State v. Kirn, 274 P.3d 746

Kirn was charged with two felonies for assault on a peace officer by use of a weapon after an incident with two Billings police officers responding to a noise complaint.
Officers Keightley and Dierenfield went to Kirn’s apartment to address the noise from his TV; Kirn was immediately irritable and confrontational.
During the encounter Kirn touched Officer Keightley’s shoulder, then pushed him and made threatening remarks before retreating to a bedroom.
Kirn returned in a “bladed stance” with his right hand obscured; the officers believed he had a gun and were scared for their safety.
Kirn dropped a shotgun in a chair when commanded to show his hands; the shotgun was loaded.
Kirn was convicted after a jury trial and timely challenged the denial of a motion to dismiss for insufficient evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is there sufficient evidence of reasonable apprehension of serious bodily injury by use of a weapon?	Kirn argues officers couldn’t have feared a weapon since they hadn’t seen it.	State contends force perceptions need not be based on actually seeing the weapon.	Yes; evidence supported reasonable apprehension beyond reasonable doubt.
Must the victim personally see the weapon to sustain the offense?	Kirn asserts lack of actual sight undermines the charge.	State relies on established doctrine that threat can arise without seeing the weapon.	No; actual sight is not required to establish the element.

State v. Swann, 337 Mont. 326, 160 P.3d 511 (2007 MT 126) (de novo review for dismissal based on insufficient evidence)
State v. Steele, 323 Mont. 204, 99 P.3d 210 (2004 MT 275) (reasonable apprehension without weapon sight)
State v. Hagberg, 920 P.2d 86, 277 Mont. 33 (1996) (threat perception without direct weapon observation)
State v. Misner, 763 P.2d 23, 234 Mont. 215 (1988) (likelihood of serious bodily injury from weapon need not rely on sight)