No. 03-128
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 254
STATE OF MONTANA,
Plaintiff and Respondent,
v.
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
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