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Date: 02-19-2019
Case Style:
STATE OF MONTANA v. DONALD RYAN OSTRANDER
Case Number: 2019MT46N
Judge: James Jeremiah Shea
Court: SUPREME COURT OF THE STATE OF MONTANA
Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney
Defendant's Attorney: Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender
Description:
On March 2, 2016, the State charged Ostrander with two counts of felony Assault
with a Weapon: (1) for stabbingMichaelGoodman with a knife, and (2) for cutting Valen
Murnion with a knife. Ostrander pled not guilty and gave notice of his intent to rely on a
defense of justified use of force. Ostrander did not dispute that he used a knife against
Murnion and Goodman but argued he reasonably used theknife to defend himself against
their ambush.
¶4 On October 25-28, 2016, the District Court presided over a four-day jury trial.
During the trial,witnesses described the following events: in June 2015, Murnion and two
other men got into a physical altercation with Ostrander. The three men came to
Ostrander’s apartment, following a dispute over money, and one of the men threatened
Ostrander. Ostrander testified the man told him, “[y]ou’re lucky we’re not packing,” and
“[n]ext time we come back we’ll be strapped.” Ostrander interpreted this as a statement
that they would bring guns to their next encounter. A neighbor called the police. Police
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interviewed Ostrander and the other men, butnone of the parties involvedpressedcharges.
Murnion testified he did not remember the incident. In November 2015, Ostrander was
out to dinnerat a local restaurantwith his girlfriend, Ashley Cornelius. Murnion was seated
at a table nearby, and Ostrander testified Murnion began making lewd remarks about
Cornelius and boasting to his friends about beating up Ostrander. Surveillance footage
from the restaurant’s security camera showed Ostrander got up from his table, walked
toward Murnion, and punchedMurnion in the face. Murnion didnot fight back or retaliate.
Murnion later reported the incident to police and ultimately pressed charges against
Ostrander.1
¶5 In December 2015, Ostrander and Goodman were living in the same apartment
complex in Bozeman. Ostrander and Cornelius lived in an upstairs unit, while Goodman
and five others, including Goodman’s girlfriend, Summer Walraven, lived downstairs.
Ostrander and Goodman did not know each other well but had a few run-ins, mostly over
parking spaces. Goodman and Murnion were childhood friends.
¶6 On December 18, 2015,the night of the incident, Ostrander testified he came home
from work to find the downstairs tenants’ cars parked in his spots. Ostrander testified he
saw Walraven outside and told her, “You need to stop fucking parking in my spots,” and,
Walraven testified he angrily said, “Can you just move the fucking truck,” before going
upstairs. Walraven’s mother then knocked on Ostrander’s door and confrontedhimabout
1 Ostranderpled guilty to assaulting Murnionat the restaurant.
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how he had spoken to Walraven. Ostrander testifiedWalraven yelled threats that Goodman
was going to “kick [Ostrander’s] ass.” Later, Goodman called Ostrander, and the two
argued over the phone. Goodman testified that he called Murnion and saidthat his neighbor
was “being hostile,” and that Goodman might “need some backup” in case anything went
wrong, so Murnion cameto Goodman’s apartment.
¶7 Shortly thereafter, Goodman knocked on Ostrander’s door. Ostrander answeredthe
door with a knife in his hand. The two men agreed the best way to resolve theconflict was
a one-on-one fight, but Ostrander told Goodman he was afraid of being jumped by the
group of people who had been hanging around the downstairs apartment. Goodman
testified he told Ostrander not to worry. Ostrander then gave Cornelius the knife to hold,
andbothOstrander and Cornelius went downstairs.
¶8 Once downstairs, Ostrander and Goodman squared off to fight. Ostrander testified
he thoughtthatroughlyten other people encircled him, and he recognized Murnionleading
the pack. Ostrander testified it did not appear that Murnion was armed. Nevertheless,
Ostrander grabbed the knife from Cornelius. Ostrander testified he ran at Murnion but
stopped short of attacking him. Ostrander testified Murnion then grabbed a glass bottle,
swung it at Ostrander,and hitOstrander twiceon the head, eventually breakingthe bottle.
Ostrander and Murnion then began fighting. Ostrander testified that, several people
jumped on him, including Goodman, and wrestled him to the ground. Ostrander testified
that, believing he was outnumbered and would be “beat[en]to death[by] . . . everybody,”
he stabbed Goodman twice in the back with his knife. Ostrander testified that several
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people then held him down and kicked and hit him, and that Murnion grabbed the knife
from Ostrander and stabbed Ostrander in the hand.
¶9 Ostrander’s brother, Andrew, arrived at the scene. Andrew testified that he saw a
group of people standing around with objects in their hands, including a shovel. Andrew
testified he saw a man holding Ostrander down on the ground while others kicked and
screamed at him. Andrew testified he ran into the fray and attempted to pull people off
Ostrander, and that he was attacked as well. The brothers were eventually able to get to
Andrew’scar. Cornelius calledthe police, as did Andrew’s girlfriend.
¶10 Goodman, Walraven, Walraven’s mother and brother, and the other downstairs
tenants recounted a different version of events. Goodman testified that although he
contacted Murnion before the fight, he did not work with Murnion to ambush Ostrander.
Most of the downstairs tenants admitted to being at the scene of the fight. However, they
disputed Ostrander’s accountthatalarger crowdgathered. Walraven, Murnion, Goodman,
and the other tenants testified generally that when Ostrander saw Murnion, Ostrander
became upset, grabbed the knife from Cornelius, and ran at Murnion. They testified that
Murnion seemed to retreat, and the two men wrestled. Walraven and her brother testified
that Goodman then ran up behind Ostrander and attempted to separate the two. Goodman
and Walraven’s brother testified Goodman slipped on the ice and fell, and Ostrander
proceeded to stab Goodman twice in the back. No other witnesses, besides Ostrander,
testified that Murnion hit Ostrander with a bottle or other weapon during the fight.
Walraven and Goodman testified that they heard the sound of glass breaking, but not until
after Ostrander stabbed Goodman. Murnion testified that after Ostrander stabbed
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Goodman, Murnion was able to wrestle the knife away from Ostrander, cutting Ostrander’s
hand in the process.
¶11 Ostrander had numerous injuries from the fight, including a swollen and bruised
face, rib fractures, internal organ bruising, cuts on his hand, and a break in his spine.
Goodman had two stab wounds in his back, including a life-threatening wound that
punctured his lung. Walraven drove Goodman to the hospital, and he survived due to
emergency care. Murnionsuffereda cut to his hand and abdomen that required stitches.
¶12 At the close of arguments, Ostrander proposed the following jury instruction,
modeled off § 45-3-102, MCA:
Aperson is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or the commission of a forcible felony.
(Emphasis added.)
¶13 The State objected to the proposed instruction, arguing Ostrander failed to produce
any evidence of “a forcible felony beyond fear of imminent death or serious bodily injury.”
Ostrander respondedthatthe jury was presented with evidence that justified the instruction,
including that Ostrander was assaulted with a weapon (the bottle), and that there could have
been an aggravated assault (a forcible felony). The District Court refused Ostrander’s
proposed instruction and instead instructed the jury as follows:
A person is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
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However, a person is justified in the use of force which is intended or is likely to cause death or serious bodily harm only if hereasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.
¶14 The District Court reasoned that although “there may be evidence that
[Ostrander]believed that force was necessary to prevent imminent death or serious bodily
injury to himself,” there was not “any evidence . . . [of] the commission of a forcible
felony.” Further, the District Court concluded the forcible felony instruction would
confuse and mislead the jury.
¶15 On October 28, 2016, the jury returned a guilty verdict as to Count One, stabbing
Goodman, and not guilty as to Count Two, cutting Murnion. On December 12, 2016, the
District Court sentenced Ostrander to fifteen years at the Montana State Prison, with
thirteen years suspended. Ostranderappeals.
¶16 Wereviewjuryinstructionsinacriminalcasetodeterminewhetherthedistrictcourt
abused its discretion. State v. Zlahn, 2014 MT 224, ¶ 14, 376 Mont. 245, 332 P.3d 247.
We review the jury instructions as a whole to determine whether they fully and fairly
instructthejuryontheapplicablelaw. Statev.Kaarma,2017MT24,¶7,386Mont.243,
390 P.3d 609. A district court has broad discretion when it instructs a jury, State v.
Schaeffer, 2014 MT 47, ¶12, 374 Mont. 93, 321 P.3d 809, but must still instruct the jury
“on each theory which is supported by the record,” State v. Archambault, 2007 MT 26,
¶ 25, 336 Mont. 6, 152 P.3d 698. Reversible error occurs only where the instructions
prejudiciallyaffectthedefendant’ssubstantialrights. Archambault, ¶14.
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¶17 Justifiable use of force in defense of a person is an affirmative defense.
Section 45-3-115, MCA; State v. Erickson, 2014 MT 304, ¶ 25, 377 Mont. 84,
338 P.3d 598. Thus, a defendant bears the burden of producing evidence that he was not
the aggressor, and that his use of force was justified. State v. Miller, 1998 MT 177, ¶ 23,
290 Mont. 97, 966 P.2d 721 (citing §§ 45-3-102, -105, MCA); see also Erickson, ¶ 25.
Montana lawprovidesin relevant part:
Aperson is justified in the use of force or threat to use forceagainst another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force. However, a person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to the personor anotherorto preventthe commission of a forcible felony.
Section45-3-102, MCA.
¶18 A forcible felony is “any felony which involves the use or threat of physical force
or violence against any individual.” Section 45-3-101(2), MCA; § 45-2-101(24), MCA.
Aperson is justified in using such forcein two instances:(1) defense of self or another, or
(2) prevention of serious crimes. Section 45-3-102, MCA. The force used by a person to
defend himself or others must be to “a degree commensurate with the threat of harm a
person faces.” Archambault, ¶ 15 (internal quotations omitted) (citing State v. Stone,
266Mont. 345, 347, 880 P.2d 1296, 1298 (1994); §45-3-102, MCA).
¶19 In State v. Lackman, a defendant requested the jury be instructed that lethal force
could be used to “‘prevent the commission of a forcible felony.’” State v. Lackman,
2017MT127,¶6,387Mont.459,395P.3d477. We affirmed a district court’s refusalto
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give the instruction because the defendant failed to present evidence of a forcible felony
“‘other than the attack on [the defendant] personally,’” and the defendant’s proposed
instruction had the potential toconfuse the jury. Lackman, ¶¶6, 16-17.
¶20 Here, Ostrander argues he presented the jury with ample evidence that he actually
and reasonably believed it was necessary to stab Goodman to prevent the commission of
the forcible felony of “assault[] with a weapon with the use of the bottle” by Murnionand
Goodman, who Ostrander believed were acting in concert to ambush him. Ostrander
argues the District Court erred when it refused to instruct the jury that preventing a forcible
felony can justify the use of force. We disagree.
¶21 Ostrander testified that Murnion hit him twice with abottle, Goodman jumped him,
and others kicked and punched him. The only “forcible felony” for which Ostrander
presented evidence was the alleged assault by Murnion, Goodman, and the others against
Ostrander himself. Ostrander’s defense theory regarding these alleged assaults was
encompassed by the District Court’s jury instruction on justifiable use of force to prevent
imminent death or serious bodily injury. See Lackman, ¶¶ 6, 16-17. Accordingly, the
justifiable use of force instructions fully and fairly instructed the jury regarding the
applicable law. See Lackman, ¶17; § 45-3-102, MCA; Kaarma, ¶ 7. The District Court
did not abuse its discretion when it instructed the jury on Ostrander’s justifiable use of
force defense without including the “forcible felony” component. See Lackman, ¶ 17;
Zlahn, ¶14.
Outcome: We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. We affirm.
Plaintiff's Experts:
Defendant's Experts:
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