No. 14376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsEDWARD LYLE OSTWALD, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert Stephens, Jr., Billings, Montana 

Dave Kinnard argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson argued, Assistant Attorney General, 

Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

James D. Walen argued, Deputy County Attorney, 

Billings, Montana 

Filed: MAR 7 - 1~ 

Submitted: January 30, 1979 

Decided: MAR 7 - lgl~l 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant appeals from his conviction of the crimes of 

burglary and misdemeanor possession of dangerous drugs following 

a jury trial in the District Court of Yellowstone County. 

In the early morning hours of December 26, 1977, when 

the janitor of the Billings Eagles Club reported for work, he 

noticed that the club's front door had been pried open. As he 

approached the building, he heard what he thought was hammering 

inside. He then left and contacted the authorities. 

Shortly after 3:30 a.m., several sheriff's deputies and 

city police officers were dispatched to the club and deployed 

around the building. An officer and a deputy approached the 

front door and glimpsed defendant inside. They called out to 

him and he began to flee. Defendant ran out the rear of the 

club where he was apprehended by a deputy sheriff stationed there. 

Several of the deputies and defendant then returned to the club 

where a damaged safe and a variety of hand tools were discovered. 

The tools belonged to defendant. 

During the course of the arrest, a deputy sheriff asked 

defendant what he was doing inside the building. Defendant answered that he did not know. A subsequent inventory search of defendant uncovered two cigarettes which the officers suspected to 

be marijuana. The substance in the cigarettes was later tested 

by one of the officers with a "valtox kit" (a selection of chemical reagents, some of which produce a characteristic color when 

combined with marijuana) with positive results. The suspected 

substance was never sent to the state crime laboratory for any 

further testing. 

On December 28, 1977, an information was filed in the 

District Court, Yellowstone County, charging defendant with the 

crimes of burglary and misdemeanor possession of dangerous drugs. 
At his arraignment on January 4, 1978, defendant pled not guilty 

to both offenses. Trial by jury was scheduled for April 18, 1978. 

On the day of the trial, counsel sought to endorse as an 

additional witness a psychologist who had performed a battery of 

tests on defendant. The psychologist was to testify that because 

of the effects of alcohol on defendant, "the disease of alcoholism 

and the actual brain damage he has suffered through the years", 

defendant was incapable of acting with a conscious object and 

could not have had the requisite mental state that is an element 

of the crime of burglary. The State objected to this proposed 

testimony on the grounds that it constituted a defense of mental 

disease or defect and that written notice pursuant to section 95- 

503, R.C.M. 1947, now section 46-14-201 MCA had not been given. 

Defendant argued that the testimony of the psychologist would go 

only to the defense of intoxication for which written notice is 

not required. The State contended that if an accused relies on 

a particular alcoholic episode to raise intoxication as a mitigating factor then he is not required to give notice; if, however, 

he relies on a defense of alcoholism in a generic sense as a mental 

disease or defect, as here, then the notice requirement applies. 

The court reserved its ruling on the State's motion to exclude 

the expert testimony until after all the other defense witnesses 

had finished testifying. At that time, the court granted the 

motion and excluded the psychologistls testimony. 

Three of the arresting officers testified at the trial. 

All testified they observed defendant's manner of speech and 

ability to carry on a conversation, his coordination and general 

condition, and each concluded defendant was not intoxicated at 

the time of his arrest. One deputy testified he smelled a faint 

odor of alcohol about defendant at the time he was being booked 

but he too stated defendant appeared sober, that he was coherent 
and his coordination was good. 

Defense witnesses who had seen defendant during the 

eighteen hour period prior to his arrest testified in general 

that defendant was an alcoholic, that he had a history of 

irrational behavior when he was intoxicated, and that he was 

intoxicated throughout Christmas day, the day before his arrest. 

His wife and college age son testified that when defendant left 

the family home around 2:30 a.m. the morning of the incident, 

he was in an extreme state of intoxication. 

Defendant himself testified that he was an alcoholic. He 

stated he had been drinking throughout the day prior to his 

arrest and could remember nothing from approximately noon of that 

day until he was awakened for breakfast in a jail cell the following morning. 

At the close of trial, defendant offered instruction on 

criminal mischief and criminal trespass, arguing that those offenses were lesser included offenses in the crime of burglary and 

that the jury must be instructed on them. Those instructions were 

refused. Defendant also offered several alternative instructions 

on diminished capacity due to intoxication as a mitigating factor. 

The court refused defendant's proposed instructions and instead 

gave instructions regarding the effect of intoxication on criminal responsibility by quoting the applicable Montana statutes. 

On April 20, 1978, the jury returned a verdict of guilty 

against defendant on both counts in the information. Defendant 

was sentenced to ten years in prison on the burglary charge and 

one year in county jail on the possession charge, to be served 

concurrently. Defendant's motion for admittance to bail pending 

appeal was denied. 

Defendant raises three specifications of error in this 

appeal : 
(1) Error in excluding the testimony of defendant's 

expert witness. 

(2) Error in the giving and refusing of jury instructions. 

(3) Sufficiency of the evidence to sustain defendant's 

conviction of possession of marijuana. 

In ruling on the motion to exclude defendant's proferred 

expert testimony, the court cited the Revised Commission Comment 

to section 95-503, R.C.M. 1947, now section 46-14-201 MCA, which 

provides in pertinent part: "If the defendant fails to give 

notice of his intent to rely on a defense of lack of specific 

intent he does not lose that defense, but he will be limited to 

'lay' testimony which generally is not effective for a defense 

of mental disease or defect." The text of section 95-503, R.C.M. 

1947, now section 46-14-201 MCA, reads: 

"(a) Mental disease or defect excluding responsibility is an affirmative defense which the 

defendant must establish by a preponderance of 

the evidence. 

"(b)(l) Evidence of mental disease or defect excluding responsibility is not admissible unless the 

defendant, at the time of entering his plea of 

not guilty or within ten (10) days thereafter or 

at such later time as the court may, for good 

cause, permit, files a written notice of his purpose to rely on such defense. 

"(2) The defendant shall give similar notice when 

in a trial on the merits, he intends to rely on a 

mental disease or defect, to prove that he did not 

have a particular state of mind which is an essential 

element of the offense charged. Otherwise, except 

on good cause shown, he shall not introduce in his 

case in chief, expert testimony in support of that 

defense. 

" (c) When the defendant is acquitted on the ground 

of mental disease or defect excluding responsibility, the verdict and the judgment shall so state." 

In addition, there is another separate statute regarding 

the notice requirement. Section 95-1803(3)(a), R.C.M. 1947, now 

section 46-15-301 (2) (a) MCA provides : 
"For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court, at the 

time of entering his plea of not guilty or within 

10 days thereafter or at such later time as the court 

may for good cause permit, a statement of intention 

to interpose the defense of mental disease or defect, 

self-defense, or alibi." 

Defendant argues that he was not required to give notice 

because he was proceeding under section 94-2-109, R.C.M. 1947, 

now section 45-2-203 MCA, which has no notice requirement. That 

statute provides: 

"A person who is in an intoxicated or drugged 

condition is criminally responsible for conduct 

unless such condition is involuntarily produced 

and deprives 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." 

Defendant's purpose in offering the testimony of the 

psychologist was to demonstrate that defendant, because of his 

history of alcoholism and alcoholic personality, would be more 

prone on a given occasion of intoxication to be deprived of the 

ability to appreciate the criminality of his conduct than would 

a person who had no such attributes. The psychologist could not 

have testified to defendant's intoxication at the time of the 

commission of the offenses with which he was charged because 

the psychologist did not see him at that time. The expert testimony could only have gone to the likelihood that if defendant 

had in fact been drinking heavily on the day of the crime, then 

the disease of alcoholism from which he suffers would make it 

more probable that his intoxication would prevent him from acting 

knowingly and purposely within the meaning of the statute defining the offense of burglary. Section 94-6-204, R.C.M. 1947, now 

section 45-6-204 MCA. We hold that the defense raised by this 

theory falls within the purview of the statutes requiring notice. 

The question of whether the defense of intoxication is 
elevated by an offer of expert testimony on a defendant's alcoholism in general to a defense of mental disease or defect requiring notice is a novel one. (We note at the outset that 

intoxication, strictly speaking, is not really a "defense", but 

"merely a fact which the jury can consider in determining the 

existence of a particular mental state". Commission Comment, 

section 94-2-109, R.C.M. 1947, now section 45-2-203 MCA. The 

cases and commentaries, however, speak of "the defense of intoxication", and we incorporate that term herein with its qualified 

meaning under Montana law.) In the only case we have found 

specifically addressing the issue of notice of the defense of 

intoxication, the court said: "The statute requires notice when 

the defense is based on alibi or insanity, and not when intoxication is used to negate specific intent. This provision would 

be applicable to a defense of intoxication only where defendant 

claimed insanity due to intoxication." People v. Cummins (1973), 

45 Mich.App. 601, 207 N.W.2d 150, 151. 

Cummins, supra, was a case in which an assault conviction 

was reversed because a defendant who had not given notice was 

precluded from raising intoxication as a mitigating factor. That 

is not the case here. In this case, numerous defense witnesses 

testified both as to defendant's alleged intoxication at the time 

of the crime and as to his alcoholism over the years. The testimony excluded, in the words of appellant's brief, would have gone 

to "the permanent damage done to defendant by his abuse of alcohol." 

We hold that where, as here, thedefense 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. 

Defendant argues that even if the notice requirement applies, 

the statutes allow for expert testimony despite noncompliance on 
a showing of good cause. Good cause is alleged in defense counsel's confusion over the distinction between intoxication at a 

specific time and alcoholism as a mental disease or defect. Defendant argues that any possible prejudice to the State which 

could have been caused by the unexpected testimony of his expert 

witness could easily have been cured by the granting of a continuance, and that it was therefore an abuse of discretion for 

the District Court to grant the State's motion for exclusion. 

We note that during oral argument of this appeal, defense 

counsel admitted having the information on which the expert was 

going to testify for some five weeks prior to trial, but did not 

make it available to the State nor endorse the psychologist as a 

witness until the day trial started. Further, it appears that 

the proferred testimony was of a nature that could not have reasonably been evaluated and countered in a short time. Under these 

circumstances, we find no abuse of discretion in the trial court's 

ruling. 

In addition, defendant argues that his Sixth Amendment 

right to present a defense was violated by the exclusion of the 

expert testimony. Defendant's contentions in this regard are 

unclear. He cannot argue that he was precluded from presenting 

the defense of intoxication because numerous lay witnesses testified on that issue. Expert testimony is not required to establish 

the defense of intoxication. By raising this Sixth Amendment 

claim, defendant apparently is attempting to force the court into 

a contradictory position. Nowhere does he claim that he was, in 

fact, raising a defense of mental disease or defect. However, 

he argues, if we conclude that such is the gist of his theory 

and hold that the notice requirement applies, then his Sixth 

Amendment rights are violated if we invoke his failure to give 

notice to bar him from presenting the defense of mental disease 

or defect. We find defendant's contentions to be without merit 

for the same reason we held there was no abuse of discretion in 
exclusion of the expert testimony; that is, that defendant 

attempted to spring this surprise witness on the State at the 

last moment rather than following the acknowledged customary 

practice in the thirteenth judicial district of making medical 

reports available to the State prior to trial. Under the circumstances present here, we hold that the exclusion of the 

expert testimony does not constitute a violation of defendant's 

Sixth Amendment rights. 

We now turn to the second issue on appeal; the alleged 

errors in instructions. Defendant argues that his intoxication 

negated the existence of the purpose to commit an offense which 

is an element of the crime of burglary, and that therefore he 

could only be convicted of mere criminal trespass or criminal 

mischief. Defendant cites State v. Bouslaugh (1978), Mont . 

, 576 P.2d 261, 262, 35 St.Rep. 319, 321 for the proposition 

that " . . . it is a fundamental rule that the court's instructions should cover every issue or theory having support in the 

evidence." Defendant also emphasizes language from Bouslaugh 

where we cited State v. Buckley (1976), Mont . , 557 P.2d 

283, 33 St.Rep. 1204, to the effect that a defendant is entitled 

to instructions on lesser included offenses if any evidence exists 

in the record which would permit the jury to rationally find him 

guilty of a lesser offense and acquit him of a greater. 

We agree with these principles. It is also a fundamental 

rule, however, that " . . . where an accused is either guilty of 

the offense charged or is entitled to an acquittal . . . an instruction on the lower offense is not necessary and is properly 

refused." 23A C.J.S. Criminal Law S1288(c). The court may not 

be put in error for refusing to instruct on a lesser offense in 

such cases. Bouslaugh, supra; State v. Baugh (1977), Mont . 

, 571 P.2d 779, 34 St.Rep. 1315; State v. McDonald (19151, 
51 Mont. 1, 149 P. 279. 

The offense of criminal trespass includes the element 

"knowingly". Section 94-6-203, R.C.M. 1947, now section 45-6- 

203 MCA. The offense of criminal mischief includes the elements 

"knowingly or purposely". Section 94-6-102, R.C.M., now section 

45-6-101 MCA. If defendant's intoxication defense had been 

believed by the jury, he could not have been convicted of burglary, criminal trespass, or criminal mischief. He was, therefore, 

either guilty of the offense charged or entitled to an acquittal. 

We find no error. 

Defendant also alleges error in the refusal of his offered 

instructions on diminished capacity due to intoxication, Defendant offered several alternative instructions, each of which contained language to the effect that where a defendant is charged 

with a crime which requires a certain conscious object or mental 

state, if evidence of defendant's intoxication raises a reasonable 

doubt that he did not have that mental state, he cannot be found 

guilty of the crime. The court instead gave instructions in statutory language for definitions of knowingly and purposely, and 

in the language of section 94-2-109, R.C.M. 1947, now section 45-2- 

203 MCA, concerning the effect of intoxication on criminal responsibility. In addition, the court instructed the jury that where 

knowledge and purpose are elements of a crime, a mental disease 

or defect or physical condition, from whatever cause, which might 

prevent one from knowing or having the purpose essential to the 

crime is to be considered. 

"In determining the effect of given instructions, all instructions must be considered as a whole, and if they fairly tender 

the case to the jury, the fact that one or more instructions standing alone is not as full or as accurate as it might have been is 

not reversible error." State v. Reiner (1978), Mont, I 

587 P.2d 950, 953-954, 35 St.Rep. 1861, 1864, citing State v. 

Caryl (1975), 168 Mont. 414, 543 P.2d 389, and earlier cases. 

- 10 - 
Having reviewed the instructions given here, we conclude that 

in their entirety they properly stated the law and fairly tendered 

the case to the jury. This specification of error is without 

merit. 

The final issue on this appeal goes to the sufficiency 

of the evidence to support defendant's conviction for criminal 

possession of marijuana. Defendant moved for a directed verdict 

of acquittal on that charge on the grounds that the "valtox kit" 

test used to identify the suspected substance is not specific 

for marijuana and therefore not conclusive. He contends that 

because the substance was never sent to the crime lab for positive 

identification, the State has not met its burden of proving beyond a reasonable doubt that it was in fact marijuana. The State 

concedes that the "valtox kit" test is not specific for marijuana 

but argues that when the test results are considered together 

with the testimony of the officer who performed the test, a prima 

facie showing was made that the substance was marijuana. The 

officer testified that his identification of the substance was 

based not only on the test results, but also on the characteristic 

odor of marijuana with which he was familiar from past experience 

in possession cases. 

We have reviewed many cases involving the burden of proving beyond a reasonable doubt the identity of a substance alleged 

to be marijuana. In only two of those cases do we find language 

indicating that absolute chemical identification is required to 

meet this burden of proof, and in both cases that language was 

dicta only. State v. Nelson (1977), Mont . 560 P.2d 897, 

34 St.Rep. 80; State v. Wind (1973), 60 Wis.2d 267, 208 N.W.2d 

357. On the other hand, numerous cases hold that marijuana is 

not difficult to characterize without chemical analysis and that 

testimony of officers who have had experience searching for and 

identifying marijuana is sufficient. Cf. Cory v. State (1975), 
0kl.Cr. 543 P.2d 565; State v. Maupin (1975), 42 Ohio St.2d 473, 

330 N.E.2d 708. A good general discussion of the cases in the 

area appears at Annot. 75 ALR3d 717. 

In our opinion, it is the far better practice to require 

that the suspected substance be identified by a state chemist 

to insulate against attacks which might be made on the reliability of the tests used to identify the marijuana. Cf. State 

v. Paulson (1975), 167 Mont. 310, 538 P.2d 339. In this case, 

however, no such attacks were made. Defense counsel here objected to introduction of the cigarettes into evidence on the 

grounds there was no showing they contained a prohibited substance, but he did not voir dire on the deputy's qualifications 

to identify marijuana or introduce any testimony or evidence to 

cast doubt on the efficacy of the valtox kit test. The identity 

of the substance went to the jury virtually without contrary 

evidence. Where, as here, there is credible evidence before the 

jury that the substance is marijuana and they have been properly 

instructed on the burden of proof, the defendant cannot complain. 

Affirmed. 

Chief Justice 

We concur: 

F Joseph B. Gary, ~i&rict 

J gel sitting in place of Mr. 

Justice Gene B. Daly.