2025 MT 281 - State v. A. Smith

                                                                                          12/09/2025


                                         DA 22-0484
                                                                                      Case Number: DA 22-0484

                IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 281

STATE OF MONTANA,

Plaintiff and Appellee,

ANDREW JOHN SMITH,

Defendant and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Petroleum, Cause No. DC-2021-2
Honorable Jon A. Oldenburg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Colin M. Stephens (argued), Stephens Brooke, P.C., Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Roy Brown (argued),
Assistant Attorney General, Helena, Montana

Diane Cochran, Petroleum County Attorney, Thorin Geist, Special
Deputy County Attorney, Lewistown, Montana

Argued: April 4, 2025
Submitted: April 8, 2025
Decided: December 9, 2025

Filed:

__________________________________________
Clerk
Chief Justice Cory J. Swanson delivered the Opinion of the Court.

¶1 Andrew John Smith appeals from a July 5, 2022 judgment of the Tenth Judicial

District Court, sentencing Smith to a total of 110 years at Montana State Prison (MSP) after

a jury verdict finding him guilty of Deliberate Homicide with a sentencing enhancement

for use of dangerous weapon pursuant to §§ 45-5-102 and 46-18-221, MCA. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether the District Court erred by precluding Smith from seeking a
lesser-included offense of mitigated deliberate homicide because he was also
asserting a complete defense based on justifiable use of force.

Issue Two: Whether failing to review the District Court’s alleged error of
responding to mid-trial questions from jurors without consulting the parties would
result in a manifest miscarriage of justice.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Around 7:15 p.m. on July 15, 2021, 29-year-old Smith went outside his apartment

in the town of Winnett to smoke. Shortly thereafter, Smith’s then fiancée, Kymber, “heard

a strange, like, popping or banging noise” that “sounded like a screen door shutting hard.”

A few minutes later, Kymber went outside to see what the noise was and saw Smith about

five feet away from their 79-year-old neighbor, Larry Patterson, who was holding onto

himself and stumbling around while “blood [was] spurting from him.” She saw blood

trickling from Smith’s arm and on his sweater, from what she assumed was a gunshot

wound. Smith had a knife in his hand. He told Kymber that Patterson had shot him first.

While Kymber called emergency services and tried to assist Patterson, Smith took off his

sweater and went to the bar across the street to smoke. Patterson died from his wounds.

2
¶4 Kymber’s father, Kale, owned the bar. When Smith entered the bar, Kale said he

could not enter without a shirt on. Kale noticed blood on Smith as he was leaving and

followed him outside to ask what happened. Smith told Kale Patterson had just shot him.

Kale noticed a gun about four feet away from Patterson. Kale made Smith drop his knife

and sit away from it while they waited for law enforcement.

¶5 At trial, Smith testified he had approached Patterson and asked him for a match for

his cigarette. Patterson ignored Smith. After standing there for 10 to 15 seconds without

a response, Smith left to get rid of his cigarette. He then returned to confront Patterson,

asking him what his problem was. Still sitting, Patterson continued to ignore Smith as

Smith kept asking him what his problem was. According to Smith, Patterson finally stood

up and pulled a pistol on him. Smith said he then pulled Patterson into a bear hug and

pulled out his knife. After briefly separating, Smith testified Patterson shot him. Smith

then “snapped,” pulled him into another bear hug, and began stabbing him “until the gun

left his hands.”

¶6 The State investigation revealed physical evidence that contradicted Smith’s

narrative. First, the lack of blood on the victim’s pants along with the excess amount of

blood on his shirt indicated that he was not standing when stabbed or the blood would have

also saturated his pants. Second, no blood was on the victim’s shoes, indicating he was not

standing during the altercation. Third, the presence of blood inside the victim’s pocket

where he kept his gun indicated he had already been bleeding when he reached in to grab

it. Finally, the knife wound on the victim’s neck was level. Given the height difference

3
between Smith and the victim, the wound is inconsistent with Smith’s claim they were both

standing during the altercation.

¶7 The State charged Smith with Deliberate Homicide. Smith informed the State he

intended to rely on the affirmative defense of Justifiable Use of Force (JUOF), commonly

referred to as self-defense. However, he did not reserve or even reference any intent to

assert a mental disease or disorder defense at this time.

¶8 After a motion from the State, on September 16, 2021, the District Court issued an

order setting a deadline for Smith to disclose all claims related to mental disease or disorder

by October 25. On September 20, 2021, Smith filed a notice stating an examination had

taken place, but the report could not be made until discovery was received and evaluated

by the examiner. On October, 1, 2021, Smith identified Dr. Bowman Smelko on his Expert

Witness List, stating “[h]e conducted [psychological] evaluation of the defendant.”1 Two

weeks later, on October 15, the State provided the remaining discovery evidence. The

October 25 deadline for Smith to disclose all mental disease or disorder claims passed

without Smith having disclosed anything or providing any report from Dr. Smelko. Despite

the missed deadline, the District Court set a new deadline requiring Smith to disclose

mental disease or disorder claims by November 26, 2021. Smith missed this deadline as

well.

1
On the same list, Smith identified Eli Karinen as an expert witness, stating “[h]e was the
Defendant’s counselor prior to the . . . incident.” Later on February 21, 2022, Smith also identified
Nurse Practitioner Kimberlee Decker as a possible witness. Smith dropped Karinen and Decker
from his witness list three days before trial on April 15, 2022.
4
¶9 On January 10, 2022, the District Court held a scheduling conference, where Smith

indicated he did not believe he would raise the issue of mental health and he believed the

evaluation was no longer necessary. However, Smith also informed the State and the court

he would notify them if he decided to raise the issue.

¶10 Four days later, the State moved to have the defendant examined for his fitness to

proceed pursuant to § 46-14-202, MCA (2021). The State’s motion was granted, and Smith

was admitted to Montana State Hospital (MSH) for evaluation on February 9, 2022. On

March 9, 2022, after a request from Smith,2 the District Court ordered that MSH evaluate

Smith under § 46-14-101(1)(a)(ii)–(b), MCA, for: (1) the state of mind required as an

element of the offense, and (2) the ability to appreciate the criminality of his behavior.

¶11 On February 23, 2022, the State filed a motion in limine which included: (1) a

motion to preclude Smith from introducing “waived defenses,” including a mental disease

or disorder defense, and (2) a motion to preclude him from introducing mental disease or

disorder evidence to support a lesser-included offense of mitigated deliberate homicide.

At the motions hearing, although he previously claimed Dr. Smelko “conducted

[psychological] evaluation of the defendant,” Smith asserted Dr. Smelko’s evaluation had

not yet taken place. Despite Smith’s missed deadlines and his alleged “misrepresentation

that [Smith] had been evaluated by Dr. Smelko,” in the interest of justice, the District Court

2
It is worth noting Smith’s counsel only requested the full evaluation after being prompted by the
District Court and the State. On March, 9, 2022, the court held a status conference to discuss
Smith’s evaluation at MSH. The court asked the parties whether they believed a full evaluation
should be requested. The State informed the court only the defendant could make such a request.
The court then asked Smith’s counsel whether he would like to make the request, to which Smith’s
counsel replied, “I would make that request.”
5
denied the State’s motion in part and allowed evidence from the MSH evaluation to support

a mental disease or disorder defense on the condition that Smith file notice immediately

upon receipt of the evaluation. Smith later abandoned any potential mental disease or

disorder defense. The District Court also granted the State’s motion to preclude Smith

from using mental disease or disorder evidence to support a lesser included offense of

mitigated deliberate homicide. Accordingly, Smith did not present any mental disease or

disorder evidence at trial.

¶12 On April 12, 2022, the State gave notice to the District Court and Smith that the

MSH evaluation was completed. On the same day, the State moved for an expedited

hearing to discuss Smith’s counsel’s “apparent misrepresentation” that Dr. Smelko never

examined Smith. The Court held a hearing on the issue on April 14, 2022. At the hearing,

Smelko testified he “engaged in background history, mental status examination, . . . and

[he] performed[, completed, and scored] a personality assessment inventory [of Smith.]”

When asked if he had an opinion on whether Smith could form the requisite mental state

at the time of the offense, Smelko stated “I did have an opinion . . . so I shared that directly

verbally with the attorney at some point indicating my findings which then were not asked

to be written up based on the results.” Smith’s attorney responded he did not claim Dr.

Smelko never examined Smith, rather he chose to drop Dr. Smelko as a witness because

he was no longer needed.

¶13 During trial, the District Court informed the parties outside the presence of the jury

that it had received a strictly evidentiary question from a juror. The court stated it was not

going to reveal the question as that may influence counsels’ questioning going forward but

6
had told the bailiff to inform the juror it was an evidentiary question the judge could not

answer. Smith did not object. Another evidentiary question was received from a different

juror the next day. The judge responded in the same manner and informed the parties.

Smith again had no objection.

¶14 Smith was convicted of Deliberate Homicide with an enhancement for use of a

weapon. The District Court sentenced him to 110 years in the Montana State Prison. Smith

appeals the court’s order on the motion in limine and the District Court’s handling of the

questions from jurors.

STANDARD OF REVIEW

¶15 The authority to grant or deny a motion in limine rests in the inherent power of the

district court to admit or exclude evidence to ensure a fair trial and will not be overturned

absent an abuse of discretion. State v. Hudon,

2019 MT 31, ¶ 16

394 Mont. 226

434 P.3d 273

. Where a district court’s ruling is based on an interpretation of law, we review it

de novo. State v. Thomas,

2020 MT 281, ¶ 13

402 Mont. 62

476 P.3d 26

. We will not

reverse a cause for error unless the record shows the error was prejudicial. Hudon, ¶ 29.

¶16    We generally do not address issues not objected to at the district court and raised

for the first time on appeal. State v. Akers,

2017 MT 311, ¶ 12

389 Mont. 531

408 P.3d 142

. We may exercise plain error review where a defendant’s fundamental rights are

invoked and failing to review the claimed error may result in a manifest miscarriage of

justice, leave unsettled the question of the fundamental fairness of the proceeding, or may

compromise the integrity of the judicial process. Akers, ¶ 13. We invoke the plain error



                                             7
doctrine sparingly, on a case-by-case basis, considering the totality of the circumstances of

each case. Akers, ¶ 13.

                                      DISCUSSION

¶17    Issue One: Whether the District Court erred by precluding Smith from seeking a
       lesser-included offense of mitigated deliberate homicide because he was also
       asserting a complete defense based on justifiable use of force.

¶18    In State v. German, we stated: “[a] defendant’s justifiable use of force defense

precludes a lesser-included offense instruction because the defense essentially admits the

elements of the charged offense, including mental state. If proven, the defense requires an

acquittal.”

2001 MT 156, ¶ 20

306 Mont. 92

30 P.3d 360

. Relying on this quotation, the

District Court precluded Smith from presenting mental disease or disorder evidence to

support a lesser included offense of mitigated deliberate homicide. The State maintains

that the District Court’s ruling was correct because Smith’s JUOF defense, if believed,

would require an acquittal. Yet, Smith contends the District Court erred in making such a

categorical finding. When looking at this quotation alone, it seems to support the State’s

argument and the District Court’s conclusion. However, viewed in light of the procedural

posture in German and considering this Court’s precedent, we agree with Smith.

1. Defense Theories and Lesser Included Offenses

¶19    “It is a fundamental rule in this state that a criminal defendant is entitled to jury

instructions that cover every issue or theory having support in the evidence.” State v.

Castle,

285 Mont. 363, 366

948 P.2d 688, 690

 (1997). Thus, a defendant is entitled to an

instruction on a lesser offense if sufficient evidence exists in the record from which the

jury could rationally find him guilty of the lesser, but not the greater, offense. State v.

8 Martin, 2001

 MT 83, ¶ 23,

305 Mont. 123

23 P.3d 216

 (“In order for the district court to

instruct the jury on a lesser included offense, the record must contain evidence from which

the jury could rationally find the defendant guilty of the lesser offense and acquit of the

greater.”); State v. Freiburg,

2018 MT 145, ¶¶ 18

391 Mont 502

419 P.3d 1234

 (“[G]iven

the way Freiburg tried the case, there was ‘some basis from which a jury could rationally

conclude that the defendant is guilty of the lesser, but not the greater offense,’ and he was

entitled to lesser-included instructions.”) (quoting Castle,

285 Mont. at 369

948 P.2d at 691

); § 46-16-607(2), MCA (“A lesser included offense instruction must be given when

there is a proper request by one of the parties and the jury, based on the evidence, could be

warranted in finding the defendant guilty of a lesser included offense.”).

¶20    Indeed, we have previously held “a lesser included offense instruction is not

supported by the evidence where the defendant’s evidence or theory, if believed, would

require an acquittal.” State v. Martinez,

1998 MT 265, ¶¶ 10, 15

291 Mont. 265

968 P.2d 705

 (citing State v. Schmalz,

1998 MT 210, ¶ 23

290 Mont. 420

964 P.2d 763

).

Nevertheless, a defendant is entitled to present alternate (and sometimes conflicting or

inconsistent) theories of his case. State v. Craft,

2023 MT 129

, ¶ 16,

413 Mont. 1

532 P.3d 461

; State v. Avidiya,

2025 MT 31

, ¶ 6 n.2,

420 Mont. 344

563 P.3d 763

 (citing Freiburg,

¶ 19). While these two principles seem to conflict, an overview of our prior caselaw reveals

their consistency. Where a defendant’s only evidence or theory requires an acquittal, then

a lessor included offense is not supported by the evidence.

¶21    In Martinez, “Martinez was charged with felony assault . . . for purposely or

knowingly causing reasonable apprehension of serious bodily injury by use of a weapon

                                             9
when he pointed a handgun at Gillespie,” who was the State’s only witness supporting the

charge. Martinez, ¶ 11. Martinez sought a lesser-included instruction on misdemeanor

assault, however, his only theory supporting his case was that Gillespie was not a credible

witness. Martinez, ¶¶ 12–13. Because Gillespie’s testimony was the only evidence

supporting a charge of assault, “there would have been no evidence at all” to support the

lesser offense if the jury had discounted his testimony. Martinez, ¶ 15. In that event,

discrediting Gillespie’s testimony would require an acquittal on both offenses. Martinez,

¶ 15; see also Martinez, ¶¶ 16–20 (same for criminal endangerment and Martinez’s

proposed instruction on negligent endangerment); Avidiya, ¶ 15; German, ¶ 23 (no

evidence supported negligent homicide instruction where defendant admitted to

consciously shooting the victim); State v. Shegrud,

2014 MT 63

, ¶¶ 13–18,

374 Mont. 192

320 P.3d 455

 (district court required to give lesser-included offense instruction where

evidence could support either offense); State v. Daniels,

2017 MT 163, ¶ 16

388 Mont. 89

397 P.3d 460

 (same).

¶22    In Schmalz, Schmalz was charged with attempted deliberate homicide and sought

an instruction on felony assault because his mother testified she did not think he intended

to shoot her. Schmalz, ¶ 20. This raised the question of whether he possessed the necessary

state of mind for the crime. Schmalz, ¶ 23. We held the district court did not err in refusing

to instruct on felony assault because if the jury credited the mother’s testimony, the

necessary intent for either crime would be lacking and would support an acquittal on both

offenses. Schmalz, ¶ 23. We thus stated, “an instruction on a lesser included offense of

assault has no support in the evidence and is not necessary when the defense’s evidence, if

                                             10
believed, would require an acquittal.” Schmalz, ¶ 23 (citing State v. Howell,

1998 MT 20, ¶ 34

287 Mont. 268

954 P.2d 1102

; State v. Sellner,

286 Mont. 397, 402

951 P.2d 996, 999

 (1997)).

¶23    In Sellner, Sellner argued counsel was ineffective for failing to offer a

lesser-included instruction of aggravated assault on his charges of attempted deliberate

homicide based on his testimony that a voice told him he would not harm the victim by

shooting him in the chest because the victim was wearing a flak jacket. Sellner,

286 Mont. at 399, 402

951 P.2d at 997, 999

. Citing Castle, we discussed that an instruction on assault

must be given only when there is a basis from which a jury could rationally conclude the

defendant is guilty of the lesser, but not the greater, offense. Sellner,

286 Mont. at 401

951 P.2d at 999

. We held counsel was not ineffective. Sellner,

286 Mont. at 403

951 P.2d at 999

. If the jury believed Sellner’s testimony, the evidence “would not have supported a

conviction of aggravated assault—if anything, it would have supported an acquittal.”

Sellner,

286 Mont. at 402

951 P.2d at 999

. Thus, if the jury believed Sellner, he would be

acquitted of both attempted deliberate homicide, which required a purpose to cause death,

and aggravated assault, which required purposely or knowingly causing serious bodily

injury. Sellner,

286 Mont. at 401

951 P.2d at 998

.

¶24    Likewise, in Howell, Howell’s evidence he accidentally cut the victim, if believed,

would have led to an acquittal of both attempted deliberate homicide and his proposed

lesser-included instruction on assault because he would have had no purpose to kill or

injure. Howell, ¶¶ 33–34; see also State v. Grindheim,

2004 MT 311, ¶ 41

323 Mont. 519

101 P.3d 267

 (defendant’s theory, if believed, would lead to acquittal, not finding of guilt

                                             11
on a lesser-included offense); State v. Jay,

2013 MT 79, ¶ 44

369 Mont. 332

298 P.3d 396


(same).

¶25    We have already clarified this line of cases: “[A] lesser-included offense instruction

is not supported by the evidence when the evidence, if believed, would require an acquittal

on both the greater and lesser offense—that is, the defense’s entire theory is that the

defendant did not commit the crime.” Craft, ¶ 15 (emphasis added); see also Daniels,

¶¶ 12, 16; Freiburg, ¶¶ 18–19; State v. Dellar,

2025 MT 111, ¶ 14

422 Mont. 124

569 P.3d 534

; see generally Martinez; Schmalz; Sellner; Howell. If the defendant’s theory

and evidence would require acquittal on both the greater and lesser offense, the jury could

not be warranted in finding the defendant guilty of the lesser-included offense. Otherwise,

the lesser-included instruction might lead to troublesome verdicts where a jury has

reasonable doubt based on the defendant’s evidence yet decides to convict him of

something without evidence to support it. Cf. Castle,

285 Mont. at 367

948 P.2d at 690


(purpose of providing lesser-included offense instructions when evidence supports them is

to prevent conviction of greater offense rather than acquittal when the jury is convinced

the defendant is guilty of some crime); State v. Brown,

2022 MT 176, ¶ 15

410 Mont. 38

517 P.3d 177

. Thus, if the defendant’s proffered evidence must lead to acquittal on the

greater and the lesser offense, there is no legal reason to give a lesser-included offense

instruction.

¶26    Contrary to the State’s assertion, there is no bright-line rule prohibiting a defendant

from asserting alternative defense theories. Craft, ¶ 15 (“There is sufficient evidence for

the jury to convict a defendant of the lesser offense when there are alternate theories of the

                                             12
case, including a theory about the lesser-included offense, and other witness testimony—

especially the defendant’s testimony—supports that theory.”) (citing Freiburg, ¶ 18). Our

precedent shows a defendant must present evidence that would support both theories. A

lesser-included instruction should be given if “the jury, based on the evidence, could be

warranted     in   finding   the   defendant    guilty   of   a   lesser   included   offense.”

Section 46-16-607(2), MCA (emphasis added); Castle,

285 Mont. at 369

948 P.2d at 691

(“[T]here must be some basis from which a jury could rationally conclude that the

defendant is guilty of the lesser, but not the greater offense.” (emphasis added)); Freiburg,

¶ 19 (“[W]hen a defendant presents an alternative theory, supported by evidence, which

would, if believed, require acquittal of a higher charge, but nonetheless permit conviction

on a lesser-included offense, then he satisfies the Castle test and is entitled to a

lesser-included offense instruction.”). This is evident from our holdings in Freiburg and

Craft.

¶27 In Freiburg, the State charged Freiburg with Child Endangerment by DUI and “an

alternative count of felony Child Endangerment by driving a motor vehicle with an alcohol

concentration of 0.08 or more (“DUI per se”).” Freiburg, ¶ 5. At trial, Freiburg challenged

the charges based on the sufficiency of the field sobriety tests and the blood test. Freiburg,

¶ 6. He also argued he did not endanger the children in his car based on both the arresting

officer’s testimony that he “did not exhibit any signs of unsafe driving” other than

accelerated starts on gravel and an adult passenger’s testimony there was nothing about his

driving to indicate his impairment. Freiburg, ¶ 6. “While setting jury instructions,

Freiburg requested instructions on DUI and DUI per se as lesser-included offenses of

13
the . . . Child Endangerment charges,” but the district court refused. Freiburg, ¶ 7. On

appeal, we held the district court erred in refusing to instruct on the lesser included offenses

although Freiburg presented alternative theories—one of which would have resulted in an

acquittal of both charges—because he did not adopt an “all or nothing approach” on that

theory and both theories were supported by evidence. Freiburg, ¶ 18. Ultimately, “there

was ‘some basis from which a jury could rationally conclude that the defendant is guilty of

the lesser, but not the greater offense,’ and he was entitled to lesser-included instructions.”

Freiburg, ¶ 18 (quoting Castle,

285 Mont. at 369

948 P.2d at 691

¶28 On the other hand, in Craft, Craft was charged with deliberate homicide, among

other charges, for the murder of his roommate Adam Petzack. Craft, ¶ 3. At trial, Craft

denied the State’s allegations and blamed the murder on his wife, Katelyn. Craft, ¶ 5.

However, after the State played a recording of Craft admitting he “snapped” and committed

the murder, Craft requested a lesser-included offense of mitigated deliberate homicide.

Craft, ¶ 5. “Craft adopted an ‘all or nothing’ approach at trial. His sole theory of the

case—and all his evidence, arguments, and his own testimony to that effect—was that

Katelyn killed Petzack while he was out of town.” Craft, ¶ 16. Relying on the principle

that the defendant’s “evidence must provide ‘some basis from which a jury could rationally

conclude that the defendant is guilty of the lesser, but not the greater offense,’” we

ultimately held the District Court properly denied Craft’s request for the mitigated

deliberate homicide instruction. Craft, ¶¶ 13, 16 (quoting Freiburg, ¶ 13).

¶29 Here, the District Court’s pretrial ruling precluded Smith from offering the lesser-

included offense of mitigated deliberate homicide if he relied on either JUOF or mental

14
disease or disorder as affirmative defenses because “either defense would result in an

acquittal, which means that a lesser included instruction would be prohibited.” (Emphasis

in original.) Given our analysis of prior caselaw, the District Court erred.

A. Whether JUOF is Mutually Exclusive with Lesser Included Offenses

¶30 The State supports the District Court’s ruling by quoting our analysis in German:

“A defendant’s justifiable use of force defense precludes a lesser-included offense

instruction because the defense essentially admits the elements of the charged offense,

including mental state.” German, ¶ 20. “We have repeatedly recognized that a defendant

who relies upon the defense of justifiable use of force concedes that he acted purposely and

knowingly.” State v. Dulaney,

2025 MT 67, ¶ 24

421 Mont. 251

566 P.3d 534

(quotations

omitted). Yet, this rule knows some limitations. Notably, in Dulaney, we stated, “A

defendant’s concession that the ‘use of force’ was knowing and purposeful is not an

admission that the defendant caused and had the requisite mental state to cause the result”

of death to another human being, when he asserts JUOF while being tried for attempted

deliberate homicide. Dulaney, ¶ 25. A JUOF defense concedes the “purposeful or

knowing” mental state element for deliberate homicide but not the mental state for

attempted deliberate homicide. “[I]t is possible for a defendant to concede acting purposely

and knowingly as to the conduct, . . . but still deny that the conduct was intended as an act

toward purposely or knowingly causing that person’s death.” Dulaney, ¶ 32 (emphasis

added).

¶31 A JUOF defense precludes instructions for lesser-included offenses with elements

contrary to the charged offense but does not preclude those with the same elements. For

15
example, negligent homicide requires the defendant to act negligently with respect to

committing the crime, § 45-5-104(1), MCA, however, mitigated deliberate homicide

maintains the same elements of the charged crime, including a mental state of “purposely

or knowingly.” Compare § 45-5-103(1), MCA (requiring a “purposely or knowingly”

mental state) with § 45-5-102(1)(a), MCA (requiring a “purposely or knowingly” mental

state). To concede the defendant acted “purposely or knowingly” is to concede he did not

act “negligently.” In other words, by conceding the defendant meets the elements of the

greater crime, in turn, he concedes he did not meet inconsistent elements of the lesser

offense. However, when the greater offense and the lesser require the same elements, using

the JUOF defense does not have the same preclusive effect. This is evident, though not

explicitly stated, in our holding in German.

¶32 In German, German was charged with one count of felony assault, one count of

deliberate homicide under the felony murder rule, and one alternative count of deliberate

homicide. German, ¶ 5. At trial, the District Court instructed the jury on German’s JUOF

defense and refused to instruct on negligent homicide but agreed to instruct on mitigated

deliberate homicide. German, ¶ 7. On appeal, we affirmed the trial court’s denial of the

negligent homicide instruction, holding “a defendant’s justifiable use of force defense

precludes a lesser-included offense instruction because the defense essentially admits the

elements of the charged offense, including mental state.” German, ¶ 20. Yet, although

mitigated deliberate homicide is also a lesser-included offense of deliberate homicide, the

trial court rightly instructed the jury on it. German, ¶ 7.

16
2. Mitigated Deliberate Homicide

¶33 Mitigated deliberate homicide is unique among lesser-included offenses due to its

structural similarity to an affirmative defense. Indeed, it was statutorily classified as an

affirmative defense until the Legislature amended the statute, reclassifying it in 2003 as a

lesser included offense of deliberate homicide. Section 45-5-103(3) MCA (2003 Mont.

Laws ch. 22, § 1) (effectively abrogating in part Howell, ¶ 20 (“[M]itigated deliberate

homicide is not a lesser included offense of deliberate homicide in the traditional sense,

but rather is an affirmative defense that must be proven by the defendant by a

preponderance of the evidence.”) (citations omitted)). It is no longer an affirmative

defense. Section 45-5-103(3), MCA (“Mitigating circumstances . . . are not an element of

the reduced crime that the state is required to prove or an affirmative defense that the

defendant is required to prove.”).

¶34 While other lesser-included offenses, like negligent homicide, have at least one

different element from the greater offense, mitigated deliberate homicide maintains the

same elements. Compare § 45-5-103(1), MCA, (“A person commits the offense of

mitigated deliberate homicide when the person purposely or knowingly causes the death of

another human being.”) with § 45-5-102(1), MCA (“A person commits the offense of

deliberate homicide if: the person purposely or knowingly causes the death of another

human being.”). Yet, mitigated deliberate homicide requires an extra element: the

defendant must have acted “under the influence of extreme mental or emotional stress for

which there is [a] reasonable explanation or excuse.” Section 45-5-103(1), MCA.

17
¶35 Unlike other lesser-included offenses, mitigated deliberate homicide is not

inconsistent with arguing JUOF because they both assert the same elements. Moreover, a

JUOF defense is not logically or legally inconsistent with the extra element of mitigated

deliberate homicide. A defendant could hypothetically suffer from extreme mental or

emotional stress while also being justified in his use of force.

¶36 Therefore, the State is incorrect. A JUOF defense does not preclude mitigated

deliberate homicide as a lesser included offense, so long as there is evidence presented at

trial to support it. 3 The court should have reserved its ruling until trial when the evidence

would show whether Smith’s theory of the case would require acquittal on both the greater

and lesser offense or whether there was sufficient evidence to support giving both

instructions.

¶37 Nevertheless, we will not reverse a cause for an error that was not prejudicial:

“‘[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded.’” Hudon, ¶ 29 (quoting § 46-20-701, MCA); see also M. R. Evid. 103(a)

(“Error may not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected, and . . . in case the ruling is one excluding

evidence, the substance of the evidence was made known to the court by offer or was

apparent from the context within which questions were asked.”). We therefore consider

whether the District Court’s decision was prejudicial.

3
The State apparently conceded this at oral argument, stating: “[Mitigated] is not necessarily
inconsistent with JUOF in the circumstance. But we don’t know that at the limine stage, right?
So, I think that’s a question more appropriate at the close of the evidence.”
18
3. Evidence of Mitigation

¶38 Smith never made an offer of proof detailing the evidence he would seek to admit

in support of mitigation. Indeed, Smith had a difficult time at oral argument detailing what

evidence exactly he would have sought to admit at trial had he been allowed. Nor does

Smith point to any admissible evidence or evidence he did not voluntarily withdraw which

would have supported mitigated deliberate homicide.

¶39 During discussion on jury instructions, Smith proposed an instruction on mitigated

deliberate homicide, “believ[ing] that the jury could find a lesser included offense here

pursuant to the testimony that was given.” The court denied the proposed instruction,

agreeing with the State there had not been any evidence of mitigation presented. In his

brief, Smith summarily asserts, without argument or citation, that he presented sufficient

evidence through cross-examination and his own testimony to warrant the instruction. The

State responds Smith only takes issue with the court’s denial of his motion in limine and

not the court’s denial of his proposed jury instructions. Otherwise, Smith would have the

burden of showing the instruction was supported by evidence offered at trial. See Craft,

¶ 13. Smith then admits in his reply brief that he only challenges the pretrial ruling—

conceding he did not present sufficient evidence for the instruction to be warranted at trial.

Smith also argues had he been able to present alternative theories, he could have

“bootstrapped” mental disease or disorder evidence at trial to establish mitigated deliberate

homicide.4 There are two problems with this theory. First, Smith’s mental health

4
Smith conceded he could not assert both JUOF and mental disease or disorder as defenses as they
are mutually exclusive, but maintains mental disease or disorder evidence may be admissible to
19
evaluation was inadmissible for the purpose of arguing mitigation, and it did not support

his defense. Second, Smith did not admit or provide an offer of proof of any other evidence

sufficient to warrant a mitigation instruction.

A. Inadmissible Mental Health Records

¶40 Smith identified Dr. Bowman Smelko as a mental health expert. Smelko evaluated

Smith in July 2021. However, after receiving Smelko’s evaluation results—and before the

District Court’s ruling on the State’s motion in limine—Smith dropped Smelko as a

potential witness and did not disclose Smelko’s report to the State. One can safely assume

Smelko’s report was not helpful to Smith’s theory of the case. Clearly, Smith did not intend

to offer Smelko as a witness even without the District Court’s order.

¶41 Similarly, Smith identified as potential witnesses both Eli Karinen, his counselor,

as well as Nurse Practitioner Kimberlee Decker, both of whom had also seen Smith prior

to the incident. However, Smith again decided to drop Karinen and Decker as witnesses

before trial.

¶42 Still, there were additional mental evaluation records available. The District Court

ordered MSH to conduct an evaluation for fitness to proceed and whether Smith had the

requisite mental state to commit the offense, pursuant to § 46-14-202, MCA (2021). The

evaluation concluded Smith was suffering from delusions and a mental disorder at the time

of the offense but was able to conform his behavior to the law and acted with knowledge

and purpose. However, statements made for the purpose of the § 46-14-202, MCA (2021),

show mitigation. Whether JUOF and mental disease or disorder may be raised as alternative
defenses is therefore not at issue here.
20
examination are inadmissible in evidence for any purpose other than the person’s mental

condition. Section 46-14-217, MCA. Moreover, such statements are “admissible on the

issue of the person’s mental condition . . . only when and after the defendant presents

evidence that due to a mental disease or disorder the defendant did not have a particular

state of mind that is an element of the offense charged.” Section 46-14-217, MCA

(emphasis added). Smith did not assert a mental disease or disorder defense, and therefore

these records are inadmissible.5

¶43 Even if evidence from the evaluation was admissible, it would not be helpful to

Smith’s defense. The MSH evaluation concluded

His actions on the day in question, although disinhibited to some degree,
appear to be the result of more longstanding personality traits and a general
tendency toward impulsivity, as opposed to a limited capacity to control his
behavior as a result of his psychosis. His actions leading up to and following
the altercation were fairly calm, goal-directed, and cooperative which
suggests an intact ability to control his behavior.

This evidence contradicts Smith’s theory that a mental disease or disorder resulted in

extreme mental or emotional distress sufficient to mitigate his culpability. Rather, it

supports the notion he acted deliberately without evidence of mitigation.

5
They are inadmissible as a protection for the accused. In the course of a multi-day or multi-week
comprehensive mental evaluation, the defendant generally speaks at length about his or her
conduct around the events of the alleged offense. If those statements were generally admissible
for the State without requiring the trigger of the defendant putting his or her mental health at issue,
it would be unfair to the defendant and it would end a defendant’s incentive to cooperate with a
mental health diagnosis and treatment.
21
B. No Other Evidence Supported Mitigation

¶44 Smith asserted at oral argument and in his brief there was sufficient evidence of

mitigation at trial to warrant an instruction on the lesser offense of mitigated deliberate

homicide. But Smith fails to provide the evidence to support his argument.

¶45 Initially, Smith could have called as witnesses—but didn’t—two counselors who

had spoken to him prior to the homicide and found he suffered from delusions. Although

he did not present a mental disease or disorder defense, Smith was admittedly intending to

“bootstrap some of that testimony” into a mitigated deliberate homicide argument. Smith

also argued his claim of Patterson’s attack was sufficient provocation for him to experience

extreme mental or emotional distress and justify his conduct.

¶46 Addressing the last point first, Smith essentially argues a person’s threat to another,

giving rise to justifiable use of force, also gives rise to an instruction for mitigation. At

trial, Smith testified he “snapped” after the victim shot him from point blanked range. He

now claims a jury could find “the imminent use of unlawful force by another against a

defendant was a reasonable explanation or excuse for the defendant’s extreme mental or

emotional distress that led to the use of force.” We are not persuaded the District Court

abused its discretion in denying the mitigation instruction based on Smith’s testimony that

he “snapped” when threatened by Patterson’s firearm. We also note Smith’s theory as

applied to this case contradicts our reasoning in Martinez because it offers an affirmative

defense that, if believed, renders the lesser included offense unnecessary, and if not

believed, offers no evidence in support of the lesser offense. For example, if the jury

believed Smith was justified (by Patterson’s aggression) in using force that ultimately

22
killed Patterson, Smith would be entitled to acquittal, not conviction of the lesser offense.

Under Smith’s theory, as we held in Martinez, “there would have been no evidence at all”

to support the lesser included offense if the jury discounted Smith’s testimony on this point.

Martinez, ¶ 15.

¶47 Smith next argues evidence of mental state is viable on the element of “extreme

mental or emotional distress for which there is a reasonable explanation or excuse” in the

lesser included offense of mitigated deliberate homicide. He disputes the State’s argument

that “internally derived” mental distress, like that arising from mental illness, is insufficient

for mitigation and argues the “externally derived” mental distress argument from the State

is without legal support. The State responds that our caselaw requires mitigating factors to

arise from “some sort of direct provocation,” not merely Smith’s anger, stress, or irritation.

¶48 We agree the defendant’s mental state at the time of the offense might be relevant

for defenses other than mental disease or disorder. See Park v. Mont. Sixth Jud. Dist. Ct.,

1998 MT 164, ¶ 26

961 P.2d 1267

289 Mont. 367

 (“Mitigated deliberate homicide is an

affirmative defense which clearly depends on proof of Park’s mental state at the time of

the acts alleged, and he has notified the State that he intends to prove his mental condition

through use of expert psychological or psychiatric testimony.”); State v. Hess,

252 Mont. 205, 213

828 P.2d 382, 388

 (1992) (“Clara put her mental state at issue when she relied

upon the defense of justifiable use of force based on battered woman syndrome and offered

the testimony of Dr. Lenore Walker in support of that defense.”).

¶49    Section 45-5-103, MCA, defines mitigated deliberate homicide as a homicide

committed “under the influence of extreme mental or emotional stress for which there is

                                               23
[a] reasonable explanation or excuse.” We have repeatedly held a defendant must show

direct provocation to constitute a “‘reasonable explanation or excuse’ for the defendant’s

extreme emotional disturbance.” Hans v. State,

283 Mont. 379, 397

942 P.2d 674, 685


(1997); Martin, ¶ 33 (“This requires evidence of an extreme emotional stress resulting from

provocation of some sort, in the form of a reasonable excuse or explanation.”); State v.

MacGregor,

2013 MT 297A

, ¶ 50,

372 Mont. 142

311 P.3d 428

 (“[M]itigating factors

arise from some sort of direct provocation, not simply the buildup of stress and anger.”).

Mental disease or disorder evidence cannot therefore be the sole basis for a mitigated

deliberate homicide theory absent evidence of direct provocation sufficient to constitute a

reasonable explanation or excuse for the defendant’s extreme mental or emotional stress.

¶50    In Hans, this Court reviewed whether Hans’s attorney provided ineffective

assistance by misinforming Hans regarding the nature of mitigated deliberate homicide as

a lesser included offense. Hans,

283 Mont. at 395

942 P.2d at 683-84

. The attorney used

the term “heat of passion” to describe the “reasonable explanation or excuse” required to

prove mitigation. Hans,

283 Mont. at 395

942 P.2d at 684

. Hans argued this was an

outdated theory that became no longer applicable once the Legislature enacted § 45-5-103,

MCA (1985). Hans,

283 Mont. at 396

942 P.2d at 684

. In support, Hans pointed out “the

annotations to § 45-5-103, MCA, indicate that the defense is no longer limited to the ‘heat

of passion’ situation,” and “the comments to Model Penal Code § 210.3 upon which

§ 45-5-103, MCA, was based . . . indicate that the new definition is not as limited as the

traditional rule of provocation.” Hans,

283 Mont. at 396

942 P.2d at 684

. However, we

found “counsel’s use of ‘heat of passion’ . . . conveyed the substance of the offense” due

                                            24
to the pivotal role provocation holds as “an integral component of . . . ‘mitigated deliberate

homicide.’” Hans,

283 Mont. at 397

942 P.2d at 685

. Although sudden provocation is

no longer required to show extreme emotional distress, a degree of provocation sufficient

to constitute a reasonable explanation or excuse remains necessary. Hans,

283 Mont. at 399

942 P.2d at 686

.

¶51    We further clarified the role of provocation in Martin. In Martin, we held “evidence

concerning the look on [Martin’s] face after he shot Heinle, and his unemployment,

homelessness, and pregnant girlfriend do not indicate an extreme emotional stress.”

Martin, ¶ 34. The presence of such internal stressors did not indicate Martin’s actions were

provoked. Martin, ¶ 34; see also State v. Goulet,

283 Mont. 38, 42

938 P.2d 1330, 1332-33

 (1997) (holding that internal stressors such as the defendant’s anger or

intoxication were insufficient to warrant an instruction on mitigated deliberate homicide).

¶52    Likewise, in MacGregor, MacGregor was charged with two counts of attempted

deliberate homicide for attempting to kill his wife and live-in nanny. MacGregor, ¶ 8.

MacGregor argued an attempted mitigated deliberate homicide instruction was proper

because:

       he was intoxicated on marijuana and alcohol; he was upset about an incident
       where his dog knocked over his child; his child had been diagnosed with a
       minor ailment; he had fired someone recently; he had quit cigarettes,
       marijuana, and alcohol (although not that day); he had worked 60–hour work
       weeks; he had cut his hand; and his wife forgot their anniversary.

MacGregor, ¶ 50. Consistent with our other caselaw, we held “mitigating factors arise

from some sort of direct provocation, not simply the buildup of stress and anger.”

MacGregor, ¶ 50 (citing Hans,

283 Mont. at 399

942 P.2d at 686

) (emphasis added).

                                             25
¶53    The foregoing discussion makes it clear that the defendant’s mental illness or other

evidence of mental state may be relevant for purposes of proving he or she was suffering

extreme mental or emotional distress.         But our long-standing caselaw also requires

evidence of some type of provocation to meet the “reasonable explanation or excuse”

qualifier. Smith failed to marshal evidence of these factors at trial. The District Court

excluded the evidence from Smith’s counselors as a discovery sanction pursuant to

§ 46-15-329(4), MCA, for Smith’s dilatory tactics in raising or asserting any mental disease

or disorder evidence. See, e.g., State v. Henson,

2010 MT 136

, ¶¶ 28–31,

356 Mont. 458

235 P.3d 1274

 (affirming district court sanction excluding psychiatric evaluation as

untimely). Smith does not appeal this discovery sanction. We do not address issues not

raised by the parties on appeal.6

¶54    Thus, Smith does not assert any admissible evidence—or evidence he did not

voluntarily withdraw—that would have supported his mitigated deliberate homicide

instruction had the District Court given it. At oral argument, Smith’s counsel asked us to

remand so the District Court could decide some of these evidentiary issues. But Smith did

not make an offer of proof at the District Court as to what other evidence he may have

presented given the opportunity. See M. R. Evid. 103(a)(2); State v. King,

2013 MT 139

,




6
  Apparently, Smith also voluntarily dropped these potential witnesses as with Smelko. Although
Smith dropped these potential witnesses after the District Court’s motion in limine, the timing
appears related to the negative psychological evaluation rather than the court’s order. The court
entered its order on March 28, 2022. On April 8, Smith submitted an amended notice of witnesses
which still included the counselors. On April 11, Smith received the negative psychological
evaluation. Four days later, Smith filed a second amended notice of witnesses, which no longer
included the counselors as potential witnesses.
                                               26
¶ 37,

370 Mont. 277

304 P.3d 1

 (“The reason for M. R. Evid. 103(a)(2) ‘is to require that

if evidence is excluded there must be an offer of proof so that neither the trial court nor this

Court has to speculate concerning what the evidence would have been.’” (quoting

In re O.A.W.,

2007 MT 13, ¶ 51

335 Mont. 304

153 P.3d 6

)); State v. Raugust,

2000 MT 146, ¶ 27

300 Mont. 54

3 P.3d 115

. Without an offer of proof, or some other indication

in the record on what evidence Smith was unable to introduce, the issue is waived.

Raugust, ¶ 27 (“The failure to make an adequate offer of proof results in a waiver of the

issue on appeal.”).

¶55    To clarify, while generally “a motion in limine may preserve an issue for appeal in

some instances even though a contemporaneous objection to an alleged error is not made

at trial,” the motions in limine here were not sufficient to preserve the issue. State v. Byrne,

2021 MT 238, ¶ 20

405 Mont. 352

495 P.3d 440

 (citing State v. Favel,

2015 MT 336, ¶ 17

381 Mont. 472

362 P.3d 1126

). This is because Smith did not present any mental

disease or disorder evidence at the time the District Court ruled on the motions. After

ruling on the motions and once Smith was evaluated, leading to the rise of potential mental

disease or disorder evidence, Smith would have needed to make an offer of proof to

preserve the issue. However, because Smith failed to make an offer of proof, the District

Court was not given the opportunity to consider the specific evidence and how it could

have supported a mitigation instruction. Therefore, Smith did not successfully preserve

the issue.

¶56 Seeing no admissible evidence Smith was prevented from offering that would meet

that burden, we decline to upset the jury’s verdict.

27
¶57 Issue Two: Whether failing to review the District Court’s alleged error of
responding to mid-trial questions from jurors without consulting the parties would
result in a manifest miscarriage of justice.

¶58 Smith asks us to invoke plain error review over the District Court’s handling of two

evidentiary questions received from jurors during trial. The first question concerned

whether certain rounds were or were not fired from Patterson’s gun. The second question

pertained to the collection of DNA. The court instructed the bailiff on each occasion to

inform the juror the question was evidentiary and could not be answered by the judge. The

judge also informed the parties he had done so, and Smith did not object.

¶59 We generally do not address issues not objected to at the district court and raised

for the first time on appeal. Akers, ¶ 12. We may exercise plain error review where a

defendant’s fundamental rights are invoked and failing to review the claimed error may

result in a manifest miscarriage of justice, leave unsettled the question of the fundamental

fairness of the proceeding or may compromise the integrity of the judicial process. Akers,

¶ 13. We invoke the plain error doctrine “sparingly, on a case-by-case basis, considering

the totality of the circumstances of each case.” Akers, ¶ 13 (internal quotations omitted);