                                                                                       May 19 2009




                                         DA 08-0171

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 174



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KYLE DEAN NICK,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DC-07-45
                      Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant
                      Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Tammy K Plubell,
                      Assistant Attorney General, Helena, Montana



                                                  Submitted on Briefs: April 1, 2009

                                                             Decided: May 19, 2009


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Kyle Dean Nick appeals his December, 2007, conviction for aggravated assault.

Nick contends on appeal that his conviction must be reversed because the District Court

erred instructing the jury as to the definition of “purposely” as an element of aggravated

assault. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2    About midnight on May 11, 2007, Nick accompanied Chelsea Dodd, his friend

and neighbor, as she drove to Jason Switzer’s house. Dodd and Switzer had been

romantically involved for six years but that relationship had apparently ended. She

entered Switzer’s house to invite him to a camping party, and found him intoxicated and

in bed with another woman. Nick waited in the car for twenty to thirty minutes, eating a

burrito and using a Phillips head screwdriver to try to fix the stereo in Dodd’s car. He

never left the car, but honked the horn several times wanting Dodd to leave.

¶3    Dodd then came running out of the house closely followed by Switzer. She was

yelling for Nick to roll up the car window and lock the door because Switzer was coming

to attack him. Dodd got into the driver’s seat of her car and started trying to leave, but

Switzer dove into Nick’s open window and began hitting him. Switzer pulled himself out

of the window, or was pushed out by Dodd, and then dove into the car again. Dodd saw

Nick swing at Switzer with his right hand.

¶4    Switzer immediately fell backward out of the car and dropped onto the ground.

Dodd thought that she had run over Switzer and left the car to check on him. Dodd felt



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an object under Switzer’s head and pulled on it, only to find that it was a Phillips head

screwdriver. She cried “oh my God there’s a screwdriver in his head,” and began

screaming hysterically for help. Nick fled the scene on foot and ran to his mother’s

house.

¶5       The screwdriver penetrated Switzer’s skull and brain approximately four inches,

causing him serious, permanent brain injury. Nick admitted to holding the screwdriver

and to changing its position in his hand during the altercation, but claimed that Switzer

impaled himself when he jumped back in the window. After the incident Nick told police

officers that he had swung at Switzer or used his arms to defend himself. Nick told them

that he lunged his arm forward toward Switzer and that it came back without the

screwdriver. Nick also told the officers that when Switzer was coming back to the car a

second time, he brought the screwdriver back “to get ready” to defend himself. Dodd told

the police and testified that she saw Nick swing his arm at Switzer immediately before

Switzer collapsed on the ground. At trial, Nick changed his description of the events. He

claimed that he never swung at Switzer, that the account he gave to officers shortly after

the incident was wrong, and that Dodd’s testimony was mistaken. He said that when he

gave interviews to the police after the incident he was not “in the right state of mind.”

¶6       The State charged Nick with attempted deliberate homicide, assault with a weapon

and aggravated assault. Nick filed a notice of reliance on the defense of justifiable use of

force as provided in § 45-3-102, MCA. During settlement of instructions, Nick objected

to the State’s offered instruction on the definition of “purposely,” but the District Court

overruled the objection and gave the instruction. Nick offered and the District Court


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gave instructions on the defense of justifiable use of force. Nick’s attorney argued to the

jury, in part, that he should be acquitted based upon the theory of justifiable use of force.

¶7     The jury returned a verdict of not guilty to the charge of attempted deliberate

homicide and guilty of the charge of aggravated assault. The jury deadlocked on the

charge of assault with a weapon, and that charge was subsequently dismissed at the

request of the State. The District Court sentenced Nick to the custody of the Montana

Department of Corrections for twenty years, with fifteen suspended.

                               STANDARD OF REVIEW

¶8     The standard of review of jury instructions is whether the instructions taken as a

whole fully and fairly instruct the jury as to the applicable law, and whether the district

court abused its discretion. State v. Grindheim, 2004 MT 311, ¶ 17, 323 Mont. 519, 101

P.3d 267. If the instructions are erroneous in some aspect the mistake must prejudicially

affect the defendant’s substantial rights in order to constitute reversible error. State v.

Archambault, 2007 MT 26, ¶ 14, 336 Mont. 6, 152 P.3d 698.

                                       DISCUSSION

¶9     Nick was convicted of aggravated assault, defined in the statutes as follows:

             A person commits the offense of aggravated assault if the person
       purposely or knowingly causes serious bodily injury to another or
       purposely or knowingly, with the use of physical force or contact, causes
       reasonable apprehension of serious bodily injury or death in another.

Section 45-5-202(1), MCA. “[A] person acts purposely with respect to a result or to

conduct described by a statute defining an offense if it is the person’s conscious object to

engage in that conduct or to cause that result.” Section 45-2-101(65), MCA. A person



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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 or
       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.

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

¶10    The District Court instructed the jury that: “A person commits the offense of

Aggravated Assault if the person purposely or knowingly causes serious bodily injury to

another.” The District Court instructed that: “A person acts purposely when it is his

conscious object to engage in conduct of that nature or to cause such a result.” The

District Court also instructed that: “A person acts knowingly when the person is aware

there exists the high probability that the person’s conduct will cause the specific result.”

Nick objected to the definition of purposely, but not to the definition of the offense or to

the definition of knowingly. Nick admitted at trial that putting a screwdriver into

someone’s head would likely cause death or serious injury.

¶11    The District Court’s instruction defining “purposely” was taken verbatim from

Montana Criminal Jury Instructions (MCJI) No. 2-106. Nick objected on the ground that

aggravated assault is a “result oriented” offense. He contended that under the comment

to MCJI No. 2-106, it was improper to allow the jury to find that he had acted purposely

if he engaged in “conduct of that nature” rather than requiring a conclusion that he

intended “to cause such a result.” The District Court overruled Nick’s objection to the

instruction, finding that the “central issue on this case . . . is the conscious object.”



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¶12    In State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996), defendant was charged

with deliberate homicide and claimed that an unknown third person had committed the

crime. The District Court gave the same definition of “purposely” that was given in the

present case. This Court found error because it “allowed the jury to convict Patton solely

on the basis that he consciously engaged in conduct without regard to whether harm was

intended.”   Patton, 280 Mont. at 291, 930 P.2d at 643.          Even if an instruction is

erroneous, however, there is no reversible error unless the defendant’s substantial rights

are affected. Patton, 280 Mont. at 291, 930 P.2d at 643.

¶13    There was no such danger of an erroneous application of “purposely” in the

present case. Nick relied upon the defense of justifiable use of force, arguing that he was

entitled to an acquittal on that basis.       A defendant who relies upon the defense of

justifiable use of force concedes that he acted purposely and knowingly. State v. Houle,

1998 MT 235, ¶ 15, 291 Mont. 95, 966 P.2d 147; State v. Sunday, 187 Mont. 292, 306,

609 P.2d 1188, 1197 (1980); People v. Joyner, 278 N.E.2d 756, 760 (Ill. 1972). Having

conceded as a matter of law that he acted purposely or knowingly, Nick’s substantial

rights could not have been affected by any error in the definition of those terms.

¶14    The District Court recognized that the crux of the case was determination of

Nick’s “conscious object” to engage in that conduct. There was ample evidence, which

must be viewed in a light most favorable to the prosecution, State v. Meckler, 2008 MT

277, ¶ 9, 345 Mont. 302, 190 P.3d 1104, for the jury to have concluded beyond a

reasonable doubt that it was Nick’s conscious object to grasp the screwdriver as a weapon

and strike Switzer. Nick admitted that he held the screwdriver when Switzer attacked


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and that he turned it in his hand so that the blade pointed down, away from the direction

of his thumb. He did so to defend himself. Nick admitted to investigating officers that

he swung at Switzer, and that he lunged his hand with the screwdriver toward Switzer

and that his hand came back empty. Even though he changed that story in his trial

testimony, the jury was entitled to believe the earlier, contemporaneous account. Nick’s

friend Dodd testified that she saw his hand swing toward Switzer. And, Nick admitted

that he had no injuries after the attack by Switzer other than a scratch on his forearm. If it

were Nick’s conscious object to strike Switzer with the screwdriver, or if he were aware

at the time he did so that it could cause Switzer serious bodily injury, then the mental

state element of the offense is satisfied. Meckler, ¶ 12. There was ample evidence for the

jury to reach those conclusions.

¶15    The conviction is affirmed.


                                                  /S/ MIKE McGRATH


We concur:


/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE




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