                                NO.    93-149
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1993


STATE OF MONTANA,
           Plaintiff and Respondent,
     V .


WILLARD S. DEAN, JR.,
           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:
                   Jennifer Bordy, Berry & Bordy,
                   Bozeman, Montana
           For Respondent:
                   Hon. Joseph P. Mazurek, Attorney General,
                   Ka,thy Seeley, Assistant Attorney General,
                   Helena, Montana; Mike Salvagni, Gallatin
                   County Attorney, Marty Lambert, Deputy
                   County Attorney, Bozeman, Montana


                                 Submi.tted on Briefs:     August 26, 1993
                                                Decided:   November 30, 1993
Filed:


           STATE   OF MONTANA
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Defendant/Appellant Willard S. Dean, Jr., appeals from several
orders and a judgment of the Eighteenth Judicial District Court,
Gallatin County,     denying appellant's motion to dismiss, jury
verdict for felony assault, and motion for judgment notwithstanding
the verdict or new trial.
     We affirm.
     We determine the following issues to     be   dispositive:
     1.      Did the District Court err when it denied appellant's
motion to dismiss because appellant's statement to the victim that
she was lucky he was not shooting the weapon shows he did not
commit an assault?
     2.      Did the District Court err when it instructed the jury
that creating a reasonable apprehension of serious bodily injury
with the use of a weapon was a felony?
     The victim's boyfriend and appellant were             friends and
teammates, and lived near each other.    Appellant met the victim in
May 1992.     At a party soon thereafter, the victim offered to loan
appellant $285 so that he could attend a summer basketball camp in
California.    Soon thereafter, the victim and appellant had a sexual
encounter.
     The night of the assault, the victim and her boyfriend had an
argument wherein she told him about her offer to loan money to
appellant and about their sexual encounter.    That same evening, the
victim approached appellant and told him she did not want to see
                                   2
him or talk to him anymore and that she would not be lending him

the money.    The victim then returned to her boyfriend's apartment.
About an hour later, appellant went to the boyfriend's apartment,

where the two men argued loudly for several minutes.                       In that

argument, appellant    accused    the       boyfriend   of   telling    appellant's

female roommate about another woman he was dating.                     The two men

went to appellant's apartment wherein appellant confronted his

female roommate, and she denied that the boyfriend told her about

the other woman.     The two men then walked toward the boyfriend's

apartment while appellant told the boyfriend that the victim had

been unfaithful to him with several other men.                After arriving at

the boyfriend's apartment, appellant yelled at the victim with his

arms out, trying to intimidate her.           Appellant then backed away and

said that he was "pissed off I' because the victim had ruined his
plans to attend the basketball camp and that he was "going to pull

the $285 out of [her] ass."       When appellant had nearly backed out

of the boyfriend's apartment, he pulled a loaded gun out of his

pocket, pointed it at the victim from about fifteen feet away, and

said,   "[y]ou're lucky I ain't shootin'," or "[ylou're lucky I'm not

the shooting type."     Then appellant put the gun down at his side

and left the apartment.           Both the victim and her boyfriend

testified that they were frightened by appellant's actions with the

gun.    After approximately ten   IIIinUteS,     the victim and her boyfriend

saw appellant driving slowly past the apartment.               Thereafter,     they



                                        3
fled to her apartment where she called her parents, who in turn,
called the police.
     On June 8, 1992, appellant was charged by information with the
crime of felony assault, in violation of § 45-5-202(2), MCA. On
October 30, 1992, a jury found appellant guilty of that charge.
                                   I.
     Did the District Court err when it denied appellant's motion
to dismiss because appellant's statement to the victim that she was
lucky he was not shooting the weapon shows he did not commit an
assault?
     Appellant argues that the District Court erred when it denied
appellant's motion to dismiss for failure to state a claim of
felony assault.   Appellant reasons that because of his statement to
the victim that he was not shooting, or was not the shooting type,
his mental state was not subject to question, and thus he did not
commit a crime.   .Appellant   argues that this statement constituted
a conditional threat, and as a result, demonstrated that he did not
have the requisite mental state to complete the crime of felony
assault.
     First,   appellant is     mistaken that his statement was a
conditional   threat.    His statement to the victim contained no
condition whatever.     The victim was neither given a condition with
which she could comply in order not to be shot, nor was she assured
that her "luckl' might not run out before appellant lowered the gun


                                   4
and left the apartment.            The victim testified that she was

frightened.

        Second,    appellant has misinterpreted the requisite proof of

mental     state for felony assault.            Section   45-5-202(2),   MCA,

provides in pertinent part:

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

              . . . .
             (b) reasonable apprehension of serious bodily injury
        in another by use of a weapon . . . .


In State v. Cope (1991), 250 Mont. 387, 397, 819 P.2d 1280, 1286,

we held that it is not necessary for an assailant to intend to

cause apprehension when committing felony assault.             In m, the

defendant, during his arrest, picked up a pistol and began swinging

it toward the arresting officer.           The defendant claimed he was only

trying to         surrender the weapon      and did not intend to cause

apprehension of serious bodily injury.            As a result, Cope argued,

as has appellant,         that he did not possess the requisite mental

state for felony assault.        Although the mental state issue in m

does not involve a statement by the defendant to the victim, our

reasoning in that case applies here.              In m,     we held that a

person only need be aware that his conduct would probably cause

that result.        &pe, 819 P.2d at 1286 (relying on § 45-2-101(33),

MCA).     Clearly,      appellant was aware that when he drew a gun and

pointed it at the victim,         his conduct would probably cause her


                                       5
reasonable apprehension of serious bodily injury.              Specifically,
appellant was aware that the victim could reasonably have feared
that she might be shot.         Thus,        appellant's mental state was in
question and the court properly instructed the jury on this issue.
       Finally,   the information and affidavit in support clearly
established probable cause to believe that appellant may have
committed the crime of felony assault.             After informing the deputy
county attorney of the facts leading up to the alleged assault, the
victim stated that appellant pointed a gun at her, and she was
"shocked and stood there with extreme                 fear."    The victim's
statement was sufficient in itself to support the application for
leave to file the information.          The motion to dismiss was properly
denied.
                                        II.
       Did the District Court err when it instructed the jury that
creating a reasonable apprehension of serious bodily injury with
the use a weapon was a felony?
       Appellant argues that the District Court erroneously refused
his proposed jury instructions               regarding the requisite mental
states for felony assault.      In State v. Hall (1990), 244 Mont. 161,
172,   797 P.2d 183,     190,    we said that if jury           instructions,
"reviewed as a whole, fully and fairly present the law to the jury,
the jury has been properly instructed."             Here, the District Court
refused several of appellant's proposed jury instructions regarding
a defendant's requisite mental state because they were either
                                         6
confusing or commented on the evidence.     In their place, the court
offered the following jury instructions,          in pertinent part,

regarding proof of felony assault:

                          INSTRUCTION NO. 5
          A person commits the offense of felony assault if he
     purposely or knowingly causes reasonable apprehension of
     serious bodily injury in another by use of a weapon.

                          INSTRUCTION NO. 6
          To convict the defendant of felony assault, the
     State must prove the following elements:

          1.    That   the   defendant    caused   reasonable
     apprehension of serious bodily injury to [the victim] by
     the use of a weapon;

          2.    That   the   defendant    acted   purposely   and
     knowingly.
          If you find from your consideration of the evidence
     that all of these elements have been proved beyond a
     reasonable doubt, then you should find the defendant
     guilty.

     These instructions fully and fairly state the requisite proof

for felony assault.    See, 5 45-5-202(2), MCA. Thus, the court did

not err when it refused appellant's instructions and so instructed

the jury.

     We affirm.
We concur:




             8
                                       November 30, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Jennifer Bordy
BERRY & BORDY
2631 West Main Street
Bozeman, MT 59715

HON. JOSEPH P. MAZUREK, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59620

Marty Lambert
Deputy County Attorney
Law & Justice Center
615 South 16th Ave.
Bozeman, MT 59715


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE_ OF MONTANA
