Submitted on Briefs: January 3, 2019
District Court of the Thirteenth Judicial District, In and
For the County of Yellowstone, Cause No. DC 15-748 Honorable
Mary Jane Knisely, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Lisa S.
Korchinski, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Roy
Brown, Assistant Attorney General, Helena, Montana Scott D.
Twito, Yellowstone County Attorney, Morgan E. Shaw, Deputy
County Attorney, Billings, Montana
Appellant Kenneth Oschmann (Oschmann) appeals the denial of
his Motion to Set Aside Jury Verdict and Grant the Defendant
a New Trial by the Thirteenth Judicial District Court,
Yellowstone County. We affirm.
We restate the issue on appeal as follows:
Did the District Court err in denying Defendant's
Motion to Set Aside Jury Verdict and Grant the Defendant a
AND PROCEDURAL BACKGROUND
In July 2015, Oschmann was charged with Count I: Partner or
Family Member Assault (felony) and Count II: Criminal
Destruction of or Tampering with a Communication Device
(misdemeanor). He entered a not-guilty plea and the cause
proceeded to jury trial on April 4, 2016.
Pursuant to § 46-16-118, MCA, the District Court
directed the parties to include two alternate jurors during
jury selection. Both the State and Oschmann questioned the
jury panel as they desired. Following voir dire,
Oschmann passed the jury, including the two alternates, for
cause and the jury was sworn and empaneled. After the parties
presented their opening statements but prior to presentation
of evidence, the court and the parties learned Juror 3 was
having an allergic reaction and needed to be excused. Without
objection, Juror 3 was excused for a medical issue. The
District Court directed the first alternate, Juror 13, to
take the place of Juror 3. The court instructed the bailiff
to have Juror 13 move to the Juror 3 chair to accomplish the
replacement. Unbeknownst to the court and the parties, Juror
14 rather than Juror 13 took the place of Juror 3 and served
on the jury.
On April 5, 2016, the jury found Oschmann guilty of both
charges. Upon the poll of the jury, the court and the parties
learned that the second alternate, Juror 14, rather than the
first alternate, Juror 13, had replaced Juror 3, and had
served as a jury member. At that time, Oschmann's trial
counsel indicated he was not in a position to move for a
mistrial but rather needed to look into the situation
further. The court advised it would also research the issue
should Oschmann file a motion. Through subsequent counsel,
Oschmann filed his Motion to Set Aside Jury Verdict and Grant
the Defendant a New Trial on September 29, 2016, 175 days
after the pronouncement of the guilty verdict. The District
Court denied the motion and Oschmann appeals.
This Court reviews a district court's denial of a motion
for a new trial to determine whether the court abused its
discretion. State v. Morse, 2015 MT 51, ¶ 18,
378 Mont. 249, 343 P.3d 1196. To the extent the district
court makes ...