, abluish tinge toher face and many petechiae, which are tiny purple spots caused by hemorrhaging of capillaries asa result of strangulation. She alsohad bruises and an injury to the eye. Several photographs 

### were introduced into evidencewhich graphicallyportrayed her condition. Dr. Elliotttestified he was "surprised to see 

### a person with thismuch injury still alive

## ," "[slhelooked 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 thatyou 

### saw on Debbie on the early morning of August 31, doyou 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 thatyou can sustain that much trauma with any other intent." On appeal Howard raises three issues: 1)Whether the District Court erred inallowing the doctor 

### to testify asto the intentof 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 objectionmade by defense counsel 

### to the question calling for the doctorlsopinion on intentwas that it "invades the province of the jury." This objection 

### is not adequate to justify exclusion of the testimony. ~tis merely anotherway of saying that the testimony embraces an ultimate issue to be decided by thejury. Rule 704 of the Montana Rules of Evidence provides: "Testimony in the form of an opinion or inferenceotherwise admissible is not objectionable because it embraces an ultimate issue 

### tobe decided by the 

### trier of fact."This rule reflects long-established 

### law inMontana. Statev. Petko (1978), 177Mont. 229, 581P.2d 425; McGuire v. Nelson (1975)

## , 167Mont. 188, 536 P.2d 768; Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428; Statev. Campbell (1965), 146Mont. 251, 405 P.2d 978; Statev. Shannon (1933)

## ,95Mont. 280, 26 P.2d 360; v. John R. Daily Co. (1919), 56 Mont. 63, 181P. 326. Thus, the fact that the doctor's opinion on intentwent 

### to an ultimate issue is no basis for 

### its exclusion. Under Rule 704 the testimonymust be "otherwise admissible

# ." The admissibilityof expert testimony is governed by Rule 702, Montana Rules of Evidence: "If scientific, technical, 

### or other specialized knowledge willassist the 

### trier of fact 

### to understand the evidence 

### or 

### to determine 

### a fact inissue, a witness qualified 

### as an expert by knowledge, skill, experience, training, 

### or educationmay testify thereto in the form of an opinion orotherwise

# ." According 

### to this rule, Dr. Elliott

### was clearlyqualified 

### to testify as to the nature and extentof the victim's injuries. Whether he could then extrapolate from thisdata 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 thatmen of ordinaryeducation could reach 

### a conclusion 

### as intelligently as the witness, orwhether the 

### matter is sufficiently beyond common experience that the opinion of an expertwould 

### assist the 

### trier of fact

# ." State v. Campbell (1965)r 146Mont. 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 intentwas 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 statutesprovide that no cause of action shallbe 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 thatany 

### error which does not affect substantialrights shallbe disregarded, section46-20-702, 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, 17L.Ed.2d 705. First, it is evident that the jury did not relyon 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 deliberatehomicide requires an intent

### or purpose 

### to cause death; section45-5-102, MCA; while neither aggravated assault nor kidnapping require an intent

### to cause death. Sections 45-5-202 and 45-5-3021 MCA. See Statev. Gone (1978), 179Mont. 271, 587 P.2d 1291. Second, the evidence is overwhelming that the defendant purposefully

### or knowingly inflicted bodily injuryon the victim with a weapon. Dr. Elliott testified from hisexamination of the victim that she had been strangled with an instrument and that the strangulation had been severe. Dr. Elliott

### testi£ ied that, while the bruises, abrasions and petechiae 

### were not inand 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 herwith herpantyhose and thatwhen she 

### was being strangled she thought her life

### was over. A pair of pantyhose may be considered a "weapon" under the definition of section45-2-101(65), MCA, whichincludes "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 inthe 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 inrefusing to instruct the jury on the necessity of finding specific intent 

### as

an element of the 

### crime. Atcommon 

### law, certain

### crimes were referred 

### to as "specific intent crimes" because they required, in addition 

### to a general criminal intent, a 

### more particular 

### or spe
### cif ic mental 

### state. See Perkins on Criminal Law (2d.Ed. 1969)

## , Chapter 

### 7, Section 3. For example, common 

### lawburglary 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 thisdistinction between general and specific intentwhich the defendant urges upon this Court, arguing that "purposely" and "knowingly" refer togeneral intent and that the Statefailed to prove the specific intentwhich is an element of aggravated assault. The fatal flaw indefendant's argument is that aggravated assault is not a specific intent

### crime. Aggravated assault is defined by section45-5-202(1) 

## ,MCA, as follows:"A person commits the offense of aggravated assault if he purposely

### or knowingly causes: "a) seriousbodily injury to another; [or] "b) bodily injury to anotherwith a weapon 

# ..."
The legislature did not intend to require any othermental 

### state inaddition to "purposely orknowingly." If it had 

### so intended, the legislaturewould have defined the specific intent in language 

### similar to that used elsewhere inthe criminal code. For example, 

### see the definitionsof solicitation, section45-4-101, 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 statesused by the Montana Criminal Code 

### is patterned afterthe Model Penal Code, and as 

### we stated in Statev. Sharbono (1977), 175Mont. 373, 563 P.2d 61; and in Statev. Klein (1976), 169Mont. 350, 547 P.2d 75, 

### was designed to alleviate the difficulties caused by the use of

numerous 

### terms describing culpabilitywhich 

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

I' 

# . . .we can see no virtue inpreserving 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 (TentativeDraft No. 4, 1955, p. 128). The court's instructions on "purposely and knowinglyv1

### were sufficient 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 inrefusing hisproposed instructions relating to the definition of tampered evidence and the use by the Stateof artificiallyplaced evidence. The defense theory at trial was that the victim's pimp was her assailantand that they laterplanted evidence in an attempt 

### to wrongly implicate Howard. It is true that the police could not find the shoes, purseand 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. Atbest, defense counsel created a suspicion that the evidencemight 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. Statev. Kirkaldie (1978), 179Mont. 283, 587 P.2d 1298; State v. Miner (1976)r 169Mont. 260, 546 P.2d 252. Affirmed

# .

Chief Justice

We concur: