Submitted on Briefs: June 27, 2018
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
Appellant: Chad Wright, Appellate Defender, Deborah S. Smith,
Assistant Appellate Defender, Helena, Montana
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
McGrath Chief Justice
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
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.
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.
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
. . .
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.
Eller's attorney, Mr. Daly and the District Court
discussed the importance of Eller's ...