47 Montana opinions name it 1 courts 1978–2025 5 in the last five years
The cases below were cited by Montana courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
State v. Castlegreen2 sentences2025The substantial evidence in the record thus also could have supported a conviction on the requested lesser-included offense, satisfying the second step of our inquiry. ¶30 A lesser-included offense instruction serves to avoid “the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let [their] action go unpunished simply because the only alternative was acquittal.” Castle, 285 Mont. at 367 , 948 P.2d at 690 . 2025The substantial evidence in the record thus also could have supported a conviction on the requested lesser-included offense, satisfying the second step of our inquiry. ¶30 A lesser-included offense instruction serves to avoid “the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let [their] action go unpunished simply because the only alternative was acquittal.” Castle, 285 Mont. at 367 , 948 P.2d at 690 . | 6 | 10 |
State v. G. Dennygreen2 sentences2022“Reversible error will occur only if the jury instructions prejudicially affect the defendant’s substantial rights.” Freiburg, ¶ 10 (citations omitted). ¶8 “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.” Section 46-16-607(2), MCA. “[A] trial court must give a proposed lesser-included offense instruction when two factors are met: (1) as a matter of law, the offense for which the instruction is requested is a lesser-inclu 2022“Reversible error will occur only if the jury instructions prejudicially affect the defendant’s substantial rights.” Freiburg, ¶ 10 (citations omitted). ¶8 “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.” Section 46-16-607(2), MCA. “[A] trial court must give a proposed lesser-included offense instruction when two factors are met: (1) as a matter of law, the offense for which the instruction is requested is a lesser-inclu | 2 | 2 |
State v. Martinezgreen2 sentences2025State 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 instruction 2025State 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 instruction | 1 | 9 |
State v. Martinoskygreen2 sentences2019Jensen maintains that because there was no proof that he knowingly failed to obey law enforcement signaling him to stop and because he was not driving erratically, the evidence did not clearly establish that he acted "knowingly." The State counters that the testimony describing Jensen's actions established that Jensen was aware of his actions and the risk they created and supported only a finding that he acted knowingly, not negligently. ¶12 In State v. Martinosky , 1999 MT 122 , ¶ 8, 294 Mont. 426 , 982 P.2d 440 , after a high-speed pursuit in a residential area that ended in a truck crashing 2019Jensen maintains that because there was no proof that he knowingly failed to obey law enforcement signaling him to stop and because he was not driving erratically, the evidence did not clearly establish that he acted "knowingly." The State counters that the testimony describing Jensen's actions established that Jensen was aware of his actions and the risk they created and supported only a finding that he acted knowingly, not negligently. ¶12 In State v. Martinosky , 1999 MT 122 , ¶ 8, 294 Mont. 426 , 982 P.2d 440 , after a high-speed pursuit in a residential area that ended in a truck crashing | 1 | 3 |
State v. Bouslaughgreen2 sentences1978In State v. Bouslaugh (1978), 176 Mont. 78 , 576 P.2d 261 , we recently affirmed the viability of the. doctrine of lesser included offense. 1978In State v. Bouslaugh (1978), 176 Mont. 78 , 576 P.2d 261 , we recently affirmed the viability of the. doctrine of lesser included offense. | 1 | 3 |
State v. Fischgreen2 sentences2003Applying this general rule in Fisch, 266 Mont. at 524 , 881 P.2d at 629 , we declined to consider a defendant’s argument under § 46-l-202(8)(a), MCA, on grounds that the defendant presented the argument for the first time on appeal. 2003Applying this general rule in Fisch, 266 Mont. at 524 , 881 P.2d at 629 , we declined to consider a defendant’s argument under § 46-l-202(8)(a), MCA, on grounds that the defendant presented the argument for the first time on appeal. | 1 | 2 |
Keeble v. United Statesgreen2 sentences1982The policy consideration behind a lesser-included offense instruction is: “Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” 412 U.S. at 212, 213 . 1982The Court made this broad declaration even though it recognized that it had never expressly held the right to a lesser-included offense instruction is protected by the Due Process Clause. 412 U.S. at 213 . | 1 | 2 |
| State v. Kelmangreen | 1 | 1 |
| State v. Longgreen | 1 | 1 |
| Federal Land Bank of Spokane v. Snidergreen | 1 | 1 |
| Strickland v. Washingtongreen | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Montana. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
State v. Sheppard
green
2 sentences2025Similarly, we have noted that 12 “counsel can, for strategic reasons, choose not to offer a lesser included offense instruction.” State v. Parrish, 2010 MT 212, ¶ 26 , 357 Mont. 477 , 241 P.3d 1041 (citing State v. Sheppard, 253 Mont. 118, 123-124 , 832 P.2d 370 (1992)) (defense counsel “may opt to omit a lesser-included offense instruction in order to force the jury to find the defendant guilty of the crime charged or acquit him.”) (citation omitted). 2025Similarly, we have noted that 12 “counsel can, for strategic reasons, choose not to offer a lesser included offense instruction.” State v. Parrish, 2010 MT 212, ¶ 26 , 357 Mont. 477 , 241 P.3d 1041 (citing State v. Sheppard, 253 Mont. 118, 123-124 , 832 P.2d 370 (1992)) (defense counsel “may opt to omit a lesser-included offense instruction in order to force the jury to find the defendant guilty of the crime charged or acquit him.”) (citation omitted). | 5 | 1995–2025 |
State v. Schmalz
green
2 sentences2025State 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 instruction 2025State 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 instruction | 4 | 1998–2025 |
State v. German
green
2 sentences2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with 2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with | 3 | 2004–2025 |
State v. Beavers
green
2 sentences2004Therefore, no prejudice resulted from the testimony, and any error in allowing the testimony was harmless. ¶37 Did the District Court abuse its discretion by denying Grindheim’s request to instruct the jury on a lesser included offense of endangering the welfare of children? ¶38 Although Grindheim challenges the District Court’s denial of his request for an instruction, he also challenges this Court’s jurisprudence on this issue by claiming the test for lesser included offenses, as set forth in State v. Beavers, 1999 MT 260 , 296 Mont. 340 , 987 P.2d 371 , entirely abrogates the lesser-include 2004Therefore, no prejudice resulted from the testimony, and any error in allowing the testimony was harmless. ¶37 Did the District Court abuse its discretion by denying Grindheim’s request to instruct the jury on a lesser included offense of endangering the welfare of children? ¶38 Although Grindheim challenges the District Court’s denial of his request for an instruction, he also challenges this Court’s jurisprudence on this issue by claiming the test for lesser included offenses, as set forth in State v. Beavers, 1999 MT 260 , 296 Mont. 340 , 987 P.2d 371 , entirely abrogates the lesser-include | 3 | 2004–2022 |
State v. Cameron
green
2 sentences2022“Where the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.” State v. Cameron, 2005 MT 32, ¶ 17 , 326 Mont. 51 , 106 P.3d 1189 (quoting Fuqua, ¶ 13). 2022“Where the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.” State v. Cameron, 2005 MT 32, ¶ 17 , 326 Mont. 51 , 106 P.3d 1189 (quoting Fuqua, ¶ 13). | 3 | 2010–2022 |
State v. Jay
neutral
2 sentences2016“To determine if a lesser-included offense instruction should have been given at trial, we follow the two-step approach articulated in State v. Castle, 285 Mont. 363, 368 , 948 P.2d 688, 690-91 (1997).” State v. Jay, 2013 MT 79, ¶ 39 , 369 Mont. 332 , 298 P.3d 396 . 2016“To determine if a lesser-included offense instruction should have been given at trial, we follow the two-step approach articulated in State v. Castle, 285 Mont. 363, 368 , 948 P.2d 688, 690-91 (1997).” State v. Jay, 2013 MT 79, ¶ 39 , 369 Mont. 332 , 298 P.3d 396 . | 2 | 2016–2025 |
State v. Freiburg
neutral
2 sentences2025We have “enumerated a two-factor test to determine whether a lesser-included offense instruction is warranted: ‘(1) as a matter of law, the offense for which the instruction is requested is a lesser-included offense of the offense charged; and (2) the proposed lesser-included offense instruction is supported by the evidence.’” Avidiya, ¶ 11 (citing State v. Freiburg, 2018 MT 145, ¶ 13 , 391 Mont. 502 , 419 P.3d 1234 ). 2025We have “enumerated a two-factor test to determine whether a lesser-included offense instruction is warranted: ‘(1) as a matter of law, the offense for which the instruction is requested is a lesser-included offense of the offense charged; and (2) the proposed lesser-included offense instruction is supported by the evidence.’” Avidiya, ¶ 11 (citing State v. Freiburg, 2018 MT 145, ¶ 13 , 391 Mont. 502 , 419 P.3d 1234 ). | 2 | 2025–2025 |
State v. Gopher
green
2 sentences2017We again noted “a lesser included offense instruction is not supported by the evidence where the defendant’s evidence or theory, if believed, would require an acquittal.” Martinez, ¶ 10. ¶43 In State v. Schmalz, 1998 MT 210 , 290 Mont. 420 , 964 P.2d 763 , Schmalz relied upon the common-law rule that the court must instruct upon every issue or theory having support in the evidence, citing, inter alia, State v. Gopher, 194 Mont. 227 , 633 P.2d 1195 (1981). 2017We again noted “a lesser included offense instruction is not supported by the evidence where the defendant’s evidence or theory, if believed, would require an acquittal.” Martinez, ¶ 10. ¶43 In State v. Schmalz, 1998 MT 210 , 290 Mont. 420 , 964 P.2d 763 , Schmalz relied upon the common-law rule that the court must instruct upon every issue or theory having support in the evidence, citing, inter alia, State v. Gopher, 194 Mont. 227 , 633 P.2d 1195 (1981). | 2 | 1999–2017 |
State v. Burkhart
green
2 sentences2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with 2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with | 2 | 2013–2017 |
State v. Reiner
green
2 sentences2016Reiner, 179 Mont. at 251 , 587 P.2d at 957 . 2016Reiner, 179 Mont. at 251 , 587 P.2d at 957 . | 2 | 2010–2016 |
State v. Grindheim
green
2 sentences2014“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” Jay , ¶¶ 42-44 (citations omitted) (Jay’s theory that he had “lost consciousness” for a reason other than alcohol consumption required acquittal, not a lesser included instruction for driving under the influence.); State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 (Grindheim’s theory of the *240 facts supported outright acquittal, not a conviction for the lesser included crime of endangering the welfare of a child.). ¶22 T 2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with | 2 | 2013–2014 |
State v. Grindheim
green
2 sentences2014“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” Jay , ¶¶ 42-44 (citations omitted) (Jay’s theory that he had “lost consciousness” for a reason other than alcohol consumption required acquittal, not a lesser included instruction for driving under the influence.); State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 (Grindheim’s theory of the *240 facts supported outright acquittal, not a conviction for the lesser included crime of endangering the welfare of a child.). ¶22 T 2014“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” Jay , ¶¶ 42-44 (citations omitted) (Jay’s theory that he had “lost consciousness” for a reason other than alcohol consumption required acquittal, not a lesser included instruction for driving under the influence.); State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 (Grindheim’s theory of the *240 facts supported outright acquittal, not a conviction for the lesser included crime of endangering the welfare of a child.). ¶22 T | 2 | 2013–2014 |
State v. Sellner
green
2 sentences2009In State v. Sellner, 286 Mont. 397 , 951 P.2d 996 (1997), for instance, the Court found that the defendant Sellner was not entitled to a lesser-included offense instruction on aggravated assault when he shot at an oncoming police officer, aiming for his chest. 2009In State v. Sellner, 286 Mont. 397 , 951 P.2d 996 (1997), for instance, the Court found that the defendant Sellner was not entitled to a lesser-included offense instruction on aggravated assault when he shot at an oncoming police officer, aiming for his chest. | 2 | 1998–2009 |
State v. Ostwald
green
2 sentences1999We have previously held that a defendant is entitled to a lesser included offense instruction if “any evidence exists in the record which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a greater.” State v. Ostwald (1979), 180 Mont. 530, 538 , 591 P.2d 646, 651 . 1999We have previously held that a defendant is entitled to a lesser included offense instruction if “any evidence exists in the record which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a greater.” State v. Ostwald (1979), 180 Mont. 530, 538 , 591 P.2d 646, 651 . | 2 | 1999–1999 |
State v. Buckley
green
2 sentences1982For example, see State v. Bouslaugh (1978), 176 Mont. 78 , 576 P.2d 261 , State v. Buckley (1976), 171 Mont. 238 , 557 P.2d 283 ; and Keeble v. U.S. (1973), 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 . 1982For example, see State v. Bouslaugh (1978), 176 Mont. 78 , 576 P.2d 261 , State v. Buckley (1976), 171 Mont. 238 , 557 P.2d 283 ; and Keeble v. U.S. (1973), 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 . | 2 | 1978–1982 |
State v. M. Dulaney
neutral
2 sentences2025“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). 2025“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). | 1 | 2025–2025 |
State v. Martin
green
2 sentences2025State 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 instruction 2025State 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 instruction | 1 | 2025–2025 |
State v. MOLENDA
neutral
2 sentences2025Section 46-1-202(9)(a), MCA, defines an “included offense” as one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” “‘[F]acts’ in subsection (a) of § 46-1-202(9), MCA, refers to the statutory elements of the charged offense and not to the individual facts of the case.’” State v. Jay, 2013 MT 79, ¶ 40 , 369 Mont. 332 , 298 P.3d 396 (citing State v. Molenda, 2010 MT 215, ¶ 7 , 358 Mont. 1 , 243 P.3d 387 ); see also State v. Denny, 2021 MT 104, ¶ 29 , 404 Mont. 116 , 485 P.3d 1227 (“a lesser-included offense is one t 2025Section 46-1-202(9)(a), MCA, defines an “included offense” as one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” “‘[F]acts’ in subsection (a) of § 46-1-202(9), MCA, refers to the statutory elements of the charged offense and not to the individual facts of the case.’” State v. Jay, 2013 MT 79, ¶ 40 , 369 Mont. 332 , 298 P.3d 396 (citing State v. Molenda, 2010 MT 215, ¶ 7 , 358 Mont. 1 , 243 P.3d 387 ); see also State v. Denny, 2021 MT 104, ¶ 29 , 404 Mont. 116 , 485 P.3d 1227 (“a lesser-included offense is one t | 1 | 2025–2025 |
State v. Parrish
green
2 sentences2025Similarly, we have noted that 12 “counsel can, for strategic reasons, choose not to offer a lesser included offense instruction.” State v. Parrish, 2010 MT 212, ¶ 26 , 357 Mont. 477 , 241 P.3d 1041 (citing State v. Sheppard, 253 Mont. 118, 123-124 , 832 P.2d 370 (1992)) (defense counsel “may opt to omit a lesser-included offense instruction in order to force the jury to find the defendant guilty of the crime charged or acquit him.”) (citation omitted). 2025Similarly, we have noted that 12 “counsel can, for strategic reasons, choose not to offer a lesser included offense instruction.” State v. Parrish, 2010 MT 212, ¶ 26 , 357 Mont. 477 , 241 P.3d 1041 (citing State v. Sheppard, 253 Mont. 118, 123-124 , 832 P.2d 370 (1992)) (defense counsel “may opt to omit a lesser-included offense instruction in order to force the jury to find the defendant guilty of the crime charged or acquit him.”) (citation omitted). | 1 | 2025–2025 |
Ford v. State
green
2 sentences2016As a corollary to Aker’s ineffective assistance of counsel claims, Aker also alleges he was wrongfully accused of violating a restraining order on four separate occasions. 3 ¶7 “[W]e have repeatedly held, we will not address issues raised for the first time on appeal.” Ford v. State, 2005 MT 151, ¶ 12 , 327 Mont. 378 , 114 P.3d 244 (declining to address an issue raised for the first time when reviewing the denial of a postconviction petition). 2016As a corollary to Aker’s ineffective assistance of counsel claims, Aker also alleges he was wrongfully accused of violating a restraining order on four separate occasions. 3 ¶7 “[W]e have repeatedly held, we will not address issues raised for the first time on appeal.” Ford v. State, 2005 MT 151, ¶ 12 , 327 Mont. 378 , 114 P.3d 244 (declining to address an issue raised for the first time when reviewing the denial of a postconviction petition). | 1 | 2016–2016 |
State v. Williams
green
2 sentences2014State v. Williams, 2010 MT 58, ¶ 28 , 355 Mont. 354 , 228 P.3d 1127 (citation omitted). ¶21 Under the second step of Castle , a lesser included offense instruction must be given when “the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.” Jay , ¶ 42 (citing § 46-16-607(2), MCA; Castle, 285 Mont. at 369 , 948 P.2d at 691 ). 2014State v. Williams, 2010 MT 58, ¶ 28 , 355 Mont. 354 , 228 P.3d 1127 (citation omitted). ¶21 Under the second step of Castle , a lesser included offense instruction must be given when “the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.” Jay , ¶ 42 (citing § 46-16-607(2), MCA; Castle, 285 Mont. at 369 , 948 P.2d at 691 ). | 1 | 2014–2014 |
Michael Miller v. State
green
2 sentences2014STANDARDS OF REVIEW ¶10 “We review a district court’s denial of a petition for postconviction relief to determine whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Miller v. State, 2012 MT 131, ¶ 9 , 365 Mont. 264 , 280 P.3d 272 (internal quotation marks omitted; citation omitted). 2014STANDARDS OF REVIEW ¶10 “We review a district court’s denial of a petition for postconviction relief to determine whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Miller v. State, 2012 MT 131, ¶ 9 , 365 Mont. 264 , 280 P.3d 272 (internal quotation marks omitted; citation omitted). | 1 | 2014–2014 |
State v. Howell
green
2 sentences2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with 2013“A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39 , 325 Mont. 27 , 103 P.3d 1037 ; State v. German, 2001 MT 156, ¶ 11 , 306 Mont. 92 , 30 P.3d 360 ; State v. Martinez, 1998 MT 265, ¶ 10 , 291 Mont. 306 , 968 P.2d 705 ; State v. Schmalz, 1998 MT 210, ¶ 23 , 290 Mont. 420 , 964 P.2d 763 ; State v. Howell, 1998 MT 20, ¶ 34 , 287 Mont. 268 , 954 P.2d 1002 ; State v. Grindheim, 2004 MT 311, ¶ 41 , 323 Mont. 519 , 101 P.3d 267 . ¶43 Grindheim was charged with | 1 | 2013–2013 |
| State v. Gunderson green | 1 | 2010–2010 |
| State v. Scarborough green | 1 | 2009–2009 |
| State v. Swensen green | 1 | 2009–2009 |
| State v. Weigand green | 1 | 2008–2008 |
| State v. Thee green | 1 | 2007–2007 |
| State v. Sanders green | 1 | 2007–2007 |
| State v. Rave neutral | 1 | 2007–2007 |
| State v. Grimes green | 1 | 2003–2003 |
| State v. Hamilton green | 1 | 1998–1998 |
| State v. Swan green | 1 | 1997–1997 |
| State v. Smith green | 1 | 1997–1997 |
| State v. Lester Kills on Top green | 1 | 1996–1996 |
| United States v. John E. Kenny, Trenton P. Oelberg, and William L. Parker, Defendants green | 1 | 1992–1992 |
| Robert Kubat, Cross-Appellee v. James Thieret, Warden, and Neil F. Hartigan, Attorney General of Illinois, Cross-Appellants green | 1 | 1992–1992 |
| Alabama v. Battles green | 1 | 1992–1992 |
| Broussard v. Lippman green | 1 | 1992–1992 |
| Ruben v. United States green | 1 | 1992–1992 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.