State v. Birthmark

State v. Birthmark, 2013 MT 86 (April 9, 2013) (5-0) (McGrath, C.J.)

Issue: (1) Whether Birthmark’s attorney provided ineffective assistance of counsel; (2) whether the Court should exercise plain error review of the jury instructions regarding the mental state for partner-family member assault; and (3) whether the written judgment should be corrected.

Short Answer: (1) No; (2) no; and (3) yes.

Affirmed & remanded for correction of the written judgmentFacts: After drinking at a party, Birthmark returned to the house shared by his mother, brother, and sister. He began yelling, threatening to bash their heads in, and then went to the kitchen to get a knife. His mother left the house and called 911.

Procedural Posture & Holding: Birthmark was charged with PFMA for causing reasonable apprehension of bodily injury to his mother and brother. As it was his third offense, it was a felony charge. His attorney did not offer any proposed jury instructions, and did not object to the state’s instructions. Birthmark was convicted and sentenced to the Department of Corrections for four years with one year suspended. Birthmark appeals, asking the Court to conduct plain error review of the jury instruction issue.