No. 86-584 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

PI-aintif f and Respondent, 

-vsJAMES RINGMAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Bozeman, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Marty Lamhert, Deputy County Attorey, Rozeman 

Submitted on Briefs: Aug. 6, 1987 

Decided: November 5, 1987 

4%- # 

Clerk 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

This is an appeal from the District Court, Eighteenth 

Judicial District, Gallatin County. Appellant was convicted 

in the District Court of one count of felony assault, S 

45-5-202 (21, MCA, and one count of witness tampering, S 

45-7-206, MCA. We affirm. 

Defendant Ringman raises four issues on appeal: 

1. Did the trial court err in granting the State's 

motion in limine to exclude defendant's expert witness ' 

testimony that because of intoxication, defendant could not 

form the requisite intent that is an element of the crime of 

witness tampering? 

2. Did the trial court err in granting the State's 

motion to consolidate the charges of witness tampering and 

assault in the same trial? 

3. Did the trial court fail to properly instruct the 

jury on the law of self-defense as it concerns the 

defendant's duty to retreat? 

4. Did the trial court err in designating the defendant 

a dangerous offender? 

On March 11, 1985, defendant Bingman was tending bar at 

Mickee's Bar in Belgrade. Tony Wagner arrived at the bar at 

approximately 11:OO p.m. and began drinking whiskey. At one 

point the defendant asked Wagner to remove from the premises 

a gun he had brought with him. He did so immediately and 

returned to the bar. There is some indication that Wagner 

became belligerent and difficult sometime later. 

The events following are somewhat unclear. The 

defendant testified that he asked Wagner to go back to the 

office with him because he had begun playing with a knife and 
threatening the customers. Wagner denied that he threatened 

anyone. He stated that it was the defendant who had been 

talking about beating up another man who had a reputation as 

a "bad man." Wagner testified that he told defendant he was 

a "bad man" and he'd have to fight Wagner, too, whereupon the 

defendant took him back to the office so they could settle it 

like gentlemen. Defendant Bingman and Wagner each claim the 

other threw the first punch starting the fight that gave 

Wagner a broken nose; facial contusions and lacerations; 

various bruises; and a split open head. Bingman suffered 

only a slight reddish swelling on his face. Wagner does not 

remember what occurred but there is evidence that Bingman 

struck him with a pool cue and also punched him four or five 

times in the face with fists adorned with several iagsed 

rings. 

The police were called and Wagner was arrested for 

detoxification so that he could be taken to a hospital for 

treatment. The defendant was arrested for assault. 

The charge of witness tampering was based on events that 

occurred April 8, 1985. The defendant, out on bond, 

encountered Wagner in The Friendly Tavern in Belgrade. 

Testimony indicates Bingman offered Wagner a party, $1,000, a 

motorcycle and a trip out of town if he would promise to 

forego testifying to the assault. Wagner refused. The 

defendant was charged with witness tampering on a separate 

information. 

The State made a motion to consolidate the two causes 

pursuant to S 46-11-404 (1) , MCA. Judge Gary, who had been 

presiding over the assault charge, granted the motion to 

consolidate the charges in one trial. 

Issue I. 

Appellant first takes issue with the trial court's 

decision to exclude the testimony of appellant's expert 
witness, Dr. Kurtz, to show that defendant was under the 

influence of the drug Stadol at the time he committed the 

witness tampering. Appellant argues that this evidence would 

go directly to the defense of intoxication which prevented 

him from forming the requisite mental state. See S 45-2-203, 

MCA, (1985). It is unclear from the record what the 

substance of Dr. Kurtz's testimony would have been. We find 

compelling the State's argument that no offer of proof was 

made pursuant to Rule 103 of the Montana Rules of Evidence. 

Although the record does indicate the general nature of the 

intended direct examination, we can only guess what Dr. 

Kurtz's responses would have been. Generally, there can be 

no reversible error when the court cannot ascertain the 

evidence excluded by the granting of a motion in limine. 

Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613 

P.2d 982, 987. See also State v. Hall (1979), 183 Mont. 511, 

515, 600 P.2d 1180, 1182-83. There may be an exception to 

this rule, however, when the offer of evidence is refused on 

substantive grounds rather than evidentiary grounds. State 

v. Bay (Ariz. 1986), 722 P.2d 280, 283; Jones v. Pak-Mor Mfg. 

Co. (Ariz. 1985), 700 P. 2d 819, 827; State v. Kaiser (Ariz. 

1973), 508 P.2d 74, 76. 

In Bay, the Arizona Supreme Court held that because the 

question of whether the defense of insanity may be 

established solely by lay testimony was a question of 

substantive law, appellate review of an order denying expert 

testimony was permitted. Bay, 722 P.2d at 283-84. This is 

directly analogous to the instant case. The trial court 

determined that an expert witnesses could only testify to his 

or her personal knowledge of a particular incident of 

intoxication. Since Dr. Kurtz had not been present during 

the witness tampering incident he could not testify. The 

question becomes whether intoxication can be established 
solely by lay testimony. Accordingly, this falls within the 

exception and we will review this issue. 

This Court has pointed out that intoxication is not a 

defense, but merely a fact the jury may consider in 

determining the mental state of the defendant. State v. 

Ostwald (1979), 180 Mont. 530, 536, 591 P.2d 646 I 650. But 

for the purposes of our discussion and analysis, we will 

accept defendant's claim that his defense is not that of a 

mental disease or defect but purely that of gross 

intoxication at the time of committing the crime so as to 

negate the element of specific intent. Section 45-2-203, 

MCA, (1985) 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. 

It is the second sentence that is pertinent to this 

discussion. (As an aside, we note that this statute has been 

amended to preclude voluntary intoxication as a defense. 

Section 45-2-203, MCA, (as amended 1987) .) The sole issue, 

then, is whether the defense of intoxication may be 

established solely by lay testimony. We hold that it may. 

Expert testimony is not generally probative in a case 

where the intoxication does not rise to the defense of mental 

disease or defect. Unless the expert had personal knowledge 

of the incident he could not testify to defendant's 

intoxication at the time of the commission of the charged 

offense. State v. Ostwald (1979), 180 Mont. 530, 536, 591 

P.2d 646, 649. See State v. Gray (Mont. 1983), 659 P.2d 255, 

257, 40 St.Rep. 199, 202 (graphoanalyst's testimony 
irrelevant because she was unable to testify to mental state 

of defendant at time of commission of crime). Further, 

expert testimony is not required to establish the 

intoxication defense. Ostwald, 591 P.2d at 650. 

The defendant argues that if a person is so intoxicated 

that he cannot control his spoken words it has a direct 

bearing on whether he can form the requisite mental state. 

While this may contain some truth, an expert may not testify 

whether the defendant has the ability to conform his conduct 

to the requirements of the law. State v. Peavler (1981), 195 

Mont. 379, 382, 636 P.2d 270, 271. See also 5 46-14-213 (2), 

MCA, (1985). Peavler involved the defense of alcoholism that 

rose to mental defect or disease; the instant case involves a 

defense based on a particular incident of intoxication. But 

for the purposes of the content of expert testimony we make 

no distinction. It would be inconsistent to disallow such 

testimony regarding conduct in cases where intoxication rose 

to mental defect or disease but allow it where a single 

incident of intoxication was alleged purely to negate 

specific intent. 

Several witnesses, including the victim, testified to 

the issue of Bingman's intoxication at the time of his 

conversation in the Friendly Tavern. His girlfriend 

testified to witnessing him pass out on and off in the car on 

the way to the tavern and to witnessing him taking several 

shots of Stadol throughout the day and evening. The effects 

of the Stadol were described by both the defendant and his 

girlfriend. Even the victim said, "He [the defendant] looked 

to be drunk." 

This testimony amply supports defendant's defense. He 

was not prevented from presenting adequate evidence 

concerning his intoxication. The trial judge did not abuse 
his discretion in granting the State's motion in limine to 

exclude Dr. Kurtz's testimony. 

Issue 11. 

Appellant's next point of contention presents an issue 

of first impression in this jurisdiction. This case 

originated as two charges made by two separate informations. 

The two charges, felony assault and witness tampering, were 

consolidated for trial on the State's motion. Appellant 

argues that because the two causes were filed in different 

departments of the Eighteenth Judicial District, they were 

improperly joined and, as such, highly prejudicial. Section 

46-11-404, MCA, (1985) reads in pertinent part: 

(1) An indictment, information, or complaint may 

charge two or more different offenses connected 

together in their commission, different statements 

of the same offense, or two or more different 

offenses of the same class under separate counts. 

If two or more indictments, informations, or 

complaints are filed in such cases in the same 

court, the court may order them to be consolidated. 

(4) If it appears that a defendant or the state is 

prejudiced by a joinder of related prosecutions or 

defendants in a single charge or by joinder of 

separate charges or defendants for trial, the court 

may order separate trials, grant a severance of 

defendants, or provide any other relief as justice 

may require. 

Appellant's argument that the charges were not brought 

in the same court because they were brought in different 

departments of the Eighteenth Judicial District lacks merit. 

The division of multi-judge districts does not create 

multiple courts. The statutory language is clear. 

(2) The judges elected or appointed to hold office 

in each judicial district having more than one 

judge must divide the court into departments, 

prescribe the order of business, and make rules for 
the government of such court. Each department 

shall be numbered, and each judge shall be assigned 

to one of such numbered departments. (Emphasis 

supplied. ) 

Section 3-5-403 (2), MCA, (1985). 

The Eighteenth Judicial District is only one court in which 

both charges were brought. 

Appellant also argues that the two charges were 

improperly joined because they are not sufficiently 

"connected together in their commission." Section 

46-11-404 (I), MCA, (1985). This is an issue of first 

impression not yet addressed by this Court. Since Montana's 

joinder statute is similar to Rules 8 and 14 of the Federal 

Rules of Criminal Procedure, we will take some guidance from 

federal law and other jurisdictions with similar statutes. 

First, we must determine if joinder was proper under S 

46-11-404 (1). The Fifth Circuit was held that counts of tax 

fraud and witness tampering are "two or more transactions 

connected together." United States v. Scott (5th Cir. 1981), 

659 F.2d 585, 589. In that case, the court reasoned that the 

defendant Is attempted intimidation of a witness was for the 

sole purpose of escaping criminal liability on the tax 

counts. There was, then, a direct relationship between the 

two counts. 659 F. 2d at 589. We also find two cases from 

Kansas very persuasive. 

In State v. Moore (Kan. 1979), 602 P.2d 1359, the Kansas 

Supreme Court held that counts of aggravated robbery and 

kidnapping were "connected together" with the charge of 

corruptively influencing a witness and therefore were 

properly joined. The Kansas statute reads as follows: 

Two or more crimes may be charged against a 

defendant in the same complaint, information or 

indictment in a separate count for each crime if 

the crimes charged,. . . are of the same or similar 

character or are based on the same act or 
transaction or on two or more acts or transactions 

connected together or constituting parts of a 

common scheme or plan. 

Kan. Stat. Ann. S 22-3202 (1981). 

The Kansas court held that there could be joinder of two 

informations against a single defendant if the crime could 

have been joined in a single information. Moore, 602 P.2d at 

1361-62. The Kansas court reasoned that the charges were 

connected together because the robbery and kidnapping charges 

"precipitated" the corruptly-influencing-a-witness charge. 

This reasoning was also used to hold that joinder of 

aggravated assault and a subsequent attempted murder was 

proper. State v. Pondexter (Kan. 1983), 671 P.2d 539, 547. 

The attempted murder was an effort to prevent the victim of 

an earlier aggravated assault from testifying. Reasoned the 

court, "Clearly, the crimes charged in the earlier action 

precipitated the [attempted murder.]" Pondexter, 671 P.2d at 

547. 

Several federal courts have held joinder was proper in 

cases where the second charge is precipitated by a previous 

charge. See United States v. Ritch (1st Cir. 1978), 583 F.2d 

1179, 1181 (charge of bail-jumping or escape is sufficiently 

connected with previous crime if motive was to avoid 

prosecution and stems directly from the initial charge); 

Williams v. United States (9th Cir. 1959), 265 F.2d 214, 216 

(obstruction of justice charge was properly joined with 

charge of statutory rape when object was to affect victim's 

testimony concerning rape charge). 

This analysis is easily applied in the instant case. 

Bingman clearly was attempting to avoid criminal prosecution 

when he offered Wagner a party, a trip out of town, $1,000 

and a motorcycle. The assault charge provides a motive for 
and precipitates the tampering charge. We hold that the two 

charges were properly joined. 

Defendant argues that even if there was proper joinder 

under § 46-11-404(1), he was prejudiced by such joinder. The 

standard for analyzing prejudicial joinder is set out in 

State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190. 

Determining whether there has been prejudicial 

joinder involves weighing the prejudice incurred by 

the defendant because of a joint trial against the 

judicial economy resulting from a joint trial. 

This balancing process is left to the sound 

discretion of the trial judge. Absent a showing of 

abuse of that discretion, an appellate court should 

not substitute its judgment for that of the trial 

court. 

Campbell, 615 P.2d at 198. 

Interests of judicial economy greatly encourage joint 

trials. Campbell, 615 P.2d at 198. Further, the burden is 

on the defendant to show prejudice. State v. Orsborn (1976), 

170 Mont. 480, 489, 555 P.2d 509, 515. 

This Court has recognized three distinct types of 

prejudice that may result from joinder of charges against a 

single defendant. 

The first kind of prejudice results when the jury 

considers a person facing multiple charges to be a 

bad man and tends to accumulate evidence against 

him until it finds him guilty of something. The 

second type of prejudice manifests itself when 

proof of guilt on the first count in an information 

is used to convict the defendant of a second count 

even though the proof would be inadmissible at a 

separate trial on the second count. The third kind 

of prejudice occurs when the defendant wishes to 

testify on his own behalf on one charge but not on 

another. 

Campbell, 615 P.2d at 198. 

Appellant argues that the joining of the assault and 

witness tampering charges caused the jury to infer a criminal 
disposition on the part of the defendant or that he was a 

"bad man." This is rarely sufficient to warrant severance. 

Campbell, 615 P.2d at 198; Orsborn, 555 P.2d at 515. 

Appellant argues that this kind of prejudice was also 

compounded by the trial judge's apparent confusion over the 

various defenses presented by the defendant and that the jury 

would likewise be confused. It has been held that 

prejudicial error does not occur simply because the defendant 

had separate and distinct defenses to two different counts. 

Orsborn, 555 P.2d at 514. Similarly, we find no prejudice of 

this type. Appellant also makes the argument that the jury 

obviously used evidence of the witness tampering charge to 

convict the defendant of assault. The record shows no misuse 

of the evidence. 

Evidence of the assault charge would be admissible as 

showing motive in a trial on the witness tampering charge. 

Rule 404(b), M.R.Evid. Thus, the second type of prejudice is 

not present here. We do not find the defendant's arguments 

persuasive. 

The third type of prejudice set forth in Campbell is not 

at issue in this case. We hold that joinder was proper. 

Issue 111. 

Appellant next argues that Judge Gary incorrectly 

instructed the jury on the law of self-defense. He presents 

several objections to court's instructions nos. 20, 21 and 

22. We cannot pass on the merits of his objections, however, 

because the defendant failed to object to them at trial and 

thus did not reserve the issue for appeal. State v. Watson 

(Mont. 1984), 686 P.2d 879, 886, 41 St.Rep. 1452, 1460. 

It appears that appellant also objects to the refusal of 

his proposed instruction no. 10. 

INSTRUCTION NO. 10 
It is the law of this State that when a person is 

in his place of business or work and is not the 

aggressor, and is assaulted by another, he may, 

without any obligation on his part to retreat, 

repel1 [sic] force by force, whether to protect 

himself or others who may be present. 

It is not error for a trial court to refuse to give a 

requested instruction if other instructions given adequately 

cover the rejected instruction's legal theory. State v. 

Lagge (1964), 143 Mont. 289, 295, 388 P. 2d 792, 795. Nor 

must a trial court give repetitious instructions or instruct 

"on every nuance" of a defense theory. State v. Graves 

(Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 16. 

The thrust of the appellant's argument is that the 

court's other instructions required that the defendant 

retreat before use of force is justified, and that they 

assumed the defendant was the aggressor. These arguments are 

meritless. It is the law in Montana that the defense of 

justifiable force is not available to an aggressor unless he 

has withdrawn from the conflict and has already indicated to 

his assailant his desire to withdraw. Section 45-3-105, MCA, 

(1985). Retreat is not required if the defendant is not the 

aggressor. People v. Taylor (111.App. 1972), 279 N.E.2d 143, 

145; People v. Martinez (111.App. 1972), 283 N.E.2d 268, 271. 

Section 45-3-102, MCA, (1985); S 45-3-105, MCA, (1985). 

The court's instructions nos. 20 and 21 are direct 

quotes from SS 45-3-102 and 45-3-105, MCA. We fail to see 

how they misstated the law or misled the jury in any way. 

Instruction no. 21 further delineates the unavailability of 

self-defense to an aggressor. These instructions were 

properly given in light of conflicting testimony regarding 

who threw the first punch. State v. Bashor (19801, 188 Mont. 

397, 426, 614 P.2d 470, 486. Nowhere is it assumed that the 

defendant was the aggressor. 
Defendant's instruction no. 10 adds nothing to the other 

instructions given by the court delineating the theory of 

self-defense. The given instructions do not specifically 

preclude persons assaulted in their place of business from 

benefitting from the defense of justifiable force. Nor do 

they require retreat of anyone who is not the aggressor. If 

the given instructions as a whole properly tender the case to 

the jury, there is no reversible error. State v. Reiner 

(1978), 179 Mont. 239, 244, 587 P.2d 950, 953-54. The given 

instructions properly state the law and the giving of 

defendant's proposed instruction would be repetitious. 

Issue IV. 

Appellant lastly contends that the District Court erred 

in designating Bingman a dangerous offender. 

Under 46-18-404, MCA, the sentencing court must 

designate a defendant as nondangerous if: 

(a) during the 5 years preceding the commission of 

the offense for which the offender is being 

sentenced., the offender was neither convicted of 

nor incarcerated for an offense committed in this 

state or any other jurisdiction for which a 

sentence to a term of imprisonment in excess of 1 

year could have been imposed; and 

(b) the court has determined, based on any 

presentence report and the evidence presented at 

the trial and the sentencing hearing, that the 

offender does not represent a substantial danger to 

other persons or society. 

If an offender is designated as dangerous, the 

sentencing court must articulate its reasons. State v. 

Camitsch (Mont. 1981), 626 P.2d 1250, 1258, 38 St.Rep. 563, 

573; Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 

599, 600. 
On September 22, 1986, appellant was found to be a. 

dangerous offender. The trial court gave extensive reasons 

for its designation. 

I'd like to state that since my time on the bench 

of seven years, that this is the most vicious 

beating that I've ever encountered, and obviously, 

YOU have no respect for the law 

whatsoever.. . . You go out and attempt to tamper 

witness and the jury convicted you, and I believe 

the jury was right. I believe the jury was right 

on the conviction of the deadly weapon. 

Luckily you didn't kill that man. He was 

intoxicated, because you testified that he was 

helpless. You beat him in the office and you beat 

him in the kitchen, and it was the most vicious 

thing I've seen since I've been on the bench, and 

you obviously have shown by your conduct that you 

don't care about the law. You don't care about 

other citizens. You only care about James Bingman, 

your booze and your drugs and we'll give you an 

opportunity to dry out in the penitentiary. 

Appellant contends that the trial court improperly based 

its determination on an constitutionally infirm conviction 

obtained in 1973 without benefit of counsel. It is true that 

the sentencing court cannot rely upon unconstitutional 

convictions. State v. Herrera (1982), 197 Mont. 462, 468, 

643 P.2d 588, 592. It is also true that the defendant bears 

the burden of challenging matters contained in the 

presentence report. State v. Smith (Mont. 1985), 705 P.2d 

1087, 1092, 42 St.Rep. 463, 468. The only proof the 

defendant offered was his own self-serving testimony that he 

was not represented by counsel. 

Appellant also contends the presentence report contains 

hearsay and inaccuracies. Hearsay can be properly considered 

in sentencing. State v. D.B.S. (Mont. 1985), 700 ~.2d 630, 

639, 42 St.Rep. 770, 780-81. All inaccuracies were brought 

to the court's attention during the presentencing hearing. 
The trial court did not appear to rely on any particular 

offense or incident but instead emphasized the brutality of 

the assault, the subsequent witness tampering and a general 

inability to conform to the law. Even without the 

questionable presentence report incidents, there is 

substantial support for the dangerous offender designation. 

The trial court did not abuse its discretion. 

The judgment of the District Court is affirmed.