434 F.2d 1053
COSTA INTERNATIONAL CORP., Appellant,v.The UNITED STATES, Appellee.
Customs Appeal No. 5370.
United States Court of Customs and Patent Appeals.
December 10, 1970.

Brooks & Brooks, New York City, attorneys of record, for appellant; Eugene F. Blauvelt, Gail T. Cumins, New York City, of counsel.
William D. Ruckelshaus, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Susan C. Cassell, New York City, for the United States.
Before RICH, ALMOND, BALDWIN, LANE, Judges, and McMANUS, Judge, Northern District of Iowa, sitting by designation.
BALDWIN, Judge.

1
This appeal is from the decision and judgment of the Customs Court, Second Division,1 which overruled the importer's protest against assessment of duty on certain merchandise classified under item 661.70 of the Tariff Schedules of the United States (TSUS) as industrial machinery for the treatment of materials by a process involving a change of temperature. The importer claims that the merchandise is dutiable at a lower rate under item 668.06, TSUS, as parts of machines for making paper.

2
The imported merchandise consists of parts of what is generally designated in the record and arguments as a "Madeleine System". It includes Madeleine rolls, and some accessories, such as brackets to install the rolls and some sections of ductwork. The evidence shows that the Madeleine System is used in the drying portion of a Fourdrinier type paper making machine.

3
From testimony submitted in the trial below, we elicit that, during the paper making process, the Fourdrinier machine provides a sheet of paper pulp with a high water content. This sheet, or web, is continuously and directly fed into the drying portion where it is passed over a series of steam-heated cylindrical drying rolls to eliminate most of the water. Moving felt bands are sometimes provided to hold the sheet against the drying rolls to facilitate extraction of the water from the sheet. In machinery utilizing the Madeleine System, these felt bands, which become wet in the operation just described, are passed over the Madeleine rolls for drying. These Madeleine rolls, which are installed between consecutive drying rolls, have openings through which hot air is passed radially outward through that part of the felt engaging the roll at each instant. The felt is thus dried by the hot air before it is again used to press the pulp sheet against a subsequent drying roll. The Madeleine rolls do not contact the pulp sheet at any time. Also, there is evidence that the hot air from the Madeleine rolls, after passing through the felt to dry it, helps to eliminate from the drying section some of the moist air resulting from the action of the drying rolls on the pulp sheet.

4
The pertinent portions of the statutory provisions involved are as follows:

Schedule 6, Part 4:

5
Subpart A. — Boilers, Non-Electric Motor and Engines, and Other General Purpose Machinery

Subpart A headnote:

6
1. A machine or appliance which is described in this subpart and also is described elsewhere in this part is classifiable in this subpart.

7
* * * * * *

8
Industrial machinery, plant, and similar laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature, such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing, or cooling; instantaneous or storage water heaters, non-electrical; all the foregoing (except agricultural implements, sugar machinery, and machinery or equipment for the heat-treatment of textile yarns, fabrics, or made-up textile articles) and parts thereof:

9
* * * * * *

10
661.70 Other ............ 12.5% ad val.

11
* * * * * *

12
Subpart D. — Pulp and Paper Machinery; Bookbinding Machinery; Printing Machinery

13
Machines for making cellulosic pulp, paper, or paperboard; machines for processing or finishing pulp, paper, or paperboard, or making them up into articles:

14
668.00   Machines for making
         cellulose pulp, paper,
         or paperboard .......... 7% ad val.

15
* * * * * *

Parts of the foregoing machines:

16
* * * * * *

Other:

17
668.06  Parts of machines for
        making cellulosic
        pulp, paper, or paperboard ........... 7% ad val.

18
The government apparently does not contest that the importations are described in item 668.06 as parts of machines for making paper. Assuming for present purposes that such is the case, the issue breaks down into two elements. These are

19
(1) Whether the importations are also described in item 661.70 (as classified) and

20
(2) Whether the importations fall within the scope of above-quoted Headnote 1, Schedule 6, Part 4, Subpart A, which provides for Subpart A of Schedule 6, Part 4 to invade other subparts of that schedule and part, including Subpart D in which item 668.06 (claimed) falls.

21
The Customs Court found from the evidence that:

22
* * * the imported material in particular, and the drier section in general, do treat materials by subjecting them to a change in temperature. In this instance the material being treated is the drier felt and the paper web or sheet.

23
The court then ruled that the case of American SF Products, Inc. v. United States, 61 Cust.Ct. 257, C.D. 3593 (1968), is controlling and that the importations are therefore classifiable under item 661.70. In reaching that conclusion, it stated:

24
Insofar as [it is] the contention of plaintiff that the headnote of subpart A, supra, covers only machines and appliances and not parts, we are in total agreement. As indicated, supra, this court and the Court of Customs and Patent Appeals have held that no one machine makes paper. An examination of plaintiff's exhibit 2 and the diagram contained on page 2 of defendant's exhibit A makes it abundantly clear to us that the so-called Madeleine System is one of the machines utilized to make paper. It is admittedly a part of the dryer section of paper machinery, not in the sense of the term "part of a machine", but part of the section, to wit, one of the machines of the dryer portion of paper making. Even if we were not to consider the Madeleine System a machine, it actually falls within the common meaning of the term "appliance" which has among other meanings, equipment, accouterments, appurtenances, implements, devices, etc.

25
We also conclude that the classification of the importations under item 661.70 is correct, although our reasoning does not coincide precisely with that of the Customs Court. In the first place, we are inclined to agree with the importer that the "materials" which that item requires to be treated must be something other than a part of the machinery such as the drier felt. However, it is clear that that portion of the entire paper making machinery which drys the wet web or sheet coming from the web-forming section thereof in the present case — that is, the drying rolls, the drier felt, and the Madeleine System and associated parts — constitutes a drying section of the complete paper making assembly. The entire drying section obviously constitutes machinery for the treatment of material — in this case, the pulp sheet — by a process involving a change in temperature.

26
Of course, the importations, as parts of the Madeleine System, constitute but parts of the machinery constituting the drying section. However, item 661.70 specifically includes parts of the machinery or equipment described therein. The question whether the importations are described in item 661.70 therefore must be answered in the affirmative.

27
The importer urges that Headnote 1, Subpart A, Part 4 of Schedule 6 "is not applicable to `parts' of the machines and appliances provided for in Subpart A" and notes the Customs Court's agreement in the second quoted portion of its opinion, supra, that the headnote "covers only machines and appliances and not parts." While the court sets forth no reason for its conclusion on this point, the importer bases its position largely on the absence of the words "and parts thereof" after "machine or appliance" in the headnote.

28
We find the importer's reasoning unpersuasive. The term "machine or appliance" appears in the headnote, not in item 661.70. The question therefore is not whether parts of a "machine or appliance" are classifiable under item 661.70. Instead, it is whether the "parts thereof," which item 661.70 includes along with the specified "industrial machinery, plant and similar laboratory equipment," are precluded from constituting, in the words of the headnote, "a machine or appliance which is described" in item 661.70 of Subpart A. We think it obvious that the omission from the headnote of words specifically including parts of a "machine or appliance" is no indication that articles which meet the description of "parts thereof" under item 661.70 are not subject to the provisions of the headnote.2

29
In short, we are satisfied that the present "parts" of the "machinery" and "equipment", which meet the requirements for classification in Item 661.70, are covered by the term "machine or appliance" in headnote 1. We point out that that term appears to have been selected not just for its applicability to the merchandise and parts of Item 661.70, but also to all the diverse other merchandise, and "parts thereof", described in other items in Subpart A of Part 4 of Schedule 6,3 to all of which the headnote applies.

30
The importer refers to certain aspects of legislative history as demonstrating "that TSUS Item 661.70 was not intended to provide for paper-making machinery or parts of such machinery" but this argument also fails to convince us of error in the Customs Court's judgment. In the first place, the evidence advanced on that point is less than persuasive. But what is more important, the language of the statute makes it clear that the invasionary headnote to Subpart A is applicable to all other subparts of Part 4, including Item 668.06 for parts of papermaking machines. Since we are convinced that the instant imported merchandise otherwise meets the requirements for classification in Item 661.70, we cannot permit the clear meaning of the statutory language to be overcome merely by the showing of a possibly contrary legislative, intent. American Customs Brokg. Co. Inc. v. United States, Cust. & Pat.App., 433 F. 2d 1340, decided by this court on December 3, 1970.

31
The judgment of the Customs Court is affirmed.

32
Affirmed.

Notes:

1
 62 Cust.Ct. 729, C.D. 3855 (1969)

2
 This conclusion is in conformity with the decision of the Customs Court in American SF Products, Inc. v. United States,supra, the case which the court found controlling here. In that case, merchandise in the form of parts (although it appears no issue as to "parts" was raised) of a drier used in making paper were held dutiable under item 661.70 instead of item 668.06 because of the invasionary effect of the here-involved headnote 1 to Subpart A. See also Amalgamated Sugar Co. v. United States, 60 Cust.Ct. 268, C.D. 3361 (1968).

3
 Other merchandise provided for in Subpart A includes steam engines, internal combustion engines, air and vacuum pumps and compressors, air-conditioning machines, centrifuges, weighing machinery and scales, and mechanical appliances for spraying liquids or powders


620 F.2d 295
U. S.v.Sellers
79-6774
UNITED STATES COURT OF APPEALS Fourth Circuit
4/11/80

1
D.S.C.

AFFIRMED


227 P.3d 1035 (2010)
2010 MT 48
STATE of Montana, Plaintiff and Appellee,
v.
Joseph Daniel FELTZ, Defendant and Appellant.
No. DA 09-0245.
Supreme Court of Montana.
Submitted on Briefs February 10, 2010.
Decided March 16, 2010.
*1036 For Appellant: Joslyn Hunt, Chief Appellate Defender, Helena, Montana.
For Appellee: Hon. Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana. Gina Dahl, Hill County Attorney, Lindsay Osborne, Chief Deputy Hill County Attorney, Havre, Montana.
Justice JAMES C. NELSON delivered the Opinion of the Court.
¶ 1 Joseph Feltz appeals his conviction in the District Court for the Twelfth Judicial District, Hill County, of felony assault with a weapon. We reverse and remand for further proceedings consistent with this Opinion.
¶ 2 Feltz raises the following issue on appeal: Did the District Court err when it denied Feltz's request to instruct the jury on misdemeanor assault as a lesser included offense of felony assault with a weapon?

Factual and Procedural Background
¶ 3 On the evening of June 16, 2008, Feltz was involved in an altercation with his girlfriend, Heather Green, and some of his neighbors at the Hacienda Trailer Court in Havre, Montana. Feltz and Green got into *1037 an argument outside of Feltz's trailer during which Feltz and Green were shoving, punching and kicking each other. Several witnesses also saw Feltz throw three unopened beer cans at Green. One of Feltz's neighbors, Ramona Champagne, attempted to break up the fight, but in the melee, Feltz hit her in the head. Another neighbor, Zona McConnell, tried to pull Feltz off of Champagne while Champagne's daughter, Jona Bear, hit and kicked Feltz. Champagne later received two stitches for a cut over her eyebrow.
¶ 4 Justin Doney, also a resident of the trailer court, testified at trial that he witnessed three women beating on Feltz. Doney stated that Green was choking Feltz while he was on the ground and that Green did not let go until Feltz was almost unconscious. Doney further stated that he broke up the fight by pulling the women off of Feltz. Doney also testified that he saw Feltz grab a camouflage-handled knife out of his car and heard Feltz threaten to stab the people in the area. Doney later saw Feltz throw the knife in his car.
¶ 5 McConnell testified that she saw Feltz go over to his car, grab a knife out of it and head towards her and the others with the "blade out towards people." She also described it as a green camouflage knife. McConnell further testified that Feltz was swearing at them and calling them names, and that she was scared. McConnell said she called 911 and then threw her cell phone at Feltz and ran away.
¶ 6 Another neighbor, Wayne Hewitt, testified that Feltz was on the ground "and there was a whole bunch of ladies kicking him, beating him and stuff," and that Feltz was "[f]ighting for his life." Hewitt stated that after the parties separated, Feltz went to his car and attempted to drive away, but he hit a fence. Hewitt testified that he never saw a knife. Champagne and Bear also testified that they did not see Feltz with a knife.
¶ 7 Phillip Pipestem witnessed the altercation while he was waiting for a ride to a softball game. Pipestem testified that when Feltz approached him with the camouflage-handled knife, Pipestem threatened to beat Feltz with one of the baseball bats that Pipestem was carrying. Pipestem also testified that Feltz did not attempt to stab or cut anyone with the knife, and that, eventually, Feltz threw the camouflage knife in his car and pulled out a smaller knife.
¶ 8 Kenneth Erickson, the owner of the trailer court, testified that Doney called him and told him that he needed to get over there because they were "killing each other." Erickson and his cousin, Travis Burchard, jumped in their truck and headed to the scene. Erickson stated that when he arrived, Feltz "looked like he had the shit just kicked out of him." Erickson testified that he saw Feltz grab a little black pocket knife and "barely" show it to the other people present. Erickson asked Feltz to give him the knife, and Feltz dropped it in his truck. Burchard testified that he also saw Feltz pull out a black pocket knife. He stated that Feltz just held the knife at his side; he did not waive it around or try to cut anyone.
¶ 9 Feltz testified in his own defense, stating that he had an argument with Green that turned physical when she threw a pop can at him. Although he admitted hitting and shoving Green, he described her as the aggressor. Feltz testified that he was trying to leave when he was jumped by Green, and that is when McConnell, Champagne, and Bear began beating him. Feltz claimed that he did become unconscious when Green choked him and that he awoke on the ground with the four women kicking and hitting him. Feltz admitted hitting Champagne in order to get her off of him. He claimed that he pulled out the pocket knife to get the women to back away from him and that he did not attempt to stab or cut them. He also explained that at one point he went to his car to get away, but after he drove into a fence, he decided he was too intoxicated to drive. Feltz also claimed that while he was still in his car, Green was smacking him through the driver's side window.
¶ 10 After the altercation, the police retrieved the small black folding pocket knife, but they did not find the camouflage-handled knife. Feltz was taken to the hospital in an ambulance. He suffered an abrasion, a *1038 scratch, and a small laceration, but did not have any severe injuries.
¶ 11 On June 18, 2008, Feltz was charged by Information with one count of felony assault with a weapon for allegedly causing bodily injury to Green by hitting her with a beer can, and one count of misdemeanor assault for hitting Champagne. On July 2, 2008, the State added a second charge of assault with a weapon for causing McConnell "reasonable apprehension of bodily injury" by threatening her with a knife.
¶ 12 A jury trial was held on January 14 and 15, 2009. During the settling of the jury instructions, the District Court allowed the State to amend the charge involving McConnell to allege that Feltz caused her a reasonable apprehension of serious bodily injury rather than merely bodily injury. In addition, with respect to the charge involving Green, the court instructed the jury on the lesser included offense of partner or family member assault, a misdemeanor. Feltz requested that the court also instruct the jury on the lesser included offense of misdemeanor assault with respect to the assault-with-a-weapon count involving McConnell, but the court refused to do so. The District Court did instruct the jury on the affirmative defense of justifiable use of force.
¶ 13 The jury returned a verdict of guilty on the charges of partner and family member assault, misdemeanor assault, and felony assault with a weapon. On the felony charge, the District Court designated Feltz a persistent felony offender and committed him to the Montana State Prison for ten years with five years suspended. The court imposed six month sentences on each of the misdemeanor offenses to run concurrent to Feltz's sentence on the felony offense. Feltz appeals his conviction arguing that the District Court erred in instructing the jury.

Standard of Review
¶ 14 The standard of review of a trial court's refusal to give an instruction on a lesser included offense is whether the trial court abused its discretion. State v. Johnson, 2008 MT 227, ¶ 12, 344 Mont. 313, 187 P.3d 662 (citing State v. Flores, 1998 MT 328, ¶ 40, 292 Mont. 255, 974 P.2d 124). District courts have broad discretion in formulating jury instructions; however, that discretion is ultimately restricted by the overriding principle that the jury instructions, taken as a whole, must fully and fairly instruct the jury regarding the applicable law. State v. Azure, 2008 MT 211, ¶ 13, 344 Mont. 188, 186 P.3d 1269 (citing State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625).

Discussion
¶ 15 Did the District Court err when it denied Feltz's request to instruct the jury on misdemeanor assault as a lesser included offense of felony assault with a weapon?
¶ 16 During the settling of the jury instructions, Feltz's counsel requested that the District Court instruct the jury that misdemeanor assault was a lesser included offense of felony assault with a weapon for the count involving McConnell. Counsel argued that the case came down to whether McConnell feared serious bodily injury or merely bodily injury, thus a lesser included offense instruction was appropriate. The District Court rejected Feltz's proposed jury instruction on misdemeanor assault.
¶ 17 An instruction on a lesser included offense "must be given when there is a proper request by one of the parties, and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense," rather than the greater offense. Section 46-16-607(2), MCA; see also State v. Martinosky, 1999 MT 122, ¶ 18, 294 Mont. 426, 982 P.2d 440. Moreover, a defendant is entitled to a lesser included offense instruction if two criteria are met: (1) the offense must constitute a lesser included offense as defined by § 46-1-202(9), MCA, and (2) there must be sufficient evidence to support an instruction on the lesser included offense. State v. Cameron, 2005 MT 32, ¶ 20, 326 Mont. 51, 106 P.3d 1189.
The purpose of this rule is to ensure reliability in the fact-finding process. It avoids the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather *1039 than let his action go unpunished simply because the only alternative was acquittal.
State v. Castle, 285 Mont. 363, 367, 948 P.2d 688, 690 (1997) (citing State v. Gopher, 194 Mont. 227, 230, 633 P.2d 1195, 1197-98 (1981)).
¶ 18 An included offense is one that "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Section 46-1-202(9)(a), MCA. "Facts" in this instance "refers to the statutory elements of the offenses, not the individual facts of the case." State v. Matt, 2005 MT 9, ¶ 13, 325 Mont. 340, 106 P.3d 530 (quoting State v. Beavers, 1999 MT 260, ¶ 30, 296 Mont. 340, 987 P.2d 371).
¶ 19 To be convicted of misdemeanor assault, a person must "purposely or knowingly" cause a "reasonable apprehension of bodily injury in another." Section 45-5-201(1)(d), MCA. To be convicted of felony assault with a weapon, a person must "purposely or knowingly" cause a "reasonable apprehension of serious bodily injury in another by use of a weapon or what reasonably appears to be a weapon." Section 45-5-213(1)(b), MCA (emphasis added). In addition, "bodily injury" means "physical pain, illness, or an impairment of physical condition...." Section 45-2-101(5), MCA. "Serious bodily injury," on the other hand, means bodily injury that
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ; or
(iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ.
Section 45-2-101(66)(a), MCA.
¶ 20 Thus felony assault with a weapon differs from misdemeanor assault only in the degree of the injury that is feared and the use of a weapon. There are no additional elements that must be proven in order to obtain a conviction for misdemeanor assault that are not included in the offense of felony assault with a weapon.
¶ 21 While the State concedes that misdemeanor assault qualifies as a lesser included offense of assault with a weapon, it argues that the District Court correctly denied the request for a lesser included offense instruction in this case because the evidence did not support it. Relying on this Court's decision in State v. Reiner, 179 Mont. 239, 587 P.2d 950 (1978), the State contends that an instruction on the lesser included offense of misdemeanor assault need not be given where the evidence indicates that the only type of injury that would be feared was serious bodily injury. Reiner, however, is distinguishable from the instant case.
¶ 22 In Reiner, the defendant, armed with a .357 Magnum revolver, not only threatened to kill the three individuals he thought were trespassing on the property he was caretaking, he fired two shots at the ground near where they were standing. On that basis, the defendant was charged with three counts of aggravated assault pursuant to § 94-5-202(1)(c), RCM (1947).[1]Reiner, 179 Mont. at 241-43, 587 P.2d at 952-53. During trial, the defendant offered an instruction on the lesser included offense of assault, but the trial court refused his offered instruction and provided the jury with verdict forms that permitted a finding of either aggravated assault or not guilty. Reiner, 179 Mont. at 251, 587 P.2d at 957.
¶ 23 We stated in Reiner that "the question of whether a bodily injury is `serious' within the meaning of the criminal code definition is one of fact to be considered and determined by the jury." Reiner, 179 Mont. at 252, 587 P.2d at 958 (citing State v. Fuger, 170 Mont. 442, 445, 554 P.2d 1338, 1340 (1976)). However, we rejected the defendant's claim in Reiner that he was entitled to an instruction on the lesser included offense of assault because it was "clear that defendant *1040 put his victims in reasonable apprehension of serious bodily injury by his menacing use of a .357 Magnum revolver." Reiner, 179 Mont. at 253, 587 P.2d at 958 (emphasis added).
¶ 24 Unlike Reiner where the defendant fired two shots near his victims and threatened to kill them, there was evidence that Feltz did not hold the knife in a "menacing" manner, nor did he try to stab or cut anyone with it. Also, the difference in the type of weapon used in each case is significant. Faced with a .357 Magnum revolver that the defendant had already fired twice, the victims in Reiner clearly had a reasonable apprehension of serious bodily injury. Whereas, in the instant case, depending on the fact-finders belief of the evidence presented regarding the type and size of knife used and the manner in which Feltz was holding that knife, a jury could conclude that McConnell only had a reasonable apprehension of bodily injury.
¶ 25 Nevertheless, the State contends that "a person who fears being injured with a knife would, at a minimum, apprehend `serious permanent disfigurement,' and would likely apprehend, `loss or impairment of the function or process of a bodily member or organ' and death." Not so as the type of injury apprehended would depend on the size and type of knife used and the manner in which the knife was being held. As noted earlier in this Opinion, "the question of whether a bodily injury is `serious' within the meaning of the criminal code definition is one of fact to be considered and determined by the jury." Reiner, 179 Mont. at 252, 587 P.2d at 958.
¶ 26 In this case, the court took the elements of reasonable apprehension and serious bodily injury out of the hands of the jury. In addition, in denying Feltz's request for a lesser included offense instruction, the judge stated:
It's my thought, there's a charge of assault by putting Zona McConnell in reasonable apprehension of serious bodily injury by a weapon. She said she received no injury. She was only in fear because of the weapon. So the jury would decide if there was a weapon, and if there was a weapon she was in reasonable apprehension of fear. If they don't, not guilty. I don't see any evidence that assault would be a lessor [sic] offense, because there is no evidence of that. [Emphasis added.]
However, the fact that McConnell was afraid is not the question here. The question is whether she was afraid of bodily injury or serious bodily injury. There was no evidence presented here that McConnell feared for her life. While she testified that she was scared, she did not testify that she feared permanent disfigurement or death.
¶ 27 Furthermore, the State's theory is inconsistent. On one hand the State concedes that assault is a lesser included offense of assault with a weapon and, on the other hand, the State maintains that if a weapon is used, assault cannot be a lesser included offense because the bodily injury feared would always be serious. Under this theory, the facts encompassing the event where the weapon was used would be irrelevant.
¶ 28 We conclude that there was evidence in the record to support a misdemeanor assault instruction in this case. Although Feltz admitted pulling a knife in self defense, the size and type of knife used, the way he held it, whether he displayed it prominently, and what he said while doing so were in dispute. The jury could have believed Feltz pulled out a small pocket knife, held it at his side with the blade down, and did not make threatening statements while doing so. Neither McConnell nor anyone else testified that Feltz told McConnell he would kill her or that he was going to cut or stab her. And McConnell did not testify that she feared for her life. In addition, neither of the other women with her, whom McConnell claimed were likewise threatened by Feltz, reported seeing a knife or hearing anything about a knife. They also did not report being threatened by Feltz.
¶ 29 Based on this testimony, we agree with Feltz that a rational jury could have concluded that McConnell was not actually in *1041 fear of serious bodily injury, or that such fear was not reasonable in light of the circumstances. Accordingly, we hold that the District Court erred in denying Feltz's request to instruct the jury on misdemeanor assault as a lesser included offense of assault with a weapon, and we reverse and remand for a new trial.
We Concur: MIKE McGRATH, C.J., MICHAEL E. WHEAT, W. WILLIAM LEAPHART, PATRICIA O. COTTER, BRIAN MORRIS and JIM RICE, JJ.
NOTES
[1]  The offense of aggravated assault was the precursor to the offense of assault with a weapon. Section 94-5-202(1)(c), RCM (1947), regarding aggravated assault provided: "A person commits the offense of aggravated assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon."


170 Cal.App.4th 1346 (2009)
COLLEEN KOLTER, Plaintiff and Appellant,
v.
COMMISSION ON PROFESSIONAL COMPETENCE OF THE LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent;
LOS ANGELES UNIFIED SCHOOL DISTRICT, Real Party in Interest and Respondent.
No. B206134.
Court of Appeals of California, Second District, Division One.
January 8, 2009.
*1348 Trygstad, Schwab & Trygstad, Lawrence B. Trygstad and Shanon D. Trygstad for Plaintiff and Appellant.
Priscilla S. Winslow and Alice O'Brien for California Teachers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Miller Brown & Dannis and Enrique M. Vassallo for Real Party in Interest and Respondent.

*1349 OPINION
DUNNING, J.[*]
May the governing board of a school district convene in a closed session to initiate the process to dismiss a permanent certificated teacher without complying with the Ralph M. Brown Act (Gov. Code, § 54950 et seq.; the Brown Act), which requires 24-hour written notice to the employee of the right to have the matter heard in an open session? Yes.

FACTUAL AND PROCEDURAL BACKGROUND
The governing board of the Los Angeles Unified School District (District) met in a closed session on May 2, 2006, and initiated the process to dismiss permanent certificated elementary school teacher Colleen Kolter. (Ed. Code, § 44934.) Kolter did not receive any premeeting notice of the session or of the charges against her. After the closed session, the District notified Kolter by mail of the intent to dismiss and her right to a public hearing. (Ed. Code, § 44941.)
Kolter, represented by counsel, exercised her statutory right to a hearing before the Commission on Professional Competence of the Los Angeles Unified School District (Commission). (Ed. Code, § 44944.) Before any evidence was presented to that body, Kolter moved to dismiss the proceedings, arguing the governing board's closed session violated her rights under the Brown Act. She also sought dismissal based on the District's earlier failure, once her attorney advised she was under treatment for bipolar disorder, to provide a reasonable accommodation for the disability. Specifically, she faulted the District for not invoking Education Code section 44942, subdivision (f) and placing her on involuntary medical leave.[1] Both motions to dismiss were denied, and the Commission proceeded to take evidence over a nine-day period. The three-member Commission unanimously agreed Kolter should be dismissed. (Ed. Code, § 44944, subd. (c)(1).)
*1350 Kolter then filed this action for administrative mandamus, disability discrimination, failure to place her on mandatory sick leave, and failure to offer a reasonable accommodation for her disabilities. (Code Civ. Proc., § 1094.5; Gov. Code, § 12900.) The cause of action for administrative mandamus was tried to the court on the administrative record and arguments of counsel. Kolter's petition for writ relief was denied. The court adopted and filed the tentative decision as its statement of decision. Thereafter, Kolter voluntarily dismissed the causes of action based on the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), and judgment denying the peremptory writ of mandamus was entered.

DISCUSSION
(1) The Brown Act generally requires that "[a]ll meetings of the legislative body of a local agency shall be open and public . . . ." (Gov. Code, § 54953.) It applies to school districts. (Gov. Code, §§ 54951, 54952; Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 95 [82 Cal.Rptr.2d 452] (Fischer).) Per the Brown Act itself, the only exceptions are found in its own provisions or in "any provision of the Education Code pertaining to school districts . . . ." (Gov. Code, § 54962.) Government Code section 54957 describes the "personnel exception" to the open meeting requirement. (Fischer, supra, at pp. 95-96.) That exception provides in part: "Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions . . . [¶] . . . [¶] during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. [¶] . . . As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void." (Gov. Code, § 54957.)
Kolter contends the governing board's consideration of the charges against her triggered the "As a condition" clause to the exception, thus requiring *1351 24-hour notice by the District's governing board and an opportunity to request an open session. Because the governing board acted in a closed session, she asserts the dismissal is void.[2] (Gov. Code, § 54957, subd. (b)(2).) The District disagrees, citing Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568 [84 Cal.Rptr.2d 27] (Bollinger) and Fischer, supra, 70 Cal.App.4th 87.)
Although the closed civil service commission session in Bollinger occurred after the employee was afforded a public evidentiary hearing, much of the Court of Appeal's analysis of Government Code section 54957 is applicable here. There, a public employee was demoted for misconduct. He appealed and exercised his right to a noticed public evidentiary hearing. The hearing officer issued a written report after the evidentiary hearing, recommending that the demotion be affirmed. The report, however, was not provided to the employee. Nor was the employee given written notice that the civil service commission would meet in a closed session to consider whether to ratify the demotion. After the commission acted in the closed session, the employee received a copy of the hearing officer's report. The employee contended the Brown Act prohibited the commission from considering his demotion in a closed session. The Court of Appeal disagreed.
(2) The Bollinger court first noted that in section 54957[3] the Legislature used the verb "hear" in connection with "complaints or charges," but the verb "consider" in connection with "dismissal of a public employee." (Bollinger, supra, 71 Cal.App.4th at p. 574.) The Court of Appeal concluded the word choice was significant because the dictionary defines "to consider" as "to `deliberate upon,' [while] [t]o `hear' is to `listen to in an official . . . capacity[.]' [Citation.] A `hearing' is `[a] proceeding of relative formality. . ., generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.' [Citation.]" (Ibid.; see also Fischer, supra, 70 Cal.App.4th at pp. 96-97.)
The legislative history of Government Code section 54957 provided further support for Bollinger's conclusion that a closed session was permissible under these circumstances. The original drafts of the Assembly and Senate bills (Stats. 1993, ch. 1136, § 12, p. 6363 (Assem. Bill No. 1426 (1993-1994 *1352 Reg. Sess.)); Stats. 1993, ch. 1137, § 12, p. 6379 (Sen. Bill No. 36 (1993-1994 Reg. Sess.)) included the following language: "As a condition to holding a closed session on the complaints or charges to consider disciplinary action or to consider dismissal, the employee shall be given written notice of his or her right to have a public hearing rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session." (Italics added; see Sen. Bill No. 36 (1993-1994 Reg. Sess.) § 17; Assem. Bill No. 1426 (1993-1994 Reg. Sess.) § 17; Bollinger, supra, 71 Cal.App.4th at p. 574.)
The language italicized above was removed from both bills before Government Code section 54957 was enacted. (Assem. Amend. to Sen. Bill No. 36, § 12 (1993-1994 Reg. Sess.) Aug. 19, 1993; Sen. Amend. to Assem. Bill No. 1426, § 12 (1993-1994 Reg. Sess.) Sept. 8, 1993.) As enacted, therefore, section 54957 does not entitle an employee "to 24-hour written notice when the closed session is for the sole purpose of considering, or deliberating, whether complaints or charges brought against the employee justify dismissal or disciplinary action. `The rejection of a specific provision contained in an act as originally introduced is "most persuasive" that the act should not be interpreted to include what was left out. [Citations.]' [Citation.] Accordingly, we conclude a public agency may deliberate in closed session on complaints or charges brought against an employee without providing the statutory notice." (Bollinger, supra, 71 Cal.App.4th at pp. 574-575; see also Fischer, supra, 70 Cal.App.4th at pp. 95-102 [involving "election" proceedings for probationary teachers].) We agree.
(3) In this matter, the governing board did not conduct an evidentiary hearing on the verified statement of charges against Kolter; rather, it considered whether those charges justified the initiation of dismissal proceedings under Education Code section 44944. Kolter exercised her statutory right under the Education Code and was accorded a noticed public evidentiary hearing. The personnel exception to the Brown Act applied to the governing board's action, and 24-hour written notice was not required.[4]
In an amicus curiae brief, the California Teachers Association (CTA) offers a different perspective on the closed session before the governing board. *1353 While conceding the Education Code assures permanent certificated teachers a full evidentiary hearing before they are actually dismissed, CTA maintains that Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774] requires they also "have an absolute right to address the governing board before it makes a decision to terminate." This argument misstates the holding in Skelly, where the Supreme Court determined that "due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However . . . due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective." (Id. at p. 215.) The Legislature enacted Education Code section 44934 the year after the Skelly decision and provided precisely that due process safeguard.[5]
(4) CTA also notes the Commission is not authorized to impose probation or a sanction other than dismissal. (Ed. Code, § 44944, subd. (c).) Quoting Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 543 [84 L.Ed.2d 494, 105 S.Ct. 1487], CTA characterizes this statutory restriction as the loss of a "`meaningful opportunity to invoke the discretion of the decisionmaker' . . . to argue that termination is not the most appropriate or necessary sanction." Not so. Although the Commission hearing evidence in a dismissal proceeding does not have the statutory authority to impose discipline other than dismissal, it does have the discretion to refuse to dismiss, even if it finds that cause for discipline exists. (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 217, 222 [246 Cal.Rptr. 733, 753 P.2d 689].)
(5) Finally, CTA contends a permanent certificated teacher's "liberty interest in an opportunity to clear her name" demands that the governing board provide her with notice before it initiates dismissal proceedings. The argument is circular and, as the District notes, would add a second evidentiary hearing to the process. The result is neither desired nor required by law.

*1354 DISPOSITION
Judgment affirmed. Parties to bear their own costs on appeal.
Mallano, P. J., and Rothschild, J., concurred.
NOTES
[*]  Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1]  Kolter raised this issue in the trial court and on appeal as well. Citing only Green v. State of California (Cal.App.), she argues the District was required to initiate the interactive process to identify a reasonable accommodation, even though she did not request one. But the Supreme Court granted review in Green on November 16, 2005 (S137770), and did not order that the Court of Appeal decision remain published. It could not be cited or relied upon at any time during any of the proceedings in this matter. (Cal. Rules of Court, rule 8.1115; see now Green v. State of California (2007) 42 Cal.4th 254 [64 Cal.Rptr.3d 390, 165 P.3d 118].) Without authority for the argument, we deem it waived.
[2]  Kolter does not challenge the dismissal on the merits.
[3]  In response to the events of September 11, 2001, Government Code section 54957 was amended in 2002 to authorize greater confidentiality for meetings concerning threats to essential public services. (See Historical and Statutory Notes, 36B West's Ann. Gov. Code (2008 supp.) p. 34.) Subdivisions were added, but the substantive language we address in this opinion was not changed.
[4]  Kolter's reliance on Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 [98 Cal.Rptr.2d 263] is unavailing. There, the CIF (California Interscholastic Federation) Appellate Panel placed a high school on athletic probation as a result of recruiting violations by the football coach; it further ordered the board of trustees of the school district to review the coach's conduct and "take whatever action it deemed appropriate." (Id. at p. 679.) The board did not give notice to the football coach before meeting in a closed session where it heard the CIF charges and then voted to permanently remove the teacher from the coaching assignment. The teacher suffered no loss of pay and his tenured teaching position was not affected. Nonetheless, the Court of Appeal concluded this action violated the Brown Act as the closed session was the only forum to hear the disciplinary action against the teacher in his role as the football coach.

Similarly, in Moreno v. City of King (2005) 127 Cal.App.4th 17 [25 Cal.Rptr.3d 29], the city council terminated the finance director in a closed session after hearing specific misconduct charges presented by the city manager. The employee did not receive the Brown Act notice and had no opportunity to present any evidence before he was dismissed.
These cases are distinguishable from the one before us, where the governing board's closed session did not effectuate Kolter's termination. It was, instead, the prelude to a full evidentiary hearing under Education Code section 44934.
[5]  Education Code section 44934 provides in part, "the governing board may, upon majority vote . . . give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article."


935 So.2d 475 (2006)
Vernie CULVER and Sherri Senn
v.
Earline LANG and Peggy Parker.
2040571.
Court of Civil Appeals of Alabama.
January 13, 2006.
James A. Jacobs, Ariton, for appellants.
Robert C. Faircloth and Joseph E. Faulk of Calhoun, Faulk, Watkins & Faircloth, LLC, Troy, for appellees.
*476 MURDOCK, Judge.
Vernie Culver and Sherri Senn sued Earline Lang and Peggy Parker. Lang and Parker filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss based on two affirmative defenses. The trial court granted the motion. Culver and Senn appeal; we reverse and remand.
Before April 24, 1987, Culver, Senn, Lang, and Parker entered into an oral agreement to purchase approximately 57 acres of real property ("the property") from Bobby J. Ellsworth, Bobbie B. Ellsworth, and Eloise D. Johnston. However, Johnston and the Ellsworths refused to sell the property to all four of them. Instead, Johnston and the Ellsworths agreed to sell the property to Lang and her husband, entering into an installment sales contract with Lang and her husband on April 24, 1987, which provided for a $3,000 down payment and 72 monthly payments in the amount of $527.86. Johnston and the Ellsworths conveyed the property to Lang and her husband by two warranty deeds delivered on the same day.
Culver, Senn, Lang, and Parker agreed to a division of the property based on each one's ability to pay a proportionate share of the amount called for in the installment sales contract and agreed that each would receive specific parcels of the property.[1] Pursuant to this agreement, Lang and Parker conveyed certain portions of the *477 property to Culver and Senn.[2] Lang and Parker have refused, however, to convey other portions of the property to Culver and Senn.
The installment sales contract has been paid in full. Culver and Senn paid approximately 60% of the down payment and monthly payments under that contract. Lang and Parker paid approximately 40% of the down payment and monthly payments under that contract.
On March 5, 2004, Culver and Senn filed a complaint against Lang and Parker, seeking a declaration of the parties' rights and obligations under their agreement to divide the property, based, apparently, on Lang's and Parker's alleged refusal to transfer certain portions of the property to Culver and Senn as the four had agreed.
On June 2, 2004, Lang and Parker filed a motion to dismiss, asserting that the complaint failed to state a claim upon which relief could be granted because, they alleged, the action was barred by the statute of limitations and by the Statute of Frauds.[3] The trial court granted Lang and Parker's motion on January 27, 2005, without indicating the rationale for its decision. The trial court denied Culver and Senn's postjudgment motion to set aside the dismissal. Culver and Senn appeal.
Our Supreme Court has set forth the standard that we are to apply in reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P.:
"`On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala. 1986).'"
Marks v. Tenbrunsel, 910 So.2d 1255, 1258 (Ala.2005) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)).
Culver and Senn contend that the trial court erred when it granted the motion to dismiss because, they argue, in doing so, it failed to resolve all doubts *478 concerning the sufficiency of allegations in their complaint in their favor. We agree. We have reviewed Culver and Senn's complaint and are convinced that, although the complaint is not a model of clarity, when all of the doubts concerning the sufficiency of the allegations in the complaint are resolved in their favor, Culver and Senn appear to have stated a claim relating to an alleged breach of an agreement to convey portions of the property to them. They seek a declaration as to the rights, duties, and responsibilities of the parties under that agreement. See Ala.Code 1975, § 6-6-223.
As previously noted, Lang and Parker asserted in their motion to dismiss that Culver and Senn's claim was barred by the affirmative defenses of the statute of limitations and the Statute of Frauds. A party can obtain a dismissal under Rule 12(b)(6), Ala. R. Civ. P., on the basis of an affirmative defense only when "`the affirmative defense appears clearly on the face of the pleading.'" Jones v. Alfa Mut. Ins. Co., 875 So.2d 1189, 1193 (Ala.2003) (quoting Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala.1981)); Williams v. Nash, 428 So.2d 96, 99-100 (Ala.Civ.App. 1983).
The complaint does not disclose whether the agreement between the parties to divide the property proportionately was oral or in writing and it does not disclose the date on which Parker and Lang allegedly failed to abide by the agreement to divide the property. As a result, the statute of limitations and the Statute of Frauds do not clearly appear on the face of Culver and Senn's complaint as defenses to their action. Thus, the trial court was precluded from dismissing Culver and Senn's complaint on either of those bases and, to the extent that it did so, it erred.[4]
Based on the foregoing, we reverse the trial court's judgment and remand this case for further proceedings.[5]
REVERSED AND REMANDED.
CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.
NOTES
[1]  The complaint does not allege that this agreement related to the original oral agreement into which the parties entered for the purchase of the property with which Johnston and the Ellsworths refused to comply.
[2]  It is unclear from the record how Parker obtained her interest from Lang and Lang's husband.
[3]  In contending that the complaint was due to be dismissed based on the Statute of Frauds, Lang and Parker relied on Ala.Code 1975, § 8-9-2, which reads in pertinent part:

"In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
". . . .
(5) Every contract for the sale of lands, tenements or hereditaments...."
[4]  We do not determine here, of course, whether Culver and Senn should ultimately prevail on their claim. We conclude only that, under the lenient pleading standards embodied in our Rules of Civil Procedure, Culver and Senn's complaint is not subject to dismissal for failure to state a claim.
[5]  Thus, we do not reach the additional grounds for reversal that Culver and Senn have advanced on appeal.