                                 NO.     93-165
           IN THE SUPREME COURT OF THE STATE OF MONTANA




THE STATE OF MONTANA,
          Plaintiff and Respondent,




          Defendant and Appellant.
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APPEAL FROM:   District Court of the Seventeeth Judicial District,
               In and for the County of Blaine,
               The Honorable Leonard H. Langen, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Patrick F. Flaherty, Great Falls, Montana
          For Respondent:
               Honorable Joseph P. Mazurek, Attorney General:
               John Paulson, Assistant Attorney General, Helena,
               Montana
               Donald Ranstrom, County Attorney, .Chinook,                        Montana


                                 Submitted on Briefs:              December 2, 1993
                                                    Decided:        March 17, 1994
Filed:
Honorable Dorothy McCarter,     District Judge, delivered the Opinion
of the Court.
       Mike Mummey (Defendant) appeals from Blaine County District
Court orders denying his motions for directed verdict, and for
judgment notwithstanding the verdict after his conviction for
felony assault.    We affirm.
       On December 9, 1991, Raymond Miller, Merle Darling and Wade
Hillier drove to Montana from their home in Canada to visit friends
and purchase some equipment for a hot water tank.          When they
arrived in Harlem, Montana, they stopped at the Nite Train Bar to
visit with Miller's friends and have some drinks.
       A few blocks from the Nite Train Bar was Kennedy's Bar, where
Defendant was drinking with Joe Mohar and Louis "Ruddy" Mount.
Defendant and Mohar became disruptive and after being rebuked by
the bartender, they left Kennedy's and proceeded to the Nite Train
Bar.
       At the Nite Train Bar, Defendant noticed the three Canadian
men and made a derogatory comment to the bartender, asking if the
men were "some of your pig farmer friends from up north."       Mohar
saw one of the Canadians, Wade Hillier, talking to three local
women.    Mohar went over to Hillier, shoved him away and, using
profane   language, told him to get out of the way and leave his
women alone.   Raymond Miller went over to Mohar and asked what the
problem was.   Mohar replied with profanity, telling Miller that he



                                   2
and his Canadian friends should get out of the bar and out of the

country.

        The owner of the bar intervened and told Mohar to leave.

Mohar yelled to Defendant that he did not like Canadians, and

yelled to Miller that he would take him outside and fight him.

Mohar then left the bar.        Defendant purchased some beer and a

bottle of liquor and also left the bar.

        Miller remained in the bar for about five minutes, then left.

Merle Darling, who had not witnessed the shoving incident and the
exchange of words between Mohar and Miller, assumed that Miller was

going to Kennedy's, and decided to go see what was happening there.

When he opened the front door of the Nite Train Bar to leave,

Darling saw Miller lying on the street on his back, being kicked by

Defendant and Mohar.     Darling charged into Defendant and Mohar in

an attempt to get them off Miller.         Darling was knocked to the

ground by a blow and then was kicked four or five times in the

head.    One kick struck him in the mouth. When the assailants left,

Darling got up, checked Miller,        and returned to the bar to get

help.

        Darling was   cut and bruised,     and his false teeth were

shattered.      Miller suffered severe facial injuries,     including

injuries to his eyes.     As a result of the severe beating, Miller

suffered a memory lapse and could not recall the events that led to

his injuries.    Darling testified that he was hit in the teeth with



                                   3
what felt like boots,         but he did not see whose boots they were.

Defendant testified that he wore tennis shoes that night.

        During the trial, Ruddy      Mount   and   Defendant   both   testified

that Defendant did not participate in the beating of Miller. Mount

testified that Defendant attacked Darling as he walked out of the

bar.     Defendant testified that he intercepted Darling in order to

keep him out of the fight; he stated that Mount kicked Darling and

he, Defendant, attempted to stop Mount from doing so.

        Defendant was charged with two crimes: aggravated assault

(Count 1) upon Raymond Miller, and felony assault (Count 2) upon

Merle    Darling.   The case proceeded to trial and, at the close of
the State's case, Defendant moved for a directed verdict as to both

counts.      The motion was denied.        On September 23, 1992, the jury

returned its verdict, finding Defendant not guilty of aggravated

assault and guilty of felony assault.         Defendant moved for judgment

notwithstanding the verdict.        That motion was also denied. At the

sentencing hearing the District Court deferred imposition of

sentence for three years and placed Defendant on probation, subject

to certain conditions.

        There are two assignments of error on appeal:

        1.   That the court erred in refusing to grant the motion for

directed     verdict;   and

        2.   That the court erred in refusing to grant the motion for

judgment N.O.V.

        The issues raised in these motions are twofold:

                                       4
     1.     Whether the tennis shoes worn by Defendant were a weapon
under the assault statute; and
     2.     Whether the language in the felony assault count of the
information precluded the jury from convicting Defendant of that
count after acquitting him of aggravated assault.
     Standards of Review
     Section 46-16-403, MCA, permits the district court to dismiss
a criminal action at the close of the prosecution's case when the
evidence is insufficient to support a finding or verdict of guilty.
This Court has construed this statute to mean that *"a verdict of
acquittal may be directed in favor of the defendant on@ if no

evidence exists upon which to base a guilty verdict.'"      State v.

Haskins   (1992), 255 Mont. 202, 210, 841 P.2d 542, 547 (quoting
State v. Christofferson (1989),   238 Mont. 9, 11, 775 P.2d 690, 692)
(emphasis in original).     The Court has repeatedly stated that a
defendant is entitled to an acquittal if reasonable persons could
not conclude from the evidence taken in the light most favorable to
the prosecution that guilt has been proven beyond a reasonable
doubt.    See State v. Doney (1981), 194 Mont. 22, 29, 636 P.2d 1377,
1381; Haskins, 841 P.2d at 547 (citing State v. Laverdure (1990),
241 Mont. 135, 785 P.2d 718).
     The standard of review for a trial court's refusal to grant a
defendant's motion for a directed verdict of acquittal is whether,
after reviewing the evidence in a light most favorable to the


                                   5
prosecution,     any   rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. This is
the same standard of review used by the Court to determine the
sufficiency    of   the   evidence   supporting    a    conviction.     State v.
Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.
     The decision to direct a verdict at the close of the State's
case lies within the sound discretion of the trial court and is not
disturbed on appeal absent an abuse of that discretion.                See State
v. Graves (1990), 241 Mont. 533, 535, 788 P.2d 311, 313.
     The statutes governing practice and procedure in criminal
proceedings do not provide            for judgment notwithstanding the
verdict.   cf. Rule 50(b), (c), (d), M.8.Civ.P. However, § 46-16-
702, MCA, permits a defendant to move for a new trial following a
verdict of guilty, and under this statute, the district court may
modify or change the verdict by finding the defendant guilty of a
lesser included offense or finding the defendant not guilty.
Defendant's motion for judgment notwithstanding the verdict will be
deemed one made under that section.
     The standard of review of a district court's ruling on a
motion for new trial is whether the district court abused its
discretion.     State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d
1071, 1076.
     Issue 1.
     Defendant      argues   that    the   State       failed   to   prove   with
sufficient evidence that his footwear was a weapon under the felony
                                       6
assault     statute.   In   chambers,    while arguing the motion for

directed verdict, Defendant conceded that he had been fighting with

and had committed      'Ia technical assault" on Merle Darling, but

argues that the State had failed to identify the weapon. He
further argues that the tennis shoes, which Defendant wore during

the assault, are not weapons as defined in the statute because they

are incapable of producing serious bodily injury.

     Section      45-2-101(71),   MCA,     defines    "weapon"   as   "any

instrument,    article, or substance that, regardless of its primary

function,    is readily capable of being used to produce death or

serious bodily injury."     One of the elements of felony assault upon
Darling -was use of a weapon.             Section 45-5-202(2)(a), MCA.

"Serious bodily injury" means bodily injury which creates a

substantial risk of death or which causes serious permanent

disfigurement or protracted loss or impairment of the function or

process of any bodily member or organ.       It includes serious mental

illness or impairment. Section 45-2-101(59),         MCA.

     Whether a weapon was used in the commission of a criminal

assault is a factual element to be determined by the jury.             The

test for sufficiency of the evidence with respect to a factual

element of a crime is whether any rational trier of fact could have

found that element beyond a reasonable doubt.               State v. Evans

(1991) I 247 Mont. 218, 224, 806 P.2d 512, 516.
     The statute defining "weapon"        for purposes of the assault

statutes must be construed according to the plain meaning of the

                                    7
language    therein.     See State ex rel. Woodahl v. District Court

(1973),    162 Mont. 283, 292, 511 P.2d 318, 323.            When the language
of the statute is plain, unambiguous, direct and certain, the
statute speaks for itself and there is nothing left for the court
to construe.      Hammill v. Young (1975), 168 Mont. 81, 85-86, 540
P.2d 971, 974.         The language of f, 45-2-101(71), MCA, is broad
enough to include any instrument that although not dangerous per se
may be considered a weapon, depending on its manner of use and the
circumstances in which it is used.
     Many     jurisdictions      have       adopted   this    approach,   when
considering    shoes   as   weapons.    See     Jones v.     Commonwealth (Ky.
1953),     256 S.W.2d 520 (shoes may be regarded within the term
"deadly weapon" when employed in such a manner as may be reasonably
calculated to produce great bodily injury or death); Medlin v.
United States (D.C. Cir. 1953), 207 F.2d 33, cert. denied, (1954)
347 U.S. 905 (shoes are dangerous weapons when they inflict serious
injury): United States v. Barber (D. Del. 1969), 297 F.Supp. 917,
aff'd, (3rd Cir. 1971), 442 F.2d 517;            State v. Born (Minn. 1968),

159 N.W.2d 283; Hay v. State (Okla. Crim. App. 1968), 447 P.2d 447
(shoes are not dangerous weapons per se but the manner of their use
might make them so); Johnson v. State (Miss. 1970), 230 So.2d 810;
People v. Hale (Mich. Ct. App. 1980), 292 N.W.2d 204, vacated on
other arounds, (Mich.       1980) 298 N.W.2d 421; State v. Wraggs (MO.
Ct. App. 1973),    496 S.W.2d 38, cert. denied, (1974) 414 U.S. 1160.
     In Commonwealth v. Polydores (Mass. Ct. App. 1987), 507 N.E.2d
                                        8
775, rev. denied,      (Mass.   1987) 509 N.E.2d 1202, the defendant,
wearing    running   shoes,   kicked the victim repeatedly, causing a
fractured nose, black eyes and bruises.         The court held that the
evidence at trial was sufficient to support a conviction of assault
with a dangerous weapon.        In State v. Munoz (La. Ct. App. 1991),
575 So.2d 848, cert. denied, (La.          1991),   577 So.2d 1009, the
defendant kicked the victim while wearing tennis shoes, causing
serious injuries.     The tennis shoes qualified as a dangerous weapon
within the meaning of the aggravated battery statute.
     Kicking with a tennis shoe clad foot presents a question for
the jury whether Defendant employed a weapon,              under all the
circumstances surrounding the incident.       See e-c;. Hale, 292 N.W.2d
at 205; Johnson,     230 So.2d at 811; Polvdores, 507 N.E.2d at 776.
To rule that a tennis shoe is not a weapon as a matter of law would
deprive the jury of this important fact-finding function.            The
inquiry here is not whether the tennis shoe is a weapon per se, but
whether, under the circumstances of the assault and the manner in
which it was used, it was a weapon.         Accordingly,   the State was
required to prove beyond a reasonable doubt that the ordinarily
harmless footwear was used in such a way that rendered it readily
capable of producing death or serious bodily injury.
     This holding is consistent with our prior decisions addressing
weapons.    In State v. Evans (1991),    247 Mont. 218, 806 P.2d 512, we
affirmed the jury finding that a stun gun was a weapon.         In State
v. Howard (1981),    195 Mont. 400, 637 P.2d 15, we upheld a finding
                                     9
that pantyhose was a weapon where it was used to strangle the
victim.     In State v. Klemann (1981), 194 Mont. 117, 634 P.2d 632,
a glass ashtray was properly found to be a weapon, when the victim
was struck on the head with it repeatedly.         In State v. Matson

(19871,    227 Mont. 36, 736 P.2d 971, a pellet gun qualified as a
weapon when the defendant pointed it at the victims and threatened
them.
        Defendant refers to State v. Deshner (1977),   175 Mont. 175,
573 P.2d 172, in urging us to declare that a tennis shoe is not a
weapon.     In that case, the victim was struck in the face with a
projectile while he was in his car.      He testified that he was not
aware of exactly what had hit him and was not sure if the
projectile had been propelled by a slingshot; nor did he know who
flung the projectile at him.     The defendant stated that he had shot
at the victim's car, but was not sure that he had actually struck
the victim.     No other witnesses were called to show that the victim
had been struck by a projectile fired from a slingshot or that
defendant had fired a projectile at the victim, even though there
were two other individuals in the victim's car at the time of the
incident.     Neither the slingshot nor the projectile was introduced
into evidence.      The record was barren of any testimony that the
slingshot-projectile combination was in fact a weapon capable of
producing death or bodily injury, and the victim suffered only a
bruise.     We held that the testimony when taken as a whole failed to
prove that the assault was committed with a weapon "capable of
                                   10
being used to produce death or serious bodily injury.98                  Deshner,

573 P.2d at 174.
     In the instant case, the victim, Merle Darling, testified that

he was kicked repeatedly with what he thought was a boot, because

it felt like one.       Defendant testified that he wore tennis shoes

that night, and introduced them into evidence.              Darling      sustained

various   facial    injuries,     including    shattering   of   his     dentures,

cutting of his gums and the inside of his lip, cuts above the eyes
and behind the ears, and bruised arms, shoulders and ribs.                      The

jury had sufficient evidence, therefore, to find that Defendant had

kicked    Darling    with   a    tennis    shoe,   and   that    based    on   the
circumstances of the assault and the resulting injuries sustained

by Darling, the tennis shoe was readily capable of causing serious

bodily injury.
     Issue 2

     Defendant asserts that the jury's verdict as to the felony

assault   count    should   be   reversed,     because the language in that

count referred to the occurrence in the aggravated assault count,

of which he was acquitted.          Specifically,    Defendant    asserts      that

the jury verdict of guilty on Count 2 but not guilty on Count 1 is

inconsistent because the language in Count 2 describes the footwear

as the same used in the assault against Raymond Miller in Count 1.

     The information contained the following language, which was

included in Jury Instruction Number 5:



                                          11
                                     Count II

          The Defendant, on or about December 9,         1991,
     committed the offense of Felony Assault, a Felony, in
     that he did purposely or knowingly cause bodily injury to
     another with a weapon, to-wit: Defendant knocked Merle
     Darling to the ground and kicked him in the head with
     footwear which caused pain, bruising, contusions and
     broken teeth to Merle Darling.     Said footwear was the
     same as used on Raymond Miller and was readily capable of
     being used to produce death or serious bodily injury as
     evidenced by injuries caused to Raymond Miller as set
     forth in Count I.

     During    their   deliberations, the jury presented questions to
the court, one of which was:

          If the defendant is found guilty on Count II do we
     have to find him guilty on Count l?     Since the bottom
     line on Court's #5 page 1 indicates that the footwear was
     the same as used on Raymond Miller.
     ANSWER:    No.

     It is well settled that the only purpose of an information is

to let the defendant know what he is charged with having done, so

that he can prepare his defense.             State v. Straight (1959), 136

Mont. 255, 263, 347 P.2d 482, 487; State v. D.B.S. (1985),                   216

Mont. 234, 238, 700 P.2d 630, 633.           Incorporating     the   information

in instructions to the jury is not error where it contains

basically statutory language that applies to the crime of which the

defendant is charged.        State v. Riley (1982),       199 Mont. 413, 430,

649 P.2d 1273, 1281-82;           State v. McKenzie (1980),     186 Mont. 481,
507-08, 608 P.2d 428, 444-45, cert. denied, (1980) 449 U.S. 1050.

     The   language    of   the    information   that   was   incorporated   into

Instruction 5 did not redefine the elements of the crime of felony


                                        12
assault, nor did it change the nature of the offense or the burden
of    proof.     It merely contained surplus language about the footwear
used by Defendant.         That same instruction specifically instructed
the jury that each count in the information charged a distinct
offense, that they must decide each count separately, and that the
Defendant may be found guilty or not guilty of any or all of the
offenses        charged.   It also enumerated the individual elements of
each     of     the   offenses   charged, as   well   as the applicable
definitions.
        This Court has previously held that each instruction must be
viewed in the context of the overall charge.          If all instructions
reviewed as a whole, fairly and accurately present the case to the
jury, the fact that one instruction, standing alone is not as full
as it might have been is not reversible error.         @-l-p.&   649 P.2d at
1281.
        The jury's question concerning the surplus language in Count
2 indicated some confusion which was adequately cleared up by the
court in its answer.         In view of all of the instructions given to
the     jury,     the surplus language contained in Count 2 of the
information did not invalidate the verdict.
        Defendant refers to State v. Later (Mont. 1993), 860 P.2d 135,
50 St.Rep. 1099.           In that case, the defendant was charged with
official        misconduct, but the information charged the crime under
the wrong statutes.        The district court submitted an instruction to
the jury that quoted the language of the correct statute. We held
                                      13
that this amendment of the information was reversible error,
because the change was substantive to the charge, and thus deprived
the defendant of adequate notice of the crime charged and of the
opportunity to defend himself.          Later,   860   P.2d at 137.   In the
instant case,    the language in Count 2 simply refers to footwear
used against another victim as described in Count 1.             It does not
substantively affect the elements of the crime of felony assault.
     In his reply brief, Defendant raised the issue of whether the
judge's answers to jury questions during the deliberations were
prejudicial   and   inaccurate.   This issue was raised for the first
time in Defendant's reply brief,           and is thus not proper for
consideration.      Rule 23, M.R.App.P.
     In summary, we conclude that the issue of whether the tennis
shoe used by Defendant in the assault in Count 2 was a weapon was
properly a question of fact for the jury. The jury's finding that
a weapon was used in the assault was supported by the evidence.
The surplus language in Count 2, which was given to the jury in an
instruction, did not invalidate the jury's verdict of guilty as to
that count.
     The judgment of the District Court is affirmed.




                                  libn. Don >th$ McCarter, Diarict
                                  Judge, sitting in place of
                                  Justice James C. Nelson

                                   14
We concur:




             Justices




                        15
Justice Terry N. Trieweiler         dissenting.

      This case involves nothing more              than a barroom argument
between two drunks which resulted in a fight outside the bar

between defendant and his accuser.          No one was seriously injured in

the fight, and the purported victim was, by his own admission, the

aggressor.     Yet,    as a result of that fight, defendant stands

convicted of a felony for which the potential penalty is ten years

in prison and a $50,000 fine.

      While the historical effort to bring law and order to the west
is   commendable,      this case is a classic example of judicial

acquiescence in prosecutorial overkill and should be a cause of

alarm to all Montana citizens.          This "case of the deadly sneaker"

merits   further    discussion.

      I dissent from the majority opinion for two reasons:                  First,
the State produced insufficient evidence to prove felony assault

pursuant to § 45-5-202(2)(a), MCA, and our prior decision in sfatev.

Deshner (1977),     175 Mont. 175, 573       P.2d 172.          Second,   if what

constitutes a "weapon" for the purpose of satisfying the elements

of the felony assault statute can be established on a case-by-case

basis after the act complained of was committed, and can be

construed so broadly as to include a tennis shoe, then I believe

the statute under which defendant was convicted is unconstitutional

in violation of Article I,           Section    10,      of the United States

Constitution   which    prohibits    expostfacto laws,    and   is   impermissibly




                                       16
vague in violation of the Due Process Clauses of the Federal and

State    Constitutions.
        Other than the nature of the alleged VUweaponlV that was used by

defendant, the facts in this case are practically indistinguishable

from the facts which we held required reversal of the defendant's

conviction in Deshner.        In that case, the defendant was charged with

aggravated assault under the same provisions which now form the

felony assault statute.           In that case, the victim testified that

while he was driving his car he was struck in the jaw by some kind

of projectile.        He was not aware of exactly what had hit him, nor
who   had    flung    the   projectile.    The only evidence regarding his

physical condition was that he observed blood and admitted himself
to the emergency room at the hospital.                    The only evidence
connecting the defendant and a VVweapon'*              to the incident was

testimony from an investigating officer to the effect that the

defendant confessed to him following the incident that he fired two

shots with a slingshot at the victim's automobile.

        On appeal, Deshner contended that there was no proof that the
slingshot which was used was capable of producing death or serious

bodily      injury,   and   therefore,    proof was absent on an essential

element of the crime of aggravated assault.              That is exactly the
nature of the proof which was required to convict defendant of

felony assault in this case, and which was not produced.                As the

basis for reversing the defendantis            conviction in the Deshner case,

this Court stated that:


                                          17
          The cumulative effect of the testimony offered at
     trial, taken in the light most favorable to the state
     does not prove that the assault was committed with a
     weapon "capable of being used to produce death or serious
     bodily injury."    Even if we assume that the use of a
     slingshot was adequately proven, the record is barren of
     any testimony that the slingshot-projectile combination
     was in fact a weapon capable of producing death or bodily
     injury.   No evidence was presented concerning the size,
     weight or shape of the projectile which struck the victim
     nor the velocity at which the slingshot was capable of
     propelling such projectile. The evidence indicated that
     VanDenBos received a bruise on the jaw requiring no
     hospitalization and that no bones were broken.       Such
     proof falls far short of establishing an assault with a
     weapon capable of being used to produce death or serious
     bodily injury as required by statute.

Deslaner , 573 P.2d at 174.

     In this case,       the nature of proof was remarkably similar.

There were oniy three witnesses to the altercation which formed the

basis for the felony assault charge against defendant.                      They were

the participants in the altercation, Merle Darling and defendant,

and Louie Mount,       who testified after receiving immunity from

prosecution.       Mount's   and    defendant's    accounts     of   what    happened

were substantially different than Darling's.                  They    described    an

altercation with both men rolling around on the ground flailing at

each other with both arms and feet.           While the jury was entitled to

disregard    the   testimony   of   Mount    and   defendant,    they   apparently

gave it some weight because defendant was acquitted of any assault

on Raymond Miller.           That acquittal was inconsistent with the

testimony of Darling, and consistent with testimony from Mount and

defendant.




                                        18
        However,     even if Darling's testimony is accepted in its

entirety,     it provided no more proof than was established by the

State    in   Deshner.

        Darling testified that prior to the altercation, he had

consumed nine or ten beers that evening, but was not sure because
he was not counting.             When he came out of the Rite Train Bar he

alleged that he charged defendant and another to                       "clean    them

characters     off       of   Raymond."   However,   when he got to the fight

scene someone knocked him down, although he did not know who. He

testified that after he was on the ground he believes he was kicked

by two people, but admitted that after being knocked down he was

not 100 percent clear of what happened.
        He reported sustaining bruises, several lacerations, and that

his false teeth were shattered,                 although he did not know who

knocked his teeth out.             He testified that he did not feel any of

the injuries he sustained amounted to serious bodily injury and did

not report ever being admitted to the hospital for observation or

treatment.

        He did not recall having any altercation with Louie Mount,

even    though     Mount       admitted   kicking    Darling's   arm    free     from

defendant in order to extricate defendant from the fight.                       He was

not sure what kind of footwear anyone was wearing.

        Defendant did offer into evidence the tennis shoes he stated

he was wearing that evening,              but there is no indication in the

record of their size, weight, composition, or how they were more

dangerous than a bare foot--if they were.

                                           19
        AS    in Deshner,   the   above        evidence   falls   "far    short of

establishing an assault with a weapon capable of being used to
produce death or serious bodily injury," and therefore, falls far
short of the proof required to convict under Montana's felony
assault      statute.   Certainly any injuries sustained by Darling's
companion, Raymond Miller, cannot support defendant's conviction.
Furthermore, defendant was acquitted of any assault on Miller.
        Deshner has never been reversed nor modified.                    The   Deshner

decision makes good sense.         It should control the outcome in this
case.
        Furthermore, but just as importantly, Montana's felony assault
statute provides no notice to anyone that an article of clothing as
apparently harmless as a tennis shoe, when involved in what would
appear to be a simple misdemeanor assault, would increase the
gravity of the offense from one that would normally be punishable
by a maximum fine of $500 and imprisonment for six months under
5 45-5-201, MCA, to a felony punishable by a fine of up to $50,000
and imprisonment for a period of up to ten years.                        Because   no
rational person would understand that the consequence of his
conduct is so markedly different depending on whether he kicked
someone with a bare foot or a foot covered with a thin layer of
canvas,      any statute which allows such unexpected consequences is
impermissibly vague, and therefore, void because it violates the
Due Process Clauses of the Montana and United States Constitutions.




                                          20
     We have previously held that a statute can violate the
Fourteenth Amendment of the United States Constitution,                  and
Article II, Section 7,           of the Montana Constitution,      if it is
unconstitutionally vague. Statev. Woods (1986),         221Mont. 17, 22, 716

P.2d 624, 627.
          The issue of VaguenessVq with regard to a statute or
     ordinance can be raised in two different connotations:
     (1) whether it is so vague the law is rendered void on
     its face; or (2) if it is vague as applied in a
     particular circumstance.
          The general rule is that a statute or ordinance is
     void on its face if it fails to give a person of ordinary
     intelligence fair noticethathis contemplated conduct is
     forbidden by statute. UnitedStatesv. Harris (1954), 347 U.S.
     612, 74 S.Ct. 808, 98 L.Ed. 989.
CityofChoteauv.Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668.

     I conclude that the combination of 55 45-5-201 and -202(2)(a),
MCA, are unconstitutionally vague as applied to the facts in this
case because a person of ordinary intelligence would not know where
misdemeanor     assault      leaves     off   and   felony   assault begins.
According to the majority's opinion, such a distinction can only be
made on an after-the-fact, case-by-case basis.
     The majority's decision says, in effect, to the public: "We
can't define exactly what felony assault is but we know it when we
see it."      The problem is that with this approach no citizen will
ever know ahead of        time   whether by engaging in a simple barroom
fight they are exposing themselves to charges of misdemeanor
assault or felony assault.            If a participant strikes someone with
his fist, can he assume that he is committing a misdemeanor? On


                                         21
the other hand, if he wears a glove and commits the same act with

no greater damage to the victim,               is he then exposing himself to

imprisonment for a period 20 times greater and a fine 100 times

greater?        Why would any rational person assume those facts to be

true ahead of time?
      Would striking someone with a hand constitute the use of a

weapon?      If so, then what kind of assault would ever rise to the
level of a simple misdemeanor?          Would it be a misdemeanor to strike

someone with a hand, but a felony to strike someone with your foot?

Would it be a misdemeanor to strike someone with a bare foot, but

a felony to strike someone in the exact same way causing no greater

harm when that same foot is covered with a lightweight pliable form
of canvas?       If so, why?     And, what basis would the average citizen
have for assuming these distinctions to be true?

      In light of this decision, should there be a five-day waiting

period and should backgrounds            be checked before a person can

purchase    tennis    shoes?     Are tennis shoes protected by the Second

Amendment?       Can we look forward to a new round of slogans such as:

"Tennis shoes don't kill people.                People   kill    people."    Should

children be allowed to wear tennis shoes, or only adults?

      The majority's           case-by-case,     after-the-fact      approach to

distinguish between the commission of a misdemeanor and a felony is

exactly what was prohibited by the United States Supreme Court in

Bouie v. City of Columbia (1964),     378 U.S. 347, 84 S.          Ct. 1697, 12

L. Ed. 2d 894.        In that case,      several     African-American       citizens

entered    an    all-white   lunch   counter    in   Columbia,    South   Carolina.

                                         22
There were no signs nor notices posted which prohibited their

entry.     However,    they were not served and were asked to leave.

They refused to do so and were charged with, among other things,

criminal   trespass.     They were convicted of that offense and their

conviction was affirmed by the South Carolina Supreme Court.         The
terms of the statute pursuant to which they were convicted

prohibited    "entry upon the lands of another . . . after notice from

the owner or tenant prohibiting such entry . . . .'I Bouie, 378 U.S.

at 349-50.    However, the South Carolina Supreme Court construed the

statute to prohibit not only entry on the premises of another, but
also the act of remaining on the premises of another after

receiving notice to leave.
     The defendants in that case appealed their conviction to the

United States Supreme Court on the grounds that the statute did not

provide fair warning to them that their conduct was a violation of
the law and that when the South Carolina Supreme Court construed

the statute as it did, they were punished for conduct that was not

criminal at the time they committed it, and therefore, their rights

under the Due Process Clause were violated.         The   Supreme   Court

agreed.    It pointed out that:

            The basic principle that a criminal statute must
     give fair warning of the conduct that it makes a crime
     has often been recognized by this Court. As was said in
     United States v. Harrks, 347 U.S. 612, 617,

                   "The    constitutional     requirement     of
             definiteness is violated by a criminal statute that
             fails to give a person of ordinary intelligence
             fair notice that his contemplated       conduct is
             forbidden by the statute. The underlying principle

                                    23
              is that no man shall be held criminally responsible
              for   conduct   which he    could  not   reasonably
              understand to be proscribed.*'

      Thus we have struck down a state criminal statute under
      the Due Process Clause where it was not "sufficiently
      explicit to inform those who are subject to it what
      conduct on their part will render them liable to its
      penalties."   Conna&v. General Comt. Co., 269 U.S. 385, 391.
      We have recognized in such cases that "a statute which
      either forbids or requires the doing of an act in terms
      so vaguethatmen of common intelligence must necessarily
      guess at its meaning and differ as to its application,
      violates the first essential of due process of law,” ibid.,
      and that "No one may be required at peril of life,
      liberty or property to speculate as to the meaning of
      penal statutes. All are entitled to be informed as to
      what the State commands or forbids." Lanzetta v. New Jersey,
      306 U.S. 451, 453.

Bouie, 378 U.S. at 350-51 (footnote omitted).

      The Supreme Court pointed out that the typical application of

the vagueness doctrine was to situations where the language of the

statute   itself was either vague               or   over-broad.    However,    in
language relevant to the situation in this case, the Court pointed

out that a statute can be made vague by its judicial application.

The   Court     held   that   it    was        equally   objectionable   from   a

constitutional standpoint when a statute "precise on its face"                  is

ll'unforeseeably    and retroactively expanded by judicial construction

. . . . 1 II B o u i e , 378 U.S. at 352.       The Court stated that:

             There can be no doubt that a deprivation of the
      right of fair warning can result not only from vague
      statutory language but also from an unforeseeable and
      retroactive judicial expansion of narrow and precise
      statutory language.      As the Court recognized in Piercev.
      lhited States, 314 U.S. 306, 311, "judicial enlargement of
      a criminal Act by interpretation is at war with a
      fundamental concept of the common law that crimes must be
      defined with appropriate definiteness."

                                          24
Bouie , 378 U.S. at 352.

        In fact, the Court pointed out that when courts unforeseeably
expand criminal liability, as the majority has done in this case by
judicial     interpretation,      more than the Due Process Clause is
offended.     Such after-the-fact expansion of criminal liability also
violates Article I, Section 10, of the United States Constitution
which     prohibits   expostfacto laws.    In that regard, the Supreme Court

stated:
        Indeed, an unforeseeable judicial enlargement of a
        criminal     statute,     applied     retroactively,   operates
        precisely like an expostfacto law, such as Art. I, !j 10, of
        the Constitution forbids.          An expostfacto law has been
        defined by this Court as one "that makes an action done
        before the passing of the law, and which was innocent when
        done, criminal: and punishes such action," or "that
        aggravates a crime,   or makes it greater than it was, when
        committed. II Calder v.Bull, 3 Dali. 386, 390.       If a state
        legislature is barred by the I3 Post Facto Clause from
        passing such a law, it must follow that a State Supreme
        Court is barred by the Due Process Clause from achieving
        precisely the same result by judicial construction. Cf.
        Smith v. Cahoon, 283 U.S. 553, 565.            The fundamental
        principle that "the required criminal law must have
        existed when the conduct in issue occurred,'* Hall,
        General Principles of Criminal Law (2d ed. 1960), at
        58-59,     must     apply   to    bar    retroactive   criminal
        prohibitions      emanating from courts as well as from
        legislatures.       If a judicial construction of a criminal
        statute is "unexpected and indefensible by reference to
        the law which had been expressed prior to the conduct in
        issue," it must not be given retroactive effect. I d . , a t
        61.
               . . . When a similarly unforeseeable state-court
        construction of a              criminal  statute is    applied
        retroactively to subject a person to criminal liability
        for past conduct, the effect is to deprive him of due
        process of law in the sense of fair warning that his
        contemplated conduct constitutes a crime. Applicable to
        either situation is this Court's statement in Brinkerhoff-
        Faris[Tnlst&Sav. Co. v. Hill, 281 U.S. 673, 6781, that "if the

                                          25
      result above stated were attained by an exercise of the
      State's legislative power, the transgression of the due
      process clause of the Fourteenth Amendment would be
      obvious," and "The violation is none the less clear when
      that result is accomplished by the state judiciary in the
      course of construing an otherwise valid . . . state
      statute." Id., at 679-680.

Bouie , 347    U. S.   at 353-55 (footnote omitted).

      Likewise,        in this case,      the       majority’s   decision    was    an

unforeseeable enlargement of a criminal statute.                     It takes an act

that any reasonable person would assume was a simple misdemeanor

assault and makes it a felony punishable by ten years imprisonment
based on a judicial decision ren'dered after the act occurred.

      Had defendant and Darling engaged in a simple barroom fight
during which Darling was kicked by defendant, but from which

Darling's injuries were no greater than they were in this case,

defendant would never have been charged with felony assault, and
this Court would never have affirmed a conviction for felony

assault had he been so charged.           This charge and this decision are

simply   the     result    of   accusations   that       defendant   committed   other

aggressive acts of a much more serious nature, but which were never

proven and for which defendant was acquitted.                        This case is a

classic example of bad facts resulting in bad law.

      For these reasons,           I would reverse the judgment of the

District Court.         I would, as the majority did, construe defendant's

post-trial motion as a motion                 for    a    new    trial   pursuant   to

5 46-16-702, MCA, and pursuant to that motion, I would modify the

verdict by finding defendant guilty of the lesser included offense
