                                                                                        April 21 2009


                                       DA 08-0361

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2009 MT 139N



IN THE MATTER OF
C.J.S.,

         A Youth.



APPEAL FROM:        District Court of the Eighteenth Judicial District,
                    In and For the County of Gallatin, Cause No. DJ-2007-31B
                    Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                    Jim Wheelis, Chief Appellate Defender, Kelli S. Sather, Assistant
                    Appellate Defender, Helena, Montana

           For Appellee:

                    Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss,
                    Assistant Attorney General, Helena, Montana

                    Marty Lambert, Gallatin County Attorney, Eric Kitzmiller, Deputy County
                    Attorney, Bozeman, Montana



                                                 Submitted on Briefs: April 1, 2009

                                                             Decided: April 21, 2009


Filed:

                    __________________________________________
                                      Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     On February 19, 2008, C.S., a male youth now 15 years of age, was found to have

committed the offense of felony assault in bench trial in the Eighteenth Judicial District

Court, Gallatin County. That same day, C.S. had previously pled guilty to misdemeanor

criminal mischief and misdemeanor theft. At the conclusion of the bench trial, C.S. was

declared a delinquent youth and committed to the Montana Department of Corrections

until he reaches the age of 18. C.S. now appeals the District Court’s determination that

he committed the offense of felony assault. We affirm.

¶3     At approximately 5:00 p.m. on September 9, 2007, C.S. and his then 12-year-old

brother (K.S.) were walking home from a friend’s house in Bozeman, Montana, where

they had allegedly been smoking marijuana. As they were walking home, C.S. was

playing with a switchblade knife which he had previously obtained. The switchblade had

a blue handle and a blade of approximately 5 or 8 inches in length. According to the trial

testimony of K.S., C.S. was walking beside him flipping the switchblade. At some point,

C.S. allegedly swung the switchblade at K.S., cutting him on his right arm. K.S. jumped

back and exclaimed “Ow!” and asked C.S. why he cut him. C.S. did not respond and the


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two continued walking. According to K.S., the brothers did not discuss the incident

further. When the brothers got home, they had a talk with their stepfather and he

confiscated the switchblade from C.S.

¶4    Their parents talked with K.S. further about the matter and encouraged him to file

a report with the police. K.S. went down the police station 5 days later and spoke with

Officer Peggy Ash (Officer Ash) of the Bozeman Police Department.             Officer Ash

testified that she met with K.S. and noticed a superficial cut on his right arm, and spoke

with him about the incident. Officer Ash also testified that K.S. stated that C.S. made

threatening remarks to him before the incident. However, approximately one week prior

to trial, K.S. spoke with the prosecutor and told him that he did not believe that C.S. cut

him on purpose.

¶5    On September 17, 2008, Officer Dave Ferguson (Officer Ferguson) of the

Bozeman Police Department received a call from C.S.’s mother reporting him as a

runaway. Later that same day, she called in again to report she had just seen him in the

Bozeman area.     Officer Ferguson was able to subsequently locate C.S. and then

transported him to the Law and Justice Center in Bozeman as part of an ungovernable

youth investigation. Once Officer Ferguson had C.S. in custody, C.S.’s mother informed

him of the investigation being conducted by Officer Ash. Officer Ferguson then spoke

with Officer Ash about that investigation.

¶6    Officer Ferguson subsequently interviewed C.S. in the presence of his mother.

After being advised of his rights, C.S. waived them and agreed to speak with Officer

Ferguson. Initially, C.S. denied having anything to with the switchblade and his brother.


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Eventually, he admitted to having the switchblade and that he had been walking with

K.S. and flicking the knife open and scratching rust off the blade of the knife. He further

stated that he had not overtly threatened K.S. with the knife, but had yelled out “Hey” to

his brother, and that K.S. turned around at the same time he was flicking the switchblade,

and it cut K.S. on the arm. After the interview, Officer Ferguson issued C.S. a citation

for assault and ungovernable youth and released him.

¶7     C.S. was tried before Judge Mike Salvagni in a bench trial on February 19, 2008.

K.S., Officer Ferguson, and Officer Ash all testified at trial on behalf of the State. At the

close of the State’s case-in-chief, C.S. moved for a directed verdict on the assault charge,

arguing that the State had failed to present evidence to prove the elements of felony

assault. The District Court denied the motion.

¶8     After closing arguments from both parties, the District Court issued its verdict

from the bench. The District Court noted that while K.S. testified that he did not believe

that his brother cut him on purpose, he did indicate to Officer Ash during their initial

interview that C.S. had made threatening remarks to him prior to the incident. In spite of

the fact that the switchblade had not been located and that there had been no forensic

evidence presented with respect to the switchblade, the District Court found this point

immaterial because C.S. had admitted to cutting K.S. with the switchblade.

¶9     The District Court then noted that in order to find that C.S. had committed the

offense of felony assault, the State had to prove that he knowingly or purposely caused

bodily injury to another with a weapon. The District Court concluded that there was no




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question that C.S. had caused bodily injury with a weapon in this case, but that the real

issue was whether such injury was caused knowingly or purposely.

¶10   The District Court observed that it could not “look into a person’s head to see

what the person was thinking at the particular moment of the act committed by that

person,” but must rely instead upon circumstantial evidence to infer C.S.’s mental state at

the time. The District Court then recounted the circumstantial evidence as to C.S.’s

mental state. First, the facts showed that C.S. was flipping the switchblade and that he

“came down in a slashing movement and cut his brother.” Immediately before this

incident, C.S. said “Hey” to K.S. The District Court determined that this statement, made

right before he cut K.S. with the switchblade, belied any notion that the act was

accidental or that it was done in simple disregard of a risk. Instead, these circumstances

indicated to the District Court “that there was some awareness on the part of the youth

about his conduct and that was the slashing movement of the–of his arm with the knife in

his hand.”

¶11   Furthermore, the District Court noted that when later confronted about the incident

by the police, C.S. first denied, but then later admitted that he did cut K.S., although he

maintained he did not overtly threaten him. The District Court noted that an overt threat

was not required for C.S. to possess the mental state of “knowingly.” Instead, “[t]here

only needs to be the existence of awareness of the person’s conduct or that the conduct—

or he’s aware that it’s probable that his conduct would cause a result.” The District Court

then concluded as follows:




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              The Court concludes—well, also when [K.S.] asked the youth why
       he cut him, he didn’t respond. He never said anything. Now the Court
       doesn’t know why [K.S.] told [the prosecutor] one thing last week and told
       Officer Ash something else when he was first confronted, but the fact of the
       matter here is that the youth said “Hey, [K.S.],” came down with a slashing
       movement and cut him. That’s not an accident and that’s not disregarding a
       risk.
              The Court concludes, therefore, that the State has proved beyond a
       reasonable doubt that the youth’s mental state at the time of the slashing
       movement with the knife was done knowingly. And, therefore, the Court
       finds that the State has proved beyond a reasonable doubt all of the
       elements of the offense of assault with a weapon. And the Court finds that
       the youth committed that crime on September 9, 2007, in Bozeman,
       Gallatin County.

¶12    C.S. now appeals the District Court’s decision. C.S. argues that the District Court

erred both in denying his motion to dismiss for insufficiency of the evidence at the close

of the State’s case-in-chief, and in finding that C.S. committed the offense of assault with

a weapon. The crux of C.S.’s argument is that the District Court relied upon the wrong

definition of “knowingly” when it found C.S. committed the offense of felony assault.

The mental state of “knowingly” has the following possible definitions depending on the

circumstances and the nature of the charged offense:

       [A] person acts knowingly with respect to conduct or to a circumstance
       described by a statute defining an offense when the person is aware of the
       person’s own conduct or that the circumstance exists. A person acts
       knowingly with respect to the result of conduct described by a statute
       defining an offense when the person is aware that it is highly probable that
       the result will be caused by the person’s conduct. When knowledge of the
       existence of a particular fact is an element of an offense, knowledge is
       established if a person is aware of a high probability of its existence.
       Equivalent terms, such as “knowing” or “with knowledge”, have the same
       meaning.

Section 45-2-101(35), MCA.




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¶13    C.S. contends that the District Court erroneously relied upon a “disjunctive

definition” of knowingly in convicting him, and that such error implicated his

constitutional rights to due process. Relying heavily upon State v. Lambert, 280 Mont.

231, 929 P.2d 846 (1996), C.S. argues that in order to satisfy the element of “knowingly”

for purposes of the felony assault statute, the State must show he was aware it was highly

probable that his conduct would result in bodily injury to K.S. However, C.S. argues that

merely proving he was aware of the conduct in which he was engaging—without proof

that he was aware of a high probability that his conduct would result in bodily injury—

was insufficient to establish the elements of assault with a weapon. In short, C.S. argues

the District Court improperly relied upon a conduct-oriented definition of knowingly, as

opposed to the required result-oriented definition, in both denying his motion to dismiss

and finding that he committed felony assault.

¶14    On appeal, C.S. concedes that he did not properly present these objections to the

District Court at the trial level. However, he argues that the District Court’s error in this

case implicates his constitutional rights, and thus a review of these issues is required

under this Court’s “plain error” doctrine because failure to do so would result in a

miscarriage of justice.

¶15    Under the “plain error” doctrine, we may discretionarily review a claimed error

that implicates a defendant’s fundamental constitutional rights, even if a timely objection

was not made at the trial level, where failing to review the claimed error may result in a

manifest miscarriage of justice, leave unsettled the question of the fundamental fairness

of the proceedings, or compromise the integrity of the judicial process. State v. Cotterell,


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2008 MT 409, ¶ 44, 347 Mont. 231, 198 P.3d 254. We use plain error only sparingly, on

a case-by-case basis. Cotterell, ¶ 44.

¶16    We decline to invoke plain error review. C.S. has failed to establish plain error,

nor has he demonstrated that a failure to review the District Court’s application of the

criminal statutes in this case would result in a miscarriage of justice, leave unsettled the

fundamental fairness of the proceedings, or otherwise compromise the integrity of the

judicial process.

¶17    We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in finding that C.S. committed felony assault. Therefore, we affirm the District

Court’s decision.


                                          /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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