DA 13-0726

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 101

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

KRISTOFFER BENJAMIN CARNES,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DC 11-172

Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jennifer A. Hurley, Hurley Kujawa, PLLC, Butte, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant 

Attorney General, Helena, Montana

Martin D. Lambert, Gallatin County Attorney; Erin Murphy, Deputy 

County Attorney, Bozeman, Montana

Submitted on Briefs: February 4, 2015

 Decided: April 14, 2015

Filed:

__________________________________________

Clerk

April 14 2015

Case Number: DA 13-0726
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Justice Jim Rice delivered the Opinion of the Court. 

¶1 Kristoffer Benjamin Carnes appeals from the judgment entered by the Eighteenth 

Judicial Court, Gallatin County, finding him guilty of two counts of assault on a peace

officer. We reverse, addressing the following issue: 

¶2 Did the District Court err by failing to instruct the jury that the State was required 

to prove mental state as to every element of the offense?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On July 18, 2011, Carnes was at home eating dinner with his girlfriend, Rose, and 

her family. After an argument, Carnes decided to leave and spend the night in a 

campground, and he began packing his things. While Carnes was outside the house, 

Gallatin County Sheriff’s Deputies Dane Vranish and Dave Johnston responded to a 

domestic disturbance call placed from the residence. The deputies did not use emergency 

lights and, pursuant to standard procedures, parked their vehicle on the street and 

approached the house on foot with flashlights. They were dressed in uniforms. It was 

dark, but the deputies saw that lights on the house’s interior and exterior were 

illuminated. The deputies observed several vehicles in the driveway. They saw Carnes 

walking and, without identifying themselves, asked him to step back from a flatbed truck 

parked perpendicular to the driveway, which was running. Carnes failed to comply with 

the commands and climbed inside the truck. 

¶4 The deputies reached the driver’s side of the truck. The driver’s window was 

open, through which they asked Carnes to turn off the engine. Carnes failed to turn off 

the engine and exit the vehicle, prompting Deputy Johnston to pepper spray Carnes 
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through the window. Carnes began asking what he had done wrong, but still refused to 

turn off the engine in response to the officers’ orders. When Deputy Johnston reached

into the cab of the vehicle to remove Carnes’ hand from the steering wheel, Carnes 

responded by saying “[d]on’t do it . . . I’ll f-ing run off with you b[itch].” Carnes 

accelerated the vehicle with Deputy Johnston’s hand still inside, but quickly collided with 

an ornamental tree in the yard. Deputy Johnston was able to free himself from the 

vehicle before Carnes reversed and backed up toward the pavement. Deputy Johnston 

testified that the front end of the vehicle swept toward the deputies as it backed up, and 

that the deputies believed their lives were at risk. The truck then stalled. Both deputies

engaged Carnes again, this time approaching from opposite sides of the vehicle. While 

Deputy Vranish approached from the driver’s side, Deputy Johnston was able to reach 

inside the cab from the passenger side and pull the keys from the ignition. 

¶5 Carnes was arrested and charged with two counts of Assault on a Peace Officer or 

Judicial Officer, in violation of § 45-5-210(1)(b), MCA. Carnes chose to represent 

himself at trial and was appointed stand-by counsel. On July 18, 2011, after a two-day 

trial, Carnes was found guilty of both counts and sentenced to 10 years in prison for each 

count, to be served concurrently. Further facts are discussed herein.

STANDARDS OF REVIEW

¶6 This Court reviews for correctness the legal determinations a lower court makes 

when giving jury instructions, including whether the instructions, as a whole, fully and 

fairly instruct the jury on the applicable law. Peterson v. St. Paul Fire & Marine Ins. 
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Co., 2010 MT 187, ¶ 45, 357 Mont. 293, 239 P.3d 904. District courts are given broad 

discretion when instructing a jury, and reversible error occurs only if the instructions 

prejudicially affect a defendant’s substantial rights. State v. Myran, 2012 MT 252, ¶ 16, 

366 Mont. 532, 289 P.3d 118. A district court’s decision on jury instructions is presumed 

correct, and the appellant has the burden of showing lower court error. In re M.J.W., 

1998 MT 142, ¶ 18, 289 Mont. 232, 961 P.2d 105. 

DISCUSSION

¶7 Did the District Court err by failing to instruct the jury that the State was required 

to prove mental state as to every element of the offense?

¶8 Section 45-5-210(1)(b), MCA, provides that a person commits the offense of 

assault on a peace officer if he purposely or knowingly causes “reasonable apprehension 

of serious bodily injury to a peace officer . . . by use of a weapon.” At trial, Carnes 

asserted he was not guilty because he did not know Deputies Johnston and Vranish were 

peace officers at the time of the offense. Carnes supported this assertion by arguing the 

officers had failed to use emergency lights when driving up to the area, approached the 

house on foot, and did not verbally identify themselves upon approach. Carnes further 

argued the deputies pointed flashlights at him, preventing identification. Finally, Carnes 

described a previous incident in which his girlfriend, following an argument, had called 

two male friends to the house to intimidate Carnes. Carnes asserted he had assumed the 

same two men had come to the house to threaten him on the night in question. Carnes 

suggested that he fully cooperated with the officers as soon as he understood he was not 

in danger.
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¶9 Carnes challenges the jury instruction providing the elements of the crime, which 

was proposed by the State. The instruction stated, in pertinent part: 

To convict the Defendant, Kristoffer Benjamin Carnes, of the offense of 

assault on a peace officer . . . the State must prove the following: that the 

defendant knowingly or purposely caused a reasonable apprehension of 

serious bodily injury in [the deputy] by the use of a weapon; and that [the 

deputy] was a peace officer. 

Carnes objected to the instruction, arguing the jury should not be instructed on the mental 

states of knowingly and purposely at all, because he was unaware the deputies were 

peace officers during the incident. The District Court overruled Carnes’ objection and 

gave the instruction.

¶10 During deliberations, the jury sent out a note to the court, asking whether it was 

necessary to find that Carnes knew the deputies were peace officers at the time of the 

offense. The court declined to answer, instead referring the jury back to the instruction as 

given.

¶11 On appeal, Carnes argues the jury instruction relieved the State’s burden to prove 

his awareness that the deputies were in fact peace officers. Carnes points to the model 

instruction for § 45-5-210(1)(b), MCA, which requires the State to prove the defendant 

acted purposely or knowingly with regard to all of the elements of the offense, including 

that the victim was a peace officer. He argues that “the jury is required to find the State 

proved more than just the victim was a peace officer; it must find the State proved the 

defendant was aware of that fact.” Carnes argues that the given instruction’s failure to 

require that the jury find he had acted purposely or knowingly with regard to the victim’s 
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identity as a police officer violated his due process right under the United States and 

Montana Constitutions to have the State prove every element of the offense, citing In re 

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970) (“the Due Process clause 

protects the accused against conviction except upon proof beyond a reasonable doubt of 

every fact necessary to constitute the crime with which he is charged”); and State v. 

Andress, 2013 MT 12A, ¶ 23, 368 Mont. 248, 299 P.3d 316 (courts are required “to 

instruct the jury on the proper mental state element based upon the charged offense”). 

¶12 In response, the State argues Carnes failed to preserve the issue for appellate 

review, because his objection to the instruction was not specifically directed to the 

argument he now makes. Rather, Carnes’ objection indicated the jury should not have 

been instructed on the pertinent mental states at all, because he “didn’t really know what 

was going on at the time.” The State concludes that, had Carnes believed purposely or 

knowingly applied to the “peace officer” element he should have moved for an 

appropriate instruction on those grounds and his failure to do so prevented the District 

Court from avoiding the alleged error. 

¶13 It is a fundamental rule of appellate review that, with rare exception, we will not 

consider issues or claims not properly preserved for appeal. State v. West, 2008 MT 338, 

¶¶ 16, 19-20, 346 Mont. 244, 194 P.3d 683. To properly preserve an issue or claim for 

appeal, it is necessary that the issue or claim be timely raised in the first instance in the 

trial court. West, ¶ 16. Carnes argues it would be an “unduly harsh” application of this 

rule to hold that Carnes waived the issue where he did lodge an objection to the 
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instruction, but that, alternatively, the issue warrants plain error review. In order to 

receive plain error review of an unpreserved issue, an appealing party must 

(1) demonstrate the claimed error implicates a fundamental right and (2) firmly convince 

this Court that failure to review would result in a manifest miscarriage of justice, leave 

unsettled the question of the fundamental fairness of the trial proceedings, or compromise 

the integrity of the judicial process. State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 

252, 244 P.3d 737. Here, we conclude Carnes’ claim of error implicates his right to due 

process of law, a fundamental constitutional right. Further, because of the jury’s 

expressed concern about the necessity of finding that Carnes knew the victims were 

officers, we conclude that failure to review the claim will leave unsettled the fundamental 

fairness of the trial. 

¶14 Jury instructions must fully and fairly instruct the jury on the applicable law. The 

instruction given to the jury was a misstatement of the law, as demonstrated by the 

statutory language describing the offense. To be found guilty of assaulting a police 

officer under § 45-5-210(1)(b), MCA, a defendant must purposely or knowingly cause 

bodily injury to a peace officer or judicial officer by use of a weapon. The statute

provides that a person must act purposely or knowingly with respect to all elements of the 

offense, including the peace officer element. The given jury instruction required the jury 

to find the deputies were peace officers, but not that Carnes knew them to be peace 

officers. 
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¶15 This error clearly prejudiced Carnes. He made this very issue the central point of 

his defense. He offered evidence that he could not have known the deputies were peace 

officers, and argued he did not act knowingly. Carnes’ objection to the instruction was 

misguided, but was premised on his lack of knowledge. The jury’s question 

demonstrated confusion over the issue, but they were nonetheless directed back to the 

incorrect instruction, after which they found Carnes guilty.

¶16 Reversed and remanded for further proceedings consistent with this opinion. 

/S/ JIM RICE

We concur: 

/S/ MICHAEL E WHEAT

/S/ BETH BAKER

/S/ PATRICIA COTTER

/S/ JAMES JEREMIAH SHEA

Justice Laurie McKinnon, dissenting.

¶17 I dissent. 

¶18 Preliminarily, the Court has chosen to review Carnes’ claimed error under the 

plain error doctrine despite Carnes having never raised the doctrine in his opening brief. 

We have repeatedly said that we will not consider issues raised for the first time in an 

appellant’s reply brief since to do so would unfairly “tilt the balance in a case in favor of 

the party who gets the final word in presenting its arguments to this Court.” State v. 

Sattler, 1998 MT 57, ¶ 47, 288 Mont. 79, 956 P.2d 54; M. R. App. P. 12(3). 
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¶19 Secondly, there is no constitutional violation warranting plain error review where 

the language of the contested instructions mirrors the language of the statute and where 

the jury has been fully and fairly instructed on the applicable law of the case. State v. 

Doyle, 2007 MT 125, ¶ 67, 337 Mont. 308, P.3d 516; State v. Dubois, 2006 MT 89, ¶ 30, 

332 Mont. 44, 134 P.3d 82. We review jury instructions in a criminal case to ascertain 

whether they fully and fairly instruct the jury on the law applicable to the case. 

Moreover, we have long recognized that a trial court has broad discretion when 

instructing a jury. State v. Ditton, 2006 MT 235, ¶ 18, 333 Mont. 483, 144 P.3d 783. 

Reversible error will occur only if the jury instruction prejudicially affects the 

defendant’s substantial rights. Doyle, ¶ 66; Dubois, ¶ 30. Where the contested 

instruction nearly replicates the language of the statute, the jury has been properly 

informed as to the law. Doyle, ¶ 67. It is also not necessary that the instruction mirror 

exactly the language of the statute. State v. Maloney, 2003 MT 288, ¶ 27, 318 Mont. 66, 

78 P.3d 1214. “While a defendant is entitled to have the jury instructed on her theory of 

the case, she is not entitled to an instruction concerning every nuance of her argument.” 

Maloney, ¶ 27.

¶20 The State charged Carnes pursuant to § 45-5-210 (1), MCA, which provides:

45-5-210. Assault on peace officer or judicial officer.

(1) A person commits the offense of assault on a peace officer or judicial 

officer if the person purposely or knowingly causes:

 . . .

(b) reasonable apprehension of serious bodily injury in a peace officer 

or judicial officer by use of a weapon.

Here, the District Court gave the following instruction as to the elements of the crime:
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To convict the defendant, Kristoffer Benjamin Carnes, of the offense 

of assault on a peace officer under Count 1 and 2, the State must prove the 

following: that the defendant knowingly or purposely caused a reasonable 

apprehension of serious injury in Deputies Vranish and Johnston by use of 

a weapon; and that Deputies Vranish and Johnston were a peace officer.

¶21 In my opinion, this instruction reasonably, if not exactly, mirrors the language of 

the statute. It is plain, concise, and easy to understand. Furthermore, the District Court 

gave exactly the language of the Montana Criminal Jury Instruction 5-116 which 

provides:

Instruction No. 5-116

Assault on a Judicial Officer/Peace Officer.

A person commits the offense of assault on a judicial/peace officer if the 

person purposely or knowingly causes: . . . reasonable apprehension of 

serious bodily injury in a judicial officer/peace officer by use of a weapon.

¶22 I would not exercise plain error review when the District Court has (1) instructed 

the jury in accordance with statutory language, and (2) given the specific instruction 

embodied in the Montana Criminal Jury Instruction. The fact that the jury asked a 

question generated by Carnes’ argument and theory of defense does not mean that the 

jury was improperly instructed or that the instruction failed to apprise the jury of the law. 

¶23 While this Court ordinarily does not consider issues raised for the first time on 

appeal, we may review a claimed error under the plain error doctrine if the appellant 

shows that the alleged error implicates a fundamental right and the Court is firmly 

convinced that failure to review the claim would result in a manifest miscarriage of 

justice, leave unsettled the question of the fundamental fairness of the trial, or 

compromise the integrity of the judicial process. State v. Norman, 2010 MT 253, ¶ 17, 
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358 Mont. 252, 244 P.3d 737. This Court has repeatedly declined to exercise plain error 

review of mental state instructions, particularly where the instruction replicates the 

language of the statute and correctly states the law and properly informs the jury. State v. 

Gunderson, 2010 MT 166, ¶¶ 104-05, 357 Mont. 142, 237 P.3d 74; State v. Earl, 2003 

MT 158, ¶¶ 21, 24-26, 316 Mont. 263, 71 P.3d 1201; Doyle, ¶ 67; State v. Hudson, 2005 

MT 142, ¶ 21, 327 Mont. 286, 114 P.3d 210.

¶24 Finally, the evidence presented leaves little doubt that Carnes knew the victims 

were peace officers. Although Carnes admitted all of his conduct and raised justifiable 

use of force as an affirmative defense, he argues on appeal he was denied a fundamental 

right to have the jury instructed regarding the mental state for each element of the crime. 

I fail to see, in light of the evidence produced and the instruction given, how Carnes was 

denied a substantial right. While the jury asked a question, which undoubtedly has 

prompted examination of the instruction on appeal, the jury was never instructed that they 

did not have to find Carnes knew the victims were police officers. Carnes asserts his 

error in spite of evidence that Deputies Vranish and Johnston were both in uniform, that 

Carnes referred to them as “sir,” and that Carnes repeatedly asked what he did wrong. 

Even assuming that the District Court improperly instructed the jury, I fail to see how, 

under these circumstances, Carnes suffered substantial prejudice.

¶25 I would not find that this jury instruction resulted in a manifest miscarriage of 

justice, left unsettled the fundamental fairness of the proceeding, or compromised the 

integrity of the judicial process. Nor do I believe it implicates a fundamental right of 
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Carnes. It is my view that the jury was fully and fairly instructed as to the law of the case 

and that the judgment should be affirmed.

/S/ LAURIE McKINNON

Chief Justice Mike McGraths joins the dissent.

/S/ MIKE McGRATH