NO. 95-282
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sherry Petrovich Staedler, Public Defender Project,
Anaconda, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal Wellenstein, Ass't Attorney General,
Helena, Montana
Edward G. Beaudette, County Attorney,
Anaconda, Montana
Submitted on Briefs: August 29, 1996
Decided: October 8, 1996
Filed:
i
Clejrk
Justice W. William Leaphart delivered the Opinion of the Court
Bryan Keith Allen (Allen) appeals from the judgment and
sentence of the Third Judicial District Court, Deer Lodge County,
jury verdict convicting him of assault, aggravated burglary, and
aggravated assault. We affirm.
We restate the following issues raised by Allen:
(1) Did the District Court abuse its discretion in permitting
the State to amend its information after the State's
case-in-chief?
(2) Did the District Court err in denying Allen's motion for
a directed verdict?
(3) Did the District Court abuse its discretion by not
admitting testimony of the victim's character?
(4) Did the District Court increase Allen's punishment
because he exercised his constitutional right to a trial?
BACKGROUND
Allen and Sandra Evans (Evans) had been involved in a
turbulent relationship for several years. One evening in April,
1994, Allen and Evans began arguing at a local tavern. After this
argument, Allen went to Evans' home and requested permission to
enter. After Allen entered Evans' home, they began arguing. The
argument became violent and Allen started head butting Evans in the
face and banging her head against the wall. Allen then twisted her
neck and told her that he "ought to just beat her to death." Allen
proceeded to throw Evans into the bathtub and threatened to drown
her. From this assault, Evans suffered a broken nose and numerous
cuts and bumps on her face.
While Allen was beating Evans, Evans' son, D.E., was awakened.
D.E. telephoned his grandparents. After Evans was able to escape
from the house, Allen approached D.E. and asked him where Evans had
gone. Allen then put D.E. behind a door and began hitting D.E.
with the door. When D.E.'s grandparents arrived at Evans' home,
Allen left. The police were contacted and eventually apprehended
Allen.
In May of 1994, the State of Montana charged Allen by
information with assault (against D.E.) and aggravated assault
(against Evans). In June of 1994, the State amended the
information by adding the charges of aggravated burglary and
attempted deliberate homicide (of Evans). In the information, the
State alleged that Allen was guilty of aggravated burglary because
he remained in Evans' home and attacked both Evans and D.E. Allen
pled not guilty and the trial was held in December of 1994.
At trial, after the close of the State's case-in-chief, Allen
moved for a directed verdict on the charges of aggravated burglary
and attempted deliberate homicide. Allen contended that the State
failed to prove that he committed the additional offense necessary
to prove an aggravated burglary. In response to the motion, the
State moved to amend the information and Allen objected. The
District Court granted the motion to amend the information and
denied Allen's motion for a directed verdict. The jury found Allen
guilty of aggravated burglary, aggravated assault (against Evans),
and assault (against D.E.). Following the jury's verdict, Allen
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brought this appeal requesting relief in the form of either a
reversal, a new trial or a re-sentencing.
DISCUSSION
(1) Did the District Court abuse its discretion when it
allowed the State to amend its information after its
case-in-chief?
The standard of review for a district court's decision to
permit the State to amend an information is abuse of discretion.
State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 975. An
information is a written accusation of criminal conduct prepared by
a prosecutor in the name of the State. The information must
reasonably apprise the accused of the charges against him, so that
he may have the opportunity to prepare and present his defense.
Matson, 736 P.2d at 975.
Allen was originally charged with aggravated assault (against
Evans), and assault (against D.E.). Prior to trial, the State
charged Allen by amended information with aggravated burglary,
aggravated assault (against Evans), attempted deliberate homicide
(of Evans), and assault (against D.E.). At trial, Allen made a
motion for a directed verdict. Allen argued that in order to prove
the aggravated burglary, the State had to prove that Allen
committed all three elements of the charge: (1) remaining
unlawfully in an occupied structure; (2) that he was there with the
purpose to commit an offense therein; and (3) he inflicted bodily
injury on another. See § 45-6-204, MCA. At the time Allen
objected to the information, it stated that Allen was guilty of
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aggravated burglary because he remained in Evans' home and
assaulted both Evans and D.E. The information did not refer to a
separate offense as grounds for an aggravated burglary charge.
In order to prove aggravated burglary, the State had to prove
that "in the course of committing the offense . . . he purposely,
knowingly, or negligently inflicts or attempts to inflict bodily
injury upon anyone." Section 45-6-204(2) (b), MCA. Allen contends
that, assuming the State proved that he assaulted Evans and D.E. as
part of the burglary, the State failed to establish aggravated
burglary by proving that he also inflicted bodily injury on
another; that is, someone other than Evans or D.E. Even assuming,
without so holding, that the charge of aggravated burglary requires
proof of a separate charge of infliction of bodily injury upon an
additional party, that argument was satisfied by both the amendment
to the information and the proof adduced at trial.
At the beginning of Allen's trial, the June 15, 1994, amended
information stated:
On or about April 29, 1994, at approximately 02:30
a.m. in Opportunity, Anaconda, Montana, BRYAN KEITH ALLEN
knowingly entered or remained unlawfully in the occupied
structure at 17 l/2 Leslie St., Opportunity, [Alnaconda,
Montana, with the purpose to commit an offense therein
and in the course of committing the offense therein
purposely, knowingly or negligently inflicted bodily
injury upon SANDRA LEE EVANS and D.E., a minor, thereby
committing the crime of AGGRAVATED BURGLARY, a felony, in
violation of § 45-&204(2)(b) MCA.
After its case-in-chief, the State again amended the above
information. In its amendment, the State made the assault against
Evans the basis for the aggravated assault and burglary, while the
assault against D.E. was the additional charge forming the basis of
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the charge of aggravated burglary. Allen argues that these
amendments to the information were changes of substance and not
form in two respects. First, Allen maintains that the amended
information changed the nature of the charge. Second, Allen argues
that the amended information lowered the State's burden of proof.
In support of these contentions, Allen cites to State v. Sor-
Lokken (1991), 247 Mont. 343, 805 P.2d 1367. In Sor-Lokken, this
Court held that an amendment is one of form and not substance when,
"the same crimes are charged, the elements of the crimes remain the
same, the required proof remains the same, and the defendant is
informed of the charges against him." Sor-Lokken, 805 P.2d at 1371
(citing Matson, 736 P.2d at 975). This requirement may be
satisfied if the charges sufficiently express the language of the
statute which defines the offense. Matson, 736 P.2d at 975 (citing
State v. Hankins (1984), 209 Mont. 365, 372, 680 P.2d 958, 962).
In addition to the requirements set out in Sor-Lokken, § 46-
11-205 MCA, also restricts the State's ability to make substantive
changes to an information. Specifically, § 46-11-205, MCA, states:
46-11-205. Amending information as to substance or
form. (1) The court may allow an information to be
amended in matters of substance at any time, but not less
than 5 days before trial, provided that a motion is filed
in a timely manner, states the nature of the proposed
amendment, and is accompanied by an affidavit stating
facts that show the existence of probable cause to
support the charge as amended. A copy of the proposed
amended information must be included with the motion to
amend the information.
(2) If the court grants leave to amend the
information, the defendant must be arraigned on the
amended information without unreasonable delay and must
be given a reasonable period of time to prepare for trial
on the amended information.
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(3) The court may permit an information to be
amended as to form at any time before a verdict or
finding is issued if no additional or different offense
is charged and if the substantial rights of the defendant
are not prejudiced.
The State's amendment to Allen's information did not relieve the
State of the burden of proving any of the elements of aggravated
burglary. Rather, it allowed the State to satisfy the aggravating
element by reference to proof that was already offered in the
context of the separate charge of assault on D.E. Applying both
the test set forth in Sor-Lokken, and the above statute to the
record in this case, we conclude that the State's amendments to the
information were changes in form and not substance. Although these
changes were made after the State's case-in-chief, Allen was
charged with the same crime, the elements remained the same, the
proof required remained the same, and Allen was fully informed of
the charges against him. Allen was not prejudiced by these
amendments. Because the changes to the information were merely of
form and not substance, we affirm the District Court's decision
permitting the State to amend its information.
(2) Did the District Court err in denying Allen's motion for
a directed verdict?
A district court's decision to grant or not to grant a
directed verdict will not be disturbed absent an abuse of
discretion. A decision to grant an acquittal is appropriate only
where there is no evidence to support a guilty verdict. State v.
Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141; State v.
Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547.
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In the instant case, the District Court was justified in
finding that there was enough evidence for the jury to consider the
charges against Allen. Allen argued that the aggravated burglary
statute requires both the purpose to commit an offense, and the
infliction of bodily injury. See Section 45-6-204(2), MCA. Allen
maintains that since the State was relying on his assault of both
Evans and D.E. as the requisite offense for the simple burglary, it
needed to prove infliction of bodily injury upon someone other than
Evans or D.E. in order satisfy its burden of aggravated burglary.
Section 45-6-204(2), MCA. In other words, Allen argues that since
his assaults of Evans and D.E. were the basis for the burglary
charge, they could not also support the aggravated burglary charge.
Without ruling on the validity of Allen's analysis of the
requirements of aggravated burglary under these facts, we note that
the record indicates that the State presented the jury with
testimony from Evans, and D.E., both of whom explained that Allen
remained in Evans' home and assaulted D.E. after he assaulted
Evans. From the record, it is clear that the jury was presented
with sufficient evidence to find each of the elements of each
crime. Therefore, we find that there was sufficient evidence to
support a jury conviction and affirm the District Court's decision
not to grant Allen a directed verdict.
(3) Did the District Court abuse its discretion by not
admitting testimony of the victim's character?
The standard of review for evidentiary rulings is whether the
district court abused its discretion. State v. Gollehon (19931,
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262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of
whether evidence is relevant and admissible is left to the sound
discretion of the trial judge and will not be overturned absent a
showing of abuse of discretion. Gollehon, 864 P.2d at 1263. See
_also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063,
1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378,
380.
Allen argues that the District Court erred when it sustained
the State's objection to his inquiry of Evans regarding a previous
physical altercation between Allen and Evans. During his cross-
examination of Evans, defense counsel inquired about an altercation
between Allen and Evans in which Evans supposedly lied about Allen
having injured her. In that 1991 incident, Evans maintained that
Allen had twisted her arm and snapped it. Allen maintained that
none of this was true. When defense counsel questioned Evans about
this incident, the State objected, stating that defense counsel was
going beyond the scope of direct examination. This objection was
sustained. Furthermore, Allen did not contend that under Rule
608(b), M.R.Evid., he should be allowed to pursue this line of
questioning. Rather, Allen presents an argument based on Rule
608(b), M.R.Evid., for the first time on appeal to this Court.
In order to have properly preserved this issue for appeal,
Allen should have offered the testimony as character evidence under
Rule 608(b), M.R.Evid., thereby affording the trial court an
opportunity to evaluate the questions in the context of that Rule.
This he did not do. He did not raise the issue of admissibility
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under Rule 608 with the District Court. Rather, he simply
acquiesced in the court's ruling that the questioning exceeded the
scope of the direct. Because Allen failed to argue to the District
Court that he should be allowed to question Evans as to credibility
pursuant to Rule 608, M.R.Evid., we can not now address the merits
of that argument raised for the first time on appeal. Marsh v.
Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093; Buhr v.
Flathead County (1994), 268 Mont. 223, 237, 886 P.2d 381, 389.
Therefore, we hold that the District Court's decision to restrict
cross-examination which exceeded the scope of the direct
examination was not an abuse of discretion.
(4) Did the District Court increase Allen's punishment
because he exercised his constitutional right to a trial?
District courts have broad discretion in sentencing defendants
convicted of criminal offenses. State v. Smith (Mont. 1996), 916
P.2d 773, 780, 53 St.Rep. 459, 463 (citing State v. Lloyd (1984),
208 Mont. 195, 199, 676 P.2d 229, 231). This Court will generally
review a criminal sentence only for legality--that is, to determine
whether it is within the statutory parameters established by the
legislature; where a sentence is within those parameters, we
generally will affirm it. Smith 916 P.2d at 780; See also State
, - -
v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1091.
However, there are exceptions to these general rules.
Punishing a person for exercising a constitutional right is a
basic due process violation. State v. Baldwin (19811, 192 Mont.
521, 525, 629 P.2d 222, 225. Pointing to the disparity between the
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pre-trial plea offer and the ultimate sentence imposed, Allen
contends that his sentence may have been in retaliation for
rejecting the plea offer and going to trial. Relying on Baldwin,
Allen maintains that the disparity between the sentence he received
and the pre-trial plea offer was a result of the District Court's
punishing him for exercising his constitutionally protected right
to a trial. As this Court explained in Baldwin, 629 P.2d at 225,
"[a] policy of leniency following a plea is proper, but its
converse, 'extra' severity following trial is not." However, a
mere disparity between the sentence offered during plea bargaining
and that ultimately imposed is not, of itself, improper. Baldwin,
629 P.2d at 225; In re Lewallen (Calif. 1979), 590 P.2d 383, 386.
This case significantly differs from Baldwin where the
sentencing court wrote defense counsel a letter which explained,
[ulpon a plea of guilty the minimum sentence that I would
give Mr. Baldwin would be a 5 year sentence with all but
45 days suspended, said 45 days to be served in the State
Prison at Deer Lodge, Powell County, Montana. . . I
feel that this is as lenient as I can possible be in the
case, and that if he does not want to enter a plea on
these conditions why should we prepare to go to trial on
the merits of the case.
Baldwin, 629 P.2d at 224. Unlike Baldwin, where the district court
participated in the plea bargaining process, Allen has presented no
evidence that the District Court in this case was involved in pre-
trial plea negotiations. Although there is a disparity between the
sentence proposed by the State and the sentence Allen ultimately
received, Allen has failed to show that this disparity is the
result of the District Court's punishing him for going to trial.
Because Allen has failed to substantiate his claim that he was
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punished for exercising his right to a trial, we affirm the
District Court's sentence.
Accordingly, we affirm the District Court.
We concur:
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October 8, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Sherrv Petrovich Staedler
Hon. Joseoh P. M m