### No. 80-276 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1981

THE STATEOF MONTANA, Plaintiff and Respondent,

VS

# . THANE GOPHER, DefendantandAppellant.

Appeal from: District Court of the Eighth Judicial District, Inand for the County ofCascade. HonorableJoelG. Roth, Judgepresiding. Counsel ofRecord: ForAppellant: DonovanandAnderson,Office of Public Defender,Great

Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana J. Fred Bourdeau,CountyAttorney, Great Falls, Montana

Submitted onbriefs: June 10, 1981 Decided: 

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### Filed:

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ClerkMr. 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 injurytoa peace officer by kicking 

### nim in the leg. Defendant entered aplea of not guilty. On April 1, 1980, ajury 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 appealshisconviction. 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. After 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

### 'sofficetoascertain if therewere any outstandingwarrants on thepassengers. When the deputy sheriff was informed that there was an outstanding burglary

warrant 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

### thedeputy thathe was under arrestfor burglary. Before defendant was placed inthepatrolvehicle, he

was patted down and handcuffed. At 

### this time defendant became verbally abusive and verbally threatened the deputy sheriff. Defendant alsorefused toget intothebackseat of thepatrol car and physically resisted thedeputy 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 athim. Finally, the deputy, with assistance from another officer, pushed defendant intothe car far enough togetthedoor 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 thatthe injurydidnot requireanymedical treatmentwhatsoever. The issuespresented for review are: 1. 

### Whether, by refusing to include an offered instruction on resisting arrest, the trial court committed reversibleerror? 2. 

### Whether the State presented sufficient evidence tosupporta verdictbeyond a reasonable doubt? 3. 

### Whether thetrialjudge had proper jurisdiction? Defendant contends that the trial court committed reversible error by not instructing the jury that the offenseof resisting arrestwas 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 ortheory having support in the evidence. State v. Buckley (1976), 171Mont. 238, 557 P.2d 283. This Court inStatev. 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 thejury 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; Statev. Radi (1978), 176Mont. 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 arenot inherently related and thisCourt 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. at208. In other words, the test tobe applied 

### is, if the lesser offense 

### is supported by theevidence and 

### is "inherently related" tothe greater offense, then the instruction should be given to thejury. This testdoes not differ inany appreciable way from the standard thathas been used in thisstate. See Statev. 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 (resistingarrest),protect two totallydifferent interests in our society. It argues that the aggravated assault sectionprotects 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 toprevent a peace officer from effecting an an arrestby: "(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 ofthem 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 arreststatute; 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 actionswas 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 therewas 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 tothe statutes, theywould be sufficienttosatisfy the necessary elements for either offense. Finally, from the language of Ostwald, i.e., "[a]defendant 

### is entitledto instructions on lesser included offenses if 

### any evidence exists in the record which would permit the jury to rationallyfindhim guiltyof a lesser offense and acquithim of a greater

## ,"591 P.2d 651, it 

### is clear that the instruction on resisting arrest should have been presented tothejury. Under federal case law the result 

### is also the same. The two federalcasesthatbest illustratehow 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 includedofiensemust be identitied, and second, a rationaljury must be able to find the defendantguilty of the included offense but innocent of the greater offense. Here, a lesser included offense 

### is identifiable and ajury, if the resisting arrest instruction 

### isgiven, 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, "[tlhepurpose of this rule 

### is toavoid 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 assaultbecause the only alternativewas acquittal. The question as to whether the State presented sufficientevidence tosupport 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 

### iswithout merit. ThisCourt ruled on February 14, 1980, thatdefendant'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 

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