STATE v BOUSLAUGH
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No. 13737 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THE STATE OF MONTANA, Plaintiff and Respondent, -vsCARTER BOUSLAUGH, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: lloses, Tolliver and Wright, Billin~s,Montana R. Allen Beck argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Mayo Ashley argued, Assistant Attorney General, Helena, Montana Harold F. Hanser, County Attorney, argued, Billings, Montana James Walen, Deputy County Attorney, argued, Billings, Montana Submitted: Filed: MbL, January 26, 1978 ~ecided#RR 2 2 ,- - ,-?I 7978 M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court: Defendant C a r t e r Bouslaugh was charged i n t h e D i s t r i c t Court, Yellowstone County, with having committed t h e crime of aggravated a s s a u l t on J u l y 18, 1976, i n v i o l a t i o n of s e c t i o n 94-5-202(1)(b), R.C.M. 1947. Following a jury t r i a l he was convicted and sentenced t o serve 10 years i n t h e Montana s t a t e prison. Defendant appeals t h e conviction. The i s s u e s presented on appeal a r e : 1) Whether by r e f u s i n g t o include an o f f e r e d i n s t r u c t i o n on misdemeanor a s s a u l t , the t r i a l c o u r t committed r e v e r s i b l e error? 2) Whether by r e f u s i n g an o f f e r e d i n s t r u c t i o n p o i n t i n g o u t t h a t a shooting alone i s n o t s u f f i c i e n t t o o b t a i n a conviction, t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r ? 3) Whether t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r i n r e f u s i n g o f f e r e d i n s t r u c t i o n s dealing with s p e c i f i c i n t e n t and mens rea o r c r i m i n a l i n t e n t ? On J u l y 18, 1976, a t a motorcycle h i l l c l i m b south of B i l l i n g s , Montana, defendant C a r t e r Bouslaugh was involved i n a f i s t f i g h t which was p r e c i p i t a t e d by Don Maxwell who accused defendant of s t e a l i n g h i s beer cooler. Following a s h o r t , one- sided f i g h t between Maxwell and defendant, another f i g h t broke out between Mike Donovan and defendant. After a f i v e t o f i f t e e n minute f i g h t , defendant r e t r e a t e d and attempted t o g e t i n t o h i s pickup. During t h i s a f f r a y , defendant's g l a s s e s were knocked o f f and l o s t . A t t h e time defendant t r i e d t o g e t i n t o h i s pickup, he appeared t o be t i r e d and t r y i n g t o avoid any f u r t h e r f i g h t i n g . When Bouslaugh reached h i s pickup and attempted t o g e t i n s i d e , he was hindered by Mike Donovan who slammed d e f e n d a n t ' s l e g i n t h e door. Bouslaugh then g o t out of h i s pickup with a .44 magnum p i s t o l i n h i s hand. l e a v e him a l o n e . looking f o r cover. He s h o t i t i n t h e a i r and t o l d everyone t o This warning d e t e r r e d Donovan who took o f f A t t h i s time Bouslaugh could s t i l l n o t l e a v e t h e h i l l c l i m b s i t e because o t h e r v e h i c l e s blocked h i s pickup truck. Bouslaugh then went t o t h e r e a r of h i s v e h i c l e where Ken Boulet and Kerry Loran and o t h e r s p e c t a t o r s were l o c a t e d . A s Bouslaugh approached, Kerry Loran t o l d him t o put h i s gun down, Bouslaugh pointed t h e gun a t them and t o l d them t o back off. Nevertheless, Loran stepped toward defendant who turned -toward him, pointed t h e gun a t him, and pushed i t toward him. While pushing t h e gun toward Loran, t h e weapon discharged and t h e b u l l e t s t r u c k Kerry Loran i n t h e c h e s t . Both t h e v i c t i m and Boulet t e s t i f i e d t h a t a t t h i s time they d i d n o t b e l i e v e Bouslaugh was going t o shoot anybody, s i n c e he had no reason f o r doing so. A f t e r t h e v i c t i m was shot a group of men a t t a c k e d Bouslaugh and took t h e gun from him. I n t h e ensuing s t r u g g l e t h r e e o t h e r s h o t s were f i r e d , one h i t t i n g a bystander i n t h e arm. Defendant contends he had no s p e c i f i c i n t e n t t o a s s a u l t Loran and t h e gun e i t h e r a c c i d e n t l y d i s c h a r g e d , o r discharged due t o ~ o u s l a u g h ' snegligence. I t i s a fundamental r u l e t h a t t h e c o u r t ' s i n s t r u c t i o n s should cover every i s s u e o r theory having support i n t h e evidence. 315. S t a t e v. Thomas, 147 Mont. 325, 413 P.2d Here, defendant was charged w i t h aggravated a s s a u l t i n v i o l a t i o n of s e c t i o n 94-5-202, R.C.M. 1947, which provides: II A person commits the offense of aggravated assault if he purposely or knowingly causes: "b () Boaily injury to another with a weapon." The District Court refused to give a lesser included offense instruction of mtsdemeanor assault. R.C.M. Under section 94-5-201, 1947: " 1 A person commits the offense of assault if he: () "*** " b negligently causes bodily injury to another with () a weapon * * *.I1 The difference between aggravated assault and the lesser included offense of misdemeanor assault is the intent of defendant at the time the crime was committed. From a review of the record, it becomes readily apparent there was ample evidence to put into question whether the defendant knowingly or purposely shot the victim, or negligently shot the victim. Montana's standard for determining whether there has been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in State v. Buckley, (1976), Mont . , 557 P.2d 283, 33 St. Rep. 1204, 1207: "* * * the district court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the district court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide .I1 This is the standard to be used when dealing with all lesser included instructions, regardless of the offense. The United States Supreme Court in Keeble v. United States, (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L ed 2d 844, said 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. I n t h e c a s e before us t h e record i s r e p l e t e with such evidence. The t r a n s c r i p t shows t h e v i c t i m Kerry Loran, a t t h e time of t h e shooting,did not b e l i e v e defendant was going t o shoot him. There was a l s o testimony given by various e x p e r t witnesses a s t o defendant's v i s i o n without h i s g l a s s e s , i . e . , without h i s g l a s s e s Bouslaugh's blind. v i s i o n was 401400 o r l e g a l l y Other s p e c t a t o r s t e s t i f i e d t h a t defendant had been beaten up s u b s t a n t i a l l y and he seemed u n s t a b l e a t t h e time he came from t h e pickup with t h e gun. I t i s c l e a r from t h e evidence a reasonable inference may be drawn t h a t defendant a c c i d e n t l y o r n e g l i g e n t l y shot t h e v i c t i m and t h e r e f o r e i t was p r e j u d i c i a l e r r o r t o r e f u s e t o give t h e jury an i n s t r u c t i o n on misdemeanor assault. The s t a t e contends t h e crime committed was e i t h e r aggravated a s s a u l t o r no crime a t a l l . Mont . , I n S t a t e v. Baugh, (1977), 571 P.2d 779, 34 St.Rep. was convicted of d e l i b e r a t e homicide. 1315, 1318, t h e defendant Defendant argued he was prejudiced by t h e t r i a l c o u r t ' s r e f u s a l t o give a l e s s e r included i n s t r u c t i o n on mitigated d e l i b e r a t e homicide. I n Baugh t h e r e was no evidence of any f a c t o r s tending t o i n s t i g a t i o n and t h i s Court held: "' * * * I n many i n s t a n c e s , however, t h e evidence i s such a s t o show t h a t t h e defendant i s e i t h e r g u i l t y of t h e offense charged o r i s e n t i t l e d t o an a c q u i t t a l . I n such cases t h e c o u r t may not be put i n e r r o r f o r r e f u s i n g o r f a i l i n g t o i n s t r u c t a s t o t h e lower degree of t h e included offense.'" 571 P.2d 781. See a l s o : S t a t e v. McDonald, (1915), 51 Mont. 1, 16, 149 P. 279. From our record t h e j u r y could have found, had i t been properly i n s t r u c t e d , t h a t defendant was g u i l t y of t h e l e s s e r included offense of misdemeanor a s s a u l t . The record i n d i c a t e s : 1) The gun went o f f while defendant was i n t h e middle of a sentence. 2) Defendant, who l o s t h i s g l a s s e s e a r l y i n t h e f i g h t , i s l e g a l l y b l i n d without them. 3) Defendant by f i r i n g t h e gun i n t h e a i r demonstrated no i n t e n t t o harm anyone. 4) None of t h e many witnesses could t e s t i f y they thought defendant intended t o shoot t h e victim. 5) Defendant appeared t i r e d and unstable. 6) Defendant t o l d everyone around him t o s t a y away. 7) D r . Trunnel t e s t i f i e d t h a t due t o defendant's mental make-up, confusion caused by t h e f i g h t , and h i s almost t o t a l l o s s of v i s i o n without h i s g l a s s e s , he would s u f f e r a decompens a t i o n f u n c t i o n , which means defendant would be very upset and con£used. The judgment of t h e t r i a l c o u r t i s reversed and t h e sentence i s vacated. The cause i s remanded f o r a new t r i a l , c o n s i s t e n t with t h i s opinion. A ' / Justice / W Concur: e \ Chief J u s t i c e . Mr. Justice John C. Harrison dissenting: I dissent. The testimony that the witness was not afraid that the appellant would shoot him should have been rejected. The witness's state of mind was neither material to the crime with which appellant was charged, nor relevant to the jury's determination whether the weapon was exhibited in a threatening manner. The purpose of the statute is to make punishable acts that endanger or are likely to endanger other persons without any specific intent to do so. Whether or not he drew the weapon for self, defense was a fact question to be determined by the jury and here they found contra to the appellant's contentions and in my opinion we are bound by their finding. I would affirm the conviction.
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