State v. Feltz

• Decision Date: 16 March 2010
• Docket Number: No. DA 09-0245.,DA 09-0245.
• Citation: 227 P.3d 1035,2010 MT 48
• Parties: STATE of Montana, Plaintiff and Appellee, v. Joseph Daniel FELTZ, Defendant and Appellant.
• Court: Montana Supreme Court

227 P.3d 1035

2010 MT 48

STATE of Montana, Plaintiff and Appellee, v. Joseph Daniel FELTZ, Defendant and Appellant.

No. DA 09-0245.

Supreme Court of Montana.

Submitted on Briefs February 10, 2010.

Decided March 16, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana. Gina Dahl, Hill County Attorney, Lindsay Osborne, Chief Deputy Hill County Attorney, Havre, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Joseph Feltz appeals his conviction in the District Court for the Twelfth Judicial District, Hill County, of felony assault with a weapon. We reverse and remand for further proceedings consistent with this Opinion.

¶ 2 Feltz raises the following issue on appeal: Did the District Court err when it denied Feltz's request to instruct the jury on misdemeanor assault as a lesser included offense of felony assault with a weapon?

Factual and Procedural Background

¶ 3 On the evening of June 16, 2008, Feltz was involved in an altercation with his girlfriend, Heather Green, and some of his neighbors at the Hacienda Trailer Court in Havre, Montana. Feltz and Green got into an argument outside of Feltz's trailer during which Feltz and Green were shoving, punching and kicking each other. Several witnesses also saw Feltz throw three unopened beer cans at Green. One of Feltz's neighbors, Ramona Champagne, attempted to break up the fight, but in the melee, Feltz hit her in the head. Another neighbor, Zona McConnell, tried to pull Feltz off of Champagne while Champagne's daughter, Jona Bear, hit and kicked Feltz. Champagne later received two stitches for a cut over her eyebrow.

¶ 4 Justin Doney, also a resident of the trailer court, testified at trial that he witnessed three women beating on Feltz. Doney stated that Green was choking Feltz while he was on the ground and that Green did not let go until Feltz was almost unconscious. Doney further stated that he broke up the fight by pulling the women off of Feltz. Doney also testified that he saw Feltz grab a camouflage-handled knife out of his car and heard Feltz threaten to stab the people in the area. Doney later saw Feltz throw the knife in his car.

¶ 5 McConnell testified that she saw Feltz go over to his car, grab a knife out of it and head towards her and the others with the "blade out towards people." She also described it as a green camouflage knife. McConnell further testified that Feltz was swearing at them and calling them names, and that she was scared. McConnell said she called 911 and then threw her cell phone at Feltz and ran away.

¶ 6 Another neighbor, Wayne Hewitt, testified that Feltz was on the ground "and there was a whole bunch of ladies kicking him, beating him and stuff," and that Feltz was "fighting for his life." Hewitt stated that after the parties separated, Feltz went to his car and attempted to drive away, but he hit a fence. Hewitt testified that he never saw a knife. Champagne and Bear also testified that they did not see Feltz with a knife.

¶ 7 Phillip Pipestem witnessed the altercation while he was waiting for a ride to a softball game. Pipestem testified that when Feltz approached him with the camouflage-handled knife, Pipestem threatened to beat Feltz with one of the baseball bats that Pipestem was carrying. Pipestem also testified that Feltz did not attempt to stab or cut anyone with the knife, and that, eventually, Feltz threw the camouflage knife in his car and pulled out a smaller knife.

¶ 8 Kenneth Erickson, the owner of the trailer court, testified that Doney called him and told him that he needed to get over there because they were "killing each other." Erickson and his cousin, Travis Burchard, jumped in their truck and headed to the scene. Erickson stated that when he arrived, Feltz "looked like he had the shit just kicked out of him." Erickson testified that he saw Feltz grab a little black pocket knife and "barely" show it to the other people present. Erickson asked Feltz to give him the knife, and Feltz dropped it in his truck. Burchard testified that he also saw Feltz pull out a black pocket knife. He stated that Feltz just held the knife at his side; he did not waive it around or try to cut anyone.

¶ 9 Feltz testified in his own defense, stating that he had an argument with Green that turned physical when she threw a pop can at him. Although he admitted hitting and shoving Green, he described her as the aggressor. Feltz testified that he was trying to leave when he was jumped by Green, and that is when McConnell, Champagne, and Bear began beating him. Feltz claimed that he did become unconscious when Green choked him and that he awoke on the ground with the four women kicking and hitting him. Feltz admitted hitting Champagne in order to get her off of him. He claimed that he pulled out the pocket knife to get the women to back away from him and that he did not attempt to stab or cut them. He also explained that at one point he went to his car to get away, but after he drove into a fence, he decided he was too intoxicated to drive. Feltz also claimed that while he was still in his car, Green was smacking him through the driver's side window.

¶ 10 After the altercation, the police retrieved the small black folding pocket knife, but they did not find the camouflage-handled knife. Feltz was taken to the hospital in an ambulance. He suffered an abrasion, a scratch, and a small laceration, but did not have any severe injuries.

¶ 11 On June 18, 2008, Feltz was charged by Information with one count of felony assault with a weapon for allegedly causing bodily injury to Green by hitting her with a beer can, and one count of misdemeanor assault for hitting Champagne. On July 2, 2008, the State added a second charge of assault with a weapon for causing McConnell "reasonable apprehension of bodily injury" by threatening her with a knife.

¶ 12 A jury trial was held on January 14 and 15, 2009. During the settling of the jury instructions, the District Court allowed the State to amend the charge involving McConnell to allege that Feltz caused her a reasonable apprehension of serious bodily injury rather than merely bodily injury. In addition, with respect to the charge involving Green, the court instructed the jury on the lesser included offense of partner or family member assault, a misdemeanor. Feltz requested that the court also instruct the jury on the lesser included offense of misdemeanor assault with respect to the assault-with-a-weapon count involving McConnell, but the court refused to do so. The District Court did instruct the jury on the affirmative defense of justifiable use of force.

¶ 13 The jury returned a verdict of guilty on the charges of partner and family member assault, misdemeanor assault, and felony assault with a weapon. On the felony charge, the District Court designated Feltz a persistent felony offender and committed him to the Montana State Prison for ten years with five years suspended. The court imposed six month sentences on each of the misdemeanor offenses to run concurrent to Feltz's sentence on the felony offense. Feltz appeals his conviction arguing that the District Court erred in instructing the jury.

Standard of Review

¶ 14 The standard of review of a trial court's refusal to give an instruction on a lesser included offense is whether the trial court abused its discretion. State v. Johnson, 2008 MT 227, ¶ 12, 344 Mont. 313, 187 P.3d 662 (citing State v. Flores, 1998 MT 328, ¶ 40, 292 Mont. 255, 974 P.2d 124). District courts have broad discretion in formulating jury instructions; however, that discretion is ultimately restricted by the overriding principle that the jury instructions, taken as a whole, must fully and fairly instruct the jury regarding the applicable law. State v. Azure, 2008 MT 211, ¶ 13, 344 Mont. 188, 186 P.3d 1269 (citing State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625).

Discussion

¶ 15 Did the District Court err when it denied Feltz's request to instruct the jury on misdemeanor assault as a lesser included offense of felony assault with a weapon?

¶ 16 During the settling of the jury instructions, Feltz's counsel requested that the District Court instruct the jury that misdemeanor assault was a lesser included offense of felony assault with a weapon for the count involving McConnell. Counsel argued that the case came down to whether McConnell feared serious bodily injury or merely bodily injury, thus a lesser included offense instruction was appropriate. The District Court rejected Feltz's proposed jury instruction on misdemeanor assault.

¶ 17 An instruction on a lesser included offense "must be given when there is a proper request by one of the parties, and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense," rather than the greater offense. Section 46-16-607(2), MCA; see also State v. Martinosky, 1999 MT 122, ¶ 18, 294 Mont. 426, 982 P.2d 440. Moreover, a defendant is entitled to a lesser included offense instruction if two criteria are met: (1) the offense must constitute a lesser included offense as defined by § 46-1-202(9), MCA, and (2) there must be sufficient evidence to support an instruction on the lesser included offense. State v. Cameron, 2005 MT 32, ¶ 20, 326 Mont. 51, 106 P.3d 1189.

The purpose of this rule is to ensure reliability in the fact-finding process. It avoids the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal.

State v. Castle, 285 Mont. 363, 367, 948 P.2d 688, 690 (1997) (citing State v. Gopher, 194 Mont. 227, 230, 633 P.2d 1195, 1197-98 (1981)).

¶ 18 An included offense is one that "is established by...