State v. Smith, 2004 MT 191, 322 Mont. 206

Summary

The Montana Supreme Court held that the prosecutor acted within its discretion by charging Scott Smith with assault with a weapon rather than privacy in communications. However, the charge retained in Smith’s plea agreement alleged apprehension by a third party rather than by the intended victim and therefore failed to state the necessary elements of assault with a weapon under Montana law. The court reversed the denial of Smith’s motion to dismiss.

Holdings

1. The prosecutor was not required to charge Smith under the privacy-in-communications statute because that statute and the assault-with-a-weapon statute punish distinct criminal conduct, and the county attorney had discretion to select the charge when the facts supported more than one possible offense.
2. A victim need not actually see the weapon for the offense of assault with a weapon to be established.
3. Count I failed to state the necessary elements of assault with a weapon because it alleged that Tami, a third party, experienced apprehension that Hernandez would be injured; the statute requires reasonable apprehension in the intended victim of the serious bodily injury.

Questions Presented

1. Whether the prosecutor was required to charge Smith with privacy in communications through intimidation over the telephone rather than assault with a weapon.
2. Whether the affidavit and Count I of the second amended Information alleged the necessary elements of assault with a weapon under § 45-5-213, MCA.
3. Whether the victim of assault with a weapon must actually see the weapon or reasonably believe that a weapon was being used.

Disposition

reversed