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No. 99-368 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 273 

STATE OF MONTANA, 

Plaintiff and Respondent,

v..

ALAN FUQUA,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Milton Datsopoulos; Datsopoulos, MacDonald & Lind,

Missoula, Montana

Larry Nistler, Nistler Law Offices, Polson, Montana

For Respondent:

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

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Assistant Attorney General, Helena, Montana

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

Deputy Lake County, Polson, Montana

Submitted on Briefs: August 3, 2000 

Decided: October 30, 2000

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Alan Fuqua (Fuqua) was charged in the Twentieth Judicial District Court, Lake 

County, with assault on a police officer, a felony in violation of § 45-5-210(1)(b), MCA. 

Fuqua was tried by a jury and convicted. He appeals from that conviction. We affirm the 

judgment of the District Court. 

¶2 Officer Donald Bell (Bell) of the Flathead Tribal Police in Pablo, Montana, was 

dispatched to respond to a suicide call on July 4, 1998. Bell recognized the voice as 

belonging to Fuqua. Fuqua told Bell his "back was up against the wall" and wanted Bell to 

talk with him at his home. Bell inquired whether Fuqua had any firearms in his home and 

Fuqua advised him that he had a longbow. Bell told Fuqua to put the bow out on his front 

porch and Fuqua agreed to do that. 

¶3 Officer Bell drove to Fuqua's trailer house and parked some distance away. As he 

approached Fuqua's front door, he saw Fuqua sitting at his kitchen table, talking on the 

phone. Fuqua then saw Bell and hung up the phone. Bell could see that Fuqua did not have 

anything in his hands at that point. Fuqua was then out of Bell's sight for about 25 seconds 

as Bell continued towards the door. Bell did not see the bow on the front porch. Bell called 

out, "Alan, where are you?" to which Fuqua responded, "Don, come in." The front door 

was open. Bell placed his hands on both sides of the door frame with one foot on the 

ground and the other atop the cinder block step. He then leaned inside with his shoulder 

close to the door frame and his head about level with the doorknob. When he looked 

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inside, Bell saw Fuqua standing in the kitchen holding the bow with an arrow in a fully 

drawn position. Since it appeared to Bell that Fuqua was aiming the arrow at him, Bell 

pulled his head back. He heard a "pop" at the door, and observed an arrow stuck in the 

middle of the door above the doorknob. Bell believed that the arrow would have hit his 

head if he had not moved when he did. 

¶4 Officer Bell drew his weapon and peeked inside the trailer at a different angle. 

Although Fuqua held the bow at his side, there was no arrow. Bell entered the trailer, put 

his weapon in its holster and placed Fuqua in a wrist lock. Bell wrestled the bow from 

Fuqua and handcuffed him. 

¶5 At trial Fuqua testified on his own behalf. He stated that he had not seen Bell at the 

door when he released the arrow and that he shot the arrow into the door to reassure Bell 

that the arrow had been fired and he was then unarmed. 

¶6 Fuqua raises the following two issues on appeal:

¶7 1. Whether the District Court erred in refusing to instruct the jury on Fuqua's theory of 

defense.

¶8 2. Whether § 45-5-210, MCA, violates Article II, Section 17 of the Montana 

Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. 

¶9 We review jury instructions in criminal cases to determine whether the instructions, as 

a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Leyba 

(1996), 276 Mont. 45, 51, 915 P.2d 794, 797. To constitute reversible error, the District 

Court's ruling on jury instructions must prejudicially affect the defendant's substantial 

rights. State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330, 1332. While a defendant 

is entitled to have instructions on his theory of the case, he is not entitled to an instruction 

concerning every nuance of his argument. State v. Gonzales (1996), 278 Mont. 525, 531, 

926 P.2d 705, 709. 

I 

¶10 At trial, Fuqua admitted that his conduct was wrong. His sole defense was that he 

acted negligently as opposed to purposely or knowingly. On appeal he argues that the 

District Court, in ruling that he was not entitled to a jury instruction defining a negligent 

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mental state, precluded him from articulating his defense, and effectively gutted his 

fundamental right to present a defense. He submits that since his theory that he acted 

negligently was supported by considerable evidence, he was entitled to an instruction on 

the legal definition of negligence. 

¶11 We need not address whether there was sufficient evidence to support such an 

instruction since the legal issue presented is whether, even assuming there was evidence of 

negligence, an instruction defining negligence was appropriate in the context of a charge 

of assault on a police officer. 

¶12 We addressed a similar contention in Goulet. On appeal from a conviction of 

deliberate homicide, Goulet argued that the district court erred in refusing to instruct 

regarding negligent homicide and the statutory definition of "negligently." In upholding 

the district court's refusal of Goulet's "stand alone" instruction on the definition of 

negligently, we stated: 

Standing apart from instructions on the offense of negligent homicide, an instruction on 

the definition of "negligently" would have no meaning or significance. The jury need not 

be instructed on a mental state unless that mental state is an element of an offense which 

the jury may properly consider. Contrary to Goulet's assertions, he was not entitled, as a 

matter of law, to a jury instruction on "negligently."

Goulet, 283 Mont. at 44, 938 P.2d at 1334.

¶13 Fuqua cites State v. Beavers, 1999 Mont. 260, ¶ 23, 296, Mont. 340, ¶ 23, 987 P.2d 

371, ¶ 23, for the proposition that a defendant has a right to an instruction covering any 

and every issue or theory having support in the evidence. On appeal Beavers argued that 

even if reckless driving were not an included offense of criminal endangerment, the court 

should have instructed on reckless driving as an alternative theory. Beavers, ¶ 38. This 

Court recognized that although a defendant is entitled to an instruction on any lesser 

included offense that has support in the evidence, "[t]he rule of law we apply to alternative 

offenses is that of prosecutorial discretion." Beavers, ¶ 39. "Where the facts of a case 

support a possible charge of more than one crime, the crime to be charged is a matter of 

prosecutorial discretion." State v. Schmalz, 1998 MT 210, ¶ 9, 290 Mont. 420, ¶ 9, 964 

P.2d 763, ¶ 9. If the prosecutor has charged a crime which requires proof of a knowing or 

purposeful mental state, the court is not required to instruct on an alternative mental state 

of negligence. As we held in Goulet, the court need not instruct on a mental state which is 

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not an element of the offense charged. Goulet, 283 Mont. at 44, 938 P.2d at 1334.

¶14 We hold that the District Court did not err in refusing to give Fuqua's proposed standalone jury instruction defining "negligently."

Was Fuqua prevented from articulating his theory of defense?

¶15 After the District Court refused Fuqua's requested jury instruction on negligence, he 

asked the court whether its ruling would limit or restrict the defense from arguing that his 

actions were committed with a negligent mental state as opposed to a purposeful or 

knowing mental state. The court replied, "[y]ou can certainly argue that it was accidental 

or negligent discharge of [the arrow], but in arguing that the State has failed to prove 

knowing or purposely." Upon further inquiry from Fuqua, the court explained that he 

could argue that his conduct was mistaken or negligent, but that he could not provide the 

jury with a statutory definition of negligence. 

¶16 It is apparent from a review of the record that Fuqua did in fact argue to the jury that 

his actions were negligent-not knowing or purposeful. 

Look, these are the elements the State has to prove. The Court has already outlined 

them and I've gone over them generally but here it goes. The mental state; purposely 

or knowingly, beyond a reasonable doubt.

. . . . 

If any one . . . of those are not proved to your satisfaction beyond a reasonable 

doubt, your verdict is and must be not guilty. That's the instruction from the Court; 

all elements, each and every one, beyond a reasonable doubt.

Now in hindsight some of you may say, "Boy, I still don't condone what that fellow 

did. Maybe it was a big mistake. Maybe it was negligence. Maybe he was upset and 

not looking for the officer. Maybe he's suicidal. Maybe all of these things 

contributed to it." Common sense tells you there is a huge difference between 

purposely or knowingly and doing things negligently and/or without proper care or 

concern for what might happen.

"Purposely or knowingly." You've got the definitions. You can figure out what that 

means. It's an intended act. It's not an accident. It's not a negligent act.

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. . . . 

What Alan Fuqua did was grossly negligent. Almost as grossly negligent as what 

Officer Bell did. Who caused what happened? Can you say

beyond a reasonable doubt that Alan Fuqua caused what happened?

. . . . 

I've asked you to consider yourself in those shoes. Now it's tough to consider 

yourself in as desperate situation as he was that day; suicidal, distraught, calling for 

help from his friend. But unless you find beyond a reasonable doubt that he did each 

of those things in that fashion, you can't find him guilty. What he did in hindsight 

was very negligent. He said he wished he hadn't done it.

Do you remember one thing that I recall from Officer Bell's statement? He told 

Officer Bell, "I didn't mean to hurt you. It would be like shooting my brother."

. . . . 

What Alan Fuqua did was wrong. It wasn't deliberate. It wasn't intentional. It was a 

mistake. It was poor judgment. But he did not intend to hurt the officer, and he 

didn't fire the arrow at a spot that would have hit the officer.

I would ask you to find him not guilty, not because you agree with what he did but 

because the State cannot prove beyond a reasonable doubt that he did what he's 

charged with.

¶17 Clearly Fuqua was not prevented from arguing that he acted negligently rather than 

purposely or knowingly. Rather, he was admonished that it was the court's prerogative, not 

his, to instruct the jury on the relevant law in the context of the crime charged.

II 

¶18 Does § 45-5-210(4), MCA, violate Article II, Section 17 of the Montana Constitution 

and the Fifth and Fourteenth Amendments to the United States Constitution? 

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¶19 Section 45-5-210(4), MCA, provides as follows:

(4) Criminal endangerment, negligent endangerment, and assault, as defined in 45-5-

201, are not included as offenses of assault on a peace officer or judicial officer.

¶20 Fuqua contends that a statute which eliminates consideration of lesser-included 

offenses is unconstitutional both on its face and as applied. Fuqua's argument as to the 

unconstitutionality of § 45-5-210(4), MCA, is premised upon an assumption that, but for 

§ 45-5-210(4), MCA, the offense of negligent endangerment would be considered a lesserincluded offense of assault on a peace officer under the provisions of § 46-1-202(8), 

MCA. 

¶21 The threshold question then is whether negligent endangerment is a lesser-included 

offense of assault on a peace officer under the provisions of § 46-1-202(8), MCA. That 

statute defines an "included offense" as an offense that:

(a) is established by proof of the same or less than all the facts required to establish 

the commission of the offense charged;

(b) consists of an attempt to commit the offense charged or to commit an offense 

otherwise included in the offense charged; or

(c) differs from the offense charged only in the respect that a less serious injury or 

risk to the same person, property, or public interest or a lesser kind of culpability 

suffices to establish its commission.

Section 46-1-202(8), MCA.

¶22 Subsection (a) requires that negligent endangerment be established by proof of the 

same or less than all the facts required to establish commission of assault on a peace 

officer. We have consistently stated that the term " 'facts,' refers to the statutory elements 

of the offenses, not the individual facts of the case." Beavers, ¶ 30. Assault on a peace 

officer requires that a defendant knowingly or purposely cause: (1) bodily injury to a 

peace officer (with or without a weapon); (2) serious bodily injury to a peace officer; or 

(3) reasonable apprehension of serious bodily injury in a peace officer by use of a weapon. 

Section 45-5-210(1), MCA. Negligent endangerment, on the other hand, requires that the 

defendant negligently: (1) create a substantial risk of death or serious bodily injury; (2) on 

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another. Section 45-5-208, MCA. Since negligent endangerment requires negligent 

conduct rather than purposeful conduct, and risk rather than injury or apprehension, it 

cannot be said that it is established by proof of the "same or less than all" of the facts 

required to prove assault on a peace officer. 

¶23 In order to satisfy subsection (b) of § 46-1-202(8), MCA, negligent endangerment 

would have to consist of an attempt to commit assault on a peace officer. That subsection 

is not applicable to this analysis. 

¶24 In interpreting subsection (c), we have held that "an offense is a lesser included 

offense if it differs from the one charged only by way of a less serious injury or a less 

serious risk or a lesser kind of culpability." State v. Castle (1997), 285 Mont. 363, 368, 

948 P.2d 688, 691. Thus negligent endangerment may differ from assault on a peace 

officer in one, and only one of the above ways, in order to be considered a lesser included 

offense. State v. Fisch (1994), 266 Mont. 520, 523, 881 P.2d 626, 628.

¶25 Negligent endangerment differs from assault on a peace officer in more than one way. 

It differs in that it requires a lesser kind of culpability; negligent conduct as opposed to 

knowing or purposeful conduct. Negligent endangerment also differs in that it requires 

conduct creating a substantial risk of death or serious bodily injury while assault on a 

peace officer requires bodily injury or reasonable apprehension of serious bodily injury. 

Thus, negligent endangerment is not a lesser included offense of assault on a peace officer 

under any of the three provisions of § 46-1-202(8), MCA. 

¶26 Having concluded that negligent endangerment is not a lesser included offense under 

§ 46-1-202(8), MCA, we do not need to address the question of whether § 45-5-210(4), 

MCA (which specifically eliminates criminal endangerment, negligent endangerment and 

assault as lesser included offenses of assault on a peace officer), is constitutional. The 

question of whether the legislature can specifically eliminate consideration of an offense 

as a lesser-included offense, when it would otherwise fit the definition of a lesser-included 

offense under § 46-1-202(8), MCA, is a question left for another day. 

¶27 The District Court did not err in refusing to instruct the jury on negligent 

endangerment as a lesser included offense. Affirmed.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ KARLA M. GRAY

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