06/17/2025
DA 22-0597 Case Number: DA 22-0597
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 128N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CAVEY LITTLE ROSSBACH,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC-20-46 Honorable Leslie Halligan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Layla Turman, Kindred Legal, PLLC, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Jania Hatfield, Sanders County Attorney, Dan Guzynski, Selene Koepke, Special Deputy County Attorneys, Helena, Montana
Submitted on Briefs: April 23, 2025
Decided: June 17, 2025
Filed: ir,-6‘A•-if __________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Cavey Rossbach appeals the August 26, 2022 Judgment of the Twentieth Judicial
District Court, Sanders County. The Judgment sentenced Rossbach to 90 years in Montana
State Prison, none suspended, for deliberate homicide and an additional 10 years for the
use of a dangerous weapon.
¶3 Rossbach asserts two issues on appeal: (1) whether the District Court prejudiced
Rossbach’s right to trial when it did not provide a defense of others jury instruction, and
(2) whether Rossbach received ineffective assistance of counsel when his counsel did not
request a defense of others jury instruction.
¶4 On October 5, 2018, Rossbach returned to his home in Dixon Agency after working
for Kelly Tree Service in Lolo for an extended time. Rossbach was intoxicated when he
returned and became angry when he discovered his brother had left marijuana plants in his
basement. Rossbach walked to his brother’s house down the street and yelled at him for
putting the plants there. When Rossbach was returning to his own house, he stopped at his
next-door neighbor’s house to visit George Coffey.
¶5 Rossbach discovered George’s front door was open. Inside the house, George’s
daughter Rainey was sitting at the kitchen table with William Conko-Camel (Bill) using
2 methamphetamine. This upset Rossbach because he knew George had just returned from
prison and would get in trouble if law enforcement discovered drugs in his house.
Rossbach confronted Rainey about the issue, and Bill retorted. There was a verbal
escalation between Rossbach and Bill until Rossbach punched Bill, knocking him out.
When Bill regained consciousness, he allegedly struck Rossbach with a hammer in the
face. Rossbach’s son Preston and friend Ty had entered the house while Rossbach was
conversing with Rainey. After Bill hit Rossbach in the face with the hammer, Rossbach
kicked Bill and tried to flee the house with Preston and Ty. Bill struck Rossbach in the
shoulder with the hammer as they were leaving, and Preston grabbed the hammer from Bill
and kicked him back into the house. Preston helped Rossbach up from the ground, and
they retreated to Rossbach’s yard.
¶6 Bill followed them out of the house and stopped at his truck. Rossbach testified Bill
was rummaging in his truck, supposedly for a weapon. Bill continued to follow Rossbach
down the street. According to Rossbach, Bill repeatedly shouted that he was going to kill
Rossbach and his family. Preston ran into Rossbach’s house and retrieved a gun. He
returned outside, and Rossbach took the gun from Preston. Rossbach warned Bill to stop
approaching him. As it was dark, with no nearby streetlights, Rossbach could only hear
Bill’s approaching footsteps and see the silhouette of Bill’s outline. When Bill did not
heed Rossbach’s warnings, Rossbach repeatedly shot towards Bill’s silhouette, killing him.
The autopsy on Bill showed five different projectiles struck his body.
¶7 Rossbach’s trial was held on April 11, 2022. After the presentation of evidence, the
State submitted its proposed jury instructions. The defense objected to two of them. The
3 first related to an initial aggressor instruction, which the court delayed ruling on. The
second related to the confusing wording of the purposely or knowingly causing the death
of another portion of the deliberate homicide definition, and the State withdrew that
instruction. The defense stipulated to the remaining jury instructions.
¶8 The instructions relevant to this appeal relate to self-defense and defense to prevent
a forcible felony. Instruction no. 23, regarding self-defense, stated:
A person is justified in the use of force or threat to use force when and to the extent he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force[.] However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious harm to himself or commission of a forcible felony.
Instruction no. 26 defined “forcible felony” as “a felony that involves the use or threat of
physical force or violence against any individual.” The defense did not object to either of
these instructions. The jury found Rossbach guilty of deliberate homicide with a dangerous
weapon on April 19, 2022.
¶9 This Court generally does not hear unpreserved issues on appeal; however, we may
discretionarily review unpreserved claims implicating the defendant’s fundamental rights
under the plain error doctrine. State v. George, 2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d
854. We review a district court’s decisions regarding jury instructions for abuse of
discretion. State v. King, 2016 MT 323, ¶ 7, 385 Mont. 483, 385 P.3d 561. We review
whether the instructions, considered as a whole, fully and fairly instruct the jury on the law
applicable to the case. King, ¶ 7. To determine if plain error analysis is necessary, we first
ask whether the alleged error implicates a fundamental right. George, ¶ 5. Next, we ask
4 if failure to review the alleged error would result in a manifest miscarriage of justice, leave
unsettled a question of fundamental fairness of the proceedings, or compromise the
integrity of the judicial process. George, ¶ 5.
¶10 Rossbach asserts he presented evidence for both self-defense and defense of his
family at trial. Rossbach claims the District Court had a duty to provide a jury instruction
for each of those theories, but it failed to give an appropriate instruction for defense of
others. The State counters that the District Court provided a jury instruction for justifiable
use of force in the prevention of a forcible felony—i.e., a defense of others instruction.
According to the State, the jury convicted Rossbach based on evidence proving that his use
of deadly force was not justified to protect either himself or others.
¶11 A district court must instruct the jury on every issue or theory supported by the
evidence. State v. Erickson, 2014 MT 304, ¶ 35, 377 Mont. 84, 338 P.3d 598. A district
Free access — add to your briefcase to read the full text and ask questions with AI
06/17/2025
DA 22-0597 Case Number: DA 22-0597
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 128N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CAVEY LITTLE ROSSBACH,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC-20-46 Honorable Leslie Halligan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Layla Turman, Kindred Legal, PLLC, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Jania Hatfield, Sanders County Attorney, Dan Guzynski, Selene Koepke, Special Deputy County Attorneys, Helena, Montana
Submitted on Briefs: April 23, 2025
Decided: June 17, 2025
Filed: ir,-6‘A•-if __________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Cavey Rossbach appeals the August 26, 2022 Judgment of the Twentieth Judicial
District Court, Sanders County. The Judgment sentenced Rossbach to 90 years in Montana
State Prison, none suspended, for deliberate homicide and an additional 10 years for the
use of a dangerous weapon.
¶3 Rossbach asserts two issues on appeal: (1) whether the District Court prejudiced
Rossbach’s right to trial when it did not provide a defense of others jury instruction, and
(2) whether Rossbach received ineffective assistance of counsel when his counsel did not
request a defense of others jury instruction.
¶4 On October 5, 2018, Rossbach returned to his home in Dixon Agency after working
for Kelly Tree Service in Lolo for an extended time. Rossbach was intoxicated when he
returned and became angry when he discovered his brother had left marijuana plants in his
basement. Rossbach walked to his brother’s house down the street and yelled at him for
putting the plants there. When Rossbach was returning to his own house, he stopped at his
next-door neighbor’s house to visit George Coffey.
¶5 Rossbach discovered George’s front door was open. Inside the house, George’s
daughter Rainey was sitting at the kitchen table with William Conko-Camel (Bill) using
2 methamphetamine. This upset Rossbach because he knew George had just returned from
prison and would get in trouble if law enforcement discovered drugs in his house.
Rossbach confronted Rainey about the issue, and Bill retorted. There was a verbal
escalation between Rossbach and Bill until Rossbach punched Bill, knocking him out.
When Bill regained consciousness, he allegedly struck Rossbach with a hammer in the
face. Rossbach’s son Preston and friend Ty had entered the house while Rossbach was
conversing with Rainey. After Bill hit Rossbach in the face with the hammer, Rossbach
kicked Bill and tried to flee the house with Preston and Ty. Bill struck Rossbach in the
shoulder with the hammer as they were leaving, and Preston grabbed the hammer from Bill
and kicked him back into the house. Preston helped Rossbach up from the ground, and
they retreated to Rossbach’s yard.
¶6 Bill followed them out of the house and stopped at his truck. Rossbach testified Bill
was rummaging in his truck, supposedly for a weapon. Bill continued to follow Rossbach
down the street. According to Rossbach, Bill repeatedly shouted that he was going to kill
Rossbach and his family. Preston ran into Rossbach’s house and retrieved a gun. He
returned outside, and Rossbach took the gun from Preston. Rossbach warned Bill to stop
approaching him. As it was dark, with no nearby streetlights, Rossbach could only hear
Bill’s approaching footsteps and see the silhouette of Bill’s outline. When Bill did not
heed Rossbach’s warnings, Rossbach repeatedly shot towards Bill’s silhouette, killing him.
The autopsy on Bill showed five different projectiles struck his body.
¶7 Rossbach’s trial was held on April 11, 2022. After the presentation of evidence, the
State submitted its proposed jury instructions. The defense objected to two of them. The
3 first related to an initial aggressor instruction, which the court delayed ruling on. The
second related to the confusing wording of the purposely or knowingly causing the death
of another portion of the deliberate homicide definition, and the State withdrew that
instruction. The defense stipulated to the remaining jury instructions.
¶8 The instructions relevant to this appeal relate to self-defense and defense to prevent
a forcible felony. Instruction no. 23, regarding self-defense, stated:
A person is justified in the use of force or threat to use force when and to the extent he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force[.] However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious harm to himself or commission of a forcible felony.
Instruction no. 26 defined “forcible felony” as “a felony that involves the use or threat of
physical force or violence against any individual.” The defense did not object to either of
these instructions. The jury found Rossbach guilty of deliberate homicide with a dangerous
weapon on April 19, 2022.
¶9 This Court generally does not hear unpreserved issues on appeal; however, we may
discretionarily review unpreserved claims implicating the defendant’s fundamental rights
under the plain error doctrine. State v. George, 2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d
854. We review a district court’s decisions regarding jury instructions for abuse of
discretion. State v. King, 2016 MT 323, ¶ 7, 385 Mont. 483, 385 P.3d 561. We review
whether the instructions, considered as a whole, fully and fairly instruct the jury on the law
applicable to the case. King, ¶ 7. To determine if plain error analysis is necessary, we first
ask whether the alleged error implicates a fundamental right. George, ¶ 5. Next, we ask
4 if failure to review the alleged error would result in a manifest miscarriage of justice, leave
unsettled a question of fundamental fairness of the proceedings, or compromise the
integrity of the judicial process. George, ¶ 5.
¶10 Rossbach asserts he presented evidence for both self-defense and defense of his
family at trial. Rossbach claims the District Court had a duty to provide a jury instruction
for each of those theories, but it failed to give an appropriate instruction for defense of
others. The State counters that the District Court provided a jury instruction for justifiable
use of force in the prevention of a forcible felony—i.e., a defense of others instruction.
According to the State, the jury convicted Rossbach based on evidence proving that his use
of deadly force was not justified to protect either himself or others.
¶11 A district court must instruct the jury on every issue or theory supported by the
evidence. State v. Erickson, 2014 MT 304, ¶ 35, 377 Mont. 84, 338 P.3d 598. A district
court does not abuse its discretion by giving an instruction if it is supported by direct
evidence or a logical inference from the evidence presented. Erickson, ¶ 35. It is reversible
error for a district court to give conflicting instructions on a material issue. King, ¶ 10.
¶12 Here, the District Court instructed the jury that a person is justified in the use of
deadly force if the person reasonably believes it is necessary to prevent the commission of
a forcible felony. The District Court further defined “forcible felony” as “a felony that
involves the use or threat of physical force or violence against any individual.” The
instruction made it clear that deadly force may be used when the defendant reasonably
believes it is necessary to protect against the use or threat of physical violence against any
5 individual. Thus, the District Court made it clear to the jury that Rossbach could have been
acting to protect himself or any other individual from physical violence.
¶13 Based on the evidence presented at trial, we do not find the District Court abused
its discretion with the jury instructions it provided. The court fully and fairly explained to
the jury that use of deadly force to protect others from a forcible felony was acceptable.
However, based on the evidence presented at trial, the jury found Rossbach was not
justified in using the amount of force he did to protect himself or his family in that situation.
As such, there is no implication of Rossbach’s fundamental right to a fair trial, and we
decline to invoke plain error review.
¶14 Next, we consider whether Rossbach’s trial counsel provided ineffective assistance
by not requesting a defense of others jury instruction. Ineffective assistance of counsel
(IAC) claims are mixed questions of law and fact that we review de novo. State v. Secrease,
2021 MT 212, ¶ 9, 405 Mont. 229, 493 P.3d 335. “Article II, Section 24 of the Montana
Constitution and the Sixth Amendment to the United States Constitution, as incorporated
through the Fourteenth Amendment, guarantee a defendant the right to effective assistance
of counsel.” Secrease, ¶ 13 (citation omitted). When reviewing IAC claims, we apply a
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Secrease, ¶ 13. Under Strickland, the defendant must (1) show how
counsel’s performance was deficient or fell below an objective standard of reasonableness
and (2) demonstrate prejudice by showing that there was a reasonable probability that, but
for counsel’s errors, the result of the proceedings would have been different.
Secrease, ¶ 13.
6 ¶15 When raised on direct appeal, we must first determine if IAC claims would be more
appropriately addressed in a post-conviction relief proceeding. State v. Rodriguez,
2021 MT 65, ¶ 31, 403 Mont. 360, 483 P.3d 1080. When there is no plausible justification
for the actions or omissions of defense counsel, then IAC claims are appropriate for direct
appeal. Secrease, ¶ 14.
¶16 Here, the actions or omissions in question are defense counsel’s alleged failure to
request a jury instruction relating to Rossbach’s ability to forcefully defend his family.
During the trial, Rossbach’s counsel did not object to the State’s proposed instructions for
self-defense and forcible felony. The parties discussed a few unrelated instructions, and
defense counsel stipulated to the rest. Based on the discussions involving the jury
instructions and the plain reading of the instructions given, there is a plausible justification
for defense counsel’s actions—it is plausible defense counsel did not request an explicit
defense of others instruction because the inclusion of the forcible felony instruction
encompassed the defense of others.
¶17 Even if Rossbach’s defense counsel had requested a more explicit defense of others
instruction, the result likely would have been the same. The jury weighed the trial
evidence—including the fact Bill did not have a weapon, the distance Rossbach shot from
and number of times he shot, Rossbach’s wife’s and son’s testimony that they did not feel
like they were in danger, and the fact Preston and Ty were behind Bill when Rossbach
shot—and determined Rossbach’s use of force was not justified in protecting himself or
anyone else present at the scene.
7 ¶18 Accordingly, because there is a plausible justification for counsel’s actions,
Rossbach has not established the two Strickland requirements for an IAC claim, and we
decline to review the issue further.
¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶20 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ CORY J. SWANSON /S/ KATHERINE M BIDEGARAY /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA