DA 06-0728

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 297

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JASON TYLER MACKRILL,

 Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

In and For the County of Park, Cause No. DC-2005-099

Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant

Attorney General, Helena, Montana

Brett Linneweber, Park County Attorney, Livingston, Montana

Submitted on Briefs: October 24, 2007

 Decided: August 20, 2008

Filed:

__________________________________________

Clerk

August 20 2008
2

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Jason Tyler Mackrill appeals from his conviction in the District Court for the Sixth

Judicial District, Park County, of aggravated assault. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mackrill visited a number of bars in Livingston, Montana, during the evening of 

October 23, 2005. He entered the Whiskey Creek Saloon at around 9:30. The bartender, 

Lori Munro, observed that he appeared to be intoxicated. According to Munro, Mackrill 

staggered around the bar for awhile and then walked up to two patrons, ordered a drink 

for one, and turned to the other and began to pick a fight. At that point, Munro ordered 

Mackrill to leave, and he did so. Roughly an hour later, Mackrill poked his head in the 

door of the bar but then turned around and left.

¶3 A similar scenario occurred at the Murray Bar. The bartender, Christina Gillespie, 

observed that Mackrill was intoxicated, and Mackrill indicated to Gillespie that he did not 

know where he was. Gillespie refused to serve Mackrill alcohol and instead gave him a 

glass of water and told him that he could sober up there for a little while. According to 

Gillespie, Mackrill initially was polite, but he eventually began “misbehaving” and 

became upset that Gillespie would not serve him alcohol. Mackrill walked up to a 

woman sitting at the bar and got into an argument with her. Gillespie asked the woman if 

Mackrill was bothering her, and the woman replied that he was. So, Gillespie asked 

Mackrill to leave. Mackrill later returned to the bar, insisting that he had left his jacket 

there, but Gillespie informed him that there was no jacket in the bar and that she would 
3

call the police if he entered again. Mackrill lingered outside the bar for awhile peering 

through the window.

¶4 Mackrill also visited the Mint Bar two or three times that evening, where he 

eventually got into the altercation at issue in this case. According to Dan Connelley, a 

patron at the Mint Bar who noticed Mackrill during these visits, Mackrill was “beyond 

intoxication” and was trying to pick fights. Mackrill was asked to leave the bar at around 

7:30, and he did so; but when he returned at around midnight and the bartender, Kaylene 

Little, asked him to leave, Mackrill became obstinate and argumentative. In Connelley’s 

view, Mackrill “just wouldn’t comprehend that it was time for him to leave” and “that 

they were going to call the cops.”

¶5 Mackrill eventually approached Connelley, who had been chatting with a friend, 

Robert Gluesing. Mackrill positioned himself between Connelley and Gluesing and 

asked Connelley for a drink. Gluesing offered Mackrill a couple of dollars and suggested 

that he get a drink someplace else, since Little was unwilling to serve him. At this point, 

Little again ordered Mackrill to leave; and when he refused to do so, she picked up the 

phone to call the police. Gluesing attempted to persuade Mackrill to leave, but Gluesing 

ended up escorting Mackrill out the door.

¶6 Meanwhile, Jeremy Shields, the operator of the Sport Bar located half a block 

from the Mint Bar, was standing outside of the Sport Bar talking on the phone when he 

observed two men (Mackrill and Gluesing) exit the Mint Bar. Shields observed that 

“they had their hands on each other” and that “it looked like there was a scuffle going 

on.” Shields called two of his friends in the Sport Bar, Nate Ousley and Jory Mitchell, to 
4

come out and witness the commotion. Shields saw Mackrill, whom Shields characterized 

as “larger” and “thicker” than Gluesing, hit Gluesing several times, including a “very 

solid shot” that caused Gluesing’s feet to come off the ground and the back of his head to 

hit the pavement. According to Shields, the sound of Gluesing’s head hitting the 

pavement “sounded like a pumpkin breaking.” Mitchell noted that prior to the final 

punch, Gluesing’s hands were down and he was basically “sleeping on his feet.” After 

Gluesing hit the ground, Mitchell contacted 911 to report the incident.

¶7 Livingston City Fire and Rescue responded to the scene and found Gluesing 

unconscious in the street. Gluesing was bleeding from the back of his head and from his 

right ear and was unresponsive. He was transported to Livingston Memorial Hospital, 

where he was treated for head injuries, including a skull fracture. Gluesing’s bloodalcohol concentration was .246. He remained in the hospital for about a week to receive 

treatment for his injuries.

¶8 Livingston Police Department Officers Jerry Harmon and Joseph Harris also 

responded to the emergency call. After arriving at the scene, they checked on Gluesing’s 

condition and gathered information about the assailant from witnesses. Officer Harris 

then set out to search for Mackrill. Harris eventually made contact with Mackrill and 

observed that although he was able to give his name, date of birth, and social security 

number, Mackrill appeared to be highly intoxicated and confused. Harris placed Mackrill 

under arrest and transported him to the police station, where the officers conducted a 

voluntary videotaped interview with Mackrill.
5

¶9 On November 17, 2005, the State charged Mackrill with one count of aggravated 

assault, a felony, in violation of § 45-5-202, MCA. Mackrill pleaded not guilty to the 

charge. Thereafter, he filed a Notice of Affirmative Defenses, in which he stated that he 

would be arguing consent at trial (i.e., that Gluesing had consented to the fight and that 

Mackrill, therefore, was not guilty of the charge).

¶10 Trial commenced on April 13, 2006. Following opening statements, defense

counsel made a motion to exclude any questions or testimony regarding the fact that 

Mackrill had been asked to leave several of the bars he visited on October 23, 2005, due 

to disorderly conduct. Counsel argued that such evidence would be prejudicial and that it 

was inadmissible under M. R. Evid. 404(b). The prosecutor responded that evidence of 

the events which occurred before, during, and after the offense was committed was 

relevant and admissible under the transaction rule. See § 26-1-103, MCA. The court 

agreed with the State and denied Mackrill’s motion, explaining: “I think it’s part of res 

gestae, which is a transaction rule, both before and after.” The court also indicated, albeit 

not explicitly, that the evidence was not unfairly prejudicial.

¶11 Mackrill’s trial proceeded, and the jury heard testimony from several witnesses, 

including Connelley, Gluesing, and a number of the bartenders on duty the evening of 

October 23. On the second day of trial, the issue arose as to whether the State could 

introduce the videotape of Mackrill being interviewed at the police station after his arrest. 

Mackrill objected “to any presentation, whatsoever,” of the video on the grounds that its 

prejudicial value outweighed its probative value and that it was cumulative of earlier 

testimony. The District Court agreed that portions of the taped interview were unduly
6

prejudicial. Thus, the court ordered the prosecution to edit out any references to 

Mackrill’s criminal record, tattoos, and violent tendencies. The prosecutor edited the 

tape and then moved to admit it at trial, at which point Mackrill reiterated his objection 

that the video was cumulative. The court overruled the objection.

¶12 The jury ultimately found Mackrill guilty as charged. Thereafter, Mackrill filed a 

post-trial motion requesting that the court, pursuant to § 46-16-702, MCA, “find him not 

guilty of Aggravated Assault, or in the alternative, guilty of the lesser included offense of 

Misdemeanor Assault.” Mackrill argued that the State had “failed to introduce evidence 

upon which the jury could conclude that Robert Gluesing did not consent to the October 

24, 2005 bar fight” and had “failed to introduce evidence upon which the jury could 

conclude that Robert Gluesing, by reason of intoxication, was unable to make a 

reasonable judgment as to the nature or harmfulness of the bar fight.” The District Court 

held a hearing and denied the motion. The court reasoned that the jury had been properly 

instructed on the law and had heard the facts and that the court was not permitted under 

the circumstances to substitute its judgment for that of the jury. Mackrill now appeals.

ISSUES

¶13 We restate the issues on appeal as follows:

1. Did the District Court err in denying Mackrill’s motion for a new trial?

2. Did the District Court err in admitting evidence concerning Mackrill’s conduct 

before and after the altercation with Gluesing?

3. Does Mackrill’s conviction violate due process?

DISCUSSION
7

¶14 Issue 1. Did the District Court err in denying Mackrill’s motion for a new trial?

Mackrill’s Contentions

¶15 We begin with Mackrill’s sufficiency-of-the-evidence claim, as it provides context 

for our discussion of the evidentiary issues under Issue 2. As noted, Mackrill filed a posttrial motion contending that the State had failed to present evidence sufficient to prove 

two matters: (1) that Gluesing did not consent to the assault, and (2) that Gluesing, by 

reason of intoxication, was unable to make a reasonable judgment as to the nature or 

harmfulness of the assault. Mackrill asked the District Court either to find him not guilty 

of aggravated assault or to find him guilty of the lesser offense of misdemeanor assault.

¶16 We note that Mackrill captioned his motion as one for “judgment notwithstanding 

the verdict.” On appeal, he refers to the motion as one for a “directed verdict” and also as 

one for “an acquittal notwithstanding the verdict.” Montana’s statutes governing criminal 

procedure, however, do not recognize these motions. See State v. McWilliams, 2008 MT 

59, ¶¶ 36, 41, 341 Mont. 517, ¶¶ 36, 41, 178 P.3d 121, ¶¶ 36, 41. Indeed, we have 

clarified that a “motion for judgment notwithstanding the verdict” is properly referred to 

as a “motion for a new trial” under § 46-16-702, MCA. See McWilliams, ¶ 41; State v. 

Bell, 277 Mont. 482, 485, 923 P.2d 524, 526 (1996). Likewise, we have clarified that a 

“motion for a directed verdict” is properly referred to as a “motion to dismiss for 

insufficient evidence” under § 46-16-403, MCA. See McWilliams, ¶ 36; State v. Rosling, 

2008 MT 62, ¶ 21 n. 2, 342 Mont. 1, ¶ 21 n. 2, 180 P.3d 1102, ¶ 21 n. 2. The latter 

motion (to dismiss for insufficient evidence) is made “at the close of the prosecution’s 

evidence or at the close of all the evidence.” Section 46-16-403, MCA. Thus, this statute 
8

and motion are not applicable here. Rather, we deem Mackrill’s motion, which was 

made following the jury’s verdict, to be one for a new trial under § 46-16-702, MCA. 

Indeed, he cited this statute in the motion. And we once again urge the bench and bar to 

use the correct terminology. McWilliams, ¶ 36 n. 1; Rosling, ¶ 21 n. 2.

¶17 Section 46-16-702, MCA, provides as follows:

(1) Following a verdict or finding of guilty, the court may grant the 

defendant a new trial if required in the interest of justice. A new trial may 

be ordered by the court without a motion or may be granted after motion 

and hearing.

(2) The motion for a new trial must be in writing and must specify 

the grounds for a new trial. The motion must be filed by the defendant 

within 30 days following a verdict or finding of guilty and be served upon 

the prosecution.

(3) On hearing the motion for a new trial, if justified by law and the 

weight of the evidence, the court may:

(a) deny the motion;

(b) grant a new trial; or

(c) modify or change the verdict or finding by finding the defendant 

guilty of a lesser included offense or finding the defendant not guilty.

¶18 Mackrill contends on appeal that “there was insufficient evidence that Gluesing 

did not consent to fight Mr. Mackrill, and there was ample evidence that he did consent to 

fight Mr. Mackrill.” Thus, according to Mackrill, the District Court should have granted 

him a new trial or entered a finding of not guilty. Section 46-16-702(3)(b), (c), MCA.

Standard of Review

¶19 Where a motion for a new trial under § 46-16-702, MCA, is based on sufficiency 

of the evidence, we review the grant or denial of the motion de novo. See McWilliams, 

¶ 42 n. 2; State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, ¶ 19, 160 P.3d 511, ¶ 19.

Analysis
9

¶20 At the outset, we observe that Mackrill’s sufficiency-of-the-evidence argument is 

somewhat perplexing. Mackrill states in his opening brief that the issue here “is 

essentially a sufficiency of the evidence argument regarding the issue of consent.” As 

noted, he claims that “there was insufficient evidence that Gluesing did not consent to 

fight Mr. Mackrill.” Yet, the statute under which he was prosecuted states as follows: 

“A person commits the offense of aggravated assault if the person purposely or 

knowingly causes serious bodily injury to another.” Section 45-5-202(1), MCA (2005). 

Nothing in this statute requires the State, in order to convict an individual of aggravated 

assault, to prove that the victim did not consent to fight the defendant. Moreover, 

Mackrill does not contend that there was insufficient evidence upon which a rational trier 

of fact could find the essential elements of the crime beyond a reasonable doubt, i.e., that 

he “purposely or knowingly cause[d] serious bodily injury to [Gluesing].” Section 

45-5-202(1), MCA. Thus, the sufficiency-of-the-evidence question here is not whether 

the State failed to prove the elements of the offense.

¶21 Rather, in his reply brief, Mackrill articulates the pertinent question as follows: 

“[T]his Court should consider whether no rational jury could have found that a 

preponderance of the evidence demonstrated that Gluesing failed to consent to fight Mr. 

Mackrill.” Mackrill goes on to argue that “the preponderance of the evidence was that 

Gluesing consented to fight Mr. Mackrill.” It appears, therefore, that Mackrill’s claim is 

this: Consent is an affirmative defense which, if proven by a preponderance of the 

evidence, “precludes” a conviction for aggravated assault; Mackrill proved by a 
10

preponderance of the evidence that Gluesing consented to the assault; thus, no rational 

jury could have found him guilty of the charge.

¶22 To address this argument, we begin with the consent statute. Under § 45-2-211(1), 

MCA, “[t]he consent of the victim to conduct charged to constitute an offense or to the 

result thereof is a defense.” Under § 45-2-211(2), MCA, however, consent is ineffective 

if:

(a) it is given by a person who is legally incompetent to authorize the 

conduct charged to constitute the offense;

(b) it is given by a person who by reason of youth, mental disease or 

defect, or intoxication is unable to make a reasonable judgment as to the 

nature or harmfulness of the conduct charged to constitute the offense;

(c) it is induced by force, duress, or deception; or

(d) it is against public policy to permit the conduct or the resulting 

harm, even though consented to.

¶23 Recognizing that Gluesing was intoxicated on the night in question and that 

consent is ineffective if it was given by “a person who by reason of . . . intoxication is 

unable to make a reasonable judgment as to the nature or harmfulness of the conduct 

charged to constitute the offense,” § 45-2-211(2)(b), MCA, Mackrill argues that he 

proved, by a preponderance of the evidence, “that [Gluesing] was not too intoxicated to 

decide whether to agree to fight Mr. Mackrill.” This argument, however, assumes a 

critical issue that must be determined as a threshold matter—namely, whether 

§ 45-2-211(1), MCA, applies to Mackrill’s offense, i.e., whether consent is a defense to 

the charge of aggravated assault. In this regard, the State suggests that § 45-2-211(2)(d), 

MCA, “arguably removes consent as a defense to charges arising from assaultive 

conduct, even by mutual combat, on a public street in downtown Livingston.” For the 
11

reasons which follow, we agree that it is against public policy to permit a person 

purposely or knowingly to cause serious bodily injury to another, even though that 

conduct and the resulting harm were consented to. Section 45-2-211(2)(d), MCA.

¶24 While this Court has not previously considered whether a person can consent to be 

the victim of an assault, “the great weight of authority disfavors the defense of consent in 

assault cases.” State v. Baxter, 141 P.3d 92, ¶ 25 (Wash. App. Div. 2 2006). In Baxter, 

the court observed that “[i]n determining whether consent is a defense in a criminal case, 

the courts have considered the particular act, the surrounding circumstances, and 

society’s interest in the activity involved.” Baxter, ¶ 22. The court pointed out, for 

instance, that consent was not a defense to the violation of a domestic-violence protection 

order in State v. Dejarlais, 969 P.2d 90 (Wash. 1998), since the public has an interest in 

preventing domestic violence; that consent was not a defense to a game of shooting BB 

guns at each other in State v. Hiott, 987 P.2d 135 (Wash. App. Div. 2 1999), since the 

game was not a generally accepted athletic contest and was against public policy; and that 

consent was not a defense to punching another player during a basketball game in State v. 

Shelley, 929 P.2d 489 (Wash. App. Div. 1 1997), where the contact was not foreseeable 

behavior in the play of the game. See Baxter, ¶ 22.

¶25 Likewise, in Hiott, the court observed that “a child cannot consent to hazing, a 

gang member cannot consent to an initiation beating, and an individual cannot consent to 

being shot with a pistol,” since such activities are “against public policy” and since 

“criminal statutes are enacted to protect citizens and to prevent breaches of the public 

peace.” Hiott, 987 P.2d at 136-37 (citing People v. Lenti, 253 N.Y.S.2d 9, 15 (1964), 
12

Helton v. State, 624 N.E.2d 499, 514 (Ind. App. 1 Dist. 1993), and State v. Fransua, 510 

P.2d 106, 107 (N.M. App. 1973)). Similarly, in Shelley, the court observed that 

“although the defense of consent is applied in the realm of sexual assault, it has been 

sparingly applied by the courts in other areas,” since “society has an interest in punishing 

assaults as breaches of the public peace and order.” Shelley, 929 P.2d at 491-92.

¶26 In Fransua, the New Mexico Court of Appeals confronted the following factual 

scenario, which is not too far removed from Mackrill’s version of what transpired 

between him and Gluesing in the case at hand:

On March 3, 1972 both defendant and the victim were in a bar in 

Albuquerque. Defendant had apparently been drinking heavily that day and 

the previous day. Sometime around 3:00 p.m. after an argument, defendant 

made a statement to the victim to the effect that if he (defendant) had a gun, 

he would shoot the victim. The victim then left the bar, went to his own 

automobile, removed a loaded pistol from the automobile and returned to 

the bar. He approached the defendant, laid the pistol on the bar and made 

the following statement: “I told him (defendant) that there was the gun, 

that if he wanted to shoot me to go ahead.” Defendant then picked up the 

pistol, put the barrel next to the victim’s head and pulled the trigger, 

wounding him seriously.

Fransua, 510 P.2d at 107.

¶27 The defendant asserted that the actions of the victim in procuring the weapon and 

inviting the defendant to shoot him constituted consent to the shooting and, as such, a 

defense to the crime of aggravated battery. The court rejected this contention, explaining

as follows:

It is generally conceded that a state enacts criminal statutes making certain 

violent acts crimes for at least two reasons: One reason is to protect the 

persons of its citizens; the second, however, is to prevent a breach of the 

public peace. While we entertain little sympathy for either the victim’s 

absurd actions or the defendant’s equally unjustified act of pulling the 
13

trigger, we will not permit the defense of consent to be raised in such cases. 

Whether or not the victims of crimes have so little regard for their own 

safety as to request injury, the public has a stronger and overriding interest 

in preventing and prohibiting acts such as these.

Fransua, 510 P.2d at 107 (citation omitted). The court thus held that consent is not a 

defense to the crime of aggravated battery, irrespective of whether the victim invites the 

act and consents to the battery. Fransua, 510 P.2d at 107.

¶28 An equally “absurd” situation was presented in State v. Brown, 364 A.2d 27 (N.J. 

Super. L. Div. 1976):

[D]efendant contends that he is not guilty of the alleged atrocious assault 

and battery because he and Mrs. Brown, the victim, had an understanding 

to the effect that if she consumed any alcoholic beverages (and/or became 

intoxicated), he would punish her by physically assaulting her. The 

testimony revealed that the victim was an alcoholic. On the day of the 

alleged crime she indulged in some spirits, apparently to Mr. Brown’s 

dissatisfaction. As per their agreement, defendant sought to punish Mrs.

Brown by severely beating her with his hands and other objects.

Brown, 364 A.2d at 28.

¶29 In considering this contention, the court first noted that the defense of consent 

implicates broader interests in the criminal context than it does in the civil context:

While criminal law is designed to protect the interests of society as a whole, 

the civil law is concerned with enforcing the rights of each individual 

within the society. So, while the consent of the victim may relieve 

defendant of liability in tort, this same consent has been held irrelevant in a 

criminal prosecution, where there is more at stake than a victim’s rights.

Brown, 364 A.2d at 28. Also at stake, the court observed, is the public interest in peace, 

health, and good order; and an individual cannot consent to a wrong that is committed 

against the public peace. Brown, 364 A.2d at 29. Although the defendant’s acts (the 

physical assaults upon Mrs. Brown) may have been done in private, the court reasoned 
14

that they had “an impingement (whether direct or indirect) upon the community at large 

in that the very doing of them may tend to encourage their repetition and so to undermine 

public morals.” Brown, 364 A.2d at 29. Moreover, the court reasoned that “the State has 

an interest in protecting those persons who invite, consent to and permit others to assault 

and batter them. Not to enforce these laws which are geared to protect such people 

would seriously threaten the dignity, peace, health and security of our society.” Brown, 

364 A.2d at 32.

¶30 The court ultimately held that “no one has the right to beat another even though 

that person may ask for it.” Brown, 364 A.2d at 31, aff’d, State v. Brown, 381 A.2d 1231, 

1232 (N.J. Super. App. Div. 1977) (per curiam). Notably, in reaching this conclusion, the 

court observed that

street fighting which is disorderly and mischievous on many obvious 

grounds (even if for a purse and consented to), and encounters of that kind 

which tend to and have the specific objective of causing bodily harm, serve 

no useful purpose, but rather tend to breach the peace and thus are 

unlawful. No one is justified in striking another, except it be in self 

defense, and similarly whenever two persons go out to strike each other and 

do so, each is guilty of an assault. It is no matter who strikes the first blow, 

for the law proscribes such striking.

Brown, 364 A.2d at 30 (citations omitted); accord State v. Weber, 155 P.3d 947, ¶ 21 

(Wash. App. Div. 3 2007) (“There is nothing redeeming or valuable in permitting 

fighting and every reason to dissuade it.”).

¶31 The court in State v. Dunham, 693 N.E.2d 1175 (Ohio App. 1 Dist. 1997) (per 

curiam), expressed a similar view, holding that

where, as here, two persons agree to fight each other not in conformity with 

statutes authorizing boxing matches, each may be held guilty of assault, and 
15

where, as here, the harm visited upon one of the fighters constitutes serious 

physical harm, the fact that the fight was begun by mutual consent is not a 

defense, in law, to a charge brought pursuant to [the felonious-assault 

statute].

Dunham, 693 N.E.2d at 1179. The court was not persuaded by the defendant’s theory 

that “where two people engage in . . . a mutually agreed-upon fistfight, neither can claim 

that an assault and battery has been committed upon him, i.e., neither possesses a 

criminal intent when battering his opponent.” Dunham, 693 N.E.2d at 1177-78. The 

court stated plainly that “[t]he fact that street fighters agree to engage in a public brawl to 

settle old or current differences cannot and does not negate the penal consequences.” 

Dunham, 693 N.E.2d at 1178.

¶32 There are numerous other cases supporting the foregoing principles.

1

 Having 

 

1

See e.g. Durr v. State, 722 So.2d 134, ¶¶ 7-8 (Miss. 1998) (adopting the reasoning of 

Fransua); Jaske v. State, 539 N.E.2d 14, 18 (Ind. 1989) (same); Lyons v. State, 437 So.2d 

711, 712 (Fla. App. 1 Dist. 1983) (same); State v. Weber, 155 P.3d 947, ¶¶ 20-21 (Wash. 

App. Div. 3 2007) (holding that consent was not a defense to the charge of second-degree 

assault between two inmates, since public policy “strongly disfavors permitting prison 

violence” and since it would be impossible for those operating correctional facilities to 

maintain the health and safety of the prisoners if inmates were permitted to engage in 

physical violence under the rationale that they had agreed to fight); State v. George, 937 

S.W.2d 251, 256 (Mo. App. E. Dist. 1996) (consent defense did not apply to defendantpatient’s intentional assault of two hospital security guards, since “allowing the consent 

statute to legalize intentional assaults would thwart the purpose of Missouri’s statutes 

criminalizing assaultive behavior”); People v. Reckers, 623 N.E.2d 811, 814 (Ill. App. 4 

Dist. 1993) (“[W]e are inclined to agree with the commentators and a number of our 

sister States who found consent not to be a defense to a battery based on injurious 

touching.”); Ramey v. State, 417 S.E.2d 699, 702 (Ga. App. 1992) (Johnson, J., 

concurring specially) (“[T]he suggestion that consent could be considered a defense to 

the type of prolonged, sadistic and gratuitous violence at issue here [hitting the victim 

with a flashlight and burning him with a cigarette] must, in the final analysis, be viewed 

as completely ludicrous.”); People v. Lucky, 753 P.2d 1052, 1072 (Cal. 1988) 

(“Voluntary mutual combat outside the rules of sport is a breach of the peace, mutual 

consent is no justification, and both participants are guilty of criminal assault.”); State v. 
16

considered these cases and the reasoning of the authorities discussed above, we conclude 

that it is against public policy to permit a person purposely or knowingly to cause serious 

bodily injury to another, even though that conduct and the resulting harm were consented 

to. Sections 45-5-202(1), 45-2-211(2)(d), MCA. We agree that criminal statutes are 

generally intended to protect citizens and to prevent breaches of the public peace, Hiott, 

987 P.2d at 136-37, and that interpreting the consent statute as legalizing mutually 

agreed-upon aggravated assaults would thwart the purpose of the aggravated-assault 

statute, George, 937 S.W.2d at 256. We also agree that society has an interest in 

punishing aggravated assaults as breaches of the public peace, health, and good order, 

Shelley, 929 P.2d at 491-92; Brown, 364 A.2d at 29, and that whether or not the victim of 

an aggravated assault consented to the defendant’s causing him serious bodily injury, the 

public has an overriding interest in preventing such acts, Fransua, 510 P.2d at 107. In 

particular, we recognize that this type of conduct not only puts the combatants at risk, but 

also jeopardizes the safety of the police, emergency personnel, and bystanders. It also 

consumes public resources and imposes on society various costs, such as medical 

 

Hatfield, 356 N.W.2d 872, 876 (Neb. 1984) (“Although there is authority to the contrary, 

in dealing with a criminal charge all attempts to do physical violence which amount to a 

statutory assault are unlawful and a breach of the peace, and a person cannot consent to 

an unlawful assault.”); Taylor v. State, 133 A.2d 414, 415 (Md. 1957) (“A criminal 

assault which tends to bring about a breach of the public peace is treated as a crime 

against the public generally, and therefore the consent of the victim is no defense.”); 

Wright v. Starr, 179 P. 877, 877-78 (Nev. 1919) (“In a criminal prosecution for assault 

and battery, consent to a beating is no defense; the reason being that a wrong is 

committed against the public peace.”); State v. Roby, 74 A. 638, 641 (Vt. 1909) 

(“[T]hough one consents to be beaten, it is no justification when it is a matter that 

concerns the peace and dignity of the state.”); see also W. E. Shipley, Consent as Defense 

to Charge of Criminal Assault and Battery, 58 A.L.R.3d 662 (1974 & Supp. 2008).
17

expenses and the inability of individuals to feel safe and secure in their persons.

¶33 While recognizing consent as a defense (§ 45-2-211(1), MCA), the Legislature 

contemplated that consent would be ineffective if it were “against public policy to permit 

the conduct or the resulting harm, even though consented to” (§ 45-2-211(2)(d), MCA). 

We hold, for the public-policy reasons discussed above, that consent of the victim is not a 

defense to the charge of aggravated assault under § 45-5-202(1), MCA.

2

¶34 Given this holding, Mackrill’s arguments—that the jury was bound to acquit him 

because he proved by a preponderance of the evidence that Gluesing consented to fight 

him and was not too intoxicated to give legal consent—are moot. Even if Gluesing 

consented to engaging in “mutual combat” with Mackrill resulting in serious bodily 

injury, that consent was ineffective. Section 45-2-211(2)(d), MCA. Accordingly, we 

affirm the District Court’s order denying Mackrill’s motion for a new trial.

¶35 Issue 2. Did the District Court err in admitting evidence concerning Mackrill’s 

conduct before and after the altercation with Gluesing?

Mackrill’s Claim

¶36 Mackrill contends that the District Court erroneously allowed the State to present 

(1) testimony that he was, as Mackrill puts it, “disorderly, rude, and/or confrontational,”

 

2 Our holding here pertains to the defense of consent. It does not pertain to self-defense, 

which permits a person to use force against another under specific circumstances. See

§ 45-3-102, MCA (“A person is justified in the use of force . . . against another when and 

to the extent that he reasonably believes that such conduct is necessary to defend himself 

or another against such other’s imminent use of unlawful force. However, he is justified 

in the use of force likely to cause death or serious bodily harm only if he reasonably 

believes that such force is necessary to prevent imminent death or serious bodily harm to 

himself or another or to prevent the commission of a forcible felony.”). Our holding also 

does not pertain to conduct authorized and regulated by the State within the context of a 

“combative event.” See Title 23, chapter 3, MCA.
18

as well as “obnoxious, obstreperous, and even verbally confrontational,” in other nearby 

bars during the hours before the incident with Gluesing, and (2) the videotape of Mackrill 

being interviewed at the police station after his arrest, which showed his “aggressive 

demeanor.” Mackrill contends that the only reason the prosecution wanted to present this 

evidence was to show that Mackrill “was so aggressive that he must have wanted to 

fight,” i.e., he “was predisposed to commit assault outside the Mint.” Mackrill argues 

that “[s]uch evidence was totally unnecessary, as Mr. Mackrill did not contest that he was 

an active participant in the fight with Gluesing.” Rather, according to Mackrill, “[t]he 

real issue was whether Gluesing was also a willing fighter,” and evidence regarding 

Mackrill’s “earlier disorderliness” and his “post-arrest aggressiveness” was not needed to 

determine this issue. Mackrill challenges the admission of the evidence on two grounds: 

first, he asserts that the ground relied on by the District Court—the transaction rule—was 

mistaken; and second, he asserts that the evidence was “overly prejudicial” under 

M. R. Evid. 403.

Standard of Review

¶37 We generally review a district court’s evidentiary rulings for an abuse of 

discretion. State v. McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, ¶ 10, 173 P.3d 690, 

¶ 10. A district court abuses its discretion if it acts arbitrarily without the employment of 

conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. 

McOmber, ¶ 10. Notwithstanding this deferential standard, however, judicial discretion 

must be guided by the rules and principles of law; thus, our standard of review is plenary 
19

to the extent that a discretionary ruling is based on a conclusion of law. McOmber, ¶ 10; 

State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, ¶ 17, 134 P.3d 45, ¶ 17.

Analysis

¶38 First, given our holding under Issue 1, we disagree with Mackrill that “[t]he real 

issue was whether Gluesing was also a willing fighter.” That was not an issue at all, 

since consent is not a defense to aggravated assault. Rather, the issue was whether 

Mackrill “purposely or knowingly cause[d] serious bodily injury to [Gluesing].” Section 

45-5-202(1), MCA (2005).

¶39 Second, we also disagree with Mackrill’s contention that the testimony regarding 

his conduct at the other bars and the videotape of his post-arrest interview were not 

admissible under the transaction rule. M. R. Evid. 404(b) states that “[e]vidence of other 

crimes, wrongs, or acts is not admissible to prove the character of a person in order to 

show action in conformity therewith” but that such evidence “may . . . be admissible for 

other purposes, such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” In order for evidence of other 

crimes, wrongs, or acts to be admissible, the requirements set out in State v. Matt, 249 

Mont. 136, 142-43, 814 P.2d 52, 56 (1991), must be satisfied. One of those requirements 

is that the prosecution must give the defendant written notice that such evidence is to be 

introduced. Matt, 249 Mont. at 142-43, 814 P.2d at 56; see also State v. Bieber, 2007 MT 

262, ¶ 56, 339 Mont. 309, ¶ 56, 170 P.3d 444, ¶ 56 (“As a safeguard we require that 

evidence of other crimes may not be received unless proper notice has been provided to 

the defendant of the State’s intent to use such evidence and the State has indicated the 
20

purpose for which the evidence will be introduced.” (citing State v. Just, 184 Mont. 262, 

268, 602 P.2d 957, 960-61 (1979)). Mackrill points out—and the State concedes—that 

the prosecution did not give notice that it would be introducing Rule 404(b) evidence.

¶40 The State points out, however, that the notice requirements of Matt and Just do not 

apply to evidence of matters which are inextricably linked to, and explanatory of, the 

charged offense. Indeed, there is a distinction between Rule 404(b) “other crimes” 

evidence and evidence of a defendant’s misconduct which is inseparably related to the 

alleged criminal act. State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont. 26, ¶ 12, 85 P.3d 753, 

¶ 12. Furthermore, we have said that evidence which “ ‘tends to explain circumstances 

surrounding the charged offense’ ” is relevant, probative, and competent. Lozon, ¶ 12 

(quoting State v. Wing, 264 Mont. 215, 225, 870 P.2d 1368, 1374 (1994)). Thus, where 

the evidence at issue “is not wholly independent or unrelated to the charged offense,” it is 

not “other crimes” evidence, and the prosecution is not required to comply with the 

notice requirements of Just and Matt. Lozon, ¶ 12.

¶41 We have associated this rule with § 26-1-103, MCA, which states as follows: 

“Where the declaration, act, or omission forms part of a transaction which is itself the 

fact in dispute or evidence of that fact, such declaration, act, or omission is evidence as 

part of the transaction.” See e.g. State v. Buck, 2006 MT 81, ¶ 76, 331 Mont. 517, ¶ 76, 

134 P.3d 53, ¶ 76; State v. Gittens, 2008 MT 55, ¶ 37, 341 Mont. 450, ¶ 37, 178 P.3d 91, 

¶ 37. Pursuant to the “transaction rule,” evidence of matters that are “inextricably linked 

to, and explanatory of, the charged offense” is admissible notwithstanding the rules 

relating to “other crimes” evidence. Lozon, ¶ 12; Gittens, ¶ 37.
21

¶42 Mackrill acknowledges that the evidence regarding his “earlier bar wanderings” 

and his demeanor after being arrested “might have been explanatory of whether Mr. 

Mackrill purposely or knowingly fought with Gluesing, which was undisputed.” But he 

maintains that the evidence “was not inextricably linked to the charged offense.” We 

disagree. Evidence of Mackrill’s disorderly and “obstreperous” conduct at the various 

Livingston bars during the course of the evening in question was in fact closely related to 

the charged aggravated assault on Gluesing and was explanatory of the circumstances 

surrounding that offense. Cf. Lozon, ¶ 13; Buck, ¶ 79; Gittens, ¶ 39. In particular, this 

evidence helped to explain Mackrill’s unruly and confrontational behavior in the Mint 

Bar and his aggression against Gluesing.

¶43 Admissibility under the transaction rule is predicated on the jury’s right to hear 

what transgressed immediately prior and subsequent to the commission of the offense 

charged, so that the jurors may evaluate the evidence in the context in which the criminal 

act occurred. State v. Detonancour, 2001 MT 213, ¶ 29, 306 Mont. 389, ¶ 29, 34 P.3d 

487, ¶ 29. But while the timing of the events is relevant to admissibility under the 

transaction rule, it is not determinative. Cf. State v. Marshall, 2007 MT 198, ¶ 20, 338 

Mont. 395, ¶ 20, 165 P.3d 1129, ¶ 20 (holding that the defendant’s prior acts of grooming 

the victim, which occurred a month or two before the transaction at issue, satisfied the 

transaction rule). Here, we are not persuaded by Mackrill’s contention that the events 

which occurred at the other bars during the few hours before the assault and at the police 

station shortly after the assault were not sufficiently contemporaneous with the assault 

itself. Accordingly, we hold that the challenged evidence was admissible under the 
22

transaction rule. The District Court did not err or abuse its discretion in admitting this 

evidence pursuant to § 26-1-103, MCA.

¶44 Lastly, with respect to Mackrill’s contention that the testimony regarding his 

conduct at the other bars and the videotape of his post-arrest interview were overly 

prejudicial, M. R. Evid. 403 states: “Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” Mackrill, however, has not explained 

why, in his view, the probative value of the challenged evidence was “substantially 

outweighed by the danger of unfair prejudice.” He makes a number of conclusory 

assertions in this regard, but these are not sufficient to sustain his burden of showing error 

by the District Court. See State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 

P.3d 1032, ¶ 26 (“It is the appellant’s burden to establish error by a district court . . . .”); 

State v. Miller, 2008 MT 106, ¶ 15, 342 Mont. 355, ¶ 15, 181 P.3d 625, ¶ 15 (observing 

that conclusory assertions are “a wholly inadequate presentation of an issue to this 

Court”). Thus, we affirm the District Court on this matter as well.

¶45 Issue 3. Does Mackrill’s conviction violate due process?

¶46 Mackrill asserts that his conviction violates due process because he was too 

intoxicated to consent to fight Gluesing. More specifically, Mackrill contends that if the 

victim’s intoxication can nullify a defendant’s otherwise-viable consent defense 

(§ 45-2-211(2)(b), MCA), then the defendant’s intoxication should be able to nullify his 

guilt for the charged conduct. Yet, the latter is precluded by statute. See § 45-2-203, 
23

MCA (“A person who is in an intoxicated condition is criminally responsible for his 

conduct and an intoxicated condition is not a defense to any offense and may not be taken 

into consideration in determining the existence of a mental state which is an element of 

the offense unless the defendant proves that he did not know that it was an intoxicating 

substance when he consumed, smoked, sniffed, injected, or otherwise ingested the 

substance causing the condition.”). Mackrill claims this scheme violates his right to due 

process.

¶47 Mackrill’s argument fails on two grounds. First, per our analysis under Issue 1, 

the defense of consent was not available to Mackrill in the first place. Second, Mackrill 

did not raise his due process claim in the District Court; and as a general rule, this Court 

will not address an issue raised for the first time on appeal. State v. Adgerson, 2003 MT 

284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12.

¶48 An exception to this general rule is our common-law doctrine of plain error 

review. Under this doctrine, this Court

may discretionarily review a claimed error that implicates a criminal 

defendant’s fundamental constitutional rights—even if a timely objection 

was not made in the trial court, and notwithstanding the inapplicability of 

the criteria set forth in § 46-20-701(2), MCA—where failing to review the 

claimed error may result in a manifest miscarriage of justice, may leave 

unsettled the question of the fundamental fairness of the trial or 

proceedings, or may compromise the integrity of the judicial process.

State v. Rosling, 2008 MT 62, ¶ 77, 342 Mont. 1, ¶ 77, 180 P.3d 1102, ¶ 77 (citations 

omitted). We use our inherent power of common-law plain error review sparingly, on a 

case-by-case basis, and only in the aforementioned circumstances. Rosling, ¶ 77.
24

¶49 Mackrill has failed to demonstrate that his due process claim meets the elements 

of plain error review. He simply states that the elements were satisfied, without any 

supporting analysis. This is utterly insufficient under M. R. App. P. 12(1)f. to present an 

issue to this Court. Accordingly, we will not consider this claim any further. 

CONCLUSION

¶50 We hold that the defense of consent is inapplicable to a charge of aggravated 

assault. We further hold that the District Court did not err or abuse its discretion in 

admitting testimony regarding Mackrill’s conduct at the other bars on the night in 

question and the videotape of his post-arrest interview.

¶51 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE