No. 85-537 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN PROBERT, SR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Attorney General, Helena 

John L. Pratt, County Attorney, Roundup, Montana. 

Submitted on Briefs: March 13, 1986 

Decided: June 5, 1986 

Filed: 5 - 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Probert appeals from his Musselshell County District 

Court jury trial and conviction for assault. 

We affirm. 

Probert raises three issues on appeal: 

1. Whether his conviction under 5 45-5-201(1) (a), MCA, 

is unconstitutional? 

2. Whether the District Court properly instructed the 

jury as to the applicable law under which they must decide 

the case? 

3. Whether Probert received effective assistance of 

counsel? 

The victim in this case, John Probert, Jr., is the 

defendant's son. John was a problem child in the two years 

preceeding the assault, both to his parents and school 

authorities. In those years, John saw the school counselor 

daily at first, then weekly. He was spanked several times by 

the school principal under strict controls and was not 

bruised or otherwise injured by the spankings. In January, 

1985, two counselors told Probert and his wife that spanking 

had become an ineffective means of modifying John's behavior. 

From that date on, the school no longer spanked John. 

On April 23, 1985, Probert returned home after six weeks 

on the road driving a truck. Upon returning home, Probert 

learned that John, then nine years old, had set several 

fires, broken the windshield of a pickup, cut spark plug 

wires in the car, scattered gunpowder throughout the family 

trailer, cut down several small trees, vandalized a 

motorcycle, stole $20, run away with his younger sister for 
several hours, and destroyed or stolen other items. Probert 

delivered 20 lashes on John's buttocks and legs with a 

leather belt. 

The following day John showed his back side to a 

janitor. John's back was welted and bruised severely from 

the knees to the lower back. The janitor reported what he 

had seen to school authorities. Pictures of John's back were 

taken that day, and the sheriff and social services workers 

were notified. Assault charges were filed against Probert 

because of the incident. 

The matter came to trial before a jury on June 25, 1985. 

The jury found Probert guilty of assault. Probert was given 

a three year deferred sentence conditioned upon his spending 

30 days in the Musselshell County Jail and undergoing proper 

counseling. Probert appeals. 

The first issue raised by Probert is whether §§ 

45-5-201 (1) (a) and (3) , MCA, are unconstititutional? That 

statute states: 

(1) A person commits the offense of assault if he: 

(a) purposely or knowingly causes bodily injury to 

another; 

(2) Except as provided in subsection (3), a person 

convicted of assault shall be fined not to exceed 

$500.00 or be imprisoned in the county jail for any 

term not to exceed 6 months, or both; 

(3) If the victim is less than 14 years old and 

the offender is 18 or more years old, the offender, 

upon conviction under subsection (1) (a) , shall be 

fined not to exceed $50,000.00 or be imprisoned in 

the state prison for a term not to exceed 5 years, 

or both. 

Bodily injury is defined in S 45-2-101(5), MCA, as 

"physical pain, illness, or any impairment of physical 
condition and includes mental illness or impairment." The 

other pertinent statute is § 45-3-107, MCA, which states: 

A parent . . . is justified in the use of such 

force as is reasonable and necessary to restrain or 

correct his child.. . . 

Probert argues that the assault statute is 

unconstitutional as it fails to give a parent fair notice of 

the conduct prohibited. A parent may legally discipline his 

child with the purpose of causing bodily injury to that child 

if the disciplinary action is reasonable, but the statutes 

give no aid in determining what is reasonable. Therefore, 

the assault statute is unconstitutionally vague. 

It is the law of this State that a defendant cannot 

appeal an issue which was not raised at trial. Section 

46-20-104 (2) , MCA. Three exceptions are codified at § 

46-20-702, MCA. Those exceptions are: 

(1) [Tlhe right asserted in the claim did not 

exist at the time of the trial and has been 

determined to be retroactive in its application; 

(2) the prosecutor, the judge, or a law 

enforcement agency suppressed evidence from the 

defendant or his attorney that prevented the claim 

from being raised and disposed of; or 

(3) material and controlling facts upon which the 

claim is predicated were not known to the defendant 

or his attorney and could not have been ascertained 

by the exercise of reasonable diligence. 

None of these exceptions apply in this case. Since the 

constitutional challenge was not raised at trial and does not 

fall within the exceptions listed above, we will not address 

the argument on appeal. 

Probert's second issue is whether the District Court 

properly instructed the jury as to the applicable law under 

which they must decide the case? Probert alleges four errors 

in the instructions. First, he argues the jury was not 

instructed of the crime charged. This is incorrect. Jury 
instruction no. 1 states that Probert was accused of the 

offense of assault, and instruction no. 2 contains the 

statutory definition of assault. The jury was properly 

instructed of the crime charged. 

Second, he argues the jury was never instructed on the 

necessary elements which the State must prove, specifically 

the jury was told a parent must use reasonable force to 

discipline his child, but the jury was given no instruction 

as to what constitutes reasonable force. In State v. 

Straight (1959), 136 Mont. 255, 347 P.2d 482, we stated that 

the jury should consider all the facts and circumstances 

surrounding the punishment to determine whether it was 

reasonable, and we listed factors for the jury to consider. 

However, we have never held that those factors must be 

included in a jury instruction. The record indicates that 

the jury was given an opportunity to consider all the 

factors. The jury then was instructed that a parent is 

justified in the use of such force as is reasonable and 

necessary to correct his child. No further instruction 

elaborating what is "reasonable" is necessary. 

Probert next argues the jury was not instructed on the 

State's burden to prove its case beyond a reasonable doubt or 

on the elements of felony assault. He is not correct. The 

jury was informed three times in instruction no. 1 of the 

"reasonable doubt" standard, and reasonable doubt was defined 

in that instruction. Further, Probert was charged and 

convicted of assault, not felony assault or misdemeanor 

assault. The fact that the possible sentence for assault is 

greater when the victim is age 14 or younger and the 

defendant age 18 or older is not an element of the crime of 

assault, but relates to sentencing only. Sentencing is the 
exclusive province of the judge. Section 46-18-103, MCA. 

The jury was properly instructed as to the elements of the 

crime of assault. 

Finally, Probert argues the jury should have been 

instructed there was a lesser-included offense of misdemeanor 

assault for which he could be convicted. Misdemeanor assault 

is not a lesser-included offense of felony assault. As 

stated above, defendant was convicted of assault. The 

elements of assault are purposely or knowingly causing bodily 

injury to another. The fact that an assault conviction may 

subject the defendant to either a misdemeanor or felony 

sentence is not an element of the crime of assault, but an 

aspect of sentencing. The jury need not be instructed that 

the victim must be age 14 or younger and defendant age 18 or 

older. So long as the parties' ages are established in the 

record (which they are), and the jury is instructed on the 

elements of assault there is no error. Probert ' s jury 

instruction arguments are not persuasive. 

Probert's final issue on appeal is whether he received 

effective assistance of counsel? In State v. Rose (1980), 

187 Mont. 74, 86, 608 P.2d 1074, 1081, this Court stated that 

a criminal defendant is entitled to the effective assistance 

of counsel acting within the range of competence demanded of 

attorneys in criminal areas. This standard was refined in 

State v. Boyer (Mont. 1985), 695 P.2d 829, 42 St.Rep. 247, 

wherein we stated: 

First, the defendant must show that counsel's 

performance was deficient. This requires showing 

that counsel made errors so serious that counsel 

was not functioning as counsel guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance 

prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 
defendant of a fair trial, a trial whose results 

are reliable. 

Boyer, 695 P.2d at 831 (quoting Strickland v. Washington 

(1985), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). 

To show prejudice: 

The defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional 

errors, the result of a proceeding would have been 

different. A reasonable probability is a 

probability sufficient to undermine confidence in 

the outcome. 

State v. Robbins (Mont. 19851, 708 P.2d 227, 232, 42 St-Rep. 

1440, 1444 (quoting Strickland, 466 U.S. 668). 

The above standards must be applied to the errors 

allegedly committed by Probert's trial counsel. Probert 

alleges his counsel committed six major errors. They are: 

failure prepare instructions; failure 

object to jury instructions; (3) failure to object to 

improper rebuttal witnesses; (4) failure to object to 

hearsay testimony; (5) failure to challenge the 

constitutionality of the assault statute; and, (6) failure 

to exclude prejudicial irrelevant facts. 

Counsel's failure to prepare or object to jury 

instructions is not error. The jury was instructed as to the 

crime charged, the State's burden, the parental privilege 

statute, and the definition of bodily injury. No further 

instructions are required. 

Regarding counsel's failure to object to rebuttal 

witnesses, there was no error. Witness Hanson rebutted 

Probert's claim that there had not been a beating, but merely 

a spanking. Witness Edes rebutted Probert's claim that his 

son did not fear him. The witnesses were proper. 

Counsel's failure to object to hearsay was error. The 

victim did not testify, but several witnesses related to the 
jury the boy's statements to them regarding the incident. 

However, we cannot say that the error was so prejudicial as 

to undermine confidence in the outcome of the case. Probert 

admitted punishing John. The issue was the reasonableness 

and necessity of the punishment. Probert testified that he 

administered 20 lashes to his son with a leather belt, and 

witnesses and admissible photographs clearly detailed the 

extent of his injuries. While it was error for defense 

counsel to fail to object to hearsay testimony, the error was 

not so prejudicial as to amount to ineffective assistance of 

counsel. 

Counsel's failure to raise the constitutional challenge 

is not error. There is a difference between ineffective 

assistance and counsel's tactical decisions in defense of a 

case. We have held before that the decision of whether or 

not to challenge the constitutionality of a statute is a 

matter of legal judgment. State v. Maldonado (1978), 176 

Mont. 322, 336, 578 P.2d 296, 304. 

Probert's final allegation merits discussion. He 

alleges his counsel failed to exclude prejudicial and 

irrelevant facts, specifically that John was removed from his 

parents' home by the State the night after the incident. 

Probert claims this evidence prejudiced his defense to such 

an extent as to undermine confidence in the trial. The jury, 

instead of determining whether the punishment was reasonable 

and necessary was ruling on whether removal of the child from 

the home was necessary and proper. Probert's argument has 

some merit. His counsel should have objected to this 

evidence as irrelevant to the issue at trial. Her failure to 

do so clearly constitutes error. However, we do not agree 

that the evidence unfairly prejudiced the defendant. 
Probert's own testimony established the fact and extent of 

the punishment, the admissible testimony of State's witnesses 

established the severity of the injuries, and the photographs 

fairly and accurately depicted the injuries. There was 

abundant evidence supporting the jury verdict, and we do not 

agree that testimony regarding removal of the child from his 

home confused the jury or unfairly prejudiced the defendant 

or amounted to ineffective assistance of counsel. 

For the reasons stated above, the verdict and sentence 

below are affirmed. 

We Concur: / 

Chief Justice