### No. 93-640 

### IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,
-vs- 

## SEP 

## 201SS4 CHARLES FISCH, 

# ZdSmid Defendant and Appellant. C~~~~~~~~~~EMECOURT STATEOFMONTANA



### APPEAL FROM: District Court of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Rienne H. McElyea: Berg, Lilly, Andriolo & 

### Tollefsen, Bozeman, Montana

For Respondent: Hon. Joseph 

### P. Mazurek, Attorney General, John Paulson, AssetAttorney General, Helena,Montana Michael Salvagni, Gallatin County Attorney, Bozeman, Montana

Filed: Submitted on Briefs: July 6, 1994 

### Decided: September 20, 1994

-. 

## .7 , "' ,? f ,/A \.: ,- . j , wWLWL/b

### Justice Karla 

### M. Gray delivered the 

### Opinion of 

### the Court.
Charles ~isch appeals from a 

### jury

### verdict and judgment of the 

### Eighteenth~udicial ~istrict Court,GallatinCounty,convictinghim of 

### the offense of aggravated assault. 

### He asserts error in the court's refusal to instruct the 

### jury on the alleged lesser included offense of 

### negligent endangerment. We 

### affirm. Charles Fisch (Fisch) was charged 

### with aggravated assault, a 

### felony, 

### inviolation of 5 45-5-202(1), MCA. He 

### pleaded not guilty and the 

### case proceeded to a 

### jury trial. 

### In presenting its case, the State of Montana (State) contended that Fisch had knowingly 

### or purposely caused serious bodily injury to his stepson, LaShaun Geehan (Geehan), by shooting him in the back with a .22 

### caliber rifle. Geehan testified that the shooting arose out of an argument he had 

### with Fisch 

### only moments before the shooting occurred. Fischgs position was that his actions constituted negligent conduct. The District Court and counsel settled jury instructions during the second 

### day of the trial, The court refused Fisch's proposed instruction that the 

### offense of 

### negligent endangerment is

a 

### lesser included offense of 

### aggravated assault; the court also refused other negligent endangerment-related instructions offered by Fisch. The 

### jury found Fisch guilty 

### of aggravated assault. The District 

### Court sentenced Prison on the aggravated and 7 

### years1imprisonment him to 15 

### years in the Montana State assault charge, with 5 

### years suspended,

for using a weapon in the commission of 2

### the offense,to run consecutively. 

### The court also designated Fisch

a dangerous offender. Restitution in the amount of $16,160.94, for 

### Geehanfsmedical expenses, 

### was ordered as a 

### condition of the suspended sentence. Fisch appeals. Did the District Court err in refusing Fischlsproposed instruction that negligent endangerment is a 

### lesser included offense of aggravated assault? A 

### criminal defendant is entitled to 

### an instruction on a lesser 

### included offense if, based on the evidence, the 

### jury rationally could find him guilty of 

### the lesser offense and acquit him of 

### the greater offense. Section 46-16-607(2), MCA; 

### State 

### v. Sheppard (1992), 253 Mont. 118, 123, 832 P.

### 2d 370, 373. 

### That entitlement is 

### premised on the offense actually constituting a lesser 

### included offense and the existence of sufficient evidence to support the 

### included offense. The issue before us here is themore fundamental question of whether the District Court erred in concluding that negligent endangerment is not a 

### lesser included offense of 

### aggravated assault under § 

### 46-1-202(8)(c), MCA. 

### Three alternative definitions of "included offenses,lfoften referred to 

### as lesser included 

### offenses, are contained in 5. 46-1- 202(8),MCA. 

### Fisch offeredhisproposed 

### instructionthatnegligent endangerment is an offense included in aggravated assault under subsection (c) of 

### that statute, which provides that 

### an included offense 

### is one that ndiffersfrom the offense charged 

### only in the respect 

### that 

### a less serious injury 

### or risk to 

### the sameperson, , 

# .

. or a lesser kind of 

### culpability suffices to establish its 

### commission. Section 46-1-202 (8)(c)

## ,MCA. 

### We have not 

### previouslyaddressed this specific statutory definition of an included offense

# . The offense of aggravated assault is committed if a person "purposely or knowingly causes serious bodily injury to another." Section 45-5-202(1), MCA. The offense of negligent endangerment is committed when a person 18negligentlyengages in conduct that creates a substantial risk of death or serious bodily injury to another 

# . . . 

# ." Section 45-5-208(1), MCA. Fisch argues that the offense of negligent endangerment requires a lesser mental state 

### and a lesser standard of harm than aggravated assault and, as a result, that negligent endangerment is a lesser included offense of aggravated assault under 

### S 46-1-202(8)(c), MCA. We disagree. The definition of included offense contained in 46-1- 202(8) (c), MCA, is written in the disjunctive and with an tlonly*v qualifier. Thus, an included offense may differ from the offense charged by way of a less serious injury or a less serious risk or
a lesser kind of culpability. In other words, an offense is an included offense under § 46-1-202(8) (c),MCA, if it differs from the charged offense in one, but only one, of the three ways set forth in the subsection. This careful drafting permits an offense which differs from the charged offense in only one significant respect regarding degree to be an included offense; at the same time, it prevents the "inclusion" of offenses which differ sharply in several respects from the charged offense. Fisch's underlying position is that two (or, perhaps, all three) of the subsection (8)(c) variations in degree exist betweenaggravated assault and negligent endangerment. Under an appropriate reading of the statute, it is clear that even if Fisch

were correct as to the existence of these several differences, negligent endangerment would not be a lesser included offense of aggravated assault under 5 46-1-202(8)(c), MCA. Moreover, Fischlspremise that the "less serious injuryt1 criterion contained in 

### 5 46-1-202(8)(c)

## ,MCA, is met herevis-a-vis negligent endangerment and aggravated assault is incorrect. A less serious injury than the "serious bodily injury" upon which this charge of aggravated assault was based would be "bodily injury." Indeed, the legislature has provided for an offense differing from aggravated assault with respect to the degree of injury, namely, assault. &=-g 

### 55 45-5-201(1)(a)

# - (b)

## , MCA. Similarly, Fischlsargument that the "less serious risk" criterionof 5 46-1-202(8) (c)

## ,MCA, is met here also fails. First, Fischmeshes the "less serious injury or risk1!components into one;
as discussed above,the constructionof 

### 5 46-1-202(8)(c)

## ,MCA,does not support this approach. Second, the serious bodily injury upon which the aggravated assault charge is premised is totally unrelated to the seriousness of a "riskwdefined in any statute. A "riskuelement--of whatever degree--is altogether distinct from

an I1injuryII element; as used in the statute, a risk connotes creating a dangerous situation or condition, while an injury connotes the actual infliction of harm. Risks of varying degrees would compare an element suchas the "substantialriskt8 of death or serious bodily injury contained in the negligent endangermentdefinition with, for example, a mere "risk" of death or serious bodily injury. Here, Fisch's conduct--even if merely negligent-- did not create a risk; it inflicted an actual injury. Finally, Fisch equates the "lesser kind of culpability" criterion in 

### 5 46-1-202(8)(c), MCA, to themental state element of the two offenses. He reasons that the "negligently engages in conduct" element of negligent endangerment is a lesser degree of culpability than the "purposely or knowingly causes" element of aggravated assault. We need not resolve this question here. Assuming arsuendo that Fisch is correct in this regard, this lesser kind of culpability would be the only trait shared by the two offenses; as discussed above, the other elements of the offenses are qualitatively different and unrelated. Section 46-1- 202(8) (c), MCA, explicitly directs that an included offense may differ from the offense charged only in respect to one of the statutoryvariations. The District Court correctly concluded that negligent endangerment is not a lesser includedoffense of aggravated assault under 

### 5 46-1-202(8) (c)

### ,MCA. As a result,no amount of evidence in support of that offense could have entitled Fisch to a negligent endangerment instructionunder that statute. We hold, therefore, that the courtdid not err in refusing Fisch'sproposed instruction

on that basis. Fisch also argues that negligent endangerment is a lesser included offense of aggravated assault under the definition contained in 

### 5 46-1-202(8) (a), MCA. 

### A proper analysis of thatissue would include application of the so-called Blockburser test for determining whether an offense is a lesser included offense of another offense. 

### gee, e.g., State v. Arlington (Mont. 1994), 875 P.2d 307, 329, 51 St.Rep. 417, 433; citing Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306. As set forth above, however, Fisch did not offer his proposed instruction pursuant to § 46-1-202(8)(a), MCA, in the District Court. "It is axiomatic that a party may not change the theory on appeal from that advanced in the district court." State v. Henderson (Mont. 1994), 877 P.2d 1013, 1016, 51 St.Rep. 606, 607

(citation omitted). We decline to address the merits of this argument. AFFIRMED.September20, 1994 CERTIFICATEOFSERVICE Ihereby

### certifythatthefollowingcertifiedorderwas sentby 

### United Statesmail, prepaid, tothe followingnamed:

RienneH. McElyea BERG,LILLY,ANDRIOLO&TOLLEFSEN,P.C. 910TechnoligyBlvd., Suite A Bozeman,MT59715 Michael Salvagni GallatinCounty Attorney 615

### So. 16th Bozeman,MT59715 Hon.JosephP. Mazurek,Attorney General GeorgeSchunk,Assistant JusticeBuilding Helena,MT59620

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA