State v. N. Stillsmoking, 470 P.3d 183

Stillsmoking and a friend habitually played pranks with BB guns; he borrowed a broken/nonfunctional BB gun to prank his friend Parker.
A casino employee reported Stillsmoking threatened to return with a gun and had him trespassed; police went to notify him at his apartment.
Stillsmoking, facing the (closed) screen door and thinking Parker was at the door, spun, aimed the broken BB gun out the door, and yelled; Sergeant Smail saw what appeared to be a gun and retreated, fearing for his safety.
Stillsmoking fled, was later arrested, and officers recovered the broken BB gun; both Stillsmoking and an officer testified the gun was nonfunctional.
He was tried and convicted of assault on a peace officer under § 45-5-210(1)(b), sentenced to eight years, and appealed arguing there was insufficient evidence because no actual “weapon” was used.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Stillsmoking)	Held
Whether there was sufficient evidence to convict under § 45-5-210(1)(b) (use of a weapon)	Sergeant Smail’s reasonable apprehension that Stillsmoking had a gun satisfied the weapon element.	The BB gun was broken and nonfunctional and therefore not a “weapon” as defined by statute.	Reversed: statute requires use of an actual weapon capable of death/serious bodily injury; nonfunctional BB gun is not a weapon, conviction vacated and dismissed with prejudice.
Whether counsel was ineffective for conceding use of a weapon	State would defend conviction or argue no prejudice from counsel’s concession.	Counsel’s concession improperly conceded an essential element (use of a weapon).	Not reached (court reversed on sufficiency of evidence).
Whether the district court erred by not clarifying a jury question	State would defend court’s handling of jury question.	Failure to clarify prejudiced the defendant’s verdict.	Not reached (court reversed on sufficiency of evidence).

In re R.L.S., 293 Mont. 288 (1999 MT 34) (device must actually be capable of producing death or serious bodily injury to qualify as a “weapon” under the statute)
State v. Smith, 322 Mont. 206 (2004 MT 191) (harmonizing interpretations of the assault-with-a-weapon statute that contains “what reasonably appears to be a weapon” language)
State v. Steele, 323 Mont. 204 (2004 MT 275) (officer need not have seen a weapon to have reasonable apprehension when a statutorily defined weapon was involved)
State v. Kirn, 364 Mont. 356 (2012 MT 69) (reasonable apprehension sufficed where a statutorily defined weapon was involved)