                                                                                               03/20/2018


                                          DA 16-0408
                                                                                           Case Number: DA 16-0408

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 55



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TIMOTHY ERIC RITESMAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 15-360
                        Honorable Leslie Halligan, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
                        Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy
                        County Attorney, Missoula, Montana


                                                   Submitted on Briefs: January 17, 2018

                                                              Decided: March 20, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The State charged Timothy Ritesman with aggravated assault after he allegedly

strangled Amy Windmueller. The State also charged him with violating a no-contact order,

based on his failure to comply with a condition of release in a two-week-old partner or

family member assault (PFMA) case involving Windmueller. A Missoula County jury

convicted Ritesman of both offenses. Ritesman appeals, arguing that the prosecutor

deprived him of a fair trial when she told the jury in closing argument that its “job” was to

ensure Windmueller’s safety by returning a guilty verdict. He also contends that the

conditions of his release in the PFMA case cannot support convicting him of violating a

no-contact order. We affirm the aggravated assault conviction and reverse the conviction

for violating a no-contact order.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     On June 30, 2015, Windmueller reported to Officer Patrick Mulligan that

Ritesman—a friend whom she had previously dated—had been harassing her and that she

had a protection order against him. Mulligan searched for an order of protection but could

not find any record of it. Windmueller left to find a copy of the order among Ritesman’s

belongings.

¶3     Windmueller asserted that she then encountered an angry Ritesman while searching

for the protection order. As the two rode their bicycles along a sidewalk adjacent to a steep

embankment leading to the Clark Fork River, Ritesman allegedly ran into her on purpose,

knocking her and her moving bicycle down the embankment. Windmueller claimed that

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Ritesman then assaulted her, strangled her, threw butane in her eyes, and made her believe

he was going to “smash [her] head in” with a rock. She stated that she thought Ritesman

was going to kill her.

¶4     Around the time that Ritesman allegedly assaulted Windmueller, Captain Chad

Dever of the Montana Highway Patrol encountered Ritesman on the sidewalk above the

embankment near where the alleged assault occurred. Dever had stopped to investigate a

bicycle parked along the fence by the embankment that he recognized as stolen from his

family. Dever spoke to Ritesman and determined that Ritesman had not stolen the bicycle.

During their conversation, Dever heard a woman’s voice from the river below, saying

something to the effect, “Get away from me.” Dever did not investigate, but returned to

his vehicle to make arrangements to recover the stolen bicycle. Ritesman left the scene.

¶5     Shortly thereafter, Windmueller approached Dever’s car and laid down beside it,

crying. Dever observed that Windmueller was holding her shoulder and had a bruise on

her forehead. Dever ascertained from Windmueller’s statements that she had just been

assaulted. Mulligan arrived at the scene shortly thereafter and transported Windmueller to

the hospital. He noticed that Windmueller had a cut on her forehead, that her cheek bone

was swollen, that she had scrapes underneath her torn shirt, and that she had red marks on

her neck.

¶6     The State charged Ritesman with felony aggravated assault under § 45-5-202, MCA,

for allegedly strangling Windmueller and causing her reasonable apprehension of serious

bodily injury or death. It also charged Ritesman with misdemeanor violation of a no-

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contact order under § 45-5-209, MCA.          The State alleged that Ritesman contacted

Windmueller in violation of an Order of Release and Order Setting Omnibus Hearing that

the Missoula Municipal Court had issued two weeks earlier in a separate PFMA case

against Ritesman. The order had conditioned Ritesman’s release from custody in part on

the mandate: “No contact Amy Windmueller.”

¶7     At trial, the jury heard testimony from numerous witnesses, including Windmueller,

Ritesman, Dever, and Mulligan, among others. Windmueller testified that Ritesman had

strangled her and that she feared for her life. She struggled, however, to provide a coherent

account of the order in which the events of the day of the alleged assault unfolded. Her

testimony of when and how the alleged assault occurred also conflicted in part with Dever’s

and Mulligan’s testimonies and with some of her own prior statements made to the police.

¶8     The State presented expert witness testimony that Windmueller’s injuries were

consistent with strangulation and that victims of violent trauma or strangulation often

struggle to provide a coherent recollection of the assault. Ritesman testified that he did not

strangle or assault Windmueller. He asserted that the extent of his interaction with her at

the time of the alleged assault was that he encountered her from the sidewalk above the

river, that he noticed she had his stolen backpack, that she threw his backpack in the river,

and that he threw her bicycle down the embankment in retaliation.

¶9     In the State’s rebuttal closing argument, the prosecutor closed with the following

statement:

       This is the cycle of domestic violence. It’s time, as a community, that we
       stand up for Amy, that we don’t let this Defendant get away with his actions
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       because the traumatized victim is unable to give us a linear account of
       everything that happened. My job as the State, and your job as jurors, is to
       make sure that she is safe, to make sure that she is heard, and that we give
       the control back to her. You can do that with the verdict of guilty.

Ritesman’s counsel made no objection to this statement.

¶10    The jury found Ritesman guilty of aggravated assault and of violating a no-contact

order. The District Court sentenced Ritesman to fifteen years in the Montana State Prison

with seven years suspended for the aggravated assault conviction. For the no-contact order

violation, it sentenced him to six months in the Missoula County Detention Center, to run

concurrent with his aggravated assault sentence. Ritesman appeals.

                              STANDARDS OF REVIEW

¶11    We review de novo a claim of insufficiency of the evidence. State v. Robertson,

2014 MT 279, ¶ 16, 376 Mont. 471, 336 P.3d 367. We review evidence in a criminal case

in the light most favorable to the prosecution; we will uphold a conviction if any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Sheehan, 2017 MT 185, ¶ 17, 388 Mont. 220, 399 P.3d 314.

¶12    In general, this Court does not address issues of prosecutorial misconduct pertaining

to a prosecutor’s statements not objected to at trial. State v. Lawrence, 2016 MT 346, ¶ 6,

386 Mont. 86, 385 P.3d 968. We may exercise our discretion, however, and review such

issues under the plain error doctrine. Lawrence, ¶ 6. We use our inherent power of

common law plain error review sparingly, on a case-by-case basis, and only in a narrow

class of cases. State v. Lackman, 2017 MT 127, ¶ 9, 387 Mont. 459, 395 P.3d 477. We

will not undertake full analysis of the alleged error each time a party requests plain error
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review. State v. Griffin, 2016 MT 231, ¶ 7, 385 Mont. 1, 386 P.3d 559. Conducting a full

analysis in order to determine whether to find plain error would defeat the underlying rule

that a party must object to error at trial, because errors should be brought to the attention

of the trial court where they can be initially addressed. Griffin, ¶ 7.

                                       DISCUSSION

¶13 1. Whether the State presented sufficient evidence for the jury to find Ritesman
guilty of violating a no-contact order.

¶14    Ritesman argues that the State failed to present sufficient evidence that he violated

a no-contact order under § 45-5-209(8)(a), MCA. He contends that the State failed to prove

the existence of a no-contact order “issued under” § 45-5-209, MCA, a necessary element

of the charged offense. In Ritesman’s view, the release order that the State admitted into

evidence did not constitute a no-contact order under the statute.

¶15    The State, by contrast, argues that Ritesman’s violation of the condition of release

that he have no contact with Windmueller satisfied the requirements of § 45-5-209(8)(a),

MCA. Citing § 45-5-209(9)(a), MCA, the State notes that a no-contact order is “a court

order that prohibits a defendant charged with or convicted of an assault on a partner or

family member from contacting a protected person.” In the State’s view, the Order of

Release and Order Setting Omnibus Hearing meets this definition, because it prohibited

Ritesman from contacting Windmueller.

¶16    Section 45-5-209(8)(a), MCA, provides: “A person commits the offense of violation

of a no contact order if the person, with knowledge of the order, purposely or knowingly

violates any provision of any order issued under this section.” (Emphasis added.) Section
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45-5-209(1), MCA, permits a court to issue a no-contact order against a defendant charged

with or arrested for PFMA. The statute provides that the no-contact order “must state” the

following:

       You have been charged with or arrested for an assault on a partner or family
       member. You are not allowed to have contact with __________ (list
       names) . . . Violation of this no contact order is a criminal offense under
       45-5-209, MCA, and may result in your arrest. You may be arrested even if
       the person protected by the no contact order invites or allows you to violate
       the prohibitions. This order lasts 72 hours or until the court continues or
       changes the order.

Section 45-5-209(5), MCA (emphasis added).

¶17    The Municipal Court’s Order of Release and Order Setting Omnibus Hearing set

Ritesman’s bail and included conditions for his release from custody. One of the conditions

stated, “No contact Amy Windmueller.” The order stated: “Failure to comply with the

above conditions could be cause for the Defendant’s bond or release on own recognizance

being revoked and an arrest warrant being issued for the arrest of the Defendant.” Ritesman

acknowledged at trial that the Municipal Court prohibited him from contacting

Windmueller, and there is no dispute that Ritesman violated this condition.

¶18    The Municipal Court’s order did not, however, constitute a no-contact order “issued

under” § 45-5-209, MCA.        The order did not include the mandatory language of

§ 45-5-209(5), MCA, or make any reference to that statute. Importantly, the order stated

only that violation of its conditions “could be cause for” revocation of Ritesman’s bond or

release. It did not inform Ritesman that contacting Windmueller would constitute “a

criminal offense under 45-5-209, MCA.” See § 45-5-209(5), MCA. By the plain language

                                            7
of the statute, its notice requirement must be met before a person may be charged with a

separate criminal offense for violating a no-contact order issued under § 45-5-209, MCA.

The State’s remedy for Ritesman’s violation of the Municipal Court’s release order was to

petition for revocation of Ritesman’s release, not to pursue a criminal charge under

§ 45-5-209(8)(a), MCA. See § 46-9-503(1), MCA (“If a defendant violates a condition of

release . . . the prosecutor may make a written motion to the court for revocation of the

order of release.”). The State failed to prove that the release order was “issued under”

§ 45-5-209, MCA, or that it contained the statutorily required notice. The State did not

prove the elements of the offense, and Ritesman’s misdemeanor conviction may not stand.

¶19 2. Whether the prosecutor committed misconduct prejudicing Ritesman’s right to a
fair trial and warranting plain error review.

¶20    Ritesman urges this Court to reverse his aggravated assault conviction and order a

new trial due to the prosecutor’s alleged misconduct. He argues that the prosecutor’s

statement during rebuttal closing argument that the jury’s “job” was to ensure

Windmueller’s safety improperly inverted the State’s burden of proof by encouraging the

jurors to resolve any doubts in favor of the State. Ritesman contends that the prejudicial

effect of this statement was exacerbated by the prosecutor’s additional statement that

defense counsel had engaged in “victim-blaming” during his closing argument, and by the

State’s introduction of Mulligan’s testimony that he had conducted a “lethality assessment”

of Windmueller, determined that she was at a “high risk” of death, and believed she was

“scared that afternoon of imminent death.” Because his counsel did not object to these


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instances of alleged misconduct at trial, Ritesman urges this Court to apply plain error

review.

¶21    Under the Sixth Amendment to the United States Constitution and Article II, Section

24, of the Montana Constitution, criminal defendants are guaranteed a fair trial. State v.

Stutzman, 2017 MT 169, ¶ 16, 388 Mont. 133, 398 P.3d 265. In reviewing a preserved

claim of prosecutorial misconduct, “we consider whether the prosecutor’s comments were

improper and whether they prejudiced the defendant’s right to a fair trial.” Stutzman, ¶ 16

(citation and internal quotations omitted). “[W]e consider alleged improper statements

during closing argument in the context of the entire argument.” Lawrence, ¶ 13 (citation

and internal quotations omitted). We do not presume prejudice from alleged prosecutorial

misconduct; rather, the defendant bears the burden of showing “that the argument violated

his substantial rights.” Lawrence, ¶ 13 (citation and internal quotations omitted). When

the argument is made for the first time on appeal, “we first determine whether the

defendant’s fundamental constitutional rights have been implicated.” Lawrence, ¶ 9. Even

then, we will not invoke the plain error doctrine to reverse a conviction when “the alleged

error did not result in a miscarriage of justice, raise a question as to the fundamental fairness

of the proceedings, or compromise the integrity of the judicial process.” Lawrence, ¶ 11.

¶22    The District Court instructed the jury on the elements of aggravated assault and

informed it—orally and in writing—that the State had the burden of proving each element

of the offense “beyond a reasonable doubt.” The court informed the jury that its function

was to “decide the issues of fact resulting from the charges filed.” The court admonished

                                               9
the jury that the law forbids it “to be governed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion or public feeling.” The jury instructions stated, “The

Defendant is presumed to be innocent of the charge against him. This presumption . . . is

not overcome unless from all the evidence in the case you are convinced beyond a

reasonable doubt that the Defendant is guilty.”

¶23    In closing argument, the prosecutor summarized the evidence that she maintained

proved that Ritesman physically attacked Windmueller and caused her reasonable

apprehension of death or serious bodily injury. The prosecutor argued that Windmueller’s

injuries and the testimony from Dever and Mulligan corroborated Windmueller’s claim

that Ritesman assaulted her. She highlighted Windmueller’s demeanor after the assault—

as recorded by Dever’s microphone—and during trial as corroborating Windmueller’s

assertion that she feared for her life during the alleged assault.        The prosecutor

acknowledged “inconsistencies” in Windmueller’s testimony, but emphasized that

Windmueller had been consistent in her assertions that Ritesman strangled her and that she

thought she was going to die. The prosecutor emphasized the expert witness testimony

that trauma victims often have difficulty providing a consistent, coherent narrative of an

assault.

¶24    Ritesman’s counsel argued in response that the State bore the burden of proving

each element of aggravated assault beyond a reasonable doubt.         He highlighted the

inconsistencies in Windmueller’s testimony and argued that those inconsistencies created

doubt as to her claim of assault.

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¶25    In rebuttal, the prosecutor argued that “there’s lots of evidence in this case, lots of

physical evidence that corroborates that what [Windmueller] told you was true.”

Acknowledging Windmueller’s imperfect recollection of events, the prosecutor explained,

“Those are things that she’s trying to put together after she suffered a traumatic event.

She’s doing the best that she can.” The prosecutor told the jury that, despite Windmueller’s

confusion, “everything she told you happened at some point.” The prosecutor also referred

to the defense’s emphasis on Windmueller’s inconsistent narrative as “victim-blaming.”

¶26    The prosecutor acknowledged the State’s burden of proving each element of the

charged offense beyond a reasonable doubt, and she argued that the State had done that.

The prosecutor defined “reasonable doubt” as “a doubt that you can articulate.” She told

the jury to “listen to the facts,” and she stated, “[W]hat you’re here to decide today is—

was Amy in fear of death? Was Amy in fear of serious bodily injury?”

¶27    The State acknowledges on appeal that the prosecutor’s final comment regarding

the jury’s “job” was “not proper.” Indeed, the jury’s “purpose and duty” is to “decide if

the State has proved” the defendant’s guilt beyond a reasonable doubt, based on the facts

presented, State v. Hart, 191 Mont. 375, 385, 625 P.2d 21, 27 (1981), not to decide the case

on the basis of sympathy or advocacy for the victim. See also State v. Bekemans, 2013 MT

11, ¶ 20, 368 Mont. 235, 293 P.3d 843 (“It is the jury’s role as factfinder to evaluate the

credibility of witnesses, weigh the evidence, and ultimately determine which version of

events should prevail.”). The prosecutor’s comment was improper, and the nature of the

remark implicates Ritesman’s right to a fair trial.

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¶28    The record does not convince us, however, that this isolated incident of alleged

misconduct resulted in a miscarriage of justice or compromised the integrity of his trial.

The District Court clearly instructed the jury that its role was to determine the facts of the

case and to decide from the evidence whether the State had met its burden of proving each

element of the charged offense beyond a reasonable doubt. The State focused its closing

argument on the evidence that tended to prove beyond a reasonable doubt Ritesman’s

commission of each of the elements of aggravated assault. “A prosecutor’s argument is

not plain error if made in the context of discussing the evidence presented and how it should

be used to evaluate a witness’s testimony under the principles set forth in the jury

instructions.” State v. Aker, 2013 MT 253, ¶ 27, 371 Mont. 491, 310 P.3d 506. Ritesman

has not persuaded us that the prosecutor’s isolated comment in rebuttal closing argument—

taken “in the context of the entire argument,” Lawrence, ¶ 13—prejudiced his right to a

fair trial. Nor has Ritesman demonstrated that the prosecutor’s “victim-blaming” statement

was improper or that her questions to Mulligan demonstrated plain evidentiary error.

Ritesman’s claims do not warrant a new trial.

                                      CONCLUSION

¶29    We reverse and vacate Ritesman’s misdemeanor conviction for violating a

no-contact order. We affirm his felony aggravated assault conviction.



                                                  /S/ BETH BAKER




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We Concur:


/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
/S/ JIM RICE




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