No. 13337 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - DENNIS FUGER

## , Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack Green, Judge presiding Counsel. of Record : For Appellant: Curtis C. Cook argued, Hamilton, Montana For Respondent: Hon. Robert 

### TJ. l~loodahl,Attorney General, Helena,

Montana Douglas Harkin, County Attorney, Hamilton, Montana Margaret A. Tonon argued, Deputy County Attorney,

Hamilton, Montana

Submitted: August 30, 1976 Decided:

### SEP

### 22

## 1976 Filed: 

### $EP

## 2. 

## j376Mr. Justice Wesley Castles delivered the Opinion of the Court. 1975 On May 23,/~ennis Fuger was charged by Information in Ravalli County with aggravated assault inviolation of section 94-5-202(1) (a), R.C.M. 1947. After trialby jury inDecember 1975, he was found guilty and sentenced to ten years inprison with allof it suspended except sixmonths in the Ravalli County jail. He appeals. Appellant presents three issues for review: 1) Did the stateproduce sufficient evidence toenable the jury to find that the victimwas placed in "substantial risk

2) Did the evidence show as a matter of law that defendant's use of force against the victimwas justified as defense of another? Resolution of these two issueswilldetermine the result of this appeal. Appellant's third issue, whether a new trial should have been granted or thejudgment modified to find him guilty of only simple assault, lacks merit inview of our ruling on the first issue. The Information charged that Fuger: 

# "*** purposely orknowingly caused serious bodily injury toDAVE DANIELS by kickingmd beating the said DAVE DANIELS about the face and upper portion of thebody

# ** *." This charge arose from a fight occurring on the evening of April 26, 1975. Fuger and his cousin Ron Snellwere riding in one pickup and Dave Daniels (the victim) and Diane Snell (Ron ~nell's ex-wife) were riding inanother pickup. The two vehicles met on

a narrow road and stopped. The fight quickly followed. Fugertestified that Daniels knocked him unconscious and when he came tohe saw Daniels sitting on Ron Snell and heard Snell yell for help: "Dennis! He has got a knife!" Fuger saidhe kicked Daniels toprotect Snell from the knife. This version of the fightwas supported by the testimony of Ron Snell. Daniels, however, testified thathe voluntarily gave up theknife before he was hit or kicked. Fuger contends the evidence was insufficient to show Daniels faced a "substantial riskof death" as required for a conviction for aggravated assault. Section 94-5-202(1)(a), R.C.M. 1947, provides that aggravated assault may be committed by causing "serious bodily injury to another.I1 "Serious bodily injury" is defined by section 94-2-101(54), R.C.M. 1947, as "bodily injury which creates a substantial riskof death." Daniels was first treated inthe emergency room atDaly Hospital inHamilton by Dr. Robert Palmer and later transported toMissoula for further examination and treatment. Appellant bases his argument on Dr. Palmer's testimony that 

## - inretrospect 

# - Daniels was not in"substantial risk of death" at any time. Appellant concludes that this testimony precluded thejury from finding to the contrary and therefore the guiltyverdict for aggravated assault was not supported by the evidence. However, 

### Dr. Palmer also testified on redirect examination: "Q. Dr. Palmer, just one question; was it your opinion atthe time when you examined him that due to the nature of his injuries he was ina potentially dangerous situation and was atthat time facing a substantial risk of death? A. Yes, 1 think he was." The legislaturehas not defined "substantial riskof death", but it obviouslymeans something more than "Bodily injury" which section 94-2-101(5), R.C.M. 1947, defines as "physical pain,illness or any impairment of physical condition and includes mental illness or impairment .I1 Injurywhich creates a "substantialriskof death" 

### is graver and more serious, and whether

or not it has been established by the evidence is generally a question of fact tobe determined by thejury. Testimony attrial showed that when Daniels 

### was admitted tothe emergency room inHamilton he was ina semi-conscious statewith extensivebruises and swelling around the face. Further examination showed Daniels suffered a broken nose and a fractured palate. Dr. Palmer also testified Daniels was transferred toMissoula because the facilities atHamilton were not equipped "to handle seriously injured or gravely injured head-type cases." No serious complications in fact developed as a result of Daniels' injuries. However, the test of "substantial risk of death" isnot whether thevictim lives or.dies. People v. Martinez, Colo., 540 P.2d 1091, 1093. The evidencewas sufficient to enable the jury to find that Daniels' injuries created a "substantial risk of death"

# . Appellant's second issue iswhether his use of force against Daniels was justified as defense of another. Section 94-3-102, R.C.M. 1947, states: "A person 

### isjustified inthe use of force or threat touse force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only ifhe reasonably believes that such force isnecessary to prevent imminent death or serious bodily harm tohimself or another, or to prevent the commission of a forcible felony

# ."
It 

### isundisputed that Daniels was sitting on Ron Snell and holding a knife when Snellyelled forhelp. Appellant furthertestified he thought Snellwas ingreat danger of being stabbed and he kicked Daniels only because he was afraid touse his bare hands against the knife. As pointed out previously, however, Daniels testified he voluntarily surrendered the knife before he was kicked. Also, Snell testified that Fuger kicked Daniels again after the fight was over and Daniels was lying in the snow unable to defend himself. The annotator's note to section 94- 3-102, R.C.M. 1947, Montana Criminal Code, 1973, Annotated, Montana Criminal Law Commission, Prof. William F.Crowley, p. 127, states:

'I* 

# * * The clause 'when and to the extent he reasonably believes' pertains to the proper occasion for the use of forcewhich 

### is a question of fact for thejury. 

### 'Is necessary to defend himself or another' refers to the proper amount of force which may be used and remain justified---again a question tobe determined by thejury. 

# *** '' As therewas a conflict in the evidence, the issue of selfdefense was properly before the jury as the trier of fact and Daniels' testimony, ifbelieved, was sufficient to support the verdict.

The judgment 

### is affirmed.