State v. Freiburg

Summary

The Montana Supreme Court held that the district court erred by refusing to instruct the jury on DUI and DUI per se as lesser-included offenses of criminal child endangerment. Although Freiburg challenged the underlying DUI allegations, he also presented evidence supporting an alternative theory that his conduct did not create a substantial risk of death or serious bodily injury to the children. The court reversed the conviction and remanded the case.

Holdings

1. DUI and DUI per se qualify as lesser-included offenses of the corresponding criminal child-endangerment charges because the greater offenses require proof of the same underlying DUI conduct plus additional elements concerning mental state and the substantial risk of death or serious bodily injury to a child.
2. A defendant is entitled to a lesser-included offense instruction when the defendant presents alternative theories supported by the evidence, including one theory that could lead to acquittal of the greater offense while still permitting conviction of the lesser offense.
3. The district court abused its discretion by refusing to give the requested DUI and DUI per se lesser-included offense instructions, and the error required reversal and remand.

Questions Presented

1. Whether the district court erred by refusing to instruct the jury on DUI and DUI per se as lesser-included offenses of criminal child endangerment by DUI and criminal child endangerment by DUI per se.

Disposition

reversed_and_remanded