97-119

 No. 97-119

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

GORDON D. SELLNER, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

 In and for the County of Lake,

 Honorable C. B. McNeil, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 Don Vernay, Big Fork, Montana

 For Respondent:

 Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins,

 Assistant Attorney General, Helena, Montana

 Deborah Kim Christopher, County Attorney; Mitchell A. Young, 

 Deputy County Attorney, Polson, Montana 

 

 Submitted on Briefs: December 16, 1997 

 Decided: December 29, 1997

Filed:

 __________________________________________

 Clerk

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Chief Justice J. A. Turnage delivered the Opinion of the Court 

 In proceedings before the Twentieth Judicial District Court, Lake County, Gordon

D. Sellner was charged with attempted deliberate homicide and criminal endangerment. 

A jury found him guilty of attempted deliberate homicide, and he appeals. We 

affirm. 

 Sellner argues that his trial counsel failed to request jury instructions on 

attempted

mitigated deliberate homicide and aggravated assault as lesser included offenses, 

thus

violating Sellner's right to effective assistance of counsel.

 BACKGROUND

 On the evening of June 27, 1992, a Lake County, Montana, resident called the

local sheriff's office to report that he had been assaulted at his home. He 

identified John

Dorin as his assailant. Missoula County Deputy Sheriff Robert Parcell was the 

closest

officer to the scene and the first to respond to the call. 

 Parcell drove first to Dorin's home and spoke with him. Dorin maintained that

he had been working at Sellner's sawmill that day and denied assaulting the victim. 

Parcell then went to the victim's home, where the victim continued to maintain that 

it was

Dorin who had assaulted him and identified Sellner as a witness. He also told 

Parcell

that the assault had ended after his dog bit Dorin on the face. Two other law 

enforcement officers, also responding to the victim's phone call, arrived at the victim's 

house. 

The three officers returned to Dorin's home. After questioning him further and 

noting

a wound on his cheek consistent with a dog bite, they arrested him. They then went 

to

Sellner's house to get a statement from him.

 Parcell did not know at that time that Sellner had not paid federal income 

taxes for

nearly twenty years as a protest against abortion rights, or that Sellner did not 

have a

driver's license because he believed that he had the right to refuse to enter such 

contracts

with the government. As a result of the positions he had taken on those and other

matters, Sellner avoided contact with law enforcement. 

 Sellner was not home, but his wife told Parcell where he had gone and with 

whom. 

Because it was getting late and it was a stormy night, Parcell and the other officers

decided to wait until morning to find Sellner and interview him. As they drove away,

they saw the vehicle in which they believed Sellner was riding, on the road heading

toward Sellner's home. Activating his overhead lights, Parcell pulled the car over. 

Sellner, who was a passenger in the vehicle, jumped out of the car and fled into the

woods. Parcell got out of his vehicle and shouted for Sellner to stop. On his way 

into

the woods, Sellner turned and shot Parcell in the chest with the .41 caliber handgun

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which he carried with him. A brief exchange of gun fire ensued between Sellner and

Parcell, ending when Sellner fired into the air before taking off through the woods 

toward

his home.

 Because Parcell was wearing a bulletproof vest, he survived the shooting. The

force of the bullet created a gaping wound in his chest, however, and he was 

transported

to the nearest hospital.

 For over three years, Sellner remained at large but under surveillance. He was

finally arrested in a July 1995 undercover operation at his home. During 

surveillance of

Sellner just before his arrest, he fired a gun into the woods where law enforcement

officers were stationed. That incident was the basis for the criminal endangerment 

charge

of which the jury acquitted him.

 Before trial, Sellner was referred by the court for a psychological evaluation 

at the

Montana State Hospital. It was the opinion of the professionals at the State 

Hospital that

Sellner did not suffer from a mental disease or defect and that he retained the 

ability to

act with knowledge and purpose at the time of the charged conduct. Their report

concluded that when Sellner shot Parcell "he felt under extreme stress and may have

acted with poor judgment for that reason." However, the fearful state of mind 

Sellner

reported when he shot Parcell was "not the result of mental disease or defect but is 

better

understood in the context of his political/religious environment."

 Sellner's trial lasted a full week. He testified on his own behalf that he shot

Parcell after he heard a voice in his head say, "He's got his flack jacket on. 

Shoot him

in the chest and you won't hurt him." As noted above, the jury found him not guilty 

of

criminal endangerment but guilty of attempted deliberate homicide. Stating its 

intent "to

provide the maximum protection for the peace officers of this State," the court 

sentenced

Sellner to life in prison plus ten years for use of a dangerous weapon.

 Discussion

 Did Sellner's trial counsel fail to request jury instructions on attempted 

mitigated

deliberate homicide and aggravated assault as lesser included offenses, thus 

violating

Sellner's right to effective assistance of counsel?

 Claims of ineffective assistance of counsel are analyzed under the two-part 

test set

forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674. To prove ineffective assistance of counsel, the defendant must first establish 

that

his counsel's performance was not within the range of competence demanded of 

attorneys

under similar circumstances. Strickland, 466 U.S. at 687. Second, the defendant 

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must

show that but for the inadequate performance of his counsel, the result would have 

been

different. Strickland, 466 U.S. at 694.

 Sellner cites õ 46-16-607, MCA, which provides:

 (1) The defendant may be found guilty of an offense necessarily

 included in the offense charged or of an attempt to commit either the

 offense charged or an offense necessarily included in the offense charged.

 (2) A lesser included offense instruction 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. 

 (3) When a lesser included offense instruction is given, the court

 shall instruct the jury that it must reach a verdict on the crime charged

 before it may proceed to a lesser included offense. Upon request of the

 defendant at the settling of instructions, the court shall instruct the jury 

that

 it may consider the lesser included offense if it is unable after reasonable

 effort to reach a verdict on the greater offense. 

Sellner contends that his trial counsel rendered ineffective assistance of counsel 

in failing

to request jury instructions on aggravated assault and attempted mitigated deliberate

homicide as lesser included offenses to attempted deliberate homicide.

 Notwithstanding Sellner's argument on appeal, the record demonstrates that

Sellner's trial counsel did request and offer instructions on attempted mitigated 

deliberate

homicide, without objection by the State. The court gave the defense's offered

instructions on this subject as Jury Instruction Numbers 9, 10, and 11. Sellner's

argument that his trial counsel failed to offer jury instructions on attempted 

mitigated

deliberate homicide is therefore completely baseless.

 Attempted deliberate homicide requires proof that the defendant had the purpose

to cause the death of another human being and acted toward purposely or knowingly

causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA. 

"Purposely" means it was the defendant's conscious object to engage in that conduct 

or

to cause that result. Section 45-2-101(63), MCA. A person acts knowingly with 

respect

to a given result when the person is aware of a high probability that the result 

will be

caused by the person's conduct. Section 45-2-101(34), MCA. 

 Aggravated assault is defined at õ 45-5-202(a), MCA: "A person commits the

offense of aggravated assault if the person purposely or knowingly causes serious 

bodily

injury to another."

 Sellner points out that in State v. Swan (1996), 279 Mont. 483, 928 P.2d 933, 

this

Court interpreted õ 46-16-607, MCA, to require any lesser included offense 

instruction

to be supported by the evidence introduced at trial. He argues that the evidence in 

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this

case warranted and supported a lesser included offense instruction on aggravated 

assault.

 In Swan, this Court ruled that there was no proof that the performance of

defendant's counsel was deficient when counsel did not request a lesser included 

offense

instruction on simple assault in a case in which the charge was aggravated assault. 

Swan,

928 P.2d at 937. We noted that the permanent injuries inflicted on the victim, 

including

scarring on his face, continuous tearing of one eye, and sagging of the eye, were

uncontested. We stated that defense counsel "properly interpreted the law in 

determining

that there was not evidence to support a jury finding of the lesser included offense 

of

assault." Swan, 928 P.2d at 937.

 After briefing for this appeal was completed, this Court issued its opinion in 

State

v. Castle (Mont. 1997), ___ P.2d ___, 54 St.Rep. 1194. In Castle, the Court held 

that

assault is a lesser included offense of deliberate homicide, but that an instruction 

on

assault must be given only when there is a basis from which a jury could rationally

conclude that the defendant is guilty of the lesser, but not the greater, offense. 

Castle,

54 St.Rep. at 1196. In Castle, there was evidence that injuries inflicted by other 

persons,

not the defendant, caused the victim's death, although it was conceded that Castle 

caused

some injuries to the victim.

 In the present case, the evidence introduced at trial would not have supported 

the

giving of an instruction on aggravated assault. Unlike the defendant in Castle, 

Sellner

unequivocally admitted that he, not any other persons, caused the injuries to the 

victim. 

Sellner testified that when he saw the flashing lights on the three vehicles, he 

figured they

were a hit team hired by the government to "wipe me out," although his brother-inlaw,

who was driving, speculated aloud that perhaps they were being pulled over because he

had been speeding. Sellner admitted that he fired the first shot, believing that he 

was in

a life-and-death situation. Sellner testified that he was lying on the ground as he 

shot at

the silhouette of the officer who got out of the car, and that each time the officer 

(Parcell)

fired back at him, he shot again, aiming for the chest.

 The physician who treated Parcell in the emergency room testified that had 

Parcell

not been wearing a bulletproof vest, there was a significant risk that the largecaliber

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gunshot wound to his chest would have resulted in his death. Because Parcell was 

more

than thirty miles from the nearest hospital when he was shot, the doctor testified, 

the

bullet would have been lethal if Parcell had not been wearing the bulletproof vest. 

A

forensics examiner testified that the bullet lodged in Parcell's bulletproof vest 

was a .41

magnum soft-point bullet and that the purpose of the soft point is to cause more

destruction. 

 The evidence demonstrated that Sellner, a veteran of the Korean Conflict, was

experienced with weapons and could be expected to realize the effect of shooting a 

person

in the chest with a .41 magnum soft-point bullet. From the evidence presented at 

trial,

it would be irrational to conclude that Sellner's shooting of Parcell in the chest 

with a

large caliber soft-point bullet was done with any intent other than to cause a 

person's

death. Notwithstanding the argument of the dissent, Sellner's statement that a 

voice told

him he would not hurt Parcell if he shot him in the chest would not have supported a

conviction of aggravated assault--if anything, it would have supported an 

acquittal. We

conclude that no jury rationally could have found Sellner guilty of aggravated 

assault but

not guilty of attempted deliberate homicide. 

 Counsel is not constitutionally required to present an argument which is 

contrary

to the law and which would have been properly overruled. State v. Hildreth (1994), 

267

Mont. 423, 884 P.2d 771. Because Sellner has failed to demonstrate that the 

evidence

would have supported the giving of an aggravated assault instruction, he has not

established that his counsel's performance was outside the range of competence 

demanded

of attorneys under similar circumstances. Therefore, we need not reach the second 

prong

of the Strickland test, and Sellner's claim of ineffective assistance of counsel 

fails.

 Affirmed.

 /S/ J. A. TURNAGE

We concur: 

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

 Justice James C. Nelson dissents.

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 While, for the reasons set forth in Justice Karla M. Gray's dissent, I did not 

join

the majority in State v. Castle (Mont. 1997), ___ P.2d ___, 54 St. Rep. 1194, our

opinion in that case is, nevertheless, now the law of this State and, absent our 

overruling

that decision, we are bound to follow it. Based upon Castle, I conclude that 

Sellner's

trial counsel rendered ineffective assistance by not offering a lesser included 

offense

instruction on aggravated assault.

 In Castle we stated:

 A defendant may be convicted only of the "greatest included offense about

 which there is no reasonable doubt." Section 46-16-606, MCA. A

 defendant is therefore entitled to an instruction on a lesser included offense

 if any evidence exists in the record from which the jury could rationally

 find him guilty of the lesser offense and acquit of the greater. Section 46-

 16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d

 626, 628. 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.] Gopher [(1981), 194

 Mont. 227, 231], 633 P.2d [1195,] 1197-98.

Castle, 54 St. Rep. at 1195-96.

 Within the context of those general principles, we then engaged in a two-step

analysis. First, we determined that the offense of assault, õ 45-5-201, MCA 

(typically

charged as a misdemeanor) is a lesser included offense of deliberate homicide, õ 45-

5-

102, MCA, a felony. We reached that conclusion by rejecting the State's argument 

that

we simply apply the traditional "elements" test enunciated in Blockburger v. United 

States

(1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Instead, we directed our attention

to the broader definition of "included offense" contained in õ 46-1-202(8), MCA. We

pointed out that, while subsection 8(a) of this statute included the Blockburger 

test,

subsection 8(c) defines "included offense" as one that "differs 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." We then pointed out that 

the

only difference between assault and deliberate homicide is that þa þless serious 

injury .

. . suffices to establishþ the crime of assault.þ Castle, 54 St. Rep. at 1196 

(quoting õ 46-

1-202(8)(c), MCA). Accordingly, under the rationale articulated in Castle, the 

offense

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of aggravated assault is clearly a lesser included offense of deliberate homicide. 

Like

assault, the only difference between aggravated assault and deliberate homicide is 

that a

"less serious injury . . . suffices to establishþ the crime of aggravated assault.

 As the second prong of our analysis in Castle, we next focused on whether there

was some basis in the evidence from which a jury could rationally conclude that the

defendant was guilty of the lesser, but not the greater offense, thus necessitating 

the

giving of the lesser- included-offense instruction. We answered that inquiry in the

affirmative in Castle, and we must, likewise, do so in the case at bar. As the 

majority

points out, there was evidence presented in the instant case that not only was 

Sellner

acting with poor judgment under extreme stress because of his political/religious

environment when he shot at Deputy Parcell, but also that, in his own mind at least,

Sellner believed that the Deputy was wearing a flack jacket and that if he shot him 

in the

chest the officer would not be hurt.

 While this evidence might be inherently weak and implausible, nevertheless, this

was Sellner's theory of defense, and it was up to the jury to decide who and what to

believe. Again, a defendant is entitled to an instruction on a lesser included 

offense if

any evidence exists in the record from which the jury could rationally find him 

guilty of

the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; Castle, 54 

St.

Rep. at 1195; Fisch, 881 P.2d at 628. In my view, and regardless of how I, as a 

judge,

might evaluate this evidence, a jury of twelve lay persons could rationally have 

concluded

that Sellner was not guilty of attempting to kill Deputy Parcell, but, rather, was 

only

guilty of doing or attempting to do him serious bodily injury. In point of fact, in 

this

very case, after deliberating some ten hours, the jury acquitted Sellner of one of 

the

offenses with which he was charged--i.e., the felony offense of criminal 

endangerment. 

Accordingly, I suggest that the jury's decision was not quite the "slam-dunk" that 

the

majority portrays it to be and that the fact finders should have been given the 

opportunity

to rule on the full range of Sellner's defense theory.

 Finally, in the context in which this issue is presented on appeal--ineffective

assistance of counsel--I also conclude that, in failing to offer a lesser-includedoffense

instruction on the basis of aggravated assault, Sellner's trial counsel (who was 

not the

same person as appellate counsel) was not performing within the range of competence

demanded of attorneys under similar circumstances and that, by reason of this 

inadequate

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performance, Sellner suffered prejudice. Strickland v. Washington (1984), 466 U.S.

668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674.

 As to the first Strickland prong--inadequate performance--given the facts of 

this

case and the nature of Sellner's defense; given the black-letter law set out in õõ 

46-16-

607 and 46-1-202(8)(c), MCA; and given our decision in Fisch, I would hold that the

performance of defendant's trial counsel was not commensurate with the range of

competence demanded of attorneys under similar circumstances. Keep in mind that

Sellner admitted shooting Deputy Parcell and that, absent the jury believing he shot 

the

officer in self-defense and, thus, totally exonerating his conduct on the basis of 

his

"conspiracy" theory, Sellner was, in all probability, going to be convicted of some

criminal act. It appears that even Sellner did not hold out much hope for a 

complete

acquittal on the basis of self-defense. Since he also offered an attempted mitigated

deliberate homicide lesser-included-offense instruction, he obviously was not 

pursuing the

tactic of trying to force the jury into an "all or nothing" verdict by not offering 

any

lesser-included-offense instructions. Moreover, there was some evidence presented at

trial that Sellner was only attempting to injure, rather than kill Deputy Parcell 

and that

his state of mind was consistent with the lesser offense of aggravated assault.Given 

all

of these circumstances, it is hard to imagine why a competent criminal defense 

attorney

would not have offered the lesser-included-offense instruction of aggravated 

assault. If

there was a down side of doing so given the facts of this case, I am hard pressed to

determine what it would have been. The jury could still have acquitted Sellner on 

the

basis of justifiable use of force. However, as an alternative to attempted 

deliberate

homicide and attempted mitigated deliberate homicide, they also could have been given

the opportunity to consider convicting Sellner of aggravated assault--had the lesserincluded- offense instruction been offered. Proposing such an instruction would 

not have

been inconsistent with the evidence or with Sellner's "try for acquittal, but also 

cover all

other bases" trial strategy. If the judge refused to give the offered instruction, 

the issue

would have been preserved for direct appeal; if the judge gave the instruction and 

the jury

found Sellner guilty of a lesser offense of aggravated assault, he would have been 

subject

to a substantially shorter prison term; and if the jury rejected aggravated assault 

in favor

of one of the other two greater crimes, Sellner would have been no worse off than he 

is

now. Offering the lesser-included-offense instruction on aggravated assault was 

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simply

a "win-win" decision; and trial counsel was not performing within the range of

competence demanded of attorneys under similar circumstances when he failed to do so.

 As to the second prong of Strickland--prejudice--obviously, by reason of his

counsel's inadequate performance, Sellner was deprived of any chance to have the jury

conclude that he was guilty of a lesser crime than attempted deliberate homicide or

attempted mitigated deliberate homicide and of a concomitant opportunity to be not

sentenced to life in prison for the former offense or to a 40-year prison term for 

the

latter. Had trial counsel offered the lesser-included-offense instruction, the 

result of this

case may have been a good deal more favorable to Sellner--he may only have been

convicted of aggravated assault and subjected to a sentence of 20 years in prison or 

less. 

Hence, prejudice is clearly apparent here.

 On the basis of the foregoing, I would hold that Sellner was deprived of 

effective

assistance of counsel, and I would reverse and remand for a new trial. It is said 

that hard

cases make bad law and result-oriented decisions. This is such a case; and we have.

 I dissent.

 /S/ JAMES C. NELSON

Justices Karla M. Gray and William E.Hunt, Sr., join in the foregoing dissent.

 

 /S/ KARLA M. GRAY

 /S/ WILLIAM E. HUNT, SR.

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