                                          No. 05-012

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 113



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

WILLIAM BERNARD AUNE,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the First Judicial District,
                     In and For the County of Lewis and Clark, Cause No. ADC-2004-104,
                     Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Martin J. Eveland, Assistant Public Defender, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein,
                     Assistant Attorney General; Helena, Montana

                     Leo Gallagher, County Attorney; Carolyn Clemens, Deputy
                     County Attorney, Helena, Montana


                                                        Submitted on Briefs: April 26, 2006

                                                                  Decided: May 23, 2006
Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     The State charged William Bernard Aune with Partnership or Family Member

Assault (PFMA) in violation of § 45-5-206(1)(c), MCA, pursuant to an alleged incident

of physical abuse towards his wife. At trial, the District Court refused Aune’s request for

a lesser-included offense instruction on misdemeanor assault; the jury subsequently found

him guilty of PFMA. Aune now appeals.

¶2     The issue is whether the District Court abused its discretion by refusing to give the

jury a lesser-included offense instruction on assault.

¶3     We affirm.

                                     BACKGROUND

¶4     The defendant and his wife, Dawn Aune (“Dawn”), arrived home intoxicated

around ten o’clock in the evening on May 3, 2005, with their baby. At the time, the

couple lived with Dawn’s mother, Ivon Lockwood, in her basement. Dawn’s three other

children also lived with Lockwood, including twelve-year-old Sean, the oldest child,

whom Lockwood had adopted.

¶5     Sean testified that he was dozing off to television in the living room when he

heard screaming and a car door slam. He looked outside and saw Aune and Dawn

arguing in the driveway. Aune was holding the car seat carrying their baby, while Dawn

screamed at him to give the baby to her. Sean testified that Aune either hit or pushed

Dawn, at which point she appeared to be choking. Aune then threw food and a baby


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bottle at Dawn. Sean also testified that he believed Dawn slapped Aune at some point.

Scared by the fighting, Sean ran upstairs to seek help from Lockwood.

¶6       By the time Lockwood awoke and descended the stairs, Aune and Dawn had

moved their argument to the basement. Lockwood testified that she instructed Dawn to

bring the baby to her, at which point Aune attempted to explain what happened. Fed up,

Lockwood refused to listen to Aune and instead told him to sleep off the alcohol and talk

in the morning. According to Lockwood, Aune then stormed downstairs, slamming

doors.

¶7       Dawn told Lockwood that Aune had hit her and that she was “scared to death.”

Law enforcement arrived shortly thereafter and detained Aune. Aune, who had a slight

scratch under his left eye, stated that Dawn had hit him and that he had not touched her.

Sean spoke with Deputy Ken Getz, showing him where the fight occurred; Deputy Getz

observed food, food wrappers, a baby’s bottle, a beer can and a belt. Law enforcement

interviewed Dawn twice that evening. According to Deputy Getz, Dawn appeared visibly

shaken and intoxicated; however, she indicated that she did not want Aune incarcerated.

Although Dawn initially provided contradictory testimony to law enforcement, at trial she

positively took blame for instigating the fight and insisted Aune did not hit her. Aune

also testified at trial, maintaining that the altercation started as a verbal dispute and that

he only used force in order to defend himself.

¶8       During trial, Aune asked the District Court to instruct the jury on a lesser included

offense of assault. The court denied this request “because the only additional element in

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partner or family member assault that isn’t in the assault offense is the family

relationship,” and since Aune and Dawn were indisputably married, the court concluded

such an instruction would be inappropriate.

¶9     The jury convicted Aune of PFMA. He now appeals the court’s decision to deny

the lesser included offense instruction.

                               STANDARD OF REVIEW

¶10    This Court reviews jury instructions to determine whether the instructions as a

whole fully and fairly instruct the jury on the law applicable to the case. In order for the

district court to instruct the jury on a lesser included offense, the record must contain

evidence from which the jury could rationally find the defendant guilty of the lesser

offense and acquit of the greater, and the offense must actually constitute an included

offense of the crime charged. State v. Martin, 2001 MT 83, ¶ 23, 305 Mont. 123, ¶ 23, 23

P.3d 216, ¶ 23.

                                      DISCUSSION

¶11    The State charged Aune with violating subsection (1) of the PFMA statute, which

reads in pertinent part:

              45-5-206. Partner or family member assault . . . . (1) A person
       commits the offense of partner or family member assault if the person:
              (a) purposely or knowingly causes bodily injury to a partner or
       family member;
              (b) . . .; or
              (c) purposely or knowingly causes reasonable apprehension of
       bodily injury in a partner or family member. [Emphasis added.]




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¶12    Aune argues that the District Court erred by refusing to instruct the jury on assault

as a lesser included offense. He insists that the assault statute qualifies as a lesser

included offense of PFMA and the court should have instructed the jury accordingly in

light of the fact that law enforcement found no signs of physical violence on Dawn. The

assault statute states:

              45-5-201. Assault. (1) A person commits the offense of assault if
       the person:
              (a) purposely or knowingly causes bodily injury to another;
              (b) negligently causes bodily injury to another with a weapon;
              (c) purposely or knowingly makes physical contact of an insulting or
       provoking nature with any individual; or
              (d) purposely or knowingly causes reasonable apprehension of
       bodily injury in another. [Emphases added.]

¶13    An “included offense” is an offense that “(a) is established by proof of the same or

less than all the facts required to establish the commission of the offense charged; (b)

consists of an attempt to commit the offense charged or to commit an offense otherwise

included in the offense charged; or (c) differs from the offense charged only in the

respect that a less serious injury or risk to the same person, property, or public interest or

a lesser kind of culpability suffices to establish its commission.” Section 46-1-202(9),

MCA.

¶14    Aune argues that pursuant to § 46-1-202(9)(c), MCA, assault constitutes a less

serious injury or risk or a lesser kind of culpability than PFMA. In making this argument,

however, Aune has mistakenly relied on language in subsection (1)(a) of the PFMA

statute, rather than the wording in subsection (1)(c), the provision under which Aune was

charged. In other words, Aune’s argument is based on the false premise that the jury
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convicted him of “purposely or knowingly caus[ing] bodily injury to a partner or family

member,” when in fact, he was convicted of “purposely or knowingly caus[ing]

reasonable apprehension of bodily injury in a partner or family member.” (Emphasis

added.)

¶15   Aune’s assertion that assault constitutes a less serious injury or a lesser kind of

culpability than PFMA fails when applied to § 45-5-206(1)(c), MCA. The PFMA statute,

subsection (c), requires proof of “reasonable apprehension of bodily injury,” while the

assault statute, at a minimum, requires proof of that same “reasonable apprehension of

bodily injury.” Thus, the assault statute does not differ from PFMA in requiring a less

serious injury or a lesser kind of culpability. A charge of assault is not, as Aune argues

under § 46-1-202(9)(c), MCA, a lesser included offense of PFMA.

¶16   Affirmed.

                                                /S/ W. WILLIAM LEAPHART


We concur:

/S/ JIM RICE
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON




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