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State v. Eller

Supreme Court of Montana

July 24, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
LARRY ELLER, Defendant and Appellant.

          Submitted on Briefs: June 27, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 15-553 Honorable Karen Townsend, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Andrew Paul, Deputy County Attorney, Missoula, Montana

          OPINION

          Mike McGrath Chief Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Larry Eller (Eller) appeals from a Fourth Judicial District Court order sentencing him to fifteen years in the Montana State Prison after a jury found Eller guilty of three counts of assault with a weapon, a felony.

         ¶3 On September 27, 2015, around 9:20 p.m., Missoula City Police Officers responded to a call from three individuals who reported that a neighbor had pointed a gun equipped with a laser at them. Kera Rivera, Brett Michell, and Roxann Jackson had just returned from a concert and were sitting in a vehicle in Michell's apartment parking lot when Eller came out of his house from across the street and began yelling at them. Eller testified that he stepped out on his porch and motioned for the vehicle to turn its lights off because they were shining into his home. Jackson, the driver of the vehicle, testified that she turned her lights off after noticing Eller gesturing towards her. Eller testified that Jackson did not turn her headlights off at this time. Eller went back into his home and came outside a few moments later holding a gun and pointed it at the vehicle. Eller used the laser attached to his gun to signal that the vehicle's headlights were still on. Jackson testified that the laser moved across her body as well as her passengers. Frightened, Jackson pulled her vehicle out of the parking lot and parked it nearby where passenger Rivera called the police.

         ¶4 On October 13, 2015, the State charged Eller with three counts of assault with a weapon. During jury selection, prospective juror Mr. Zeimet asked

If you're going to be asking us to make a decision, to me, anybody that has a lot of alcohol in them, there's no reason they should have a gun in their hand. I don't care what the incident is unless somebody else is [in] front of them with another gun, and I want to know if we're going to be able to know that.
. . .
You have to let me know that you do have-alcohol, you know, what he had. I don't need to know it now, I just need to know that you do have it because he's going to be wanting me to believe that he was sober enough but he had had a few beers and I can't tell you because I wasn't there. But if the law has proof of certain things, I can feel better about it.
. . .
You're wanting us to be a hundred percent, and what I'm trying to do is if the law has an alcohol content, you know, he blew into something or he did a blood test, and that can tell me how bad it was, then I'll be able to make a better judgment on, you know, should he have had a gun in his hand.

         ¶5 Eller's attorney, Mr. Daly and the District Court discussed the importance of Eller's ...


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