No. 01-191 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 337 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JOSEPH SHERER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

Honorable Mike Salvagni, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Herman A. Watson III, Herman Law Office, PC, Bozeman, Montana 

For Respondent: 

Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant 

Attorney General, Helena, Montana 

Marty Lambert, County Attorney, Bozeman, Montana 

Submitted on Briefs: November 15, 2001 

 Decided: December 20, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 The defendant, Joseph Sherer (Sherer), was charged in the 

Montana Eighteenth Judicial District Court, Gallatin County, with 

eight counts of Practicing Medicine Under a False Name or 

Impersonating a Doctor, two counts of Criminal Endangerment and one 

count of Aggravated Assault. Sherer filed a Motion to Dismiss the 

Aggravated Assault charge, contending that the facts in the 

Information, even if true, could not constitute the offense of 

Aggravated Assault. 

¶2 The District Court subsequently denied Sherer’s motion, and 

Sherer pled guilty to all counts, expressly reserving his right to 

appeal the District Court’s denial of his motion to dismiss. 

Sherer now appeals. We affirm the District Court. 

¶3 We rephrase the issue on appeal as follows: 

¶4 Did the District Court err when it determined that Sherer’s 

conduct as alleged in the Information, if true, could constitute 

the offense of Aggravated Assault?

BACKGROUND

¶5 From November 8, 1999, to December 10, 1999, Sherer placed a 

series of random phone calls from Fort Lauderdale, Florida, to 

approximately forty women residing in Bozeman, Montana. During 

conversations with these women, Sherer would, using various 

aliases, impersonate a doctor by claiming that he was treating 

their mother or daughter for a hereditary urinary disease and 

telling the women that they may also be at risk for infection. 

¶6 Sherer asked the women about their breast size, when the women 

last had a pap smear and whether they were sexually active. Sherer 
3 

also asked the women to perform a test on themselves using either a 

razorblade, a knife or fingernail polish remover, asking them to do 

destructive things to their bodies under the guise of performing 

self-tests to diagnose possible infection. 

¶7 Most of the women contacted by Sherer did not physically harm 

themselves. For the thirty-six women who received telephone calls 

and did not harm themselves, the State charged a total of eight 

counts of impersonating a doctor. 

¶8 Three women did harm themselves at Sherer’s suggestion. One 

woman cut her nipple and another placed a knife inside her vagina. 

 For these two calls, the State charged Sherer with two counts of 

criminal endangerment. The third woman, with encouragement from 

Sherer under the guise of medical self-examination, cut off her 

left nipple. For this incident, the State charged Sherer with the 

offense of aggravated assault, to which Sherer pled guilty, 

specifically reserving his right to this appeal. 

¶9 The District Court sentenced Sherer to ten years in prison for 

each charge of criminal endangerment to be served consecutively. 

For the charge of aggravated assault, the District Court sentenced 

Sherer to twenty years to be served concurrently with the sentences 

for criminal endangerment. For the counts charging Sherer with 

impersonating a doctor, the District Court sentenced Sherer to 

thirty years, all of it suspended subject to certain conditions. 

Based on the aggravated assault conviction, and pursuant to § 46-

23-504, MCA, the District Court ordered Sherer to register as a 

violent offender. Sherer now appeals. 
4 

DISCUSSION

¶10 Did the District Court err when it determined that Sherer’s 

conduct as alleged in the Information, if true, could constitute 

the offense of Aggravated Assault?

¶11 The grant or denial of a motion to dismiss in a criminal case 

is a question of law which is reviewed de novo on appeal. State v. 

Price, 2002 MT 229, ¶ 9, 311 Mont. 439, ¶ 9, 57 P.3d 42, ¶ 9 

(citing State v. Hardaway, 2001 MT 252, ¶ 64, 307 Mont. 139, ¶ 64, 36 P.3d 900, ¶ 

64). 

¶12 Section 45-5-202(1), MCA, the statute defining aggravated 

assault, provides: 

A person commits the offense of aggravated assault if the 

person purposely or knowingly causes serious bodily 

injury to another. 

Conduct is the cause of a result if, without the conduct, the 

result would not have occurred and any additional causal 

requirements imposed by the specific statute defining the offense 

are satisfied. Section 45-2-201(1)(a) and (b), MCA. “Conduct” 

means an act or series of acts and the accompanying mental state. 

Section 45-2-101(14), MCA. An “act” includes any bodily movement, 

any form of communication, and when relevant, a failure or omission 

to take action. Section 45-2-101(1), MCA. 

¶13 In Sherer’s motion to dismiss, he argued that the facts 

alleged in the Information forming the basis for the State’s charge 

of aggravated assault, even if true, did not meet the statutory 

criteria constituting the crime of aggravated assault. Sherer 

argued that “[e]ncouraging someone to injure themselves does not 

constitute aggravated assault. Therefore, the causal link between 
5 

the Defendant’s alleged acts and the resulting injury of the 

victims does not exist.” Sherer argued that, because the 

allegations did not establish the offense, probable cause did not 

exist to charge him with the crime of aggravated assault and the 

charge of aggravated assault must, therefore, be dismissed. 

¶14 On appeal, Sherer likewise argues that the “causation” element 

in the present case is too remote to form the basis of an 

aggravated assault charge. 

The victim who severed her own nipple, albeit at the 

direction of Sherer, inflicted “serious bodily injury” 

upon herself. No force was involved. The district 

court’s determination that but for Sherer’s telephone 

call the self-mutilation would not have occurred is only 

part of the consideration in a decision to impose legal 

causation for criminal liability. It is also true that 

but for the victim’s conduct the injury would not have 

occurred. 

¶15 Sherer directs this Court to the Pennsylvania Superior Court 

case of Commonwealth v. Rementer (Pa. Super. 1991), 598 A.2d 1300, 

arguing therefrom that criminal causation in this case requires a 

“social determination of whether it is fair in principle or just 

under the facts of the case to expose [Sherer] to criminal 

liability” under the aggravated assault statute, and contends that 

exposure to liability under the statute would require utilizing 

tort proximate cause principles. Sherer further argues that, 

because aggravated assault is designated as an offense for which 

Sherer must register as a “violent offender” pursuant to § 46-23-

504, MCA, this Court ought to abide by Black’s Law Dictionary’s 

definition of “violent offenses,” which characterizes violent 

offenses by extreme physical force and assault and battery by means 
6 

of a dangerous weapon, and that to do otherwise amounts to imposing 

criminal liability where the criteria for criminal causation are 

non-existent. See Black’s Law Dictionary (6th ed. 1990). 

¶16 Sherer does concede, as this Court stated in State v. Walsh

(1997), 281 Mont. 70, 931 P.2d 42 (overruled on other grounds), 

that it is not necessary that the victim of an assault be the 

direct recipient of the defendant’s actions, and, therefore, that 

the defendant’s act of force need not be directed intentionally 

toward the injured victim. Walsh, 281 Mont. at 76, 931 P.2d at 46. 

 Sherer argues, however, that this rule presumes that the defendant 

must be within close physical proximity to the intended victim, and 

therefore inapplicable to this situation. 

¶17 First, we agree with the State that Commonwealth v. Rementer

is inapposite. In Rementer, the defendant had beaten the victim 

who then fled into the path of an oncoming car. The court analyzed 

the difference between tort and criminal causation, stating: 

In other words, was the defendant’s conduct so directly 

and substantially linked to the actual result as to give 

rise to the imposition of criminal liability or was the 

actual result so remote and attenuated that it would be 

unfair to hold the defendant responsible for it? 

. . . . 

 

[I]f the fatal result was an unnatural or obscure 

consequence of the defendant’s actions, our sense of 

justice would prevent us from allowing the result to 

impact on the defendant’s guilt. 
7 

Rementer, 598 A.2d at 1304-07. The Rementer Court thus addressed 

the issue in terms of foreseeability, affirming Rementer’s 

conviction for third-degree murder. 

¶18 There are two important distinctions between this case and 

Rementer. First, whereas the defendant in Rementer did not intend 

to cause the traffic accident which followed his assault, Sherer’s 

instructions to engage in self-destructive activity were intended 

to produce the precise injury suffered by the victim. In admitting 

to the facts alleged in the Information, Sherer cannot credibly 

claim that he did not intend the precise injury that the victim 

suffered. Sherer, impersonating a sympathetic and caring doctor, 

instructed the victim to cut off her nipple. The victim’s obedient 

actions flowed directly from Sherer’s instructions. 

¶19 Second, it is not necessary for us to consult the tort law 

concept of foreseeability in this criminal context. Montana’s 

criminal code provides the proper framework for analyzing the 

question of whether the result is within the contemplation or 

purpose of the defendant. In addition to the statutes cited above, 

§ 45-2-201(2), MCA, provides: 

If purposely or knowingly causing a result is an element 

of an offense and the result is not within the 

contemplation or purpose of the offender, either element 

can nevertheless be established if: 

. . . 

(b) the result involves the same kind of harm or injury 

as contemplated but the precise harm or injury was 

different or occurred in a different way, unless the 

actual result is too remote or accidental to have a 

bearing on the offender's liability or on the gravity of 

the offense. [Emphasis supplied]. 
8 

Given the facts in the Information, Sherer cannot argue the 

victim’s resulting injury was not within his contemplation or 

purpose nor too remote or accidental to have a bearing on his 

liability. His intent that the injury flow from his conduct is 

properly inferred from the facts and circumstances connected with 

the offense. Section 45-2-103(3), MCA. The details of Sherer’s 

communication with the victim reveal that the resulting injury is 

exactly what Sherer intended. 

¶20 We thus do not agree with Sherer that exposure to liability 

under the aggravated assault statute would require utilizing tort 

proximate cause principles rather than the more direct cause 

required for criminal liability under our statutes. To the 

contrary, the statutes defining “cause” and “conduct” are broad 

enough to encompass Sherer’s conduct as charged. “Conduct” is 

defined as any bodily movement or any form of communication and the 

accompanying mental state, and conduct is the cause of the intended 

injury if, without the bodily movement or communication, the 

intended result would not have occurred. See §§ 45-2-201(1)(a) and 

(b), 45-2-101(14) and 45-2-101(1), MCA. 

¶21 The above statutes, in conjunction with the statute defining 

aggravated assault, do not require that the defendant personally 

direct force toward the victim, but specifically contemplate that 

any form of communication, itself, may be sufficient conduct. 

Neither does the statute define or require a defined parameter of 

proximity between the defendant and the victim, Sherer’s arguments 

notwithstanding. Accordingly, we conclude that the statute 
9 

defining aggravated assault and the statutes defining cause, act 

and conduct, pursuant to § 45-1-102(1)(c), MCA, give fair warning 

that the nature of Sherer’s conduct constituted the offense of 

aggravated assault if his conduct resulted in the intended injury. 

¶22 Considering our conclusion thus far, we find little merit in 

Sherer’s contention that this Court ought to adopt the definition 

of “violent offenses,” as defined in Black’s Law Dictionary, merely 

because conviction of aggravated assault may result in a defendant 

being required to register as a “violent offender” pursuant to § 

46-23-504, MCA. The criteria for criminal causation are welldefined by Montana statute and gave fair warning that the 

admittedly manipulative and deceptive conduct of Sherer, in 

conjunction with the intended result, constituted the offense of 

aggravated assault. Sherer succeeded in causing the intended 

injury and now attempts to blame the victim for lending credence to 

his deceptive, illegal activity, essentially attempting to absolve 

himself of criminal liability because the victim “fell for it.” 

Such argument is without merit. 

¶23 Finally, Sherer cites to numerous cases from other 

jurisdictions for the proposition that threatening words, no matter 

how violent or threatening, do not by themselves constitute assault 

since the actor must be in a position to carry out the threat 

immediately and must take some affirmative step to do so. 

Considering the facts as alleged in the Information and the 

discussion thus far, we find little merit in this argument. The 

Information did not rely on or allege that Sherer threatened to use 
10 

physical force to injure the victim. Dismissal of the aggravated 

assault charge in the Information could not, therefore, be 

predicated on this argument. 

¶24 Accordingly, we hold that the District Court did not err when 

it denied Sherer’s motion to dismiss the charge of aggravated 

assault. The decision of the District Court is affirmed. 

/S/ JIM RICE 

We concur: 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER