No. 80-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

THANE GOPHER, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Donovan and Anderson, Office of Public Defender, Great 

Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted on briefs: June 10, 1981 

Decided: @p 1 4 ifdl 

i rlr>r-r Filed: s! i' tybl 

oi;F,,,p**d 

Clerk 
Mr. Justice Gene B. Daiy delivered the Opinion of the Court. 

Defendant Thane Gopher was charged on October 16, 

1959, with aggravated assault, section 45-5-202(1)(d), MCA, 

by an information filed in Cascade County District Court. 

The information alleged that defendant purposely or 

knowingly caused bodily injury to a peace officer by kicking 

nim in the leg. Defendant entered a plea of not guilty. 

On April 1, 1980, a jury returned a verdict of guilty 

anci tne court sentenced defendant to three years in the 

Montana State Prison, with all of the sentence suspended 

except for the first six months which was to be served in 

the Cascade County jail. On June 23, 1980, the court 

excused defendant from serving any further time in jail on 

the requirement that he complete certain conditions of 

employment. Defendant appeals his conviction. 

On the morning of October 5, 1979, an automobile in 

which defendant was a passenger was stopped for "erratic" 

driving. The deputy sheriff requested the operator's 

license of the driver , defendant's brother, who was unable 

to produce one. Af ter receiving the necessary information 

from the driver, the deputy sheriff issued a citation and 

inquired as to the identities of the passengers. Upon 

learning the names of the passengers, the deputy sheriff 

checked with the sheriff 's office to ascertain if there were 

any outstanding warrants on the passengers. When the deputy 

sheriff was informed that there was an outstanding burglary 

war rant for "Jay Thane Gopher, " he approached the vehicle 

and asked the passengers which one was Thane Gopher. 

Defendant hesitated but identified himself and exited the 

vehicle upon the deputy's request. He was then informed by 
the deputy that he was under arrest for burglary. 

Before defendant was placed in the patrol vehicle, he 

was patted down and handcuffed. At this time defendant 

became verbally abusive and verbally threatened the deputy 

sheriff. Defendant also refused to get into the backseat of 

the patrol car and physically resisted the deputy sheriff by 

kicking him in the leg just above the knee. Thereafter, 

defendant fell back into the patrol car and continued to 

resist the deputy sheriff by kicking at him. Finally, the 

deputy, with assistance from another officer, pushed 

defendant into the car far enough to get the door closed. 

The basis for the charge of aggravated assault was 

the "bodily injury" that the deputy sheriff received from 

the defendant's kick to the deputy's leg. When questioned 

about the nature and degree of the injury, the deputy 

sheriff testified that his leg was discolored and sore for 

about a week but that the injury did not require any medical 

treatment whatsoever. 

The issues presented for review are: 

1. Whether, by refusing to include an offered instruction on resisting arrest, the trial court committed 

reversible error? 

2. Whether the State presented sufficient evidence 

to support a verdict beyond a reasonable doubt? 

3. Whether the trial judge had proper jurisdiction? 

Defendant contends that the trial court committed 

reversible error by not instructing the jury that the 

offense of resisting arrest was a lesser included offense of 

aggravated assault. It is a basic rule in this state that 

the trial court's instructions must cover every issue or 
theory having support in the evidence. State v. Buckley 

(1976), 171 Mont. 238, 557 P.2d 283. This Court in State v. 

Ostwald (1979), -- Mont. , 591 P.2d 646, 651, 36 

St.Rep. 442, 448, stated that, " . . . a defendant is 

entitled to instructions on lesser included offenses if any 

evidence exists in the record which would permit the jury to 

rationally find him guilty of a lesser offense and acquit 

him of a greater." See also State v. Baugh (1977), 174 

Mont. 456, 571 P.261 779; State v. Bouslaugh (1978), 176 

Mont. 78, 576 P.2d 261; State v. Radi (1978), 176 Mont. 451, 

578 P.2d 1169. Further, this Court in State v. Hamilton 

(1980)t - Mont . , 605 P.2d 1121, 1129, 37 St.Rep. 70, 

77, emphasized that, " [w]e have consistently held that such 

an instruction is required where there is some evidence to 

support the lesser offense." 

The State argues that the trial court did not err in 

refusing to instruct the jury on the offense of resisting 

arrest because the offenses of resisting arrest and 

aggravated assault are not inherently related and this Court 

should adopt the "inherent relationship" test to determine 

if the two offenses are inherently related. 

The "inherent relationship" test is a product of 

several United States Supreme Court cases culminating in 

Keeble v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 

36 L.Ed.2d 844. In Keeble the Court held that ". . . the 

defendant is entitled to instructions on a lesser included 

offense, if evidence would permit the jury rationally to 

find him guilty of the lesser offense and acquit him of the 

greater ." 412 U.S. at 208. In other words, the test to be 

applied is, if the lesser offense is supported by the 
evidence and is "inherently related" to the greater offense, 

then the instruction should be given to the jury. 

This test does not differ in any appreciable way from 

the standard that has been used in this state. See State v. 

Ostwald (1979), Mont. , 591 P.2d 646, 36 St.Rep. 

442. Therefore, there is no reason to adopt the "inherent 

relationship" test. 

The State's contention that resisting arrest cannot 

possibly be a lesser included offense of aggravated assault 

is erroneous. The basis for its contention is that the two 

sections, 45-5-202(1)(d), MCA (aggravated assault), and 45- 

7-301, MCA (resisting arrest), protect two totally different 

interests in our society. It argues that the aggravated 

assault section protects the physical safety of peace officers while they perform their duties and that the resisting 

arrest section protects society's interest in preventing 

suspects from thwarting an arrest. Therefore, the State 

concludes, there is not a sufficient relationship between 

the two sections to require the lesser included offense 

instruction. 

The resisting arrest statute, section 45-7-301, MCA, 

provides: 

"A person commits the offense of resisting 

arrest if he knowingly prevents or attempts 

to prevent a peace officer from effecting an 

an arrest by: 

"(a) using or threatening to use physical 

force or violence against the peace officer 

or another; or 

"(b) using any other means which creates a 

risk of causing physical injury to the peace 

officer or another. " 

The testimony of the deputy sheriff was that the 

defendant verbally threatened the deputies, kicked one of 
them in the leg, and continued to kick until both officers 

forced defendant into the backseat. Clearly, this is sufficient evidence to satisfy the elements of the resisting 

arrest statute; that is, the defendant did use "threatening" 

language to the peace officers and he did use "physical 

force" against the peace officers. The testimony of the 

defendant's actions was not even contraverted by defendant. 

Further, under the pertinent part of the aggravated 

assault statute, it is stated: "A person commits the offense 

of aggravated assault if he purposely or knowingly causes 

bodily injury to a peace officer." It is apparent from the 

facts that there was a question for the trier of fact as to 

whether defendant "purposely or knowingly caused bodily 

injury" to the deputy sheriff. Again, when the facts are 

applied to the statutes, they would be sufficient to satisfy 

the necessary elements for either offense. Finally, from 

the language of Ostwald, i.e., "[a] defendant is entitled to 

instructions on lesser included offenses if any evidence 

exists in the record which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a 

greater ," 591 P.2d 651, it is clear that the instruction on 

resisting arrest should have been presented to the jury. 

Under federal case law the result is also the same. 

The two federal cases that best illustrate how the "inherent 

relationship" test works are United States v. Whitaker (7th 

Cir. 1971), 447 F.2d 34, and United States v. Johnson (9th 

Cir. 1980), 637 F.2d 1224, 1233. In Johnson the court 

analyzed the inherent relationship test used by the United 

States Supreme Court in Keeble, by utilizing a two-part 

test. First, the court stated that a lesser included 
ofiense must be identitied, and second, a rational jury must 

be able to find the defendant guilty of the included offense 

but innocent of the greater offense. Here, a lesser included 

offense is identifiable and a jury, if the resisting arrest 

instruction is given, could reasonably find defendant guilty 

of resisting arrest and acquit on aggravated assault. 

The Johnson court approach is based upon its reading 

of Rule 31(c), Fed.R.Crim.P. (synonymous with section 46- 

16-603(3), MCA), which regulates the requirement of when a 

lesser included offense instruction should be given. The 

court reasoned that, "[tlhe purpose of this rule is to avoid 

the situation in which the jury, convinced that the defendant is guilty of some crime, is tempted to convict him of 

the charged offenses." 637 F.2d 1233. From the facts, as 

they have been presented in this case, the jury could have 

been forced to find the defendant guilty--that is, the jury 

may not have wanted to let the defendant's action go 

unpunished, so they chose to find him guilty of aggravated 

assault because the only alternative was acquittal. 

The question as to whether the State presented 

sufficient evidence to support a verdict beyond a reasonable 

doubt does not require discussion since the case is being 

reversed on other grounds. 

Defendant's argument that the trial judge lacked 

jurisdiction is without merit. This Court ruled on February 

14, 1980, that defendant's "Motion and Assignment of Judge" 

to hear disqualification proceedings was moot, and that 

order still stands. 

The judgment of the District Court is reversed, and 

the sentence is vacated. The cause is remanded for a new 
triai consistent with this opinion. 

We concur: 

8A&&,ud ~upP-9 

Chief ~ust-ice