No. 92-456
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
RICK LATER.
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby and Christine D Somers, Butte,
.
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Kathy
Seeley, Assistant andJoseph Thaggard, Special Dupty
County Attorney, Helena, Montana: Thomas Scott,
Beaverhead County Attorney, Dillon, Montana
Submitted on Briefs: April 1, 1993
Decided: September 17, 1993
Filed:
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
After trial in the Fifth Judicial District Court, Madison
County, Montana, a jury found the defendant, Rick Later, guilty of
misdemeanor official misconduct and acquitted him of six other
charges. The District Court imposed a fine of $350 and pursuant to
5 45-7-401(4), MCA, concluded that defendant Rick Later had
permanently forfeited his office of sheriff of Beaverhead County
and the office was declared vacant. We reverse.
The dispositive issue on appeal is whether the trial court can
essentially "amend" the information with a jury instruction at the
close o f appellant's case-in-chief.
The standard of review for discretionary trial court rulings
is whether the trial court abused its discretion. Steer Xnc. v.
Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601,
603-504.
On January 3, 1992 , defendant was charged with seven criminal
charges, including felony theft and the charge with which he was
convicted, that being misdemeanor official misconduct. Defendant
had worked in law enforcement in Beaverhead County from 1972 on and
was sheriff from 1980 until his conviction on May 29, 1991. The
State's motion to change the place of trial was granted and the
case was tried in Madison County rather than Beaverhead County.
Count VII of the Information alleged that the defendant had
committed official misconduct in violation of 5 7-4-2511, MCA, and
5 7-32-2144, MCA, when he failed to remit to Beaverhead County his
reimbursement warrants for mileage received from the Montana Board
of Crime Control.
The two statutes referred to in Count 7 1 provide in pertinent
11
part:
(2) No salaried county officer may receive for his own use
any fees, penalties, or emoluments of any kind, except the
salary as provided by law, for any official service rendered
by him. Unless otherwise provided, all fees, penalties, and
emoluments of every kind collected by a salaried county
officer are for the sole use of the county and must be
accounted for and paid to the county treasurer as provided by
subsection (1) and credited to the general fund of the county.
Section 7-4-2511(2), MCA.
(1) A sheriff delivering prisoners at the state prison or a
juvenile correctional facility or mentally ill persons at the
Montana state hospital or other mental health facility
receives actual expenses necessarily incurred in their
transportation.
Section 7-32-2144(1), MCA.
When jury instructions were being settled in this case,
counsel for the State conceded that $5 7-4-2511 and 7-32-2144, MCA,
had been cited in errcr and indeed, did not apply to the
appellant's conduct under Count VII. The State asserted that the
mistake in the statutory citations aside, the information provided
appropriate notice to the appellant. The State then offered an
instruction citing a portion of 5 7-32-2143, MCA, which the State
had decided was the statute applicable to the appellant's conduct.
The District Court found that although 5 5 7-4-2511 and 7-32-
2144, MCA, were mistakenly cited as the underlying offenses which
formed the basis of the appellant's official misconduct, the
statute outlining official misconduct was properly cited and the
technical requirements of the charge were satisfied. It noted that
although the information was "less than perfect," it did give the
defendant notice of what he was charged with and how and why he was
charged. The trial court then accepted the State's proposed
instruction which quoted the excerpt below from 5 7-32-2143, MCA.
Jury Instruction No. 16, submitted by the State, reads as
follows:
Montana law requires that all mileaae paid to sheriffs
whose vehicles are ~rovidedand maintained bv the countv shall
be oaid over to the countv treasurer and deoosited in the
countv aeneral fund. (Emphasis supplied.)
The emphasized portion of the above jury instruction uses the
precise language of ti 7-32-2143(2), MCA. However, § 7-32-2143,
MCA, is a lengthy statute that takes up a full page in the code.
To provide the jury with this instruction when the information
alleges violations of two entirely different statutes modifies the
information and calls into question the validity of the original
information. One function of an information is to "notify a
defendant of [the ~ f f e m e
chargedj, thereby giving [the defendant;
an opportunity to defend." State v. Tropf (1975), 166 Mont. 79,
88, 530 P.2d 1158, 1163. TO, in essence, ltamendll information
the
at the close of the defendant's case-in-chief certainly does not
give the defendant an opportunity to defend if the amendment is
substantive.
In the instant case, the "amendmentm at issue is one of
substance. The prosecution requested a jury instruction which was
an excerpted portion of a completely different statute than those
cited in the information. It was those statutes against which the
defendant was given notice by the information that he would have to
defend. This jury instruction substantially alteredthe underlying
offense which formed the basis for Count VII. It did not allow the
defendant an opportunityto defend because the "amendment" occurred
after the defense had rested. A defendant charged with official
misconduct for violating a mandatory duty ought at least know with
some certainty what duty he has allegedly violated in time to
prepare an appropriate defense to this allegation. Therefore, the
jury instruction represented a substantive ~~amendmentii the
to
original information and because the change was effected so late in
the trial, when there was no opportunity for the defendant to
change his defense strategy if he had chosen, it was prejudicial to
the defendant.
"[The function of notifying a defendant of the offense
charged, thereby giving the defendant an opportunity to defend]
cannot be dispenced [sic] with when the information is amended as
to substance. The defendant must be notified of the change and
afforded a reasonable time after the amendment to prepare a
defense. Further, when an amended information is filed
substantively changing the charges against a defendant, the
defendant should be arraigned under the new charges." State v.
Cardwell (1980), 187 Mont. 370, 376, 609 P.2d 1230, 1233.
(Citations omitted.)
Our decision does not dilute the principle enunciated in state
v Longneck (1981), 196 Mont. 151, 640 P.2d 436, and in a line of
.
similar cases, that an erroneous statutory reference will not
invalidate the charge. The Lonqnecl$ line of cases concern
informations which fully inform the defendant charged Itofwhat was
intended to be charged and against what he was required to defend."
&snuneck, 640 P.21 at 439, Those informations, however, containec:
minor errors which did not prejudice a substantial right of t i
fe
defendant.
The instant case is entirely different. Here, the defendant
was not fully apprised of the charges against him, was misled as to
what unlawful statutory conduct was charged by erroneous citations
to two statutes, was not apprised of the appropriate statute until
after he presented his defense, and was then required to go to the
jury on an instruction that substantially amended the original
charge.
We conclude that the trial court abused its discretion in
accepting the proposed jury instruction and presenting an
instruction to the jury which essentially amended the original
information.
REVERSED AND REMANDED.
Justices
Justice Fred J. FIeber dissents as follows:
I dissent from the majority opinion and its conclusion that
the dispositive issue was whether the trial court could amend the
information with a jury instruction at the close of the defendant's
case. I conclude that the primary issue presented to the Court was
whether Sheriff Later was given sufficient notice of the nature of
the crime with which he was charged under the information and
supporting affidavits.
Count VII of the Information alleged that the defendant had
committedthe misdemeanor crime of official misconduct in violation
of 5 7-4-2511, MCA, and 5 7-32-2144, MCA, when he failed to remit
to the Beaverhead County treasurer his reimbursement warrants for
mileage received from the Montana Board of Crime Control. Section
7-4-2511(2), M U , states that any money received by a salaried
county officer must be paid over to the county treasurer for
crediting to the county's general fund. Defendant contended that
the information did not sufficiently inform him of the charges
against him and, therefore, that the District Court erred by
approving a jury instruction with another statute as its source.
As the majority emphasizes, g 7-32-2143, MCA, was not
described in the information, nor was the information amended to
refer to that code section.
The test to be used in determining the sufficiency of an
information is whether a person of common understanding would know
what charge is intended. State v. Longneck (1981), 196 Mont. 151,
154, 640 P.2d 436, 438, aff8dafter remand, 201 Mont. 367, 654 P.2d
971 (1982). The affidavit in suppork of the motion for leaye to
file the information must be considered along with the information
itself. State v. Hamilton (1992), 252 Nont. 496, 499, 830 P.2d
1264, 1266. The general rule is that it is not a fatal defect that
the information erroneously names the offense when the facts, acts
and eireumstances are set forth with sufficient certainty to
constitute an offense. Jhnuneck, 640 P.2d at 438 (citing State v.
Schnell (1939), 107 Mont. 579, 88 P.2d 19, 22). This Court has
used these principles in a number of cases ranging from official
misconduct to deliberate homicide. For example, in Lonuneck, this
Court stated:
Ideally, the information should have named, in addition
to the deliberate homicide charge, a separate count of
aggravated assault to cover the nonfatal, first assault;
or, it should have charged the defendant with only the
nonfatal, first assault. Despite this inaccuracy in
naming the offense, the facts detailed in the information
and in the motion for leave to file the information
sarvrad infer;-,
ta the defendant of what was iiitendcd to be
charged and against what he was required to defend. He
could not have been surprised or misled at trial.
Lonuneck, 640 P.2d at 439.
In this case, the information charging the defendant provided:
During the period of approximately February 22, 1990 to
June 21, 1991 in Beaverhead County, Montana, the
defendant committed the offense of Official Misconduct
when, in his official capacity as a public servant, he
purposely or negligently failed to perform a mandatory
duty as required by law, namely sections 7-4-2511 and 7-
32-2144, MCA, when he failed to remit to the Beaverhead
County Treasury mileage fees paid by the Montana Board of
Crime Control as reimbursement to Beaverhead County for
the use of a Beaverhead County motor vehicle while the
defendant was engaged in business with the Montana Board
of Crime Control.
In addition, the portion of the affidavit in support of the motion
for leave to file the information which pertains to Count VII
provided:
The defendant's failure to remit to Beaverhead County the
mileage fees paid to him by the Board of Crime Control
for his use of a county vehicle constitutes as rsicl act
of Official Misconduct in violation of section 45-7-
40111)fa). MCA. Under that subsection of the statute,
public official commits the crime of Official Misconduct
when he wur~oselvor nesliaentlv fails to werform anv
mandatorv dutv as rewired bv law or by a court of
competent jurisdiction. In the instant case, the
defendant failed to comply with the mandatory
requirements of sections 7-4-2511, MCA, and 7-32-2144,
MCA, when he did not. as mandated bv 7-4-2511 and 7-32-
2144. MCA. remit to Beaverhead County the milease fees
paid to him bv the Board of Crime Control for his use of
a countv vehicle while conductins business with the
Montana Board of Crime Controk. Based on these facts,
the affiant believes that probable cause exists to charge
the defendant in Count VII with Official Misconduct.
(Emphasis supplied.)
When jury instructions were being settled in this case, counsel for
the State conceded that 1 5 7-4-2511 and 7-32-2144, MCA, had been
cited in error. The District Court found that the statute
outlining the crime of official misconduct, however, was properly
cited and that the technical requirements of the charge were
satisfied, noting that although the information was "less than
perfect," it gave the defendant notice of what he was charged with
and how and why he was charged.
While the information failed to accurately cite the statutory
reference, Count VII of the information and the affidavit described
the exact offense and facts supporting the charge of official
misconduct. I conclude that the affidavit and information were
clearly sufficient to inform Sheriff Later of the charge against
which he was required to defend. Section 45-7-401(1) (a), MCA, sets
forth the crime charged and provides that purposely or negligently
failing to perform a mandatory duty as required by law is official
misconduct. Section 7-32-2143(2), MCA, describes the mandatory
duty of sheriffs to pay over to the county treasurer for deposit in
the county general fund all mileage fees paid to them when the
county provides and maintains vehicles for a sheriff's official
use. I conclude that Sheriff Later was given sufficient notice of
the charges against him and what he would be required to defend
against.
Sheriff Later contends that Jury Instruction No. 16 was not
supported by direct evidence or some logical inference from the
evidence and came at a point in the trial when he had rested his
case and could not have presented any evidence relative to S 7-32-
2143, MCA. This Court has stated that the primary purpose of an
information is to reasonably apprise the accused of the charges
against him so that he has the opportunity to prepare and present
his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971.
This requirement is satisfied if the charges sufficiently express
the language of the statute which defines the offense. State v.
Hankins (1984), 209 Mont. 365, 680 P.2d 958. *It is not the
function of the information to anticipate or suggest instructions
to the jury . . . . It is a notice device, not a discovery device.*1
State ex re1 McKenzie v. District Court (1974), 165 Mont. 54, 63,
525 P.2d 1211, 1216. "The defendant has available extensive
discovery procedure to determine the details of the prosecution*^
case." McKenzie, 525 P.2d at 1217, As is apparent, I disagree
with the majority conclusion that there was a substantive
amendment.
This Court has previously concluded that an erroneous
statutory reference will not invalidate the charge. In State v.
Handy (1986), 221 Mont. 365, 719 P.2d 766, the complaint charged
the defendant with driving under the influence of alcohol, but
cited a statute under which the defendant could not have been
convicted, as did the information in this case. This Court stated:
Under the rule of Wnaneck and Schnell, an erroneous
statutory reference will not invalidate the charge.
.The disputed complaint charged appellant using the
..
statutory language and we hold that the complaint
adequately described, and gave notice to appellant of,
the offense he was subsequently convicted of.
Handv, 719 P.2d at 768. Like the defendant in m, Later
Sheriff
was adequately apprised of the charge against him here. Sheriff
Later was given notice of the acts he had done which constituted
LL-
bur L;L~IUC: of officiai i i s o i i c and tar i i o 3 i i i i i correctly
iicidit ifii2kii
referred to the offense of official misconduct although it did not
set forth correctly the statute which created the duty involved.
In fact, the information alternatively charged Later with a felony
for allegedly using the money he received for reimbursed mileage
from the Montana Board of Crime Control for his own personal use.
Later was well aware of the charges against him and was able to
defend against them.
The public policy underlying the technical requirements of a
charging statute is to afford a defendant due process of law--to
fairly apprise a defendant of what crime is being charged in order
to fully defend against it. Sheriff Later received the required
11
due process here. He was acquitted of the charges alleging theft
in relation to this conduct. He could not have been surprised by
the evidence admitted against him at the trial. The statute
listing the mandatory duty was incorrectly cited by the State, but
the facts and circumstances described in the information
unmistakably point to an alleged violation of § 45-7-401(l) (a),
MCA, which was correctly cited by the State and which describes the
crime of official misconduct. The name of a crime is controlled by
the specific acts charged. State v. Collins (1987), 226 Mont. 188,
191, 734 P.2d 686, 689 (citing State v Schnell (1939), 107 Hont.
.
579, 88 P.2d 19). Like Collins, the information here contained
harmless error and was, therefore, sufficient to apprise Later of
the crime charged.
I conclude that the jury instruction was not a substantive
amendment which in fact prejudiced the defendant. I would affirm
September 17, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Leonard J. Haxby & Christine D. Somers
Attorneys at Law
P.O. 3008
Butte, MT 59702-3008
Hon. Jospeh P. Mazurek, Attorney General
Kathy Seeley, Assistant, and Joseph Thaggard,
Special Deputy County Atty.
Justice Bldg.
Helena, MT 59620
Thomas Scott
Beaverhead County Attorney
Beaverhead County Courthouse
Dillon. MT 59725
ED SMITH
CLERK OF THE SUPREME COURT