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State v. Oschmann

Supreme Court of Montana

February 7, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
KENNETH ARNOLD OSCHMANN, Defendant and Appellant.

          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

          For Appellant: Chad Wright, Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana

          For 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

          INGRID GUSTAFSON JUSTICE.

         ¶1 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.

         ¶2 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 New Trial?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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.

         ¶4 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.

         ¶5 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.

         STANDARD OF REVIEW

         ¶6 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 ...


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