                           No. 96-245
          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
         Plaintiff and Respondent,
    v.
STACY GENE HALL,
         Defendant and Appellant



APPEAL FROM:   District Court of the Second Judicial District,
               In and for the County of Silver Bow,
               The Honorable James E. Purcell, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Stacy G. Hall, pro se, Deer Lodge, Montana
               Deirdre Caughlan (stand-bycounsel), Butte, Montana
         For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               Pamela P. Collins, Assistant Attorney General,
               Helena, Montana
               Brad Newman, Deputy County Attorney, Butte,
               Montana


                           Submitted on Briefs: October 31, 1996
                                        Decided :   December 10, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing and West Publishing Companies.
     A jury in the Second Judicial District Court, Silver Bow
County, found Stacy Hall guilty of felony escape. He appeals. We
affirm.   Hall raises three issues on appeal.
     1.   Did the District Court abuse its discretion when it
allowed the State to cross-examine Dr. Peters regarding his opinion
on mental disease or defect and Hall's capacity to form the
requisite mental state to commit the offense of escape?
     2.    Did the District Court abuse its discretion when it
rejected Hall's proposed jury instructions?
     3.    Did the District Court abuse its discretion when it
instructed the jury on the definitions of purposely and knowingly
in accordance with   §   45-2-103(3),MCA?
                               BACKGROUND
     Hall was transferred from prison and placed at the Butte Pre-
Release Center.      On May    8, 1995, while   subject to official
detention, Hall walked away from the Center without authorization.
Three days later he was arrested and returned to Montana State
Prison.   Hall was charged with escape and pled not guilty.     At
trial, he argued that he suffered from a psychotic episode on the
day of his alleged escape and did not act purposely or knowingly.
     Hall   introduced the testimony of Dr. Bernard Peters, a
licensed psychologist.   Dr. Peters had performed court-ordered
psychological tests on Hall.    On direct examination, Hall ques-
tioned Dr. Peters about the results of the tests, which indicated
that Hall did not suffer from any neuropsychological problems and
that he was mentally healthy.
     On cross-examination, the State asked Dr. Peters if he had an
opinion as to whether Hall suffered from mental disease or defect
in May 1995. Hall objected, arguing that the opinion was for the
jury to decide.    The court overruled Hall's objection and Dr.
Peters opined that Hall did not suffer from mental disease or
defect, and that he had the capacity to act with knowledge or
purpose in May 1995. Hall appeals.
     1.   Did the District Court abuse its discretion when it
allowed the State to cross-examine Dr. Peters regarding his opinion
on mental disease or defect and Hall's capacity to form the
requisite mental state to commit the offense of escape?
     Hall contends that the court abused its discretion when it
overruled his objection, based on    §   46-14-213(2), MCA, and allowed
Dr. Peters to answer the question whether Hall suffered from a
mental disease or defect in May 1995. The State argues that          §   46-
14-213(2), MCA, does not prohibit the State's question.
     The standard of review for evidentiary rulings is whether the
district court abused its discretion.        State v. Gollehon (1993),
262 Mont. 293, 301, 864 P.2d 1257, 1263.       Under   §   46-14-102, MCA,
evidence of a mental disease or defect is admissible to prove
whether a defendant possessed a state of mind that is an element of
a charged offense. See State v. Cowan (1993), 260 Mont. 510, 516,
                                 3
861 P.2d 884, 888.      Hall called Dr. Peters as a witness and
introduced testimony concerning the diagnosis from a psychological
test designed to determine mental disorders. Hall did not ask Dr.
Peters whether Hall suffered from a mental disease or defect.
However, Hall raised the possibility to the jury of whether he
suffered from a mental disease or defect.
     Because Hall raised the issue of his mental state at the time
of his alleged escape, and centered his defense on that argument,
the State was entitled to clarify the issue by asking Dr. Peters
about Hall's mental condition in May 1995. Section 46-14-213(2),
MCA, does not prohibit the questions that the State asked Dr.
Peters.    The District Court did not abuse its discretion when it
allowed the State to cross-examine Dr. Peters concerning Hall's
mental disease or defect.
     Hall also argues that the court violated   §   46-14-213(2), MCA,
when it allowed Dr. Peters to give his opinion as to whether Hall
possessed the mental capacity to act purposely or knowingly in May
1995.     Hall failed to object to this question.        We will not
consider an argument raised for the first time on appeal. State v.
Santos (1995), 273 Mont. 125, 133, 902 P.2d 510, 514-15.
     2.   Did the District Court abuse its discretion when it
rejected Hall's proposed jury instructions?
     Hall argues that the court did not adequately instruct the
jury on his affirmative defense to escape. The State counters that
Hall's proposed instruction is not supported by Montana law and
that the jury was properly instructed on his defense.
     We review jury instructions in a criminal case to determine
whether the instructions, as a whole, fully and fairly instruct the
jury on the law applicable to the case. State v. Leyba (l996), 276
Mont. 45, 51, 915 P.2d 794, 797.         District courts have broad
discretion in formulating jury instructions. State v. Ross (1995),
269 Mont. 347, 358, 889 P.2d 161, 167.         While a defendant is
entitled to have instructions on his theory of the case, he is not
entitled to an instruction concerning every nuance of his argument.


     During   settlement   of   jury   instructions, Hall   submitted
proposed instruction number 1.    It stated:
     It is an affirmative defense that the defendant acted
     under the influence of extreme mental or emotional stress
     for which there was reasonable explanation or excuse, the
     reasonableness of which shall be determined from the
     viewpoint of a reasonable person in the actor's situa-
     tion.
     If you find that the defendant acted under the influence
     of extreme mental or emotional stress, then you must find
     him not guilty.
     The State objected to this proposed instruction, arguing that
it was an improper statement of Montana law.     The court sustained
the objection.    Hall then submitted a revised proposed         jury
instruction which stated:
     You are instructed that the defendant is charged with an
     offence [sic] which requires him to have acted with the
     mental state of purposely or knowingly.
     A person is not guilty of the offence [sic] of escape if
     you find that he did not act purposely or knowingly.
The State objected to the revised proposed instruction because it
was repetitive. The court sustained the objection.
    A defendant is entitled to a jury instruction regarding any
recognized defense for which there exists sufficient evidence for
a reasonable jury to find in his favor. Mathews v. United States
(1988), 485 U.S. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54, 61. In

Montana, extreme emotional distress is a recognized affirmative
defense to deliberate homicide and may reduce such a charge to
mitigated deliberate homicide.   See   §   45-5-103, MCA.   However, a
defendant's extreme mental or emotional distress is not a recog-
nized affirmative defense to escape.
     Hall argues that the court erred when it refused to give the
jury his revised proposed jury instruction.       A court can refuse
repetitious jury instructions.   State v. Larson (1978), 175 Mont.
395, 401, 574 P.2d 266, 270.   The jury received instructions that
evidence of a defendant's mental disease or defect is admissible to
prove that the defendant did not have the state of mind necessary
to prove an element of the offense with which he was charged. The
jury was also instructed that the State had to prove beyond a
reasonable doubt that Hall acted purposely or knowingly.           The
District Court did not abuse its discretion when it refused to
include Hall's revised proposed jury instructions, the contents of
which had already been included in two other instructions.
     Hall also argues that because the District Court refused his
proposed jury instructions, he was denied the ability to present an
adequate defense.   This is inaccurate.      Hall argued to the jury
that he lacked the required mental intent on May 8, 1995, to commit
the offense of escape due to extreme mental or emotional stress.
Through his own testimony and that of several witnesses, Hall
placed his mental state on May 8, 1995, into evidence.            The
District Court fully and accurately instructed the jury on the
offense of escape and did not prohibit Hall from raising an
adequate defense.
        3. Did the District Court properly instruct the jury on the
definitions of purposely and knowingly in accordance with § 4 5 - 2 -
103 ( 3 ) , MCA?
     Hall argues that proposed instruction number 17 was improper
because it instructed the jury to disregard any state of mind
requirement and made a mandatory presumption regarding the mental
state required to prove him guilty of escape.
     The District Court offered proposed instruction number 17
during    settlement of   instructions.   The proposed    instruction
stated:
     Purpose or knowledge is manifested by the circumstances
     connected with the offense.
     Purpose or knowledge need not be proved by direct
     evidence, but may be inferred from acts, conduct and
     circumstances appearing in evidence.
     Hall objected, claiming that proposed instruction number 17
requires the jury to ignore state of mind and does not advise that
purpose or knowledge are required mental intent.         The District
Court overruled Hall's objection.
     In instruction number 14 the jury was instructed that the
State must prove the element of purposely or knowingly beyond a
reasonable doubt. Instruction number 7 informed the jury that they
were to consider all of the instructions as a whole.          It was
unnecessary for the court to accept Hall's proposed instruction
                                  7
number 17 to repeat the language of instruction number 14, which
already informed the jury that the State must prove all elements of
the charged offense beyond a reasonable doubt.
     The jury was properly instructed in conformity with 5 45-2-
103(3), MCA, which provides, "The existence of a mental state may
be inferred from the acts of the accused and the facts and
circumstances connected with the offense." Because mental state is
rarely susceptible to direct proof, it must usually be inferred
from the facts testified to by witnesses and the circumstances
developed by the evidence.   State v. Smith (1987), 228 Mont. 258,
262-63, 742 P.2d 451, 453-54. The District Court did not abuse its
discretion when it gave instruction numbers 7 and 14 and refused to
give proposed instruction number 17.
     For the reasons stated in this opinion, we affirm.




We concur:
