State v. Burrington: Medically Required Functional Restrictions Can Constitute “Protracted Impairment” for Serious Bodily Injury; Self-Defense May Be Asserted While Disputing the Injury Element

Introduction

In State v. Burrington, 2025 MT 238, the Supreme Court of Montana affirmed a Missoula County jury’s aggravated assault conviction arising from a roadside altercation that fractured the victim’s mandible. The decision is significant for two reasons. First, it clarifies that a six-week, medically mandated non-chewing/soft-liquid diet and related functional limitations can amount to a “protracted loss or impairment of the function or process of a bodily member or organ,” satisfying the “serious bodily injury” element of aggravated assault under Montana law—even absent surgery or a fully displaced fracture. Second, it confirms that a defendant may advance a justifiable use of force (self-defense) theory without conceding the “serious bodily injury” element, allowing a dual strategic posture aimed at acquittal or conviction of a lesser included offense.

The Court also declined to grant relief under the plain error doctrine for an isolated judicial shorthand reference to a prior incident as “Ms. Burrington’s previous road rage,” and for the prosecutor’s rebuttal comments referencing “lies,” holding that, considered in context, neither rendered the trial fundamentally unfair. The cumulative error claim likewise failed.

Case Background

The incident began as a road-rage confrontation on July 22, 2023. After Jeffrey W. Burrington tailgated Ryan Williams, both men pulled over. Words were exchanged; Burrington accused Williams of being from Washington, then punched Williams once in the face. Williams returned to his vehicle and later sought medical care, where he was diagnosed with a non-displaced mandibular fracture. An oral surgeon prescribed a six-week soft/liquid, non-chewing diet and precautions to avoid exacerbating the injury, explaining that chewing or impact could cause the fracture to progress through the mandibular neck, creating a “bigger problem.” Williams experienced tingling and soreness, could not fully open his mouth for two to three weeks, and had employment limitations as a smokejumper (could not travel by helicopter and had to hike).

The State charged aggravated assault, and—pretrial—proposed instructing on the lesser included offense of misdemeanor assault. The defense moved to dismiss (arguing lack of serious bodily injury and self-defense), which the District Court denied as fact questions for the jury. After the State’s case-in-chief, the defense moved for a directed verdict, arguing that, as a matter of law, the evidence failed to show a “protracted loss or impairment.” The court denied the motion. The defense then proceeded on dual theories: justifiable use of force (protecting himself and his wife, Sally) and, alternatively, lack of serious bodily injury.

During trial, the defense introduced two prior “road rage” experiences to explain the Burringtons’ fear: a late-1980s gun brandishing incident, and a 2023 machete brandishing incident toward Sally. The State unsuccessfully sought to introduce a 2017 incident in which Burrington punched a motorcyclist (denied as prejudicial and not clearly “opened,” with a warning the defense’s use of prior incidents had “cracked open” the door). In cross-examination, the trial judge referenced one of the admitted prior incidents as “Ms. Burrington’s previous road rage,” which drew no contemporaneous objection. In closings, the defense attacked Williams’s credibility, insinuating he was “trying to mislead the jury”; the prosecutor’s rebuttal highlighted contradictions in Burrington’s testimony and used rhetorical “what does it look like when someone’s caught in a lie?” framing.

The jury convicted on aggravated assault. The District Court imposed a fully suspended seven-year DOC sentence. Burrington appealed, raising three issues: denial of directed verdict; entitlement to plain error review of (1) the judge’s “previous road rage” remark and (2) the prosecutor’s rebuttal argument; and cumulative error.

Summary of the Opinion

Directed verdict: Affirmed. Viewing the evidence in the light most favorable to the prosecution, a rational jury could find that Williams sustained a “serious bodily injury” because a six-week medically required non-chewing/soft-liquid diet, with related functional restrictions and discomfort, qualifies as a “protracted loss or impairment” of the function of a bodily member (the mandible), even without surgery or a fully displaced fracture.
Plain error: Denied. The trial judge’s shorthand reference to “Ms. Burrington’s previous road rage” did not comment on the evidence or impugn a party; it distinguished between two admitted incidents. The prosecutor’s rebuttal, including references to being “caught in a lie,” was contextually tied to credibility assessments invited by the defense’s own attack and remained within permissible commentary on evidentiary contradictions.
Cumulative error: Denied. With no individual plain error established and a strong record supporting the verdict, there was no aggregate prejudice.
Notable clarification: The Court acknowledged that self-defense (justifiable use of force) does not require a concession to the “serious bodily injury” element; a defendant may simultaneously contest that element while asserting self-defense, enabling a dual-track strategy addressing both justification and the degree of injury.

Analysis

Precedents Cited and Their Influence

The Court’s discussion draws on Montana authority for standards of review, statutory interpretation, and trial error doctrines, as well as persuasive out-of-state cases to construe “protracted loss or impairment.”

Montana authorities

State v. Swann, 2007 MT 126: Establishes de novo review for denials of directed verdicts because they apply law to facts. Swann also frames the sufficiency standard—whether any rational trier of fact could find the essential elements beyond a reasonable doubt.
State v. Garcia, 2025 MT 25: Confirms statutory terms are given their ordinary meaning when undefined, guiding the Court’s reliance on dictionary definitions of “protracted” and “impairment.”
State v. Trull, 2006 MT 119: Upholds that “protracted impairment” is not unconstitutionally vague and is within lay understanding, reinforcing that juries can apply the phrase without specialized guidance.
State v. Crawford, 2002 MT 117: Jury instructions are reviewed as a whole to ensure they fairly and fully state the law—relevant to the defense request that the court should have sua sponte given an other-acts instruction (which the Court did not require).
State v. McDonald, 2013 MT 97; State v. George, 2020 MT 56; State v. Akers, 2017 MT 311; State v. Aker, 2013 MT 253: Together, these cases cabin plain-error review to rare circumstances affecting fundamental fairness; confirm that prosecutors may comment on credibility and contradictions so long as they avoid personal vouching or categorical “liar” labels detached from evidence; and place the preservation burden on the defense to contemporaneously object.
State v. Novak, 2005 MT 294; State v. Enright, 2000 MT 372; State v. Lawrence, 2016 MT 346: Articulate the cumulative error doctrine—prejudice must be shown; multiple alleged errors are assessed in context of the whole record, the trial court’s handling, interrelationships among errors, and the strength of the case.

Persuasive out-of-state cases on “protracted” and “impairment”

State v. Welton, 300 N.W.2d 157 (Iowa 1981): A jaw fracture preventing chewing for six weeks constitutes “protracted loss or impairment”—closely aligned to Williams’s medical restrictions.
State v. Meyers, 145 P.3d 821 (Haw. App. 2006): Four weeks of pain/discomfort deemed “protracted,” illustrating that “protracted” need not mean months.
State v. Ross, 939 S.W.2d 15 (Mo. Ct. App. 1997): Seven days of impairment can suffice—this underscores that “protracted” is a relative concept evaluated with the injury’s nature and impact.
Huerta v. State, 933 S.W.2d 648 (Tex. Ct. App. 1996): Inability to work for “several days” may be protracted, supporting a functional, effect-based view.
People v. Hall, 86 A.D.3d 450 (N.Y. App. Div. 2011): While addressing “protracted” in a surveillance context, it aids the Court’s ordinary-meaning approach (longer means more “protracted”), but the key takeaway is the flexible, contextual nature of the term.
Cheatham v. State, 270 N.W.2d 194 (Wis. 1978): A skull fracture causing loss of feeling for six days could meet protracted loss/impairment, further illustrating that qualitative impact can outweigh sheer duration.
State v. Swensen, 2009 MT 42 (for contrast): Serious injuries sometimes include more dramatic sequelae (wiring, surgeries, multiple fractures), but Swensen is not a ceiling-setting case; it simply shows that severity can take many forms. Burrington clarifies that surgery/wiring is not required.

Collectively, these authorities support Montana’s adoption of an effects-driven, ordinary-meaning analysis of “protracted impairment,” sensitive to medical directives and functional risk, rather than artificial markers like surgical intervention or return-to-work timing.

The Court’s Legal Reasoning

1) Denial of the directed verdict (serious bodily injury)

The aggravated assault statute, § 45-5-202(1), MCA, requires the State to prove that the defendant purposely or knowingly caused “serious bodily injury.” Under § 45-2-101(66)(a)(ii), MCA, serious bodily injury includes injuries that cause “protracted loss or impairment of the function or process of a bodily member or organ.” Because “protracted” and “impairment” are undefined terms, the Court interpreted them per ordinary usage—“lengthened, extended, prolonged” for protracted; “diminishment or loss of function or ability” for impairment—consistent with Garcia and dictionary sources.

Applying those definitions to the record, the Court emphasized:

Duration: A six-week non-chewing/soft-liquid diet, ordered to prevent progression of a jaw fracture, can be “protracted.” The Court cited cases finding four weeks or even a handful of days sufficient in context.
Functional impact: Chewing is a core function of the mandible. A medically required ban on chewing for six weeks, coupled with limited mouth opening, tingling, soreness, and work-related adaptations, is evidence of “diminishment of function.”
Risk and compliance: The medical restriction was not for comfort alone but to avoid worsening the injury. The Court refused to “fault a victim” for mitigating risk by following medical advice; such prudent compliance can itself reflect a functional impairment during the recovery period.
No surgery requirement: The absence of wiring, surgery, or gross displacement does not foreclose a finding of serious bodily injury. The question is whether the evidence, viewed favorably to the State, could allow a rational jury to find protracted impairment beyond a reasonable doubt.
Jury’s role: Evidence that Williams returned to wildfire duty within two days was before the jury; weighing that against medical testimony and functional restrictions was for jurors, not for directed verdict resolution.

Under Swann’s standard, because evidence existed upon which a rational trier could find “protracted impairment,” the District Court correctly denied the directed verdict and allowed the jury to resolve the factual dispute.

2) Plain error review (judge’s comment and prosecutor’s rebuttal)

The defense did not contemporaneously object to either the judge’s shorthand (“Ms. Burrington’s previous road rage”) or the prosecutor’s “what does it look like when someone’s caught in a lie?” rhetoric. The Court reiterated that plain error is reserved for errors that implicate fundamental rights and threaten a manifest miscarriage of justice or the integrity of the process (Akers, George).

Judge’s shorthand: In context, the judge was distinguishing between two admitted prior incidents (only one of which Sally experienced alone). The phrase did not comment on evidence or attribute fault; it was a clarifying label. Given the general instruction that the court’s remarks are not evidence, and the defense’s own introduction of these incidents, no fundamental right was implicated.
Prosecutor’s rebuttal: Although counsel should avoid personal vouching or branding witnesses as “liars,” prosecutors may argue credibility by pointing to contradictions and demeanor (Aker, McDonald). Here, the defense first attacked Williams’s credibility. The prosecutor’s response—framed in terms of contradictions in Burrington’s testimony and jurors’ credibility role—fell within permissible bounds. In context, it did not amount to plain error.

3) Cumulative error

Without individual plain error, there is nothing to aggregate. In light of the strength of the State’s case and the trial court’s management, the record did not show that multiple errors, interacting, deprived the defendant of a fair trial (Novak, Lawrence).

4) Dual defense strategy: Self-defense and contesting serious injury

The Court also addressed, in explaining the defense strategy, that justifiable use of force (JUOF) does not require a concession that the victim suffered a “serious bodily injury.” The defense may both argue justification and dispute the severity element of aggravated assault. This is an important clarification because it disapproves any rigid view that asserting JUOF necessarily admits all elements of the charged offense. Strategically, it empowers defendants to seek acquittal on justification while preserving the option for the jury to convict only on the lesser included offense if the State fails to prove serious bodily injury.

Impact and Practical Implications

Serious bodily injury: Effects-based, not intervention-based

Medically required functional restrictions—even when conservative and non-surgical—can prove “protracted impairment.” Six weeks of a non-chewing diet imposed to prevent progression of a mandibular fracture is enough to reach the jury on aggravated assault.
Prosecutors can charge aggravated assault where medically supported restrictions materially diminish function over a sustained period, even if the patient resumes some work activities. The focus is on function and risk, not only visible deformity or procedures.
Defense counsel should not assume that absence of surgery or a quick return to work defeats “serious bodily injury.” Medical testimony about the purpose and duration of restrictions, risks of aggravation, and functional limitations is pivotal.
Juries decide close calls. The sufficiency question is front-end; where evidence supports either outcome, the case goes to the jury.

Self-defense alongside disputing injury

Burrington confirms that defendants may assert justifiable use of force and simultaneously dispute the “serious bodily injury” element. This dual path can be outcome-determinative in borderline injury cases by preserving the lesser included offense as a realistic endpoint for jurors who reject either justification or the seriousness of injury.
Charging and plea practice may shift: parties should anticipate more aggravated assault filings in fracture cases with medically imposed restrictions, alongside contested trials where self-defense is paired with injury disputes.

Trial practice: Preservation and closing arguments

Preservation is critical. Without a timely objection, even arguably questionable statements will rarely qualify for plain error reversal.
Prosecutors can comment on contradictions and credibility but should avoid personal opinions or categorical assertions that a witness “lied” unsupported by record-based analysis. Framing arguments around evidence and the jury’s credibility instructions is safest.
Judges’ neutral shorthand references during evidentiary rulings are not improper if they merely clarify context. Parties concerned about potential misimpressions should request contemporaneous limiting instructions.
“Other acts” evidence remains delicate. Here, the court declined to admit a 2017 incident but warned that the defense’s introduction of similar prior events had “cracked open” the door. Counsel should anticipate that using one’s own prior incidents for context may invite a proportional State response if the door opens further.

Complex Concepts Simplified

Serious bodily injury (SBI): For aggravated assault in Montana, SBI includes injuries causing a “protracted loss or impairment” of bodily function or process. It is not limited to permanent injuries, surgeries, or gross disfigurement. Functional diminishment over a sustained period, supported by medical evidence, can suffice.
Protracted impairment: “Protracted” means extended or prolonged. There is no fixed minimum number of days; courts look at duration together with the injury’s nature and the real-world functional impact (e.g., inability to chew, restricted jaw opening, medically imposed diet).
Directed verdict: A mid-trial request asking the judge to rule that the State’s evidence, even if believed, is legally insufficient. The court must deny if any rational juror could find the elements beyond a reasonable doubt.
Plain error review: A narrow appellate safety valve for unpreserved claims that seriously threaten the fairness and integrity of the proceedings. It is not a substitute for timely objections at trial.
Justifiable use of force (self-defense): A defense that, if supported by some evidence, requires the State to disprove it beyond a reasonable doubt. It can be asserted without conceding other elements like SBI.
Cumulative error: Even if individual rulings are harmless, multiple errors can add up to deprive a fair trial. The defendant must demonstrate actual prejudice from their aggregate effect.
Prior bad acts/other-acts evidence: Evidence of prior conduct used to prove things like motive or intent, not character propensity. Admissibility is tightly controlled; a party may “open the door” by raising similar incidents, potentially permitting limited rebuttal.

Conclusion

State v. Burrington materially clarifies Montana’s “serious bodily injury” landscape. The Court embraces an ordinary-meaning and effects-centric approach: where medical testimony establishes a meaningful, sustained, and necessary curtailment of function—like a six-week non-chewing regimen to prevent fracture progression—a jury may find “protracted impairment” even without surgery or dramatic structural damage. The decision rejects formalistic thresholds and restores the inquiry to functional reality, patient safety, and duration, leaving close factual disputes to jurors.

The opinion also gives pragmatic guidance on trial conduct. Plain error remains exceptional; counsel must object to preserve claims. Prosecutors may argue credibility through record-based contradictions; judges’ neutral clarifications are not improper commentary. And importantly, defendants may assert self-defense while simultaneously contesting the seriousness of injury, preserving alternative routes to acquittal or conviction of a lesser offense.

In short, Burrington is both a sufficiency-of-the-evidence case that will influence charging and trial strategy in assault prosecutions involving medically managed injuries, and a procedural reminder that credibility battles belong to juries, not directed verdicts—and that preservation rules matter.