No. 81-316 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

LEONARD DAVE PEAVLER, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Hon. H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mark Bauer, Public Defender, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

-- - 

Submitted on briefs: September 25, 1981 

Decided: 

Filed: b!OV 5. '$ 4988 

C PY Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

tne Court. 

This is an appeal from a conviction of burglary committed in Cascade County. The appellant was tried by a jury 

and sentenced to five years as a nondangerous offender. 

The sole issue is whether the District Court erred in 

excluding expert testimony on whether appellant's alleged 

intoxicated condition deprived him of his capacity to 

appreciate the criminality of his conduct or to conform his 

conduct to the requirements of the law. 

Appellant has a long history of problems with 

alcohol. He has held numerous jobs until payday and then 

been fired because of alcohol-related problems. On April 

18, 1980, appellant was at his home in Helena, Montana, 

drinking with three friends. His wife, who was present but 

not drinking, testified that the four friends consumed 

nearly a case of beer and were "pretty smashed" when 

appellant left for Great Falls in mid-afternoon. 

That evening at approximately 10:OO p.m. a silent 

burglary alarm went off at Spencer's Store in the Holiday 

Village shopping mall and two police officers in the area 

were dispatched to investigate. Upon arrival they found 

that the bottom half of a split door leading into the store 

from the mall was unlocked but closed. The officers 

proceeded into the store and past a storage area. 

Subsequently, an individual bolted from the storage area, 

out the door, and into the mall. The officers chased and 

finally subdued the individual. 

The store owner and his son arrived shortly 

thereafter. The police and owner checked the store, found 

no one else, and the police left. As the owner and his son 
checked to see what was missing, they found a money bag, 

customarily used the open the store, was missing some $50. 

As they were leaving, the owner noticed the hands of the 

appellant extending out from under a bench in the storage 

area. The owner left the storage area and called the 

police. The police entered the store again and called upon 

the appellant to come out of hiding. Appellant came out 

peacefully and smoking a cigarette. Later, some of the 

missing money was found in the storage room where the 

appellant had hidden. 

Spencer and the two arresting officers testified that 

the appellant emerged from the store very relaxed, his eyes 

were normal, and there were no signs of intoxication, 

although the officers noted a faint odor of alcohol on his 

breath. 

Appellant's defense was, first, that he was a chronic 

alcoholic, could not control his drinking, and was therefore 

involuntarily intoxicated at the time of the offense. 

Second, because of this involuntarily-produced intoxication, 

he was completely deprived of his capacity to appreciate the 

criminality of his conduct or to conform his actions to the 

requirements of the law. As part of the defense, appellant 

had intended to ask a psychiatrist, Dr. Davis, and a 

psychologist, Dr. Bateen, the following question: 

"Doctor, assuming that Dave Peavler was 

intoxicated on April 18, 1980, and, as you 

know, was found in Spencer Is Store in Holiday 

Village in Great Falls, do you have an 

opinion on reasonable medical/psychologica1 

certainty as to whether or not Dave Peavler's 

intoxicated condition deprived him of his 

capacity to appreciate the criminality of his 

conduct or to conform his conduct to the 

requirements of law?" 

Appellant contends that his defense was completely 
destroyed when the court granted the State's motion limiting 

the testimony of the psychologist and the psychiatrist. 

The prosecution claims inability to appreciate the 

criminality of one's conduct or to conform one's conduct to 

the requirements of the law has not been recognized as a 

defense in Montana since 1979. The trial court agreed, and 

excluded that portion, but only that portion, of the 

psychologist's and psychiatrist's expert testimony. The 

appellant argued that section 45-2-203, MCA, allows the 

testimony. 

Section 45-2-203, MCA, provides: 

"Res~onsibility --- --- -- intoxicated or drugqed 

condition. A person who is in an intoxicated 

or drugged condition is criminally responsible for conduct unless such condition is 

involuntarily produced and depr ives him of 

his capacity to appreciate the criminality of 

his conduct or to conform his conduct to the 

requirements of law. An intoxicated or 

drugged condition may be taken into consideration in determining the existence of a 

mental state which is an element of the 

offense . " 

In 1979, the legislature extensively amended the 

sections involved with the defense of mental disease or 

defect. House Bill 877 removed these two defenses from 

sections 46-14-213(2) and 46-14-301, MCA; but, in their 

efforts they failed for some reason to remove these defenses 

from the provisions of section 45-2-203, MCA. It is 

appellant's position that section 45-2-203, MCA, not having 

been changed in any way by the bill, entitles him to rely on 

same for his defense. 

We find the case of State v. Ostwald (1979), 180 

Mont. 530, 591 P.2d 646, 36 St.Rep. 442, controlling in this 

matter. There we held: 

". . . We hold that where, as here, the 
defense of intoxication shifts to a defense 

based on expert testimony as to the long term 

effects of alcoholism, then it becomes a 

defense of mental disease or defect within 

the purview of the statutes requiring notice ... " 591 P.2d at 650. 

While in this case notice was given in the defense, 

and the narrow question of Ostwald was whether the 

defendant's expert testimony could be presented in absence 

of prior notice, the clear holding of that case is much 

broader. Under Ostwald, once expert testimony is submitted 

on intoxication, the defense comes within section 46-14-101 

et seq., MCA, for all purposes. 

Ostwald holds that the proffer of expert testimony 

comes within section 46-14-213, MCA, which specifically 

limits the testimony that an expert may give. That 

testimony includes, "his opinions as to the ability of the 

defendant to have a particular state of mind which is an 

element of the offense charged." It does not include 

opinions on the ability to appreciate the criminality or to 

conform conduct to the requirements of the law. The 

District Court properly held that after the amendments of 

1979, the legislature has done away with those two indicia 

of criminal reponsibility. 

The judgment of the District Court is affirmed. 
We concur: 

ustices 

Mr. Ji~stice Daniel J. Shea will file a concurring opinion.