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State v. Ritesman

Supreme Court of Montana

March 20, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
TIMOTHY ERIC RITESMAN, Defendant and Appellant.

          Submitted on Briefs: January 17, 2018

         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

          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

          OPINION

          BETH BAKER JUSTICE

         ¶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 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- 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 ...


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