Clarifying the Elements and Limits of Intimidation: State v. T. Dellar

Introduction

State of Montana v. Tommy Jonathan Seth Dellar, decided May 27, 2025, by the Supreme Court of Montana, establishes critical guidance on the crime of intimidation under § 45-5-203(1)(a), MCA. Dellar, charged with felony intimidation after making violent threats while receiving dialysis treatment, appealed on four grounds:

Whether evidence was sufficient to prove felony intimidation;
Whether disorderly conduct is a lesser-included offense of intimidation;
Whether Dellar’s counsel was ineffective for failing to seek misdemeanor assault as a lesser-included offense;
Whether the court erred in imposing a $50 victim surcharge without explicitly considering ability to pay.

The Court affirmed the conviction and addressed each issue, clarifying Montana law on threats, jury instructions, ineffective assistance claims, and fee imposition.

Summary of the Judgment

In a 5–0 opinion by Justice Laurie McKinnon, the Supreme Court of Montana:

Held there was sufficient evidence—viewed in the light most favorable to the State—that Dellar threatened a DaVita technician with the purpose of inducing her to remove him from dialysis, satisfying the elements of § 45-5-203(1)(a), MCA.
Determined that disorderly conduct (§ 45-8-101(1)(c), MCA) and misdemeanor assault (§ 45-5-201, MCA) are not lesser-included offenses of intimidation, because each offense requires proof of an element the other does not.
Rejected Dellar’s ineffective assistance claim concerning counsel’s failure to request an assault instruction, noting that assault is not a legally available lesser offense of intimidation.
Found no clear error in the District Court’s imposition of a $50 victim surcharge, concluding the court considered Dellar’s ability to pay by virtue of a stipulated waiver of other fees and the nominal amount of the surcharge.

Analysis

Precedents Cited

State v. Bennett, 2022 MT 73: Defines the de novo review standard for sufficiency of the evidence and the “light most favorable to the prosecution” test.
State v. Motarie, 2004 MT 285: Holds that a conditional threat need not be explicitly stated if it is inferable from context.
State v. Plenty Hawk, 1997 MT 285: Distinguishes a belligerent outburst from a purposeful threat intended to induce action.
State v. Denny, 2021 MT 104: Articulates the two-step test for lesser-included offenses: (1) legal possibility and (2) evidentiary support.
State v. Craft, 2023 MT 129: Reviews refusal to instruct on a lesser-included offense for abuse of discretion.
State v. Fehringer, 2013 MT 10: Addresses why disorderly conduct is not a lesser-included offense of assault.
State v. Gibbons, 2024 MT 63: Requires consideration of a defendant’s ability to pay fines, fees, or costs.

Legal Reasoning

The Court’s reasoning unfolded in four parts:

Sufficiency of Evidence: Under § 45-5-203(1)(a), MCA, intimidation requires (1) a communicated threat of physical harm, (2) with the purpose of inducing someone to act or refrain from acting, and (3) under circumstances that reasonably produce fear. The jury heard specific testimony from the victim, Ashley Cray, about Dellar’s violent language timed to his demand to be removed from dialysis. This testimony created a prima facie case of purposeful threat, distinguishing it from mere belligerence as in Plenty Hawk.
Lesser-Included Offenses:
- Statutory elements comparison: Disorderly conduct requires “disturbing the peace” by abusive language. Assault requires “reasonable apprehension of bodily injury,” including mental harm. Intimidation requires a threat with specific inducement purpose. Each statute contains at least one element not in the other, so neither disorderly conduct nor assault is a lesser-included offense of intimidation as a matter of law.
- Discretion to refuse instruction: Because disorderly conduct is not legally a subset of intimidation, the District Court did not err in denying that instruction.
Ineffective Assistance of Counsel: Dellar’s claim rested on counsel’s failure to request an assault instruction. The record shows assault is not a legally recognized lesser-included offense of intimidation. In the absence of any plausible strategic justification challengeable on the record, the claim was not ripe for direct appeal.
Victim Surcharge and Ability to Pay: Under Gibbons, a court must consider (a) nature of the offense, (b) defendant’s financial resources, and (c) burden imposed by the fee. Here the parties stipulated to waiver of all fees except the $50 victim surcharge. The District Court, noting the nominal amount and restorative-justice purpose, nonetheless imposed it. The Court concluded this process sufficiently addressed ability to pay.

Impact

Reaffirms rigorous application of the “lesser-included offense” test under § 46-1-202(9)(a), MCA, guiding trial courts on jury instructions.
Clarifies that a threat must be made with the express or inferable purpose of causing action or inaction, sharpening the boundary between general disorderly conduct and actionable intimidation.
Limits collateral review of record-based ineffective assistance claims on direct appeal where no plausible strategic justification is in the record.
Provides a model for handling stipulated fee waivers versus nominal statutory surcharges under the ability-to-pay framework.

Complex Concepts Simplified

Lesser-Included Offense: An offense whose legal elements are all found within, or are “the same or less than,” those of the charged offense. If the greater crime has additional elements, the lesser is not included.
Directed Verdict / Motion to Dismiss: A pre-verdict ruling asking the court to find the State’s evidence legally insufficient to go to the jury. Reviewed de novo in Montana.
Sufficient Evidence Test: Whether any rational jury, viewing the evidence in the prosecution’s favor, could find each element beyond a reasonable doubt.
Ineffective Assistance of Counsel: A claim that defense counsel’s performance fell below an objective standard of reasonableness, requiring both deficient performance and prejudice to the defense.
Victim Surcharge: A small fee imposed to fund victim-witness programs and restorative justice services. Courts must ensure the defendant can afford it but may impose nominal amounts even when other fees are waived.

Conclusion

State v. T. Dellar provides a comprehensive roadmap on the crime of intimidation in Montana:

Intimidation requires proof of a purposeful threat to induce performance or omission of an act.
Neither disorderly conduct nor assault qualifies as a lesser-included offense of intimidation under Montana law.
Record-based ineffective assistance claims must show some plausible strategic rationale or be reserved for post-conviction proceedings.
Court-imposed fees, including victim surcharges, must reflect a meaningful consideration of ability to pay but can be imposed in nominal amounts aligned with restorative-justice goals.

This decision will guide practitioners, trial courts, and juries in distinguishing threats that rise to intimidation from general disturbances of the peace, and it underscores the precision required in jury instructions and fee assessments.