                           NO.    92-511
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1993


STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
WENDELL 0 GRAY,
         .
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas A. Olson, Judge presiding.




         For Appellant:
               Jennifer Bordy, Berry    &   Bordy,
               Bozeman, Montana
         For Respondent:
               Hon. Joseph P Mazurek, Attorney General,
                            .
               Cregg W. Coughlin, Assistant Attorney General,
               Helena, Montana; A. Michael Salvagni, Gallatin
               County Attorney, Marty Lambert, Deputy
               County Attorney, Bozeman, Montana


                             Submitted on Briefs:    March 4, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.
       Following a bench trial in the Eighteenth Judicial District
Court, Gallatin County, appellant Wendell 0. Gray was found guilty
of the crime of robbery, a felony, in violation of 5 45-5-401, MCA.
Gray appeals the court's final conviction and sentence entered on
July 23, 1992.      He also appeals the court's denial of motions for
evaluation at the Montana State Eospital at Warm Springs entered on
May 1, 1992.
       We affirm.
       Appellant presents two issues for this Court's consideration.
       1.   Did the District Court err in denying appellant's motion
to obtain a complete psychological evaluation under 5 46-14-202,
MCA?
       2.   Did   the District Court err at      sentencing by   not
determining whether appellant suffered from a mental disease or
defect at the time of the offense?
       On January 19, 1992, a store clerk noticed Gray looking into
the shoe store where she worked. Shortly thereafter, Gray entered
the store, browsed for a minute, and then approached the cash
register.    Gray concealed his right hand in his coat pocket and
handed the clerk a note which told her to give him the money and no
one would get hurt.        The store clerk believed that Gray was
concealing a gun or a bife in his coat.        She gave him all the
money in the cash register.      The store clerk testified that she
smelled alcohol on Gray during the robbery. Gray placed the money
in his coat and left the store.          Based upon Gray's physical

                                   2
description given by the store clerk, the police located Gray at a
local bar.   After the store clerk identified Gray at the police
station, he was arrested and charged with robbery.
     Because of a long history of mental health problems, Gray
filed a motion requesting an evaluation at the Montana State
Hospital at Warm Springs pursuant to 5 46-14-202, M A .   The State
requested that a local psychiatrist perform the evaluation to save
time. The court ordered Dr. Noel Haukebo, a local psychiatrist, to
perform the evaluation.
     After Dr. Haukebogs first evaluation, Gray made a second
motion for a more complete evaluation at Montana State Hospital
because Dr. Haukebo met with Gray for only one afternoon.      Gray
contended that this was inadequate, considering Gray's history of
mental illness.   The District Court held a hearing and took the
matter under advisement, but subsequently denied the motion.
     A bench trial was held on June 23, 1992.   After presentation
of the evidence, the District Court found that Gray did not suffer
from a serious mental disease or defect. The court recognized that
Gray had mental disorders, but concluded that the disorders did not
deprive him of the capacity to understand the nature and meaning of
the proceedings against him, or of his conduct on the day of the
robbery, and that Gray acted purposely and knowingly when he
committed the robbery.    The court found Gray guilty and sentenced
him to 15 years in the Montana State Prison without eligibility for
parole.   Gray appeals the aenial of the motions for evaluation and
the final conviction and sentence.
                                  I.
     Did the District Court err in denying appellant's motion to
obtain a complete psychological evaluation under 5 46-14-202, MCA?
     Section 46-14-202(I), MCA, provides that upon a written motion
by the defense requesting an examination:
     [Tlhe district court shall appoint at least one qualified
     psychiatrist or licensed clinical psychologist or shall
     request the superintendent of the Montana state hospital
     to designate at least one qualified psychiatrist or
     licensed clinical psychologist    . . .  to examine and
     report upon the defendant's mental condition.
     The statute gives the district court the discretion to appoint
either a qualified professional or order the Montana State Hospital
to evaluate the defendant. Absent an abuse of discretion we will
not disturb the order of the district court.
     In State V. Campbell (1985), 219 Mont. 194, 202, 711 P.2d
1357, 1362, cert. denied (1986): 475 U.S.   1127:   we held that the

district court did not err in denying appellant's motion for a
second psychiatric evaluation simply because appellant thought that
the results of the first evaluation were unfair.      We stated that
the statute does not provide for a second evaluation.      Cam~belL,
711 P.2d at 1362. Gray seeks a second evaluation because he claims
that the psychological evaluation was insufficient because of his
long history of mental illness.
     Section 46-14-202(3), MCA, provides that for the examination,
"any method may be employed that is accepted by the medical or
psychological profession for the examination of those alleged to be
suffering from mental disease or defect."     The record shows that
Dr. Haukebo is a qualified psychiatrist who testified at trial that
the examination he performed was a standard evaluation for those
asserting a mental disease or defect.       In his first report, Dr.
Haukebo stated that a person with such mental disorders should be
given a period of inpatient care to reduce the severity of his
illness.
     Contrary to Gray's allegation that he was seen only once, Dr.
Haukebo testified that he examined Gray on a second occasion the
day before trial.   In the second report, Dr. Haukebo stated that
Gray retained the capacity to understand the nature and meaning of
the proceedings against him and the possible outcome. Dr. Haukebo
further opined that Gray was not seriously mentally ill as defined
by Montana law and that Gray understood the criminality of his
behavior.   As we have stated previously:
     The spirit of the statute is to have a qualified
     professional examine a defendant for the purpose of
     evaluation.     Where that spirit is substantially
     fulfilled, as here, we can find no substantial
     interference with a defendant's rights and, thus, no
     reversible error.
State v. Buckman (1981), 193 Mont. 145, 150-51, 630 P.2d 743, 746.
     In this instance, the spirit of the statute was upheld.     We
hold that the District Court did not err in denying Gray's second
motion for a psychiatric evaluation at the Montana State Hospital.
                                11.
     Did the District Court err at sentencing by not determining
whether appellant suffered from a mental disease or defect at the
time of the offense?
     Gray contends that the District Court erred when it did not
consider his mental disease or defect at seneencing. Specifically,
Gray asserts that pursuant to our holding in State v. Raty (19841,
214 Mont. 114, 692 P.2d   17, and 5 46-14-311, MCA, the District

Court did not determine at sentencing whether Gray suffered from a
mental disease or defect at the time of the offense.
     At the close of the evidence, the District Court specifically
found that Gray did not suffer from a serious mental disease or
defect. The court did not further discuss Gray's mental condition
during the sentencing hearing, or in its written sentence and
judgment.    The only additional evidence regarding Gray's mental
condition presented during the sentencing hearing was Gray's own
testimony.
     Section 46-14-312(1), MCA, provides:
     If the court finds that the defendant at the time of the
     commission of the offense of which the defendant was
     convicted did not suffer from a mental disease or defect
     as described in 46-14-311, the court shall sentence the
     defendant as provided in Title 46, chapter 18.
     In this instance, the District Court was the trier of fact
making both legal and factual determinations.    All the evidence
regarding Gray's mental condition was presented during the bench
trial. The court made a specific finding that Gray did not suffer
from a mental disease or defect.
     Based upon the presentence investigative report, the District
Court sentenced Gray to 15 years at the Montana State Prison
without possibility of parole.      Attached to the presentence
investigative report were the psychiatric reports of Dr. Haukebo.
We hold that the District Court did not err in its consideration of
Gray's mental disease or defect at the time of the commission of
the offense.
     We affirm.



                                         Justice

We concur:
                                          May 25, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Jennifer Bordy
Berry & Bordy
2631 West Main St.
Bozeman, MT 59715

Hon Joseph P. M m ~ r e k Morney Genera!
                          ,
Cregg Coughlin, Assistant
Justice Bldg.
Helena, MT 59620

A. Michael Salvagni
Marty Lambert, Deputy
615 S. 16th Ave., Rm 100
Bozeman, MT 59715


                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT
                                                    STATE OF MONTANA
