State v. RB" J" C.

No. 03-128

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 254

STATE OF MONTANA,

Plaintiff and Respondent,

R.B. “J” C., A Youth Under the Age of 18,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli, Cause No. DJ 2001-56
The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Larry D. Mansch, Mansch & McLaverty, PLLP, Hamilton, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, Micheal S.
Wellenstein, Assistant Attorney General, Helena, Montana; George Corn,
Ravalli County Attorney, Karen Mahar, Deputy County Attorney, Hamilton,
Montana

Submitted on Briefs: September 25, 2003

Decided: September 14, 2004

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 R.B. “J” C. (hereinafter “J”), a youth, was charged with two counts of felony Assault

with a Weapon. He filed a Motion to Dismiss Petition on the ground that the facts alleged

against him do not, as a matter of law, support the two counts. The District Court denied his

Motion. “J” appeals. We affirm.

ISSUE

¶2 A restatement of the issue before this Court is whether the District Court erred when

it concluded that a cigarette lighter was a “weapon” capable of producing “serious bodily

injury” and thereafter denying “J’s” Motion to Dismiss on this ground.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The facts in this case are undisputed. On August 11, 2001, when “J” was sixteen

years old, his mother asked him to babysit for his five-year old half-sister (hereinafter “M”),

and his two half-brothers, ages four and two. Over the course of the evening, “J” repeatedly

burned “M” with the heated metal tip of a cigarette lighter. After inflicting at least six burns

to her shoulder, arm, the inside of her thigh, and the bottom of one of her feet, he instructed

her to put aloe on the injuries and to tell no one what he had done. When their mother

returned home and noticed the multiple bandaids “M” was wearing, “M” told her she had

fallen while riding her bicycle.

¶4 A few days later, the mother took the young children swimming and discovered the

burns beneath “M’s” bandaids. At that time, “M” told her what “J” had done. The four-year

old child corroborated the story and said he was afraid that “J” was going to burn him and

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the younger child that evening as well.

¶5 On August 17, 2001, approximately one week after the burns were inflicted, “M’s”

mother reported the incident to “M’s” day care provider, who in turn notified the authorities.

On August 20, “M” was examined by a pediatric physician who diagnosed her with several

second degree burns that potentially could cause permanent scarring. On August 21, “J” was

taken into custody. He underwent a psychological evaluation, and on April 19, 2002, the

State charged him with two counts of Assault with a Weapon. One count was for causing

“M” to be in reasonable apprehension of serious bodily injury; the other was for causing his

four-year brother the same fear and apprehension.

¶6 On June 26, 2002, “J” filed a Motion to Dismiss on the ground that the facts alleged

against him did not, as a matter of law, support the two counts of assault. The State filed its

Response on July 25, and on August 29, 2002, the District Court issued its Opinion and

Order denying “J’s” Motion. “J” filed a timely notice of appeal.

STANDARD OF REVIEW

¶7 As indicated above, the issue before us on appeal is whether the District Court erred

in denying “J’s” Motion to Dismiss after concluding that a cigarette lighter was a “weapon”

capable of producing “serious bodily injury.” The District Court’s determination that the

lighter satisfied the statutory definition of “weapon” is a conclusion of law which we review

for correctness. Moreover, a district court’s denial of a motion to dismiss criminal charges

is also a matter of law which we review de novo, determining only whether the court

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correctly interpreted the law. State v. Smith, 2004 MT 191, ¶ 12, 322 Mont. 206, ¶ 12, 95

P.3d 137, ¶ 12.

DISCUSSION

¶8 “J” argues that the “unlit” lighter he used to burn “M” does not meet the statutory

definition of a “weapon” that is set forth in § 45-2-101(78), MCA. He further argues that

because the “unlit” lighter was not a weapon, he was erroneously charged with “Assault with

a Weapon” under § 45-5-213, MCA, and the District Court erred in denying his Motion to

Dismiss.

¶9 Section 45-2-101(78), MCA, defines “weapon” as “an instrument, article, or

substance that, regardless of its primary function, is readily capable of being used to produce

death or serious bodily injury.” Section 45-5-213(1), MCA, states that “[a] person commits

the offense of assault with a weapon if the person purposely or knowingly causes: (a) bodily

injury to another with a weapon; or (b) reasonable apprehension of serious bodily injury in

another by use of a weapon or what reasonably appears to be a weapon.” “Serious bodily

injury” is defined as a bodily injury that “creates a substantial risk of death; causes serious

permanent disfigurement or protracted loss or impairment of the function or process of a

bodily member or organ; or at the time of injury, can reasonably be expected to result in

serious permanent disfigurement or protracted loss or impairment of the function or process

of a bodily member or organ.” Section 45-2-101(65), MCA.

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¶10 “J’s” argument is predicated upon the fact that the lighter was unlit when he burned

“M,” and that an “unlit” lighter is not readily capable of producing death or serious bodily

injury; therefore he cannot, by law, be guilty of assault with a weapon.

¶11 The State counters that the lighter is “an instrument” that is “readily capable of being

used to produce death or serious bodily injury;” therefore it is a weapon under § 45-2-

101(78), MCA. The State concedes that had the lighter been defective or been out of fuel

and therefore incapable of being ignited, this may have precluded the lighter from being a

“weapon” under State v. Wilson (1997), 282 Mont. 134, 936 P.2d 316 (a broken, unloaded,

and inoperable BB gun was not a weapon under Montana law), or State v. Clemo, 1999 MT

323, 297 Mont. 316, 992 P.2d 1263 (an unloaded BB gun was not a weapon). However,

such was not the case. The lighter used by “J” contained sufficient fuel to ignite numerous

times in order to get the tip hot enough to burn “M.”

¶12 The District Court concluded that the cigarette lighter was a weapon because “[e]ven

though the flame was extinguished before the lighter was held against [“M’s”] body, the

lighter was readily capable of being used to produce serious bodily injury, had [“J”] relit it

next to [“M’s”] clothing, hair, or body.” The District Court continued that the Montana

Supreme Court has defined “weapon” broadly and “has upheld the determination that items

are weapons under the statutory definition even when serious bodily injury has not resulted

from their use; the potential to cause serious bodily injury is sufficient.”

¶13 While the lighter “J” used to burn “M” was unlit when he pressed it to her flesh, it

had been lit immediately prior in order to heat the metal tip to a temperature that would

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inflict pain and burn “M.” Despite her cries and pleas to stop, “J” burned “M” this way at

least six times. His two younger brothers witnessed the assaults and were afraid that they,

too, would be assaulted. There is no doubt that at the time “J” was using the “unlit” lighter

in this fashion, it was a weapon in the generic sense or as defined by the Merriam-Webster

Online Dictionary (i.e., “something used to injure”). We need now determine whether the

District Court correctly concluded that it met the statutory definition of “weapon.”

¶14 “J” relies on In Re R.L.S., 1999 MT 34, 293 Mont. 288, 977 P.2d 967, in which we

concluded that a package intended to look like a bomb but which had no explosive or

dangerous components was not a “weapon” under § 45-2-101(76), MCA, (later renumbered

as subsection (78)). Virtually the only portion of R.L.S. that is inapposite to the case before

us is its holding. In R.L.S., we explained that our role in construing a statutory definition is

“to ascertain and declare what is in terms or in substance contained therein, not to insert what

has been omitted or to omit what has been inserted.” We continued that “[w]here the

language is clear and unambiguous, the statute speaks for itself and we will not resort to

other means of interpretation.” R.L.S., ¶ 8. Lastly, we concluded that “a device is a weapon

under the plain meaning of § 45-2-101[78], MCA, if it is easily able to produce death or

serious bodily injury.” R.L.S., ¶ 9. In R.L.S., the fake bomb did not satisfy this definition.

In the case before us, an operable cigarette lighter containing fuel and being used as a device

to inflict pain or injury on “M,” and threatened to be used by “J” on his little brother, does

satisfy this definition. The District Court did not err when it so concluded.

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¶15 Lastly, “J” disingenuously maintains that because he did not actually inflict “serious

bodily injury” on “M,” he cannot be guilty of assault with a weapon. “J” is confusing assault

with a weapon with the crime of aggravated assault, § 45-5-202, MCA, which requires the

assailant to purposely or knowingly cause serious bodily injury to another. For one to

violate the assault with a weapon statute, § 45-5-213(1)(b), MCA, one need only purposely

or knowingly cause the victim “reasonable apprehension of serious bodily injury” by use of

a weapon or what reasonably appears to be a weapon. In R.L.S., we explained that

reasonable apprehension of a victim pertains to “whether the victim reasonably believes he

or she will be seriously bodily injured, not whether he or she subjectively believes that the

device or instrument used by the assailant is actually a weapon.” R.L.S., ¶ 14. In the case

before us, it is undisputed that both “M” and “J’s” four-year old brother who witnessed “J”

burning “M” viewed the hot lighter as a weapon and were frightened for their safety. The

four-year old even expressed fear for his younger brother’s safety. Whether such young

children can intellectually distinguish fear of “serious bodily injury” as defined by the statute

from fear of other obviously painful physical injury is irrelevant. There is no dispute that

these children were in reasonable apprehension of what they rightfully considered to be

“serious bodily injury.”

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CONCLUSION

¶16 For the foregoing reasons, we affirm the District Court.

/S/ PATRICIA O. COTTER

We Concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE