State v. Feltz

March 16 2010

DA 09-0245

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 48

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOSEPH DANIEL FELTZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC 2008-067
Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Mardell Ployhar,
Assistant Attorney General, Helena, Montana

Gina Dahl, Hill County Attorney, Lindsay Osborne, Chief Deputy
Hill County Attorney, Havre, Montana

Submitted on Briefs: February 10, 2010

Decided: March 16, 2010

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Joseph Feltz appeals his conviction in the District Court for the Twelfth Judicial

District, Hill County, of felony assault with a weapon. We reverse and remand for

further proceedings consistent with this Opinion.

¶2 Feltz raises the following issue on appeal: Did the District Court err when it

denied Feltz’s request to instruct the jury on misdemeanor assault as a lesser included

offense of felony assault with a weapon?

Factual and Procedural Background

¶3 On the evening of June 16, 2008, Feltz was involved in an altercation with his

girlfriend, Heather Green, and some of his neighbors at the Hacienda Trailer Court in

Havre, Montana. Feltz and Green got into an argument outside of Feltz’s trailer during

which Feltz and Green were shoving, punching and kicking each other. Several

witnesses also saw Feltz throw three unopened beer cans at Green. One of Feltz’s

neighbors, Ramona Champagne, attempted to break up the fight, but in the melee, Feltz

hit her in the head. Another neighbor, Zona McConnell, tried to pull Feltz off of

Champagne while Champagne’s daughter, Jona Bear, hit and kicked Feltz. Champagne

later received two stitches for a cut over her eyebrow.

¶4 Justin Doney, also a resident of the trailer court, testified at trial that he witnessed

three women beating on Feltz. Doney stated that Green was choking Feltz while he was

on the ground and that Green did not let go until Feltz was almost unconscious. Doney

further stated that he broke up the fight by pulling the women off of Feltz. Doney also

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testified that he saw Feltz grab a camouflage-handled knife out of his car and heard Feltz

threaten to stab the people in the area. Doney later saw Feltz throw the knife in his car.

¶5 McConnell testified that she saw Feltz go over to his car, grab a knife out of it and

head towards her and the others with the “blade out towards people.” She also described

it as a green camouflage knife. McConnell further testified that Feltz was swearing at

them and calling them names, and that she was scared. McConnell said she called 911

and then threw her cell phone at Feltz and ran away.

¶6 Another neighbor, Wayne Hewitt, testified that Feltz was on the ground “and there

was a whole bunch of ladies kicking him, beating him and stuff,” and that Feltz was

“[f]ighting for his life.” Hewitt stated that after the parties separated, Feltz went to his

car and attempted to drive away, but he hit a fence. Hewitt testified that he never saw a

knife. Champagne and Bear also testified that they did not see Feltz with a knife.

¶7 Phillip Pipestem witnessed the altercation while he was waiting for a ride to a

softball game. Pipestem testified that when Feltz approached him with the

camouflage-handled knife, Pipestem threatened to beat Feltz with one of the baseball bats

that Pipestem was carrying. Pipestem also testified that Feltz did not attempt to stab or

cut anyone with the knife, and that, eventually, Feltz threw the camouflage knife in his

car and pulled out a smaller knife.

¶8 Kenneth Erickson, the owner of the trailer court, testified that Doney called him

and told him that he needed to get over there because they were “killing each other.”

Erickson and his cousin, Travis Burchard, jumped in their truck and headed to the scene.

Erickson stated that when he arrived, Feltz “looked like he had the shit just kicked out of

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him.” Erickson testified that he saw Feltz grab a little black pocket knife and “barely”

show it to the other people present. Erickson asked Feltz to give him the knife, and Feltz

dropped it in his truck. Burchard testified that he also saw Feltz pull out a black pocket

knife. He stated that Feltz just held the knife at his side; he did not waive it around or try

to cut anyone.

¶9 Feltz testified in his own defense, stating that he had an argument with Green that

turned physical when she threw a pop can at him. Although he admitted hitting and

shoving Green, he described her as the aggressor. Feltz testified that he was trying to

leave when he was jumped by Green, and that is when McConnell, Champagne, and Bear

began beating him. Feltz claimed that he did become unconscious when Green choked

him and that he awoke on the ground with the four women kicking and hitting him. Feltz

admitted hitting Champagne in order to get her off of him. He claimed that he pulled out

the pocket knife to get the women to back away from him and that he did not attempt to

stab or cut them. He also explained that at one point he went to his car to get away, but

after he drove into a fence, he decided he was too intoxicated to drive. Feltz also claimed

that while he was still in his car, Green was smacking him through the driver’s side

window.

¶10 After the altercation, the police retrieved the small black folding pocket knife, but

they did not find the camouflage-handled knife. Feltz was taken to the hospital in an

ambulance. He suffered an abrasion, a scratch, and a small laceration, but did not have

any severe injuries.

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¶11 On June 18, 2008, Feltz was charged by Information with one count of felony

assault with a weapon for allegedly causing bodily injury to Green by hitting her with a

beer can, and one count of misdemeanor assault for hitting Champagne. On July 2, 2008,

the State added a second charge of assault with a weapon for causing McConnell

“reasonable apprehension of bodily injury” by threatening her with a knife.

¶12 A jury trial was held on January 14 and 15, 2009. During the settling of the jury

instructions, the District Court allowed the State to amend the charge involving

McConnell to allege that Feltz caused her a reasonable apprehension of serious bodily

injury rather than merely bodily injury. In addition, with respect to the charge involving

Green, the court instructed the jury on the lesser included offense of partner or family

member assault, a misdemeanor. Feltz requested that the court also instruct the jury on

the lesser included offense of misdemeanor assault with respect to the assault-with-a-

weapon count involving McConnell, but the court refused to do so. The District Court

did instruct the jury on the affirmative defense of justifiable use of force.

¶13 The jury returned a verdict of guilty on the charges of partner and family member

assault, misdemeanor assault, and felony assault with a weapon. On the felony charge,

the District Court designated Feltz a persistent felony offender and committed him to the

Montana State Prison for ten years with five years suspended. The court imposed six

month sentences on each of the misdemeanor offenses to run concurrent to Feltz’s

sentence on the felony offense. Feltz appeals his conviction arguing that the District

Court erred in instructing the jury.

Standard of Review

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¶14 The standard of review of a trial court’s refusal to give an instruction on a lesser

included offense is whether the trial court abused its discretion. State v. Johnson, 2008

MT 227, ¶ 12, 344 Mont. 313, 187 P.3d 662 (citing State v. Flores, 1998 MT 328, ¶ 40,

292 Mont. 255, 974 P.2d 124). District courts have broad discretion in formulating jury

instructions; however, that discretion is ultimately restricted by the overriding principle

that the jury instructions, taken as a whole, must fully and fairly instruct the jury

regarding the applicable law. State v. Azure, 2008 MT 211, ¶ 13, 344 Mont. 188, 186

P.3d 1269 (citing State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625).

Discussion

¶15 Did the District Court err when it denied Feltz’s request to instruct the jury on
misdemeanor assault as a lesser included offense of felony assault with a
weapon?

¶16 During the settling of the jury instructions, Feltz’s counsel requested that the

District Court instruct the jury that misdemeanor assault was a lesser included offense of

felony assault with a weapon for the count involving McConnell. Counsel argued that

the case came down to whether McConnell feared serious bodily injury or merely bodily

injury, thus a lesser included offense instruction was appropriate. The District Court

rejected Feltz’s proposed jury instruction on misdemeanor assault.

¶17 An instruction on a lesser included offense “must be given when there is a proper

request by one of the parties, and the jury, based on the evidence, could be warranted in

finding the defendant guilty of a lesser included offense,” rather than the greater offense.

Section 46-16-607(2), MCA; see also State v. Martinosky, 1999 MT 122, ¶ 18, 294 Mont.

427, 982 P.2d 440. Moreover, a defendant is entitled to a lesser included offense

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instruction if two criteria are met: (1) the offense must constitute a lesser included

offense as defined by § 46-1-202(9), MCA, and (2) there must be sufficient evidence to

support an instruction on the lesser included offense. State v. Cameron, 2005 MT 32,

¶ 20, 326 Mont. 51, 106 P.3d 1189.

The purpose of this rule is to ensure reliability in the fact-finding process.
It avoids the situation where the jury, convinced that the defendant is guilty
of some crime, although not necessarily the crime charged, convicts the
defendant rather than let his action go unpunished simply because the only
alternative was acquittal.

State v. Castle, 285 Mont. 363, 367, 948 P.2d 688, 690 (1997) (citing State v. Gopher,

194 Mont. 227, 230, 633 P.2d 1195, 1197-98 (1981)).

¶18 An included offense is one that “is established by proof of the same or less than all

the facts required to establish the commission of the offense charged.” Section

46-1-202(9)(a), MCA. “Facts” in this instance “refers to the statutory elements of the

offenses, not the individual facts of the case.” State v. Matt, 2005 MT 9, ¶ 13, 325 Mont.

340, 106 P.3d 530 (quoting State v. Beavers, 1999 MT 260, ¶ 30, 296 Mont. 340, 987

P.2d 371).

¶19 To be convicted of misdemeanor assault, a person must “purposely or knowingly”

cause a “reasonable apprehension of bodily injury in another.” Section 45-5-201(1)(d),

MCA. To be convicted of felony assault with a weapon, a person must “purposely or

knowingly” cause a “reasonable apprehension of serious bodily injury in another by use

of a weapon or what reasonably appears to be a weapon.” Section 45-5-213(1)(b), MCA

(emphasis added). In addition, “bodily injury” means “physical pain, illness, or an

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impairment of physical condition . . . .” Section 45-2-101(5), MCA. “Serious bodily

injury,” on the other hand, means bodily injury that

(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or
impairment of the function or process of a bodily member or organ; or
(iii) 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(66)(a), MCA.

¶20 Thus felony assault with a weapon differs from misdemeanor assault only in the

degree of the injury that is feared and the use of a weapon. There are no additional

elements that must be proven in order to obtain a conviction for misdemeanor assault that

are not included in the offense of felony assault with a weapon.

¶21 While the State concedes that misdemeanor assault qualifies as a lesser included

offense of assault with a weapon, it argues that the District Court correctly denied the

request for a lesser included offense instruction in this case because the evidence did not

support it. Relying on this Court’s decision in State v. Reiner, 179 Mont. 239, 587 P.2d

950 (1978), the State contends that an instruction on the lesser included offense of

misdemeanor assault need not be given where the evidence indicates that the only type of

injury that would be feared was serious bodily injury. Reiner, however, is distinguishable

from the instant case.

¶22 In Reiner, the defendant, armed with a .357 Magnum revolver, not only threatened

to kill the three individuals he thought were trespassing on the property he was

caretaking, he fired two shots at the ground near where they were standing. On that

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basis, the defendant was charged with three counts of aggravated assault pursuant to

§ 94-5-202(1)(c), RCM (1947).1 Reiner, 179 Mont. at 241-43, 587 P.2d 15 952-53.

During trial, the defendant offered an instruction on the lesser included offense of assault,

but the trial court refused his offered instruction and provided the jury with verdict forms

that permitted a finding of either aggravated assault or not guilty. Reiner, 179 Mont. at

251, 587 P.2d at 957.

¶23 We stated in Reiner that “the question of whether a bodily injury is ‘serious’

within the meaning of the criminal code definition is one of fact to be considered and

determined by the jury.” Reiner, 179 Mont. at 252, 587 P.2d at 958 (citing State v.

Fuger, 170 Mont. 442, 445, 554 P.2d 1338, 1340 (1976)). However, we rejected the

defendant’s claim in Reiner that he was entitled to an instruction on the lesser included

offense of assault because it was “clear that defendant put his victims in reasonable

apprehension of serious bodily injury by his menacing use of a .357 Magnum revolver.”

Reiner, 179 Mont. at 253, 587 P.2d at 958 (emphasis added).

¶24 Unlike Reiner where the defendant fired two shots near his victims and threatened

to kill them, there was evidence that Feltz did not hold the knife in a “menacing” manner,

nor did he try to stab or cut anyone with it. Also, the difference in the type of weapon

used in each case is significant. Faced with a .357 Magnum revolver that the defendant

had already fired twice, the victims in Reiner clearly had a reasonable apprehension of

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The offense of aggravated assault was the precursor to the offense of assault with a
weapon. Section 94-5-202(1)(c), RCM (1947), regarding aggravated assault provided:
“A person commits the offense of aggravated assault if he purposely or knowingly causes
reasonable apprehension of serious bodily injury in another by use of a weapon.”

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serious bodily injury. Whereas, in the instant case, depending on the fact-finders belief

of the evidence presented regarding the type and size of knife used and the manner in

which Feltz was holding that knife, a jury could conclude that McConnell only had a

reasonable apprehension of bodily injury.

¶25 Nevertheless, the State contends that “a person who fears being injured with a

knife would, at a minimum, apprehend ‘serious permanent disfigurement,’ and would

likely apprehend, ‘loss or impairment of the function or process of a bodily member or

organ’ and death.” Not so as the type of injury apprehended would depend on the size

and type of knife used and the manner in which the knife was being held. As noted

earlier in this Opinion, “the question of whether a bodily injury is ‘serious’ within the

meaning of the criminal code definition is one of fact to be considered and determined by

the jury.” Reiner, 179 Mont. at 252, 587 P.2d at 958.

¶26 In this case, the court took the elements of reasonable apprehension and serious

bodily injury out of the hands of the jury. In addition, in denying Feltz’s request for a

lesser included offense instruction, the judge stated:

It’s my thought, there’s a charge of assault by putting Zona
McConnell in reasonable apprehension of serious bodily injury by a
weapon. She said she received no injury. She was only in fear because of
the weapon. So the jury would decide if there was a weapon, and if there
was a weapon she was in reasonable apprehension of fear. If they don’t,
not guilty. I don’t see any evidence that assault would be a lessor [sic]
offense, because there is no evidence of that. [Emphasis added.]

However, the fact that McConnell was afraid is not the question here. The question is

whether she was afraid of bodily injury or serious bodily injury. There was no evidence

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presented here that McConnell feared for her life. While she testified that she was

scared, she did not testify that she feared permanent disfigurement or death.

¶27 Furthermore, the State’s theory is inconsistent. On one hand the State concedes

that assault is a lesser included offense of assault with a weapon and, on the other hand,

the State maintains that if a weapon is used, assault cannot be a lesser included offense

because the bodily injury feared would always be serious. Under this theory, the facts

encompassing the event where the weapon was used would be irrelevant.

¶28 We conclude that there was evidence in the record to support a misdemeanor

assault instruction in this case. Although Feltz admitted pulling a knife in self defense,

the size and type of knife used, the way he held it, whether he displayed it prominently,

and what he said while doing so were in dispute. The jury could have believed Feltz

pulled out a small pocket knife, held it at his side with the blade down, and did not make

threatening statements while doing so. Neither McConnell nor anyone else testified that

Feltz told McConnell he would kill her or that he was going to cut or stab her. And

McConnell did not testify that she feared for her life. In addition, neither of the other

women with her, whom McConnell claimed were likewise threatened by Feltz, reported

seeing a knife or hearing anything about a knife. They also did not report being

threatened by Feltz.

¶29 Based on this testimony, we agree with Feltz that a rational jury could have

concluded that McConnell was not actually in fear of serious bodily injury, or that such

fear was not reasonable in light of the circumstances. Accordingly, we hold that the

District Court erred in denying Feltz’s request to instruct the jury on misdemeanor assault

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as a lesser included offense of assault with a weapon, and we reverse and remand for a

new trial.

/S/ JAMES C. NELSON

We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE

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