                                                                                               06/16/2020


                                          DA 18-0111
                                                                                           Case Number: DA 18-0111

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 154



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

NATHAN LEE STILLSMOKING,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. BDC 17-355
                       Honorable Elizabeth Best, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jeremiah Langston, Assistant
                       Attorney General, Helena, Montana

                       Joshua A. Racki, Cascade County Attorney, Great Falls, Montana



                                                   Submitted on Briefs: April 22, 2020

                                                              Decided: June 16, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Defendant and Appellant Nathan Lee Stillsmoking (Stillsmoking) appeals the

Sentencing Order and Judgment issued by the Eighth Judicial District Court, Cascade

County, on December 21, 2017, following his conviction of Assault on a Peace Officer, a

felony, in violation of § 45-5-210(1)(b), MCA.

¶2     Stillsmoking raises three issues on appeal, which we restate as follows:

       1. Whether there was sufficient evidence to convict Stillsmoking of assault on a
       peace officer.

       2. Whether trial counsel provided ineffective assistance of counsel by conceding
       that Stillsmoking used a weapon.

       3. Whether the district court erred when it did not clarify a jury question.

¶3     We reverse on issue one and therefore do not address the other issues appealed by

Stillsmoking.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶4     Stillsmoking is friends with James Parker (Parker). Stillsmoking and Parker like to

mess around and pull pranks on each other by occasionally shooting slingshots and BB

guns at each other.      On May 21, 2017, Parker shot Stillsmoking with a BB gun.

Stillsmoking was not hurt. The next evening, Stillsmoking was at home in his apartment

in Great Falls, waiting for Parker to pick him up. Stillsmoking had borrowed a broken BB

gun1 from a friend because he wanted to pull a prank on Parker when he arrived.


1
  The parties alternately describe this as a “BB gun” and a “CO2 pellet gun” in their briefing. For
clarity, we refer to it as a BB gun throughout this opinion.
                                                  2
¶5     Earlier in the day on May 22, 2017, Stillsmoking had been at the Holiday Casino in

Great Falls. While at the casino, he spoke with Renae Beerman (Beerman), an employee

of the casino. Stillsmoking told Beerman that a couple of people in the casino owed him

money and he would return to the casino with a gun to collect from them.             After

Stillsmoking left the casino, Beerman called the police and asked them to inform

Stillsmoking that he had been trespassed from the casino and was no longer welcome there.

Great Falls Police Sergeant Smail and Officers Garner and Wilberding responded to the

call. After the officers identified Stillsmoking on the casino’s surveillance footage, they

went to Stillsmoking’s apartment intending to inform him that he had been trespassed from

the casino.

¶6     Stillsmoking—unaware that he had been trespassed from the casino or that police

were on the way to his house—sat watching TV in his apartment and waited to pull his

prank on Parker. It was dark outside and Stillsmoking’s back was to the door. The front

door was open, but the screen door was shut. Stillsmoking heard someone approach the

front door, and, assuming it was Parker, stood up, grabbed the BB gun, spun around, aimed

the broken BB gun out the door, and yelled “come get you some!” Parker was not the

person outside the door, however, as it was actually Sergeant Smail coming to tell

Stillsmoking that he had been trespassed from the casino. Officers Garner and Wilberding

were also outside of Stillsmoking’s apartment but did not approach the door.

¶7     Sergeant Smail, seeing what appeared to be a gun pointed at him from inside of the

apartment, yelled to the other officers that there was a gun and retreated from the door,
                                            3
fearing for his life. Sergeant Smail then called for backup. Stillsmoking ran away from

the apartment and was discovered hiding outside of a nearby residence by Sergeant Smail

a short time later. Stillsmoking stood up, read Sergeant Smail’s badge, and said, “[y]ou

got me, Smail.” Stillsmoking was arrested and charged with one count of assault on a

peace officer, one count of obstructing justice, and one count of disorderly conduct. The

charges of obstructing justice and disorderly conduct were dismissed before trial. After

arresting Stillsmoking, officers searched his apartment and discovered the broken BB gun

Stillsmoking had pointed at Sergeant Smail.

¶8    In November 2017, the matter went to trial on the single charge of assault on a peace

officer. Both Stillsmoking and Officer Wilberding testified that the BB gun was broken

and nonfunctional on May 22, 2017. Though it was uncontested that the BB gun did not

work, Stillsmoking’s counsel did not contest that Stillsmoking used a weapon during the

incident, instead focusing his defense on Stillsmoking not knowing he was pointing the BB

gun at a police officer because he was expecting it to be Parker outside of the door. The

jury found Stillsmoking guilty of assault on a peace officer. The District Court sentenced

him to eight years at the Montana State Prison with no time suspended. Stillsmoking

appeals.

                              STANDARD OF REVIEW
¶9    This Court reviews de novo whether sufficient evidence supports a conviction. State

v. Daniels, 2019 MT 214, ¶ 27, 397 Mont. 204, 448 P.3d 511 (citing State v. Polak, 2018

MT 174, ¶ 14, 392 Mont. 90, 422 P.3d 112). There is sufficient evidence to support a

                                              4
conviction if, after viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. State v. Michelotti, 2018 MT 158, ¶ 9, 392 Mont. 33, 420 P.3d 1020

(citing State v. Clark, 2008 MT 419, ¶ 14, 347 Mont. 354, 198 P.3d 809).

                                      DISCUSSION

¶10    1. Whether there was sufficient evidence to convict Stillsmoking of assault on a
       peace officer.

¶11    On appeal, Stillsmoking argues the State did not, and could not, present sufficient

evidence to convict him of assault on a peace officer because he did not use a “weapon”

during the incident. The State concedes Stillsmoking used “a nonfunctioning CO2 pellet

gun,” but argues Sergeant Smail only needed to have a reasonable apprehension

Stillsmoking had a weapon to meet the “use of a weapon” element in the assault on a peace

officer statute. We agree with Stillsmoking that use of an actual weapon is required for a

conviction pursuant to § 45-5-210(1)(b), MCA, and the non-operational BB gun does not

qualify as a “weapon” under the facts of this case.

¶12    In 1997, the Legislature created the new offense of assault on a peace officer or

judicial officer, separating it from the offense of felony assault. Section 45-5-210, MCA

(1997) (1997 Mont. Laws ch. 433, § 1). The 1997 felony assault statute provided that “[a]

person commits the offense of felony assault if the person purposely or knowingly causes:

(a) bodily injury to another with a weapon; or (b) reasonable apprehension of serious bodily

injury in another by use of a weapon.” Section 45-5-202(2), MCA (1997). “Weapon” was

                                             5
statutorily defined as an “instrument, article, or substance that, regardless of its primary

function, is readily capable of being used to produce death or serious bodily injury.”

Section 45-2-101(76), MCA (1997). The assault on a peace officer or judicial officer

statute provided:

       A person commits the offense of assault on a peace officer or judicial officer
       if the person purposely or knowingly causes:

       (a) bodily injury to a peace officer or judicial officer;

       (b) reasonable apprehension of serious bodily injury in a peace officer or
       judicial officer by use of a weapon;

       (c) bodily injury to a peace officer or judicial officer with a weapon; or

       (d) serious bodily injury to a peace officer or judicial officer.

Section 45-5-210(1), MCA (1997). The assault on a peace officer statute has not been

amended since coming into force on April 29, 1997.

¶13    In the case of In re R.L.S., 1999 MT 34, 293 Mont. 288, 977 P.2d 967, R.L.S., a

minor, was charged in Youth Court with one count of misdemeanor disorderly conduct and

five counts of felony assault for causing reasonable apprehension of bodily injury in

another by use of a weapon for placing “a device which appeared to be a bomb” under a

sink in a restroom of his middle school. In re R.L.S., ¶ 3. The device was seen by five

people who believed it to be a real bomb and were concerned for their safety. The device

was not an actual bomb, however, but a fake bomb which R.L.S. intended as a practical

joke. In re R.L.S., ¶ 3. R.L.S. moved to dismiss the felony assault charges, asserting the

facts alleged in the State’s petition did not constitute the offense of felony assault because
                                               6
the petition did not allege the device was a “weapon” as defined by § 45-2-101(76), MCA

(1997).2 In re R.L.S., ¶¶ 4, 6. The Youth Court denied R.L.S.’s motion to dismiss the

felony assault charges. In re R.L.S., ¶ 4.

¶14    On appeal, we reversed the Youth Court’s denial of R.L.S.’s motion to dismiss the

felony assault charges because he did not use a “weapon” as statutorily defined. We

concluded the statutory definition of “weapon” “clearly and unambiguously requires that

the device at issue actually be capable of producing death or serious bodily injury.” In re

R.L.S., ¶ 18. Because R.L.S. did not use a “weapon,” he could not be convicted of an

offense which, by its plain language, required the use of a “weapon.” Though the State

argued that “a device constitutes a weapon if the victim is reasonably apprehensive that the

device is a weapon” in In re R.L.S., we disagreed and noted the “reasonable apprehension

of the victim pertains to whether the victim reasonably believes he or she will be seriously

bodily injured, not whether he or she subjectively believes that the device or instrument

used by the assailant is actually a weapon.” In re R.L.S., ¶¶ 13-14. The State makes much

the same argument in the present case, arguing that because Sergeant Smail believed the

broken BB gun was in fact a real gun, it constituted a “weapon” under the assault on a

peace officer statute. We give the same answer in this case that we did in In re R.L.S.—an




2
 The statutory definition of “weapon” is now found in § 45-2-101(79), MCA. “Weapon” is still
defined as an “instrument, article, or substance that, regardless of its primary function, is readily
capable of being used to produce death or serious bodily injury.”

                                                  7
offense which requires the use of a “weapon,” by its plain language, must be committed

with a “weapon.”

¶15    Shortly after we decided In re R.L.S., the Legislature renamed the offense of “felony

assault” to “assault with a weapon” and modified its language:

       A person commits the offense of assault with a weapon if the person
       purposely or knowingly causes:

       (a) bodily injury to another with a weapon; or

       (b) reasonable apprehension of serious bodily injury in another by use of a
       weapon or what reasonably appears to be a weapon.

Section 45-5-213(1), MCA (1999) (emphasis added) (1999 Mont. Laws ch. 432, § 7). The

Legislature did not modify the language of the assault on a peace officer or judicial officer

statute. “In the construction of a statute, the office of the judge is simply to ascertain and

declare what is in terms or in substance contained therein, not to insert what has been

omitted or to omit what has been inserted.” Section 1-2-101, MCA. “Where the statutory

language is plain, unambiguous, direct and certain, the statute speaks for itself and there is

nothing left for the court to construe.” State v. Running Wolf, 2020 MT 24, ¶ 15, 398 Mont.

403, 457 P.3d 218 (internal quotations and citations omitted). As such, while a person can

be convicted of assault with a weapon pursuant to § 45-5-213(1)(b), MCA, for using “what

reasonably appears to be a weapon,” a conviction for assault on a peace officer pursuant to

§ 45-5-210(1)(b), MCA, still clearly and unambiguously requires the “use of a weapon[.]”

¶16    Similar to the argument it made regarding the felony assault statute in In re R.L.S.,

the State now argues, “it would be illogical to examine ‘serious bodily injury’ based on the
                                              8
victim’s reasonable apprehension and not do the same for ‘use of a weapon.’” The State

cites to State v. Steele, 2004 MT 275, 323 Mont. 204, 99 P.3d 210, and State v. Kirn, 2012

MT 69, 364 Mont. 356, 274 P.3d 746, for this contention; however, neither case provides

support for the State’s position that the “weapon” element of the assault on a peace officer

statute can be satisfied by an officer’s reasonable apprehension of a weapon when no

“weapon” exists. Both Steele and Kirn involved challenges to the sufficiency of the

evidence after a conviction for assault on a peace officer pursuant to § 45-5-210(1)(b),

MCA. See Steele, ¶ 31; Kirn, ¶ 12. Both cases involved the “reasonable apprehension”

element of the offense when the assaulted officers did not actually see the weapon in

question.

¶17    In Steele, officers received information Steele was in possession of drugs and

firearms. Police obtained a search warrant for Steele’s residence, but attempted to get

Steele outside so they could search his residence peacefully. Steele fled from his residence,

pursued by Officer Baumann, until Steele turned, reached into his waistband, and a gunshot

rang out—Steele accidentally shot himself in the calf. Officer Baumann then saw Steele

drop a pistol. Officer Baumann tackled Steele and another pistol fell to the ground. Steele,

¶¶ 5-9. After his conviction, Steele challenged the sufficiency of the evidence, arguing

Officer Baumann’s testimony at trial only supported that he feared serious bodily injury by

what reasonably appeared to be a weapon, because he did not see the pistol before the

gunshot rang out. Steele, ¶ 31. We held that the officer “did not actually have to see the

pistol Steele had on his person in order to feel threatened by use of the pistol.” Steele, ¶ 40.
                                               9
The crucial difference between Steele and the present case is that the pistol used by Steele

met the statutory definition of a “weapon” pursuant to Montana law—“an instrument,

article, or substance that, regardless of its primary function, is readily capable of being used

to produce death or serious bodily injury.” Section 45-2-101(78), MCA (2001). The

broken BB gun used by Stillsmoking does not.

¶18    In Kirn, Billings Police Officers Keightley and Dierenfield responded to a noise

complaint at an apartment building in Billings. After speaking to the complainant, who

told the officers that loud television noises were coming from the apartment downstairs,

the officers went to Kirn’s apartment to speak with him about the noise. Kirn immediately

became agitated upon opening his door and seeing the officers and refused to turn the

volume on his TV down. Inside Kirn’s apartment, Kirn pushed Officer Keightley and then

walked away into a bedroom. Officer Keightley told Officer Dierenfield he thought Kirn

was going to get a gun. Kirn then reappeared in a “bladed stance” showing his left side

while obscuring his right hand. The officers believed Kirn had left to get a gun, so they

drew their weapons and shouted at Kirn to raise his hands. Kirn refused to raise his hands

until Officer Keightley warned Kirn he would shoot him. Kirn then raised his hands and

dropped a loaded shotgun. Kirn, ¶¶ 2-6. Kirn moved to dismiss the case for lack of

sufficient evidence, which the district court denied. Kirn, ¶ 7.

¶19    On appeal, Kirn argued the officers “could not have had reasonable apprehension

of serious bodily injury by use of a weapon because the officers did not see the shotgun

until Kirn dropped it in the chair” and “there was not sufficient evidence to prove
                                              10
reasonable apprehension of serious bodily injury, an essential element of the charge.” Kirn,

¶ 12. We upheld the district court’s denial of Kirn’s motion to dismiss for insufficient

evidence, finding “Officers Keightley and Dierenfield did not have to personally see the

weapon in order to experience reasonable apprehension of serious bodily injury.” Kirn,

¶ 16. Just like in Steele, the crucial difference between Kirn and the present case is that

Kirn involved the use of a “weapon” as defined by the law of Montana—a loaded

shotgun—while Stillsmoking’s case does not. While there is no doubt that Sergeant Smail

reasonably believed he faced death or serious bodily injury when he was facing down what

appeared to be a gun held by Stillsmoking, that subjective fear cannot change the objective

fact that Stillsmoking’s broken BB gun was not a “weapon.” Accordingly, Stillsmoking

cannot be convicted of a violation of § 45-5-210(1)(b), MCA, because the statute, by its

plain language, requires the use of a weapon.

¶20    Finally, the State argues the In re R.L.S. “framework” is somehow not applicable in

light of our decision in State v. Smith, 2004 MT 191, 322 Mont. 206, 95 P.3d 137, where

we held:

       [I]t is not technically correct that “use of a weapon” (or, presumably, what
       appears to the victim to be a weapon) is a requisite element of the offense.
       The crime of assault with a weapon may be established: (1) if a person uses
       a weapon, or what reasonably appears to be a weapon, to cause reasonable
       apprehension of serious bodily injury in the victim, or (2) if a person causes
       reasonable apprehension that the victim will sustain serious bodily injury
       from a weapon, if it reasonably appears to the victim that a weapon is
       involved, whether actually seen or not.




                                            11
Smith, ¶ 26. Beyond the simple fact that this Court’s In re R.L.S. “framework” involved

reading the statute and not inserting words which were not there—a practice which is not

only still applicable, it is one statutorily required by § 1-2-101, MCA—Smith is entirely

inapplicable to the present case as it involved this Court harmonizing its decisions

regarding the assault with a weapon statute, which contains the “reasonably appears to be

a weapon” language. The assault on a peace officer statute does not contain the “reasonably

appears to be a weapon” language, and this Court did not address the assault on a peace

officer statute in Smith at all. This Court’s analysis in Smith is simply not applicable to the

present case.

¶21    Just as we did in In re R.L.S., we conclude the § 45-2-101(79), MCA, “definition of

‘weapon’ clearly and unambiguously requires that the device at issue actually be capable

of producing death or serious bodily injury.” In re R.L.S., ¶ 18. If the Legislature intended

for the language of “what reasonably appears to be a weapon” to be found in the assault on

a peace officer statute it could have put it there. It did not. Because the broken BB gun

used by Stillsmoking in the incident was not actually capable of producing death or serious

bodily injury, he did not use a “weapon,” and, accordingly, cannot be convicted of assault

on a peace officer pursuant to § 45-5-210(1)(b), MCA. As no reasonable fact finder could

find the essential elements of the crime beyond a reasonable doubt, Michelotti, ¶ 9,

Stillsmoking’s conviction must be vacated and the assault on a peace officer charge

dismissed. Because this issue is dispositive, we do not address Stillsmoking’s other

appealed issues.
                                              12
                                     CONCLUSION

¶22    Stillsmoking did not use a “weapon” pursuant to Montana law, and thus he cannot

be convicted of assault on a peace officer pursuant to § 45-5-210(1)(b), MCA.

Stillsmoking’s conviction for assault on a peace officer is therefore vacated and the case is

remanded to the District Court with instructions to dismiss the charge with prejudice.

¶23    Reversed and remanded.


                                                  /S/ INGRID GUSTAFSON


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR




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