No. 93-640 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs- SEP 20 1SS4 

CHARLES FISCH, Zd Smid 

Defendant and Appellant. C~~~~~~~~~~EMECOU

STATE OF MONTANA 

APPEAL FROM: District Court of the Eighteenth Judicial 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, Asset Attorney General, 

Helena, Montana 

Michael Salvagni, Gallatin County Attorney, 

Bozeman, Montana 

Filed: 

Submitted on Briefs: July 6, 1994 

Decided: September 20, 1994 -. .7 , "' 

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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, Gallatin County, convicting him 

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, in violation 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 years1 imprisonment 

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 

Geehanfs medical expenses, was ordered as a condition of the 

suspended sentence. Fisch appeals. 

Did the District Court err in refusing Fischls proposed 

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 the more 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,lf often 

referred to as lesser included offenses, are contained in 5. 46-1- 

202 (8), MCA. Fisch offered his proposed instruction that negligent 

endangerment is an offense included in aggravated assault under 

subsection (c) of that statute, which provides that an included 

offense is one that ndiffers from the offense charged only in the 

respect that a less serious injury or risk to the same person, , . 

. or a lesser kind of culpability suffices to establish its 

commission. Section 46-1-202 (8) (c) , MCA. We have not previously 
addressed 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 18negligently engages 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 between 
aggravated 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, Fischls premise that the "less serious injuryt1 

criterion contained in 5 46-1-202 (8) (c) , MCA, is met here vis-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, Fischls argument that the "less serious risk" 

criterion of 5 46-1-202(8) (c) , MCA, is met here also fails. First, 

Fisch meshes the "less serious injury or risk1! components into one; 

as discussed above, the construction of 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 "riskw defined in any statute. 

A "risku element--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 such as the "substantial riskt8 of death or 

serious bodily injury contained in the negligent endangerment 
definition 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 the mental 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 

statutory variations. 

The District Court correctly concluded that negligent 

endangerment is not a lesser included offense 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 instruction under that statute. We hold, therefore, 

that the court did not err in refusing Fisch's proposed 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 that 
issue 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. 
September 20, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Rienne H. McElyea 

BERG, LILLY, ANDRIOLO & TOLLEFSEN, P.C. 

910 Technoligy Blvd., Suite A 

Bozeman, MT 59715 

Michael Salvagni 

Gallatin County Attorney 

615 So. 16th 

Bozeman, MT 59715 

Hon. Joseph P. Mazurek, Attorney General 

George Schunk, Assistant 

Justice Building 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA