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No. 99-470 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 156 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

BRYAN LEE GERMAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer,

The Honorable Gary Day, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Gary E. Wilcox, Attorney at Law, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis, Assistant

Attorney General, Helena, Montana

Colleen I. Magera, Custer County Attorney, Miles City, Montana

Submitted on Briefs: November 30, 2000 

Decided: August 14, 2001

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Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Bryan Lee German appeals from the judgment entered against him by the Sixteenth 

Judicial District Court, Custer County, on a jury verdict finding him guilty of attempted 

felony assault and deliberate homicide. We affirm.

¶2 The issue is whether the District Court abused its discretion in refusing to instruct the 

jury on the lesser-included offense of negligent homicide. 

¶3 Early on the morning of June 12, 1998, Willie Gonzales followed German home from 

work after both young men got off their night shift jobs at the Wal-Mart store in Miles 

City, Montana. German parked his car outside the trailer where he lived with his common 

law wife and infant son. Gonzales stopped his car behind German's car. German then went 

into the trailer, grabbed his sawed-off shotgun, and went back outside. Walking up to the 

driver's side of Gonzales' car, he shot Gonzales twice at close range. German returned to 

the trailer, called 911 on the telephone and reported that he had shot someone. The 911 

operator could hear German's wife in the background crying and asking, "Why, Bryan, 

why?"

¶4 When Miles City police officers arrived, they found German outside the trailer waiting 

for them, as the 911 operator had instructed. Gonzales was slumped over in the front seat 

of his car, dead from two shotgun blasts to the chest.

¶5 As a result of these events, the State of Montana filed a 3-count information against 

German. Count 1 charged German with attempted felony assault for pointing a firearm at 

Gonzales, and Count 2 charged deliberate homicide under the felony murder rule on the 

basis that German killed Gonzales during the attempted commission of a felony assault. 

Count 3, an alternative deliberate homicide charge, alleged that German purposely or 

knowingly killed Gonzales with a firearm.

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¶6 German's defense at trial was that he was frightened of Gonzales and shot him only out 

of fear for himself and his family. A dispute had simmered between the two for several 

months, since Gonzales gave German $200 to get him some marijuana and the substance 

German delivered was not, in fact, marijuana. After that time, Gonzales had periodically 

demanded his money back from German. German did not return the money, telling 

Gonzales he had been a mere intermediary in the deal and did not have the money to 

return to Gonzales. 

¶7 At trial, the District Court instructed the jury on German's defense of justifiable use of 

force. The court also gave a mitigated deliberate homicide instruction proposed by the 

defense as a lesser-included offense under Count 3. However, the court refused German's 

proposed instruction on the lesser-included offense of negligent homicide, ruling there was 

no evidence to support the instruction. 

¶8 The jury found German guilty of attempted felony assault under Count 1 and deliberate 

homicide under Count 2, the felony murder rule. The District Court sentenced German to 

10 years in prison on Count 1 and 75 years in prison on Count 2, to run concurrently, and 

entered judgment. German appeals.

¶9 Did the District Court abuse its discretion in refusing to instruct the jury on the lesserincluded offense of negligent homicide? 

¶10 This Court reviews jury instructions in a criminal case to determine whether the 

instructions, as a whole, fully and fairly instruct the jury on the applicable law. State v. 

Hall, 1999 MT 297, ¶ 39; 297 Mont. 111, ¶ 39; 991 P.2d 929, ¶ 39 (citation omitted). 

District courts have broad discretion in formulating jury instructions and our standard of 

review is whether the court abused that discretion. State v. Beavers, 1999 MT 260, ¶ 20, 

296 Mont. 340, ¶ 20, 987 P.2d 371, ¶ 20 (citations omitted). A trial court has authority to 

reject proposed instructions which are not supported by the evidence. Whether there is 

sufficient evidence to raise an issue of fact is a question of law for the court and not one of 

fact. Fed. Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 513, 808 P.2d 475, 478 

(citations omitted). 

¶11 A lesser-included offense instruction must be given when properly requested and 

when, based on the evidence, the jury could be warranted in finding the defendant guilty 

of the lesser-included offense. Section 46-16-607(2), MCA. However, a trial court need 

not give an instruction on a lesser-included offense when there is no evidence to support it. 

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State v. Swan (1996), 279 Mont. 483, 488, 928 P.2d 933, 936 (citation omitted). A lesserincluded offense instruction is not supported by the evidence when the defendant's 

evidence or theory, if believed, would require an acquittal. State v. Martinez, 1998 MT 

265, ¶ 10, 291 Mont. 306, ¶ 10, 968 P.2d 705, ¶ 10. 

¶12 In the present case, German requested a lesser-included offense instruction on 

negligent homicide. He proposed the jury be instructed that "[a] person commits the 

offense of negligent homicide if he negligently causes the death of a human being." The 

parties do not address whether negligent homicide is a lesser-included offense of 

deliberate homicide under §§ 46-16-607(1) and 46-1-202(8), MCA. Nor need we address 

that question, because we conclude no evidence supports the requested instruction.

¶13 German testified on his own behalf at trial. During cross-examination, he described 

his mental state when he shot Gonzales: 

Q. Well, I guess the question here is: Did you accidentally shoot Willie Gonzales 

twice or did you consciously shoot him while defending yourself?

A. I guess you would have to say if you were reacting to stimulus that you are 

consciously making a decision.

Q. Yes or no? Do you know? Can you answer it?

A: I would have to say, yes. I was consciously making the decision, I guess.

Q: Nothing negligent and reckless about what you did? You made a call, right? 

A: Yes. At the time that I did it. 

The above testimony clearly does not support a negligent homicide instruction. German's 

testimony was that he consciously made a decision to shoot Gonzales. 

¶14 German also presented evidence at trial about the prevalent drug culture in Lakewood, 

Washington, where he spent his formative years. He asserts he should have been entitled 

to argue, based on that evidence, that he was merely negligent in placing himself into a 

volatile situation with Gonzales and shooting him. He also asserts he should have been 

entitled to argue that his actions due to his fears for himself and his family were so 

unreasonable as to constitute, in themselves, negligence. 

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¶15 The State contends this is a new argument on appeal. However, the record establishes 

that German raised it below. During the settling of jury instructions, German's counsel 

said:

On that vein, Your Honor, I should have put it in before, I do believe there is 

evidence to support the Negligent Homicide Instruction. And that evidence, 

essentially, once again, is the same evidence that my client's fear, his apprehension 

of harm to himself or his family, his concern that there was a firearm in [Gonzales'] 

vehicle, his acting upon that fear, placing himself in a volatile situation with a 

firearm and death resulted.

Therefore, we reject the State's argument and turn to German's assertion of error.

¶16 In support of his theory that the evidence of the drug culture in which he spent his 

formative years supports his proposed instruction on negligent homicide, German relies on 

State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459, and State v. Hubbard (1982), 200 

Mont. 106, 649 P.2d 1331, in which he says we gave some "consideration" to the theory 

he advances here. German's reliance on Stroud and Hubbard is misplaced.

¶17 A jury acquitted the defendant in Stroud of deliberate homicide and mitigated 

deliberate homicide, but convicted him of negligent homicide under an instruction he 

submitted. This Court affirmed the negligent homicide conviction. German points out that 

the prosecution in the present case has referred to his actions as "not reasonable," similar 

to our characterization of the defendant's actions in Stroud. However, the jury in Stroud

was instructed on negligent homicide because there was evidence that Stroud did not 

deliberately shoot the victim. According to that evidence, the gun went off during a 

struggle. Stroud, 210 Mont. at 65, 683 P.2d at 463. In the present case, the evidence is that 

German consciously decided to shoot Gonzales. There is simply no evidence here to 

support the giving of a negligent homicide instruction. 

¶18 In Hubbard, the defendant pled guilty to negligent homicide after an early morning 

shootout in which two men were killed. The issues on appeal related to the propriety of 

applying the weapon enhancement statute to increase the sentence for use of a weapon. 

German quotes our statement in Hubbard, 200 Mont. at 112, 683 P.2d at 1334, that "[a] 

person can knowingly use a firearm and still be negligent by grossly deviating from the 

conduct of a reasonable person in a similar situation with regard to the results of his 

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actions." The statement is correct, but German has taken it out of the Hubbard context 

where the original charge--and the charge to which the defendant pled guilty--was 

negligent homicide. Hubbard, 210 Mont. at 108, 683 P.2d at 1332. Unlike the present 

case, Hubbard did not present a lesser-included offense instruction issue focusing on 

whether evidence supported giving such an instruction. Also unlike the present case, 

Hubbard did not involve testimony by the defendant that he consciously made a decision 

to shoot the victim.

¶19 Finally, German contends that Martinez effectively overruled Stroud, Hubbard and a 

"long line" of cases which entitle a defendant to a lesser-included offense instruction and 

allows district courts to usurp the jury's function. We disagree. 

¶20 In Martinez, the victim testified that the defendant--a "friend" of his--shot at another 

fellow and then pointed a gun at him during a shootout. Martinez, ¶ 11. This testimony 

supported a felony assault charge against the defendant. The defense established 

inconsistencies in the victim's testimony, argued that the defendant's use of force was 

justifiable, and offered a lesser-included offense instruction on misdemeanor assault. The 

district court refused the instruction and we agreed. 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. Martinez, ¶ 15. Applied to the present case, German's justifiable use 

of force defense to the charges against him, if proven, would have required an acquittal. 

¶21 Martinez neither overruled nor is inconsistent with our cases entitling a defendant to a 

lesser-included offense instruction when evidence supports the instruction. Like the 

present case, Martinez involved the justifiable use of force defense which admits the 

elements of the charged offense but asserts the defendant's acts were justified. Moreover, 

both defendants offered evidence in support of their justification defenses and the trial 

courts instructed accordingly. Had the jury determined the defense was proven in either 

case, the defendant would have been entitled to an acquittal. See Martinez, ¶ 10 (citations 

omitted). As a matter of logic and, under Martinez, as a matter of law, a defendant's 

evidence and theory which, if believed, would require an acquittal of a "greater" offense 

cannot--at the same time--support a conviction on a lesser offense. See Martinez, ¶ 10 

(citations omitted).

¶22 German also is incorrect in contending that Martinez allows a district court to usurp 

the jury's function by factually deciding the merits of the lesser-included offense. In both 

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civil and criminal proceedings, the determination of whether there is sufficient evidence to 

raise an issue of fact for a jury is a question of law for a trial court. See, e.g., Fed. Land 

Bank, 247 Mont. at 513, 808 P.2d at 478 (citations omitted); § 46-16-403, MCA; Swan, 

279 Mont. at 488, 928 P.2d at 936 (citations omitted). Only when a trial court has 

determined, as a matter of law, that factual disputes exist are such disputes turned over to a 

jury to resolve.

¶23 Here, we conclude the District Court correctly determined that no evidence supported 

German's offered instruction on the lesser-included offense of negligent homicide. Nor has 

German established any error under the legal precedents on which he relies.

¶24 We hold, therefore, that the District Court did not abuse its discretion in refusing 

German's offered instruction on the lesser-included offense of negligent homicide. 

¶25 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

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