No. 93-640
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs- SEP 20 1SS4
CHARLES FISCH,
Zd S m i d
C ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ E M E C O U
Defendant and Appellant. STATE OF MONTANA
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rienne H. McElyea: Berg, Lilly, Andriolo &
Tollefsen, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Asset Attorney General,
Helena, Montana
Michael Salvagni, Gallatin County Attorney,
Bozeman, Montana
Submitted on Briefs: July 6, 1994
Decided: September 20, 1994
Filed: -
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Justice Karla M. Gray delivered the Opinion of the Court.
appeals from a jury verdict and judgment of the
Charles ~ i s c h
Eighteenth ~udicial~istrict
Court, Gallatin County, convicting him
of the offense of aggravated assault. He asserts error in the
court's refusal to instruct the jury on the alleged lesser included
offense of negligent endangerment. We affirm.
Charles Fisch (Fisch) was charged with aggravated assault, a
felony, in violation of 5 45-5-202(1), MCA. He pleaded not guilty
and the case proceeded to a jury trial. In presenting its case,
the State of Montana ( S t a t e ) contended t h a t Fisch had knowingly or
purposely caused serious bodily injury to his stepson, LaShaun
Geehan (Geehan), by shooting him in the back with a .22 caliber
rifle. Geehan testified that the shooting arose out of an argument
he had with Fisch only moments before the shooting occurred.
Fischgs position was that his actions constituted negligent
conduct.
The District Court and counsel settled jury instructions
during the second day of the trial, The court refused Fisch's
proposed instruction that the offense of negligent endangerment is
a lesser included offense of aggravated assault; the court also
refused other negligent endangerment-related instructions offered
by Fisch.
The jury found Fisch guilty of aggravated assault. The
District Court sentenced him to 15 years in the Montana State
Prison on the aggravated assault charge, with 5 years suspended,
and 7 years1 imprisonment for using a weapon in the commission of
2
the offense, to run consecutively. The court also designated Fisch
a dangerous offender. Restitution in the amount of $16,160.94, for
Geehanfs medical expenses, was ordered as a condition of the
suspended sentence. Fisch appeals.
Did the District Court err in refusing Fischlsproposed
instruction that negligent endangerment is a lesser
included offense of aggravated assault?
A criminal defendant is entitled to an instruction on a lesser
included offense if, based on the evidence, the jury rationally
could find him guilty of the lesser offense and acquit him of the
greater offense. Section 46-16-607(2), MCA; State v. Sheppard
(1992), 253 Mont. 118, 123, 832 P.2d 370, 373. That entitlement is
premised on the offense actually constituting a lesser included
offense and the existence of sufficient evidence to support the
included offense. The issue before us here is the more fundamental
question of whether the District Court erred in concluding that
negligent endangerment is not a lesser included offense of
aggravated assault under § 46-1-202(8)(c), MCA.
Three alternative definitions of "included offenses,lf often
referred to as lesser included offenses, are contained in 5. 46-1-
2 0 2 (8), MCA. Fisch offered his proposed instruction that negligent
endangerment is an offense included in aggravated assault under
subsection (c) of that statute, which provides that an included
offense is one that ndiffers from the offense charged only in the
respect that a less serious injury or risk to the same person, , .
. or a lesser kind of culpability suffices to establish its
commission. ,
Section 46-1-202 (8)(c) MCA. We have not previously
addressed this specific statutory definition of an included
offense .
The offense of aggravated assault is committed if a person
"purposely or knowingly causes serious bodily injury to another."
Section 45-5-202(1), MCA. The offense of negligent endangerment is
committed when a person 18negligentlyengages in conduct that
creates a substantial risk of death or serious bodily injury to
another . . . ." Section 45-5-208(1), MCA. Fisch argues that the
offense of negligent endangerment requires a lesser mental state
and a lesser standard of harm than aggravated assault and, as a
result, that negligent endangerment is a lesser included offense of
aggravated assault under S 46-1-202(8)(c), MCA. We disagree.
The definition of included offense contained in 46-1-
202(8) (c), MCA, is written in the disjunctive and with an tlonly*v
qualifier. Thus, an included offense may differ from the offense
charged by way of a less serious injury or a less serious risk or
a lesser kind of culpability. In other words, an offense is an
included offense under § 46-1-202(8) (c), MCA, if it differs from
the charged offense in one, but only one, of the three ways set
forth in the subsection. This careful drafting permits an offense
which differs from the charged offense in only one significant
respect regarding degree to be an included offense; at the same
time, it prevents the "inclusion" of offenses which differ sharply
in several respects from the charged offense.
Fisch's underlying position is that two (or, perhaps, all
three) of the subsection (8)(c) variations in degree exist between
aggravated assault and negligent endangerment. Under an
appropriate reading of the statute, it is clear that even if Fisch
were correct as to the existence of these several differences,
negligent endangerment would not be a lesser included offense of
aggravated assault under 5 46-1-202(8)(c), MCA.
Moreover, Fischls premise that the "less serious injuryt1
criterion contained in 5 46-1-202(8)(c), MCA, is met here vis-a-vis
negligent endangerment and aggravated assault is incorrect. A less
serious injury than the "serious bodily injury" upon which this
charge of aggravated assault was based would be "bodily injury."
Indeed, the legislature has provided for an offense differing from
aggravated assault with respect to the degree of injury, namely,
assault. &-
=g 5 5 45-5-201(1) (a) - (b) , MCA.
Similarly, Fischls argument that the "less serious risk"
criterion of 5 46-1-202(8) (c), MCA, is met here also fails. First,
Fisch meshes the "less serious injury or risk1!components into one;
as discussed above, the construction of 5 46-1-202(8)(c), MCA, does
not support this approach. Second, the serious bodily injury upon
which the aggravated assault charge is premised is totally
unrelated to the seriousness of a "riskw defined in any statute.
A "risku element--of whatever degree--is altogether distinct from
an I1injuryII element; as used in the statute, a risk connotes
creating a dangerous situation or condition, while an injury
connotes the actual infliction of harm. Risks of varying degrees
would compare an element such as the "substantial riskt8 death or
of
serious bodily injury contained in the negligent endangerment
definition with, for example, a mere "risk" of death or serious
bodily injury. Here, Fisch's conduct--even if merely negligent--
did not create a risk; it inflicted an actual injury.
Finally, Fisch equates the "lesser kind of culpability"
criterion in 5 46-1-202(8)(c), MCA, to the mental state element of
the two offenses. He reasons that the "negligently engages in
conduct" element of negligent endangerment is a lesser degree of
culpability than the "purposely or knowingly causes" element of
aggravated assault. We need not resolve this question here.
Assuming arsuendo that Fisch is correct in this regard, this
lesser kind of culpability would be the only trait shared by the
two offenses; as discussed above, the other elements of the
offenses are qualitatively different and unrelated. Section 46-1-
202(8) (c), MCA, explicitly directs that an included offense may
differ from the offense charged only in respect to one of the
statutory variations.
The District Court correctly concluded that negligent
endangerment is not a lesser included offense of aggravated assault
under 5 46-1-202 (8)(c), MCA. As a result, no amount of evidence in
support of that offense could have entitled Fisch to a negligent
endangerment instruction under that statute. We hold, therefore,
that the court did not err in refusing Fisch's proposed instruction
on that basis.
Fisch also argues that negligent endangerment is a lesser
included offense of aggravated assault under the definition
contained in 5 46-1-202(8) (a), MCA. A proper analysis of that
issue would include application of the so-called Blockburser test
for determining whether an offense is a lesser included offense of
another offense. gee, e.g., State v. Arlington (Mont. 1994), 875
P.2d 307, 329, 51 St.Rep. 417, 433; citing Blockburger v. United
States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306.
As set forth above, however, Fisch did not offer his proposed
instruction pursuant to § 46-1-202(8)(a), MCA, in the District
Court. "It is axiomatic that a party may not change the theory on
appeal from that advanced in the district court." State v.
Henderson (Mont. 1994), 877 P.2d 1013, 1016, 51 St.Rep. 606, 607
(citation omitted). We decline to address the merits of this
argument.
AFFIRMED.
September 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by U i e States mail, prepaid, to the
ntd
following named:
Rienne H. McElyea
BERG, LILLY, ANDRIOLO & TOLLEFSEN, P.C.
910 Technoligy Blvd., Suite A
Bozeman, MT 59715
Michael Salvagni
Gallatin County Attorney
615 So. 16th
Bozeman, MT 59715
Hon. Joseph P. Mazurek, Attorney General
George Schunk, Assistant
Justice Building
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA