110. 84-195

INTHE SUPREME COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA, Plaintiff and Respondent,

-vsRONALD LEE RATY, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThirteenthJudicial District, In and fortheCounty of Yellowstone, The Honorable Robert H. Wilson, Judge presiding.

COUNSEL OF RECORD:

For Appellant: AllenBeck, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana Charles Bradley, Deputy County Atty., Billings

Submitted on Briefs: Oct. 25, 1984 Decided: December 13, 1984

Filed: 

### DEc13

## ?g8q

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant Ronald Lee Raty appeals from a judgment of conviction for aggravated assault, in the Thirteenth Judicial District Court in Yellowstone County. We affirm in part and

reverse inpart. Raty was charged with two counts of aggravated.assault stemming from separate incidents. Hewas accused of stabbing Covina Fredericks on April 

### 28, 1983 and of assaulting Janet LaRance in her home on September 8, 1983 and strangling her with a rope. Trial by jury was held on January 25 through 37, 1984 in Yellowstone County and Raty was acquitted of the Frederick's knifing but convicted of assaulting LaRance. The evidencepresented at trial showed that on September 8, 1983,Raty appeared at the home of Janet LaRance and rang the doorbell. When LaRance opened the door Raty entered, chased her through the house, cornered her, then strangled her with a rope for 10 or 20 seconds. Raty then released his victim and fled. JJaRance ran outside and asked two construction workers for help telling them she had been attacked. One of the construction workers chased Raty and caught him a couple blocks from the scene while Raty was entering his parked car. Meanwhile LaRance called the police. Ratywas taken into custody. Raty testified 

### attrial that he went to the LaRance home thinking that awoman who owed him twenty dollarswas inside. The woman slammed the door on his foot; he batted the door open and entered the house. Raty did not remember using the rope,but thought thathe put his arm around her neck and his hand over hermouth.Attrialdefendant Raty put. intoissuehis stateof mind at the time of the crime. He introduced evidence aimed at showing thathe didnotpossess therequisitemental elements of "purposely" or "knowj-ngly" which must be proven by the State to obtain a conviction for aggravated assault. Defendant showed thathe came from a deprived background. He had been abused as a child, beaten by his stepfather and watched his mother carted off to a mental hospital. Dr. Tranel, a Billingspsychologist, testified thatthe defendant suffered from psychomotor epilepsy which caused an organic personality disorder and marked.behavior changes. In accord with section 46-14-201, MCA, though section 46-14-212, MCA, defendantnotified the Stateof his intention to rely on the mental disease or defect defense. Raty was examined by a clinical team atWarm Springs State Hospital. Dr. Harris testified. at trial that in his opinion the defendant was capable of standing trial and had a passive-aggressive personal-ity

# . He testified that the d-efendanthad possible epilepsyby historyonly and had a low I.Q. Harris also testified that the defendant had the capacity to have the particular state of mind which is an element of the offense charged. See section 46-14-213, MCA. Ronald Lee Raty was convicted of violation of section 45-5-202, MCA, aggravated assault, and sentenced, to the maximum termof 20 years in the stateprison. He was also sentenced to 10 years tobe served concurrently for the use of a dangerous weapon, a rope, pursuant tosection 46-18-231, MCA

# .Appellant raises the following issues: (1) FJhether the evidence was sufficient to prove to element of purpose orknowledge?(2) Whether the defendant should have been sentenced to

a term of years at the StateMental.Hospital rather than the Montana StatePrisondue to diminishedmental capacity? We note that the defendant does not challenge the constitutionality of Montana's statutes which abolished the traditional insanity defense. Our recent decision in State

v. Korell (Mont. 1984), 

### -P.2d 

### , 41 St.Rep. 2141, held 

### - the statutes, sections 46-14-201, MCA, et seq., are not unconstitutional. Korell is the law in Montana today and in its light we must affirm the conviction by the lower court. There is sufficient evidence on the record to support the jury finding that the defendant acted knowingly and/or purposelywhen he assaulted Ms. LaRance. "Purposely"is defined as follows: "[A]person actspurposelywith respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result 

# . . 

# ." Section 45-2-101 (58)

## ,MCA. "Knowingly"isdefined as follows: 

### "[A]person acts knowingly with respect to conduct or to circumstance described by a statute defining an offensewhere he is aware 

### of his conductor that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused hy his conduct

# ..." Section 45-2-101 (33)

## , I4CA. Raty remembered the details of the entire incident except using the rope on LaRance. He testified he thought LaRa.ncewas a girl named.Patty and that he wanted to get her because sheowed him $20.00. Raty remembers running away and being chased by the constructj-onworkers. Raty stated that he was running because he was chasing someone else. This testimony tends to show that Raty was aware of his conduct. He could remember his conduct. He tried to conceal his

### reason for fleeingwhich tend-edto prove he knew he had done somethingwrong. Statev. Pierce (Mont. 1982), 

### 647P.2d 847, 39 

### St.Rep. 1205. The evidence also shows that Raty acted purposefully. His conductwasnot the resultof reflex. Evidence thatRa-ty possessed the rope prior to entering the LaRance home and evidence thatRaty intended harm to thewoman he thought owed him money tend to prove that it was his conscious object to engage in the conduct of strangling LaRance. Dr. Harris' testimony tended to show the defendant possessed the mental elements of the offense despite the existence ofpsychomotor epi-lepsy 

# . Based on the evidence presented at trial the jury had sufficient grounds to find the defendant guilty of aggravated assault beyond a reasonabledoubt. Wewill not disturb that findingon appeal. SENTENCING The appellant contends that he should have been sentenced to a term of years at Warm Springs State Hospital instead of sentenced to prison. The disposition of a defendant who raised the lack of mental state defense is set forth in Chapter 14, Part 3 

### of the Montana Code Annotated. If 

### the jury finds that the defendanthad the requisite state of mind at the time of the offense, criminal guilt is determined. After guilt hasbeen established, the court,not the jury, must determine if 

### the guilty person was suffering at the time of the offense from a mental disease or defect. Section 46-14-311,MCA. 

### The following procedure is followed. The sentencing judge must consider any relevant evidence presented at trial plus any additional evidence presented at the sentencinghearing to determine whether the defendantwas

### able to appreciate the criminality of his acts or to conform his conduct to the requirements of the law at the time he committed th.eoffense for which he was convicted. Section 46-14-311, MCA; Corell, supra. If 

### the defendant is found mentally i.11 under the above test, he is sentenced to the care of the director of institutions for a definiteperiod of time not to exceed the maximum possible sentence. Section 46-14-312(2),MCA. If the defendant iscured from the mental disease or defect which rendered him incapable of appreciating the criminality of his act or conforming his conduct to the requirements of the lawhe is then transferred from the State Hospital to prison to serve out the remainder of his sentence. While in the care and custody of themental health professionals at 

### Warm Springs, the mentally ill convict receives no credit for good time served and is not eligible forparole. There isno advantage for one not in need cf care for a mental disease or defect to request to be sentenced under section 46-14-312(2), MCA, 

### to the care of the Department of Institutions instead of toprison. The defendant,Raty, asked the court to be sentenced to Warm Springs. The District Court was required to make a finding pursuant to section 46-14-31-1,MCA, whether or not the defendant at the time of the commission of the offense for which he was convicted was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform hi-sconduct to the requirements of law. The court made no such finding. The reasons stated at the sentencing hearing and in the sentencing order for

### imposing a 20-year prison sentence on the defendant were as follows: "1) 

### The Court considered the information in the presentence investigationreport. "2) 

### The defendant has been acquitted by a 

### jury of one of the counts previously charged against him; and theCourt takes that into consideration. "3) 

### The Court considered the reality of this case and that the defendant comes from a very deprived background as a child and was abused as a child and the Court is sympathetic toward the defendant because of that situation. "4) 

### The Court also realizes that this defendant has developed into aperson whom the Courtdeems to be a danger in the community by reason of the acts he had committed and for which the jury found him guilty." The record shows that the District Court did not fulfil its duty to independently evaluate the defendant's mental condition. See Korel-1,supra,State v. Watson (~ont. 19841,



### For this reason we must vacate the sentence and remand for resentencing. Affirmed inpart. Reversed in part.

,' , i 

### Justice i



### We Concur: 

# Ti--L-$i.~PQ Chief Justice