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State of Montana v. Neal Edward Fehringer

January 22, 2013

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
NEAL EDWARD FEHRINGER, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 10-0565 Honorable Mary Jane Knisely, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

Submitted on Briefs: December 4, 2012

Decided: January 22, 2013

Filed:

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Neal Fehringer appeals the District Court's order affirming his Justice Court conviction and sentence for partner or family member assault. We affirm.

¶2 Fehringer presents the following issues for review:

¶3 Issue One: Whether the Justice Court jury was properly called.

¶4 Issue Two: Whether the charge against Fehringer should have been dismissed because the complaint and notice to appear were defective.

¶5 Issue Three: Whether the jury should have been instructed on disorderly conduct as a lesser-included offense.

PROCEDURAL AND FACTUAL BACKGROUND

¶6 On March 29, 2010, Fehringer argued with his wife over whether they should engage in intercourse. She went downstairs and saw a box for a blow-up sex doll left by their son. She wrote a note to Fehringer on the box stating that it was what he had been looking for, for only $19.99, and that the two of them could be happy together. Fehringer came into the room, saw the note and hit his wife with the box. As she walked away from him he pushed her into a refrigerator, breaking her watch and causing bruising on her face, arm and shoulder. She later reported the incident to the Sheriff's Department.

¶7 Deputy Eckart interviewed Fehringer and he admitted throwing the box at his wife and pushing her into the refrigerator. Eckart prepared a complaint and notice to appear in Yellowstone County Justice Court that charged Fehringer with partner or family member assault. Fehringer appeared for arraignment on April 6, 2010, and on that date the Justice Court set a bench trial for August 10, 2010. Justice of the Peace Hernandez conducted an omnibus pre-trial hearing on June 15, 2010. The resulting order required that a demand for a jury trial be filed within 20 days, and that a demand for a jury trial made within 10 days of the trial date would be deemed to be a motion for a continuance of the trial. Both Fehringer and his attorney signed the omnibus hearing order.

¶8 On July 14, 2010, the prosecution moved to continue the trial due to the unavailability of witnesses, and trial was reset for September 28, 2010. On September 21 the prosecution again moved to continue the trial due to the unavailability of witnesses, and trial was reset for October 5, 2010. On the morning set for the bench trial, Justice of the Peace Hernandez recused himself because Fehringer's attorney had represented Hernandez in a prior unrelated matter. Fehringer's attorney then demanded a jury trial for the first time and the case was transferred to Justice of the Peace Herman. Justice Herman granted Fehringer's demand for a jury trial, and Fehringer refused to waive speedy trial.

ΒΆ9 Because of Fehringer's late demand for a jury trial and his refusal to waive speedy trial, Justice Herman set the jury trial for the next day, October 6, 2010. The Clerk of the Justice Court summoned a jury by telephoning members of a jury pool previously drawn by the District Court. The Clerk excused some persons who were called and who had conflicts serving on a jury trial the next day. At trial on October 6 Fehringer admitted to throwing the box at his wife and then pushing her. The jury found Fehringer guilty of ...


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