State v. Zink, 319 P.3d 596

State charged Zink by Information with aggravated assault against his wife, later seeking to amend to add criminal endangerment under § 45-5-207(1), MCA.
District Court denied pre-trial motion to dismiss the endangerment charge as a lesser-included offense of aggravated assault.
At trial, Elizabeth Zink testified that Zink assaulted her, including grabbing, throwing into a wall, squeezing etc., with threats to die.
The District Court instructed on criminal endangerment, aggravated assault, and assault as a lesser-included offense; jury convicted on endangerment and on assault as a lesser offense.
Sentencing: court imposed 10 years on endangerment and concurrent 6 months on assault; defense argued for probation and asserted lack of conviction for aggravated assault.
Zink appeals raising two main arguments: (a) charging criminal endangerment alongside aggravated assault; (b) ineffective assistance of counsel for not invoking § 46-18-225 criteria at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether criminal endangerment is a lesser-included offense of aggravated assault	Zink argues endangerment is lesser-included, prohibiting dual charges.	Zink maintains multiplicity/duality violates statutory and double jeopardy protections.	No reversal; statute permits charging in the alternative; no prejudicial dual conviction occurred.
Whether the charges were multiplicitous and violated double jeopardy	Endangerment and aggravated assault could be multiplicitous	Alternative charging avoids multiple convictions; no jeopardy from multiplicitous charges.	No double jeopardy violation; remedies available if multiplicitous convictions occurred were not necessary here.
Whether Zink received ineffective assistance of counsel for not invoking § 46-18-225 criteria at sentencing	Hinchey failed to raise § 46-18-225 explicit criteria to avoid imprisonment.	Counsel argued relevant § 46-18-225 factors; lack of explicit invocation did not prejudice.	No prejudice shown; the court considered relevant criteria and imposed sentence notwithstanding lack of explicit invocation.

State v. Tellegen, 372 Mont. 454 (Mont. 2013) (prohibition on multiple convictions when one offense includes another; charging in the alternative permitted)
State v. Guillaume, 293 Mont. 224 (Mont. 1999) (methods to cure multiplicitous convictions; double jeopardy considerations)
State v. Nelson, 906 P.2d 663 (Mont. 1995) (affirmative duty to consider § 46-18-225 criteria in sentencing non-violent offenders)
State v. Weisweaver, 239 P.3d 952 (Mont. 2010) (implicit consideration of § 46-18-225 criteria acceptable; explicit citation not always required)
State v. Wilson, 264 P.3d 1146 (Mont. 2011) (formal reference not always necessary if relevant criteria are addressed in record)
United States v. Batchelder, 442 U.S. 114 (U.S. 1979) (no constitutional right to elect which federal statute forms basis of indictment)
Ball v. United States, 470 U.S. 856 (U.S. 1985) (double jeopardy concerns primarily concern convictions; permits charging under multiple statutes)
United States v. Woerner, 709 F.3d 527 (5th Cir. 2013) (federal multiplicity considerations discuss conviction scope)