## Facts

- Michael Todd Birthmark was staying at his mother’s home in Glasgow, Montana, with his mother, brother, and sister.
- One evening in November 2010, Birthmark and his sister attended a party at an aunt’s home.
- Birthmark got into an argument at the party and returned home around 1:30 a.m. without his sister; he was angry and intoxicated.
- At the house, Birthmark called his mother and brother names, picked up a large stick or piece of lumber, talked about finding a knife, and threatened to kill his mother, his brother, and people from the party.
- When Birthmark went to look for a knife, his mother called 911.
- An officer arrived and found Birthmark’s mother crying and extremely frightened; the officer also observed that Birthmark appeared intoxicated and angry.
- The State charged Birthmark with partner or family member assault (PFMA) for purposely or knowingly causing reasonable apprehension of bodily injury in his mother and brother; because it was his third offense, it was charged as a felony.
- At trial, Birthmark testified that he had been attacked at the party and was worried about his sister, and that his threats were directed at party guests rather than his mother and brother.
- The jury was instructed on the statutory definitions of “purposely” and “knowingly” as they relate to the defendant’s conduct.
- The jury found Birthmark guilty, and the district court sentenced him to prison and entered a written judgment that included parole or conditional-release terms.

## Issues

1. Whether Birthmark’s trial counsel was ineffective for failing to object to the jury instructions defining the mental state for PFMA.
2. Whether the Supreme Court should use plain-error review to address an unpreserved claim that the jury instructions misstated the mental state required for PFMA.
3. Whether the written judgment had to be corrected because it included parole or conditional-release terms the sentencing court lacked authority to impose.

## Decision

- The Montana Supreme Court affirmed Birthmark’s PFMA conviction because the jury instructions correctly stated the mental state required by the PFMA statute for the “reasonable apprehension” form of the offense.
- The Court rejected the ineffective-assistance claim because counsel is not deficient for failing to object to legally correct instructions.
- The Court declined to apply plain-error review because the instructions did not contain an error affecting a fundamental right.
- The Court remanded solely to correct the written judgment by removing unauthorized parole or conditional-release terms and conditions.

## Legal Principles

- For PFMA based on “purposely or knowingly causing reasonable apprehension of bodily injury,” the State must prove the defendant purposely or knowingly engaged in the charged conduct and that the conduct caused reasonable apprehension of bodily injury in a partner or family member.
- The statute does not require proof that the defendant had a separate, specific intent to make the victim afraid; the mental state attaches to the defendant’s conduct, while the victim’s reaction is assessed by the statutory “reasonable apprehension” element.
- Jury instructions are reviewed as a whole to determine whether they fully and fairly state the law.
- Under *Strickland v. Washington*, an ineffective-assistance claim requires deficient performance and prejudice; failing to object to correct instructions is not deficient performance.
- Plain-error review is reserved for unpreserved errors that affect fundamental rights and threaten the fairness and integrity of the proceedings; it is not used where no instructional error is shown.
- A sentencing court may not impose parole or conditional-release terms and conditions that are assigned by law to the executive branch; improper terms in a written judgment may be stricken on remand without disturbing the conviction.

## Conclusion

In *State v. Birthmark*, the Montana Supreme Court held that the PFMA jury instructions properly defined “purposely” and “knowingly” for a charge based on causing reasonable apprehension of bodily injury, so trial counsel was not ineffective for failing to object and plain-error review was not warranted; the Court nevertheless remanded to amend the written judgment to remove parole or conditional-release conditions that the sentencing court lacked authority to impose.


State v. Birthmark, 369 Mont. 413 (2013)