No. 01-362
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 89
CITY OF RED LODGE,
Plaintiff and Respondent,
v.
JAMES KENNEDY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon,
Honorable Blair Jones, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Attorney at Law, Billings, Montana
For Respondents:
Honorable Mike McGrath; Attorney General; Pamela Collins,
Assistant Attorney General, Helena, Montana
Gary R. Thomas, City Attorney, Red Lodge, Montana
Submitted on Briefs: January 24, 2002
Decided: May 2, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 James Faddis Kennedy (Kennedy) appeals his conviction in the
Twentieth Judicial District Court, Carbon County, for stalking and
reckless driving. The City of Red Lodge (the City) was joined by
the State of Montana as respondents on appeal (collectively, the
State). Although Kennedy raises numerous issues on appeal, we
limit our discussion to the following dispositive issue, the
resolution of which requires a new trial:
¶2 Did the District Court abuse its discretion by accepting an
Amended Complaint on the day of trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Officer Paul B. Nordlund of the Red Lodge Police Department
issued Kennedy two Complaints and Notices to Appear in city court
in early October 1999. The Complaint for stalking cited a
violation of § 45-5-220(1)(b), MCA, a misdemeanor, and alleged that
on October 5, 1999, Kennedy parked in front of a young woman’s
residence with the motor of his pickup running and lights out, then
pulled from the parked position and stopped in front of the woman’s
front living room window. The Complaint for reckless driving and
attempting to elude a police officer, in violation of § 61-8-
301(1)(b), MCA, stemmed from an incident on October 7, 1999, when
Kennedy allegedly drove at excessive speed within the Red Lodge
city limits and failed to stop for five stop signs while being
pursued by Officer Nordlund, who was attempting to serve an arrest
warrant for the October 5 stalking charge.
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¶4 Following a bench trial in Red Lodge City Court on March 10,
2000, Kennedy was convicted of both offenses. Kennedy appealed the
judgment to the District Court for trial de novo. The county
attorney did not file an information or new complaint in District
Court to reiterate the basis for the charges against Kennedy.
¶5 Kennedy moved to dismiss the stalking charge on double
jeopardy grounds because the City intended to use Kennedy’s
violations of a 1998 Order of Protection issued by Carbon County
Justice Court that resulted in two convictions to prove the
“repeated” element of the current stalking charge. The City’s
brief in response, filed on July 13, 2000, alleged eleven
incidents of stalking that would prove that Kennedy followed,
harassed, threatened or intimidated the young woman repeatedly for
two years. Some of the alleged prior contacts between Kennedy and
the young woman had been documented in police reports, but no
criminal charges had been filed. The court dismissed Kennedy’s
double jeopardy motion. After a number of continuances, the court
scheduled the jury trial to begin on November 28, 2000.
¶6 The day before trial, the Red Lodge City Attorney filed an
amended notice of intent to introduce evidence of other crimes,
wrongs or acts, with a brief in support. On the same day, Kennedy
filed a motion in limine to exclude certain evidence, a motion to
dismiss on the grounds of alleged prosecutorial misconduct, and a
motion to dismiss the stalking charge on the basis that the City
failed to state the offense of repeated stalking behavior in its
Complaint and Notice to Appear. The City filed its response to
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Kennedy’s motions and an Amended Complaint on the morning of the
trial.
¶7 The Amended Complaint charged Kennedy with stalking, pursuant
to § 45-5-220, MCA, and alleged six specific incidents of the
offense, including the October 5 incident that had been charged by
the original Complaint. The amendment also stated that between
December 1997 and October 5, 1999, the alleged criminal acts of
stalking constituted a continuing course of conduct within the
meaning of § 45-1-205(7)(a), MCA.
¶8 Prior to the beginning of the trial on November 28, 2000, the
parties met in chambers. There, the judge denied both of Kennedy’s
motions to dismiss; granted, in part, and denied, in part, the
opposing parties’ motions to introduce and limit evidence at trial;
and accepted the Amended Complaint over Kennedy’s objections. The
trial ensued as scheduled, and the jury returned guilty verdicts to
both offenses.
¶9 Kennedy was sentenced to a one-year term in the Carbon County
Jail and fined $1000 for stalking, and to a consecutive six-month
term and fined $500 for reckless driving/attempting to elude a
peace officer. The District Court ordered Kennedy to pay $1500 in
restitution and the costs of counseling for the victim. At
sentencing, Kennedy received credit against his sentence for time
served prior to conviction, and is due to be released from jail on
May 22, 2002.
DISCUSSION
Did the District Court abuse its discretion by accepting an Amended
Complaint on the day of trial?
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¶10 We review a district court’s decision to permit an amendment
to a criminal complaint or information for abuse of discretion.
State v. Allen (1996), 278 Mont. 326, 330, 925 P.2d 470, 472
(citing State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971,
975). An information must reasonably apprise the accused of the
charges against him, so that he may have the opportunity to prepare
and present his defense. Allen, 278 Mont. at 330, 925 P.2d at 472
(citing Matson, 227 Mont. at 42, 636 P.2d at 975).
¶11 Section 46-11-205, MCA, provides for an amendment to a
criminal information or complaint, as follows:
(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.
(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 statute allows alteration to the form of a complaint any time
prior to verdict, § 46-11-205(3), MCA, but unequivocally prohibits
a court from accepting a substantive amendment within five days of
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the trial. Section 46-11-205(1), MCA. An amendment is one of form
when the same crime is charged, the elements of the crime and the
proof required remain the same and the defendant is informed of
the charges against him. State v. Sor-Lokken (1991), 247 Mont.
343, 349, 805 P.2d 1367, 1371.
¶12 Kennedy contends that the Amended Complaint presented
substantive changes that expanded the charges against him by
altering the statutory citation for the offense of stalking and
alleging five specific incidents of stalking that were not included
in the original Complaint. He argues that the original Complaint
and Notice to Appear charged one violation of subsection (b) of §
45-5-220(1), MCA. By citing the entire stalking statute, the
Amended Complaint expanded the charges to encompasses “following
the stalked person” under subsection (a) as well as “harassing,
threatening or intimidating” under subsection (b). The pertinent
part of § 45-5-220, MCA, reads:
(1) A person commits the offense of stalking if the
person purposely or knowingly causes another person
substantial emotional distress or reasonable apprehension
of bodily injury or death by repeatedly:
(a) following the stalked person; or
(b) harassing, threatening, or intimidating
the stalked person, in person or by phone, by
mail, or by other action, device, or method.
Kennedy claims he was prejudiced by the District Court’s acceptance
of the Amended Complaint on the day of trial because he had no time
to prepare his defense against the new allegations.
¶13 The State maintains that the Amended Complaint altered only
the form of the original Complaint and the District Court was
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correct to accept the amendment at any time prior to the verdict.
Additional allegations of stalking charged no new offense and
merely recited repeated instances of the same offense, according to
the State. Kennedy had ample notice to prepare a defense, the
State argues, because the City had enumerated each act alleged in
the amendment in its brief in response to Kennedy’s double jeopardy
motion filed four months before trial.
¶14 To differentiate amendments of form and substance, we examine
whether an amendment to an information or complaint alters the
nature of the offense, the essential elements of the crime, the
proofs or the defenses. For example, in State v. Matson (1987),
227 Mont. 36, 43, 736 P.2d 971, 975, we held insertion of the word
“serious” before “bodily injury” to describe the charge of
aggravated assault amended the form, not the substance, of an
information. Similarly, an amendment to correct a charge from
possession of methamphetamine to possession of amphetamine
constituted a change in the form of the dangerous drug, and not the
substance of the charge. State v. Clark, 1998 MT 221, ¶ 52, 290
Mont. 479, ¶ 52, 964 P.2d 766, ¶ 52. By contrast, we held the
essential elements of an aggravated assault characterized by
“serious bodily injury” are substantively different from the
elements of an aggravated assault stemming from a “reasonable
apprehension of serious bodily injury by use of a weapon.” State
v. Brown (1976), 172 Mont. 41, 560 P.2d 533. By changing the
statutory subsection under which the defendant was charged, the
amendment charged a wholly new offense. Brown, 172 Mont. at 45,
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560 P.2d at 535. Similarly, in State v. Hallem (1978), 175 Mont.
492, 500, 575 P.2d 55, 61, substitution of one subsection of the
arson statute for another by amendment constituted a change of
substance, altering the crime charged as well as the elements,
proofs and defenses.
¶15 An amendment that substitutes one statutory subsection for
another, as in Brown and Hallem, may charge a wholly new offense
and require new proofs and defenses. The amendment in this case,
rather than substituting one statutory subsection for another,
cites to the entire stalking statute and thus still encompasses the
specific criminal acts charged by the original Complaint without
supplanting the offense of “following” for the offense of
“harassing, threatening or intimidating.” While the more inclusive
statutory citation, itself, is a formal amendment, the Amended
Complaint also invoked § 45-1-205(7)(a), MCA, to link separate
allegations of stalking as a continuous course of conduct, and
effectively put Kennedy on notice that the City intended to
prosecute criminal conduct dating back to 1997. We note that a
charge under § 45-5-220, MCA, can be proven by evidence of stalking
behavior defined by either subsection (a) or subsection (b) of the
statute. Because the amendment alleged two explicit incidents of
“following the stalked person,” in violation of § 45-5-220(1)(a),
MCA, and three additional episodes of “harassing, threatening or
intimidating” under § 45-5-220(1)(b), MCA, the State could prove
the offense with proof of any combination of the acts alleged.
Pursuant to the Amended Complaint, Kennedy could be convicted of
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the offense of stalking without proof of the incident on October 5,
1999, which served as the basis for the original Complaint.
¶16 We conclude that the addition of several new episodes of
stalking to the Amended Complaint, together with the allegation
that all incidents formed a continuous course of conduct dating
back over two years, constituted a change of substance that added
new proofs to the State’s burden and required Kennedy to prepare
new defenses. Although the State argues that Kennedy had notice
four months prior to trial that the prosecution intended to use the
stalking incidents alleged in the Amended Complaint to prove the
element of “repeated” criminal conduct, the court may not rely upon
ancillary court filings to inform the defendant of the charges
against him. While the Amended Complaint clarified the specific
criminal charges against Kennedy prior to trial de novo in district
court, the proposed amendment was not filed in a timely manner at
least five days before trial. Moreover, the court did not follow
the procedures for motioning and re-arraignment required by § 46-
11-205, MCA. We hold the court abused its discretion by accepting
the Amended Complaint on the morning of the trial.
¶17 Reversed and remanded.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
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/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
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