Submitted on Briefs: November 10, 2016
Court of the Fourth Judicial District, In and For the County
of Missoula, Cause No. DC 2013-564 Honorable Ed McLean,
Wright, Chief Appellate Defender, Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana
Timothy C. Fox, Montana Attorney General, Tammy K Plubell,
Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Patricia Bower,
Deputy County Attorney, Missoula, Montana
Michael E Wheat Justice
The Fourth Judicial District Court, Missoula County,
conducted a jury trial for misdemeanor Assault and felony
Assault with a Weapon against Justin Dwayne King (King). The
jury returned a verdict of guilty for felony Assault with a
Weapon. King appeals, alleging that the District Court
improperly instructed the jury on the affirmative defense of
justifiable use of force. We affirm.
We address the following issue on appeal:
Did the District Court properly instruct the jury on the
affirmative defense of justifiable use of force, based on all
the facts presented at trial?
AND PROCEDURAL BACKGROUND
In the fall of 2013, David Colaprete (Colaprete) and his
girlfriend Mozelle Stewart (Stewart) moved to a homeless camp
under the Reserve Street Bridge in Missoula, Montana.
Colaprete met King and invited him to camp with him and
Stewart at their campsite. One day, Colaprete found food in
their shared cooler and ate it, believing that it had been
left behind by a friend who had recently moved. The food
actually belonged to King, who began yelling at Colaprete and
Stewart when he discovered his food had been eaten. The
relationship between Colaprete, Stewart and King became
strained after this incident. King became verbally abusive
towards Stewart and continuously accused Colaprete and
Stewart of taking his things.
On October 17, 2013, Colaprete left the campsite briefly and
returned to find Stewart with a friend of King's. Stewart
was uncomfortable with the stranger's presence in their
camp. King was down by the river and Colaprete yelled down to
him that he needed to leave the campsite because it was not
working out having him there. Colaprete and King began
arguing and, when Colaprete finally turned around and began
to walk away, King hit Colaprete repeatedly with a metal
object. After hitting Colaprete several times with the
object, King left the area. Colaprete called 911 and was
taken by ambulance to a nearby hospital, where he received
stitches and staples for his head injuries.
On October 18, 2013, King was stopped by the Missoula Police
Department and arrested after he admitted to beating up a
person with a pipe. He did not tell the officer that he was
acting in self-defense. On November 5, 2013, the State filed
an information charging King with felony Assault with a
Weapon. King pled not guilty and filed notice of his intent
to rely on the affirmative defense of justifiable use of
force. At trial, he claimed that he attacked Colaprete with a
metal rod because Colaprete had threatened him and he was
afraid that Colaprete was about to attack him with a knife.
He also testified that once the fight ensued, Colaprete
grabbed him and wouldn't let him leave the area.
Colaprete, on the other hand, testified that he did not
threaten King and that he returned to his tent to deescalate
the situation. He also testified that he was not armed with a
knife and did not recall grabbing at King during the attack.
On the first day of trial, the District Court settled jury
instructions. Along with other jury instructions on
justifiable use of force, the District Court gave Jury