                            NO.    94-409
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995



STATE OF MONTANA,
          Plaintiff and Respondent,
                                                  AMG 0 4   1995
     v.
RALPH OWEN WELDY,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Alfred Avignone, Ungar, Avignone & Banick,
               Bozeman, Montana
               Daniel P. Buckley, Berg, Lilly, Andriolo
               & Tollefsen, Bozeman, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Barbara C. Harris, Assistant Attorney
               General, Helena, Montana
               Mike Salvagni, Gallatin County Attorney,
               Gary Balaz, Deputy County Attorney,
               Bozeman, Montana


                                  Submitted on Briefs:   April 6, 1995
                                              Decided:   August 4, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Ralph Owen Weldy appeals from the sentence and final

judgment    entered in   the   Eighteenth   Judicial   District   court,

Gallatin    County,   finding him guilty of       felony   assault    and

misdemeanor domestic abuse, and sentencing him to consecutive terms

of ten years for felony assault, two years for use of a weapon, and

six months for domestic abuse,         all to run concurrently.       The

District Court designated appellant a dangerous offender for the

purpose of parole eligibility.
     We reverse and remand.

     Appellant raises six issues on appeal.      However, we limit our

decision to the following:

     1.     Did the District Court err in allowing testimony of prior

assaults by appellant against Cynthia Weldy?
     2.     Did the District Court properly instruct the jury as to

the unanimity of its verdict?
     Appellant and Cynthia Weldy were married on May 1, 1993, and

divorced on December 1, 1993.     On July 9, 1993, appellant      visited

Cynthia at the Lucky Cuss,       her place of employment,      where he

observed Cynthia speaking with three men whom he believed were

arranging to meet Cynthia after work.       When Cynthia arrived home

after work she discovered that appellant was agitated and had been

drinking alcohol.
     Appellant began striking Cynthia on the chin, the face, and

her arms.    While Cynthia was seated in a kitchen chair with her



                                   2
back to a wall, appellant began plunging a 12-inch serrated knife
into the wall beside her head.

     Throughout the night and into the next morning, appellant

continued   assaulting   Cynthia.     At one point,    he broke a drinking

glass and threatened Cynthia with the jagged glass bottom. At

another point in the early morning, appellant struck Cynthia on the

head, shoulder, ribs, and hand with a piece of firewood.

     After appellant went to bed at 7 a.m., Cynthia left home and

reported to her second job at the Friendly Cafe.                 At 8:45    a.m.,

appellant walked into the Friendly Cafe and struck Cynthia in the

back and side of her head while she was carrying a pot of coffee.

Appellant left and later returned to the Friendly Cafe where he

pulled Cynthia out the rear door of the cafe and renewed his

assault.
     On January 25, 1994,          the Gallatin County Attorney charged

appellant by amended information with one count of felony assault

under 5 45-5-202(2) (a) or (b),       MCA, and one count of misdemeanor

domestic abuse under 5 45-5-206(l) (a), MCA. Appellant was tried by

a jury and convicted of felony assault and domestic abuse.                    The

District Court sentenced appellant to consecutive terms of ten

years for felony assault and two years for the use of a weapon.                In

addition,   the District Court sentenced appellant to a concurrent

term of six months for domestic abuse, and designated appellant a
dangerous   offender   for   the   purpose   of   parole    eligibility.      The

District    Court   denied    appellant's     motion       for   a   new   trial.

Appellant appeals the judgment and sentence of the District Court.

                                       3
                                          ISSUE 1

        Did the District Court err in allowing testimony of prior

assaults by appellant against Cynthia Weldy?

        We review evidentiary rulings by a district court to determine

whether the district court abused its discretion.                         State v. Parma

(1993) I      261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist

(19921,       253 Mont. 442, 445, 883 P.2d 1052, 1054.                     The    district
court has broad discretion to determine whether evidence is

relevant        and     admissible,     and       absent a     showing of        abuse of

discretion,           the   district     court's determination will                not be

overturned.           Parma, 863 P.2d at 380; -
                                              CristI 833 P.2d at 1054.

        The    charges      brought    against     appellant    involve    events    which

occurred on July 9 and 10, 1993.                   At trial, the State introduced,

and the District Court admitted,                     testimony of prior assaults

committed by appellant against Cynthia between May 3 and July 9,

1993.         Appellant      argues    that testimony of prior assaults was

introduced to show his character and his propensity to act in

conformity therewith in an effort to prejudice the jury.                         Appellant

contends that the prior acts should have been excluded pursuant to

Rules 404(b) and 403, M.R.Evid, and State v. Matt (1994), 249 Mont.

136,    814 P.2d 52.

        The admissibility of prior acts evidence is controlled by

Rule 404(b), M.R.Evid., which provides that:                    II Eelvidence of other

crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith."                             The

general rule of Rule 404(b) must be strictly enforced, except where

                                              4
a departure is clearly justified, and exceptions to the rule must
be carefully limited.     State v. Keys (1993), 258 Mont. 311, 315,

852 P.2d 621, 623; Crist, 833 P.2d at 1054.

     In -
        MattI    we modified the rule established in State v. Just

(1979),   184 Mont. 262, 602 P.2d 957, and set forth a four-part test

to insure that prior acts evidence is not introduced as character

evidence.    The modified just rule requires that:

           (1)   The other crimes,     wrongs or   acts   must be
     similar.

           (2) The other crimes, wrongs or acts must not be
     remote in time.

           (3)  The evidence of other crimes, wrongs or acts is
     not admissible to prove the character of a person in
     order to show that he acted in conformity with such
     character; but may be admissible for other purposes, such
     as proof of motive, opportunity, intent, preparation,
     plan, knowledge, identity, or absence of mistake or
     accident.

           (4) Although relevant, evidence may be excluded if
     its probative value is substantially outweighed by the
     danger of unfair prejudice, confusion of the issues,
     misleading of the jury, considerations of undue delay,
     waste of time, or needless presentation of cumulative
     evidence.

MattI 814 P.2d at 56.
-                        The following procedural protections apply

as part of the modified Just rule:

           (1) Evidence of other crimes, wrongs, or acts may
     not be received unless there has been written notice to
     the defendant that such evidence is to be introduced.
     The notice to the defendant shall specify the other
     crimes, wrongs, or acts to be admitted, and the specific
     Rule 404(b) purpose or purposes for which it is to be
     admitted.

           (2) At   the time of the introduction of such
     evidence, the trial court shall explain to the jury the
     purpose of the evidence and shall admonish it to consider
     the evidence for only such purposes.

                                   5
              (3)  In its final charge, the court shall instruct
        the jury in unequivocal terms that such evidence was
        received only for the limited purposes earlier stated and
        that the defendant is not being tried and may not be
        convicted for any offense except that charged . . .

MattI
-        814 P.2d at 56.

        On March 1, 1994,        the State provided appellant with Just

notice     stating    that it     would offer         evidence    that appellant
assaulted Cynthia on May 3, 1993, and that appellant told Cynthia

that    "I killed my first wife,       what do you think of that."              The
State asserted that it planned                 to offer appellant's physical

conduct and his statement as proof of motive and intent.                        The

District    Court    prevented   either       party   from   offering   appellant's

statement about killing his first wife,                 but allowed Cynthia to

testify about prior assaults committed against her by appellant.

        We must determine whether the alleged prior assaults were

admissible under the modified just requirements to prove that on

May 9 and 10, 1993,        appellant      committed     felony   assault    against

Cynthia by knowingly or purposely causing bodily injury to Cynthia

with a weapon,       or by knowingly or purposely causing Cynthia to

reasonably apprehend serious bodily injury by use of a weapon.

Section 45-5-202(a) or (b), MCA.
        Appellant does not dispute that the alleged prior bad acts

were sufficiently near in time to the charged act to satisfy the

second modified Just criteria.         However, upon review of the record,
we conclude that this is the only requirement of the modified Just

rule which is satisfied.



                                          6
        The State argues that the firs t m~odified          Just requirement is

fulfilled because the acts committed by appellant between May 1993

and July 1993,         and the charged acts,       were     similar.     We have

consistently held that the prior acts dc not have to be identical

to the charged conduct, only sufficiently similar.                State v. Tecca

(1986),     220 Mont. 168, 172, 714 2.2d 136, 138.           See also State v.

Brooks      (1993),   260 Mont. ~79,    857   l.%d 734; State v.        McKnight

(1991),     250 Mont. 457, 820 B.%d 1279; State v. Sadowski (19911, 247

Mont.    63, 805 P.2d 537; State v. Gambrel (IPPOj, 246 Mont. 84, 803

P.2d 1071; State v. Eiler (1988!, 234 Mont. 38, 762 P.2d 210; State

v. Long (1986!, 223 Mont. 502, 726 P.2d 1364.                There is no rigid

rule for determining when conduct is sufficiently similar, rather,

the determination of sini:.arity        do-per. ds on whether that conduct has
some relevance to prove an Fssu+ in ?.?..snu;:e.             &s; 852 P.2d at

623.

        The issue in dispute here is whether appellant used a weapon

to cause bodily injury or reasonable apprehension of serious bodily

injury in Cynthia.          Cynthia    testified   that   commencing    with   the

honeymoon,     her husband's attacks were progressively more .violent

and     that   appellant    threatened to      kill   her    on   at   least   two

occasions.        Given that appe!.lant~      denied using a weapon in the

assault on his wife, the evidence that he had previously, regularly

beat her in a progressively more vi.olent manner tended to prove

that his last assault had gone beyor:d merely slapping her                 "a few

times” as   he conceded, but had escalated, as the State maintained,
to his use of a weapon to injure her or to produce reasonable
apprehension of serious bodily injury.

     Accordingly,       under our prior         case law, while the prior
assaults in this case were not identical to the charged assaults,

they were sufficiently similar for Rule 404(b) purposes in that

they were relevant to prove the issue in dispute.

     The State next argues that the third modified Just requirement

is satisfied because evidence of the other acts of assault against

Cynthia     is relevant to show appellant's           intent and motive in

committing    the     charged   offense.       While motive and intent are
allowable purposes for admitting prior acts evidence,                "merely
reciting an allowable purpose is not sufficient if the evidence

does not further that purpose or that purpose is not an issue in

dispute."     Keys,    852 P.2d at 625.

     In its reply to appellant's               motion in limine to exclude

evidence of prior acts, the State argued that            "the prior beatings

are explanatory of [appellant's] mental state at the time he

committed     the     crimes    charged.   .    .   The prior beatings are

explanatory of what [appellant] thought when he committed the

crimes charged, and they are explanatory of what [appellant] wanted

Cynthia to think . . when she was being beaten . on July 9

and July 10, 1993."         The State's argument is conclusory, and it

fails to demonstrate how the appellant's prior acts show his motive
for or intent to commit felony assault.              We stated in Sadowski,

that to be admissible as relevant to show motive or intent, the
commission of the first crime or act should give rise to a motive

                                       8
or reason for the defendant to commit the second crime.                 Sadowski,
805   P.2d   at     537.       Keeping in mind       that   appellant    admitted
assaulting Cynthia, but denied use of a weapon (that being the only

issue),     there was simply nothing             in the history of the prior
assaults (none of which involved the use of a weapon) that would

give rise to a motive or reason for appellant to use a weapon

during the charged assault.             If anything,    the contrary is true.

The purposes for which the State contends the prior acts are being

offered are        not     relevant to the issue of whether appellant
assaulted Cynthia with a weapon,              or whether he caused her to

reasonably apprehend bodily injury from the use of a weapon.

Again,     the only purpose for this evidence is to imply that

appellant    acted in conformity with his prior bad acts.                    Rule

404(b),    M.R.Evid.,       specifically prohibits such evidence.

      Accordingly,         since part 3 of the four-part Just/Matt test is

not   satisfied,     the other crimes evidence should not have been

admitted.
      We hold that the District Court abused its discretion in

allowing testimony of prior assaults by appellant against Cynthia.

                                       ISSUE 2

      Did the District Court properly instruct the jury as to the

unanimity of its verdict?

      It is within the district court's discretion to decide how to

instruct     the   jury,      taking   into   account the theories of         the

contending    parties,       and we will not overturn the district court

except for abuse of discretion.           Contreras v. Vannoy Heating & Air

                                          9
Conditioning (Mont. 19951,          892 P.2d 557, 558, 52 St. Rep. 246, 248.
       A jury must reach a unanimous verdict in a criminal trial.

Mont. Const. art. II, § 26.           The State argues that this Court has

consistently held that once the jury has been instructed that it

must reach a unanimous verdict, the district court is not required

to repeat this instruction for every alternative charge, provided

that substantial evidence supports all of the alternatives.              State

v. Warnick (1982), 202 Mont. 120, 129, 656 P.2d 190, 194-95.               See
also State v. Cannon (1984), 121 Mont. 157, 687 P.2d 705; McKenzie

v. Osborne (1981), 195 Mont. 26, 640 P.2d 368; Fitzpatrick v. State

(1981),    194 Mont. 310, 638 P.2d 1002, cert. denied (1981), 449 U.S.

891.      The cases cited by the State address alternative states of

mind and alternative charges, and therefore, are distinguishable.

By contrast, the present case addresses charging a defendant with
multiple acts of felony assault under one count, the need for the

court to properly instruct the jury as to unanimity given the

charging     document,     and the requirement that the jury render a

unanimous     verdict under at least one separate act of felony

assault.

       Appellant was charged with and found guilty of one count of

felony assault under § 45-5-202, MCA, which includes two different

statements of the same offense.             Subsection (a) requires that the

State prove bodily injury to the victim by use of a weapon.

Subsection      (b)      requires    that     the   State   prove   reasonable

apprehension of serious bodily injury to the victim by use of a

weapon.      The District Court instructed the jury that " [tlhe law

                                         10
requires the jury verdict in this case to be unanimous.       Thus, all
twelve of you must agree in order to reach a verdict whether the

verdict be guilty or not guilty."      The jury was instructed further

that O[iln your deliberations you shall first consider the charge
of Felony Assault . . .   [all1 twelve of you must find the defendant
either guilty or not guilty of that charge."

       Appellant argues that although the District Court instructed

the jury to return a unanimous verdict, it failed to specifically

instruct the jury to return a unanimous verdict regarding one or

more   specific   acts.   In addition,    appellant   asserts that the
District Court erred by failing to use a proposed verdict form that

would have required the jury to find appellant guilty or innocent

under one, but not both,    sections of the felony assault statute.

By   contrast,    the verdict form supplied by the District Court

provides:

       We the jury, duly empaneled and sworn to try the issues
       in the above case, unanimously find as follows:

                               Count I

       Of the charge of Felony Assault, we find the defendant

                                Guilty

       Although the jury was instructed as to the requirement of a

unanimous verdict, it is not clear from either the instructions or

the jury verdict form under which section of the felony assault

statute that the jury reached its verdict.            The jury may have

signed the verdict form concluding that appellant was guilty of

felony assault without reaching a unanimous verdict as to either or


                                  11
both of the statements of felony assault set forth in subsections

(a) or (b) .       It is impossible to determine from the jury verdict

form whether all 12 members of the jury, or fewer than 12, found

appellant      guilty   of     felony     assault     under     subsection    (a),
subsection (b), or both.

     We     conclude    that   appellant's        constitutional     right   to a

unanimous verdict was not protected by either the jury instructions

or the jury verdict form.         Both the instructions and the verdict

form should have been structured so that it was clear to the jury

that it      was    required to         reach a     unanimous      verdict   under

subsection (a), subsection (b), or both.

     We hold that the District                Court erred by not properly

instructing the jury as to the unanimity of its verdict.

     We reverse and remand for further proceedings consistent with

this opinion.



                                                    Justice

We concur:




     Chief Justice




                                         12
Justice James C. Nelson dissents and specially concurs


     I dissent from our opinion on Issue 1 (other crimes evidence)
and specially concur with our decision on Issue 2 (unanimity of the
jury verdict).
                                      Issue 1
     Appellant's abuse of his wife began,                  literally, on their
honeymoon,     two days        after they were married,         when Appellant
punched, slapped and yelled at Cynthia after she expressed a desire
to attend her stepfather's funeral.               Similar    beatings    occurred
throughout the honeymoon trip and after the couple returned to
Belgrade to live.         The beatings were usually precipitated by a
claim that Cynthia had talked to someone she should not have.
Cynthia    testified    that    her   husband's   attacks    were   progressively
more violent and that Appellant threatened to kill her on at least
two occasions.     This abuse culminated with the incidents for which
Appellant was charged and which are described in our opinion.                The
Appellant conceded that he slapped Cynthia "a few times."                 To the
contrary,    however,     the physician who examined Cynthia in the
emergency roomtestifiedthat he found numerous bruises, tenderness
and swelling on various parts of her body, including her face,
stomach,     shoulders,    arm    and ribs --       some    of those    injuries
consistent with her being hit with a piece of firewood.
     We conclude that the evidence of Appellant's pre-July 9th
assaults on Cynthia was improperly admitted because, even though
sufficiently similar for Rule 404(b) purposes to prove the issue in

                                         13
dispute,    such conduct was,   nevertheless,   not relevant to prove
Appellant's intent and motive in committing the charged offense
which involved an assault with a weapon or reasonable apprehension
of bodily injury from the use of a weapon.        I disagree with our
conclusion in this latter respect.      Rather, I conclude that such
evidence was relevant to prove Appellant's motive and intent; that
such evidence was,    therefore,   properly admitted; and that part
three of the four part Just/Matt test was, thus, satisfied.
      As our opinion correctly observes, we stated in Sadowski, that
to be admissible as relevant to show motive or intent,             the
commission of the first crime or act should give rise to       a motive

or reason for the defendant to commit the second crime.      Sadowski,
805 P.2d at 542.       Again,   keeping in mind that the Appellant
admitted assaulting Cynthia but denied use of a weapon, (that being
the only issue); and keeping in mind the progressively more violent
nature of Appellant's assaults on his wife between the time they
were married and the time of the offense, the uncharged conduct was
relevant to establish Appellant's intent to actually cause bodily
injury or cause reasonable apprehension of serious bodily injury to
Cynthia.    Given the progressively more violent history of their re-
lationship, the jury could have inferred on the basis of the other
crimes   evidence that Appellant's increasing level of violence,
albeit without the use of a weapon, had not produced, at least in
his   mind, the result desired -- i.e., Cynthia was still talking to
people she should not be talking to.       Accordingly,   threatening



                                   14
Cynthia with a weapon or actually injuring her with a weapon was
the next logical step necessary for Appellant to obtain control
over his wife.     In short, if slapping her around, punching her and
threatening to kill her did not make a believer out of her, perhaps
stabbing a 12-inch long serrated knife into a wall next to her
face,    threatening her with a jagged glass bottom and hitting her
with a piece of firewood would.
        I conclude that,   under the facts of this case,     the   other
crimes evidence was relevant, and thus admissible, as it tended to
establish the motive and reason for Appellant's use of a weapon in
the charged assault.       Accordingly,   I dissent from our opinion on
Issue 1.
                                  Issue 2
        1n my view the problem with the jury instructions and the
verdict form followed as the natural consequence of the manner in
which the Appellant was charged in the amended information.          The
offense of felony assault was charged in the amended information as
follows:
             count 1:   Felony Assault, in violation of Section
        45-5-202(2) (a) and (b), MCA, committed on or about the
        night of July 9 to July 10, 1993, when the defendant
        purposely or knowingly caused bodily injury to Cynthia
        Weldy with a weapon when he hit her with a piece of
        firewood, causing pain, and when the defendant purposely
        or knowingly caused Cynthia Weldy to have reasonable
        apprehension of serious bodily injury by use of a weapon
        when he brandished a knife so that she would see it, hit
        her with a piece of firewood, and broke a glass and held
        part of the broken glass near her so that she would see
        it.
        Section 46-11-404(l),   MCA (1991),   provides:
             Two or more offenses or different statements of the
                                     15
      same offense maybe charged in the same charging document
      in a separate count, or alternatively, if the offenses
      charged, whether felonies or misdemeanors or both, are of
      the same or similar character or are based on the same
      transactions connected together or constituting parts of
      a common scheme or plan. Allegations made in one count
      may be incorporated by reference in another count.
       [Emphasis added.]
      In my view,            at least,    the proper     interpretation     of   the
statutory language is that while the prosecution has the discretion
to charge different offenses or different statements of the same
offense in          one   information,     separate     offenses    and different
statements of the same offense should be charged in separate
counts.          A prosecutor would not charge two or more different
offenses in          the same     count --      e.g.,    aggravated    kidnapping,
deliberate homicide and robbery all in count one of an information.
By the same token,            since the emphasized portion of the statute
makes no differentiation between different offenses and different
statements of the same offense,                 it logically follows that the
statute contemplates that different statements of the same offense
be charged each in a separate count as well.                      To interpret the
language         otherwise, would render the words "in a separate count"
surplusage;        all the statute would have had to say is that two or
more offenses or different statements of the same offense may be
charged in the same charging document.
      Here,        had the offenses       of felony assault         under 5 45-5-

202 (2)   (a),    MCA, and under 5 45-5-202(2) (b), MCA, been charged in
separate counts as contemplated by the statute, the instructions
and   verdict         form    would,     more    than   likely,     have   followed
appropriately from the way in which the amended information was
                                           16
drafted.




     Chief Justice J.A. Turnk$and           Justice Fred J. Weber join in
the foregoing dissent and special concurrence of Justice James C .
Nelson.                                                          A//


                                        I      I   I        --   --
                                                                         I/
                              I’
                                                   Ghief Justice        /f




Justice Karla M. Gray, specially concurring.


     I concur in the Court's opinion on issue 1 regarding the
inadmissibility of "other acts" evidence.              I join Justice Nelson's
special concurrence on issue 2 regarding the unanimity of the
verdict.




                                   17
             IN THE SUPREME COURT OF THE STATE OF MONTAN
                              No. 94-409                     SW 1 3 I$95

STATE'OF MONTANA,
             Plaintiff and Respondent,
       -v-
RALPH 0. WELDY.
             Defendant and Appellant.

       In response to a petition for rehearing from the State of
Montana we amend the opinion as follows, beginning on page 10, line
12 :




       We replace the above language with the following:

       The cases cited by the State address alternative mental
       states (purposely or knowingly) which relate to each
       element of the offense in question.       Purposely and
       knowingly are not independent elements: Rather they are
       alternative means of satisfying each of the elements of
       the underlying offense. State v. Warnick, 202 Mont. 120,
       128 (to sustain the charge of aggravated assault, the
       state must prove each element of the offense was done
       purposely or knowingly).
            In Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct.
       2491, 115 L.Ed.2d 555, the United States Supreme Court
       held that it is erroneous to assume that statutory
       alternatives are ipso facto independent elements defining
       independent crimes under state law. "In point of fact .
       . . legislatures frequently enumerate alternative means
o f committing a crime without intending to define
separate elements of separate crimes. . . ‘I In Kills on
Top v. State, 52 St.Rep. 608, we cited Schad for the
above proposition and held that the alternatives set
forth in the aggravated kidnapping statute § 45-5-303
MCA, represented different means of committing the same
offense rather than separate offenses. Accordingly, the
jury in Kills on TOP did not have to indicate upon which
alternative it based the defendant's guilt.
      In Kills on TOP we were addressing the aggravated
kidnapping statue which has the following elements and
alternative means of satisfying those elements:
          1 . Knowingly or purposely and without
     lawful authority restrain another person by
     either
          a : secreting or holding in a place
          of isolation; or
          b: using or threatening     physical
           force
          2.   With the purpose of:
          a: hold for ransom or reward or as
          a shield
          b:     facilitating  commission of
          felony or flight thereafter,
          c:    to inflict bodily injury or
          terrorize victim,
          d:   interfere with performance of
          governmental or political function,
          or
          e:    hold another in involuntary
          servitude.
     The alternatives in the aggravated kidnapping
statute are not separate elements in themselves, rather
they are different means of satisfying a specific common
element.   The alternatives of secreting or threatening
physical force are alternative means of satisfying the
element of restraint.        The five alternatives of
facilitating commission of robbery or terrorizing the
victim, etc., are alternative means of satisfying the
element of purpose.
      In contrast, the felony assault statute involved in
the present case states that a person commits the offense
of felony assault if he purposely or knowingly causes:
          1 . Bodily injury with a weapon;
          2.   Reasonable apprehension of bodily
     injury with a weapon, or
          3. Bodily injury to a peace officer.
     These three alternatives, unlike the alternatives in
the aggravated kidnapping statute, are not alternative
means of satisfying one ccmmon element.     Rather, they
each set forth separate offenses in themselves.
     Sincetheyrepresent separate offenses, they should,
as the special concurrence suggests, be charsed as
separate offenses. Here, they were charged in one count
as one offense.
In addition, change the last paragraph on page 10 to read:




In all other respect the
The petition for reheari




                                           Justices
