State v. DaSilva

August 2 2011

DA 10-0323

IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 183

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ROBERT DaSILVA, JR.,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DC 09-137
Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Garrett R. Norcott, Assistant
Appellate Defender; Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana

John Parker, Cascade County Attorney; Great Falls, Montana

Submitted on Briefs: April 20, 2011

Decided: August 2, 2011

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 A jury in the Eighth Judicial District Court, Cascade County, found Robert

DaSilva, Jr., guilty of failure to provide notice of address change as a sex offender, a

felony, in violation of §§ 46-23-505, -504(5), -507, and -502(9)(b), MCA (2007), and

resisting arrest, a misdemeanor. DaSilva appeals, raising two issues. We affirm and

restate the issues as follows:

¶2 1. Did the District Court violate DaSilva’s due process right by instructing the
jury as a matter of law that DaSilva’s previous Washington conviction was a “sexual
offense”?

¶3 2. Did the District Court err in granting a continuance of trial that was
requested by the State to permit an amendment to the Information?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 1998, DaSilva was convicted in Washington of second degree assault with

sexual motivation. On November 6, 2008, DaSilva notified the Great Falls Police

Department (GFPD) of a change of his address to the Great Falls Rescue Mission

(Mission), a homeless shelter. After moving to a residence, DaSilva provided notice that

he had moved back to the Mission on January 14, 2009. In January and February a police

officer attempted to verify DaSilva’s location at the Mission, but was unsuccessful.

During this time DaSilva made no further reports to the GFPD. On February 23, 2009,

the officer received a tip regarding DaSilva’s whereabouts. After locating DaSilva, the

officer attempted to talk with him, but DaSilva ran and was arrested after pursuit.

2
¶5 DaSilva was charged with failure of sex offender to provide notice of address

change, a felony, and resisting arrest, a misdemeanor. He moved to dismiss the notice

charge, contesting that he had an obligation to register in Montana pursuant to his

Washington conviction. The District Court denied the motion, and DaSilva again raised

the issue during settlement of jury instructions, arguing the issue was one of fact for the

jury. The District Court disagreed and instructed the jury that “[u]nder Montana law, a

person who has been convicted of committing a sexual offense is required to register as a

sex offender” and, as a matter of law, DaSilva’s Washington conviction of second degree

assault with sexual motivation was a “sexual offense.” The District Court granted a

continuance of trial in conjunction with an amendment to the Information sought by the

State to add a reference to § 46-23-504(5), MCA, to the notice charge.

¶6 The jury returned a guilty verdict on both charges, and the court sentenced

DaSilva as a persistent felony offender to five years in the Montana State Prison,

designating him a Tier 2 sex offender.1

DISCUSSION

¶7 Section 46-23-507, MCA (2007), of Montana’s Sexual or Violent Offender

Registration Act (SVORA), provides “[a] sexual or violent offender who knowingly fails

to register, verify registration, or keep registration current under this part may be

sentenced to a term of imprisonment of not more than 5 years or may be fined not more

1
DaSilva is incarcerated. In April 2011, we denied his petition for writ of habeas corpus
challenging his denial of parole. Cause No. OP 11-0113, DaSilva v. Green.
3
than $10,000, or both.” We have explained this provision provides the “actual offense”

under SVORA. State v. Bahr, 2009 MT 378, ¶ 10, 353 Mont. 294, 224 P.3d 610. In turn,

§ 46-23-502(10), MCA, defines a “sexual or violent offender” as “a person who has been

convicted of or, in youth court, found to have committed or been adjudicated for a sexual

or violent offense.” A “sexual offense” is defined as including certain Montana offenses

as listed in § 46-23-502(9)(a), MCA, as well as “any violation of a law of another state, a

tribal government, or the federal government that is reasonably equivalent to a violation

listed in subsection (9)(a) or for which the offender was required to register as a sexual

offender after an adjudication or conviction.” Section 46-23-502(9)(b), MCA; see also

United States v. Juvenile Male, 2011 MT 104, ¶¶ 4-5, 360 Mont. 317, ___ P.3d ___.

¶8 1. Did the District Court violate DaSilva’s due process right by instructing the
jury as a matter of law that DaSilva’s previous Washington conviction was a “sexual
offense”?

¶9 DaSilva argues broadly that the District Court’s instruction to the jury that his

Washington conviction was a “sexual offense” usurped the role of the jury, lowered the

State’s burden of proof, and violated his right to due process guaranteed by the

Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the

Montana Constitution. He argues that whether he was required to register in Washington

for purposes of § 46-23-502(9)(b), MCA, presents “a question of historical fact.” Thus,

he reasons the State should have been required to call Washington authorities to testify as

to that state’s registration requirements.

4
¶10 The Judgment and Sentence from DaSilva’s 1998 Washington conviction was

submitted as an exhibit to DaSilva’s motion to dismiss, and the first page of the document

was offered by the State and admitted at trial by judicial notice over DaSilva’s objection.

The first page states DaSilva was found guilty by plea of Assault in the Second Degree

with Sexual Motivation, with a date of crime of March 30, 1997. The Judgment

references Wash. Rev. Code § 9.94A.030, wherein “sex offense” is defined to include

“[a] felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135,” and

“sexual motivation” to mean “that one of the purposes for which the defendant

committed the crime was for the purpose of his or her sexual gratification.” Wash. Rev.

Code § 9.94A.030(33)(b), (34) (1997). The Judgment also references Wash. Rev. Code

§ 9A.36.021(1)(a), which defines the offense of assault in the second degree. There is

stated at the bottom of the first page, with a place for notation, “[a] special verdict/finding

of sexual motivation was returned on Count(s).” The place for notation is not marked.

On the last page there is stated in all capital letters: “Any defendant convicted of a sex

offense must register with the county sheriff for the county of the defendant’s residence

within 24 hours of defendant’s release from custody,” citing Wash. Rev. Code

§ 9A.44.130. DaSilva’s initials are entered next to this statement.

¶11 DaSilva’s motion to dismiss contended that his Washington conviction triggered

no duty to register in Montana and, thus, no duty to notify police of his address change

because: his Washington Judgment did not specifically order him to register; the

Washington conviction was not a “sex offense” under Washington law requiring
5
registration there because no “check” was made next to the Judgment provision regarding

a finding of sexual motivation, indicating the court did not make the requisite finding;

and his Washington offense was not “reasonably equivalent” to a Montana sexual

offense.

¶12 The State provided and incorporated the response it had filed to an identical

motion DaSilva had filed in a 2008 Cascade County criminal proceeding alleging failure

of sex offender to provide notice of address change, presided over by Judge Julie Macek.

The State argued DaSilva’s Washington conviction was a “sex offense” as defined under

the Washington statutes referenced in the Judgment, and that the Judgment required

DaSilva to register as a sex offender because he initialed next to the notice given of the

registration requirement. Judge Macek had denied DaSilva’s motion in the earlier

proceeding, and the District Court took notice of the ruling and likewise found

“persuasive the State’s reasoning as set forth in its response . . . . And I similarly, and on

those reasons, adopt and follow the reasoning and decision made by Judge Macek on this

matter,” and denied DaSilva’s motion.

¶13 Before trial, the State proposed a jury instruction that DaSilva was required to

register as a sex offender in Montana, as a matter of law.2 DaSilva’s counsel responded:

It’s my position that the State needs to prove, as an element of the offense,
that Mr. Dasilva is a person required to register; thus, the State would have

2
In State v. Azure, 2008 MT 211, ¶¶ 1-4, 9, 344 Mont. 188, 186 P.3d 1269, though not an appeal
issue, the jury was instructed on a charge of failure to register as a violent offender under
SVORA that the defendant, who had been convicted of robbery in Montana, “is a person
required to register as a violent offender.”
6
 to prove that he’s a sex offender. I did previously challenge that in a
motion to dismiss, which the Court is aware and that motion was denied.
However, I don’t think that changes the fact that it’s still an issue of fact
that the jury has to make on it’s own.

DaSilva’s proposed instructions provided the definition of “sexual offense” under § 46-

23-502(9), MCA, and separate instructions on each of the eleven Montana offenses

enumerated in subsection (9)(a). He also proposed instructions under Washington law,

including the definition of assault in the second degree, the definition of “sex offense” as

including a felony with a finding of sexual motivation, procedures on finding sexual

motivation, and the requirement that an offender convicted of a sex offense must register.

DaSilva argued:

[A]lthough it’s convoluted, that’s the state we’re in because of the
Legislature -- the legislation that we’re dealing with here. I think the jury is
capable of making that determination. It’s unusual, I will grant you, but
we’[re] dealing with an unusual statute. I think with the instructions I’ve
provided, the jury can determine those issues as a matter of fact.

(Emphasis added.) This dialogue then followed:

[THE COURT:] I just don’t see how I can allow the jury to attempt to
conduct legal analysis and make a conclusion of law that isn’t even really a
mixed question of fact and law, but is just really a pure question of law,
given that there is no, or can be no, reasonable factual dispute, either as to
what the language of the Washington statute was, what the language of the
Montana statute is, and that the only underlying factual predicate here, is
the true factual predicate, is the fact that he was convicted of the particular
offense under Washington law as on the face of the judgment and there’s
no factual dispute there to be resolved.

. . .

[Defense Counsel]: . . . I think there are fact issues.

7
 THE COURT: What are they?

[Defense Counsel]: Beyond what I’ve already stated. I don’t know
that --

THE COURT: There are fact issues in the case as to the other
essential elements of this. And so, when I say there’s no fact issues, I’m
only talking about the narrow discussion we’re having today as it relates to
whether or not the Washington statute that he was convicted under,
constitutes an offense that requires him to register under our law.

[Defense Counsel]: Well, even within that narrow context, Your
Honor, I think there are some facts that -- maybe I haven’t really addressed
adequately today. The judgment itself, part of the statute in Montana to
determine if someone is a sex offender is, whether someone was required to
register in another state, I think it’s purely a fact issue that the jury can look
at the judgment to determine if there were th[ose] requisite findings of
sexual motivation by the court and whether there was a finding by the
Court that the Defendant was required to register. I dispute --

THE COURT: Do we have a copy of the judgment here?

[State]: I’m not -- we’ve done this all before, Judge.

THE COURT: I know we have, I just don’t recall it.

[Defense Counsel]: That’s kind of the issue that I think a jury could
be -- it’s not a problem for a jury, they can take a look at it and see what
they think, whether the fact that those provisions were not checked on the
judgment while others were. I think the jury can easily ascertain from that,
what the intent was.

[State]: That’s nonsense. They don’t have any education, they don’t
have any experience reading convictions, reading jury statutes, knowing
how to do so, especially as a group of lay people. That’s absurd to think
that they could sit and come to a legal conclusion based on that.

(Emphasis added.)

8
¶14 The District Court rejected DaSilva’s proposed instructions, ruling under the

applicable Washington statutes that the offense of second degree assault with sexual

motivation was a sex offense requiring registration as a sex offender in that state. The

court reasoned that, “as a pure matter of law,” the Washington offense was “a violation of

law for which the law of another state required the offender to register as a sexual

offender upon conviction or adjudication within the definition of Section 46-23-

502(9)(b), MCA.” Thus, the Washington offense was a sexual offense as defined under

Montana law, requiring registration. Concerning DaSilva’s argument that a finding of

sexual motivation had not been “checked” on the Judgment, the court ruled:

[A]ny alleged defect as to the form or content of the Washington judgment
of conviction is a matter that Mr. Dasilva could have and should have taken
up on appeal, or otherwise, under Washington law. There is no indication
or assertion in this record that he has done that.
And therefore, that matter has been previously adjudicated under
Washington law; that is the legal effect of the Washington judgment. And
this Court is not going to allow Mr. Dasilva to argue, either as a matter of
fact or law to this jury, that that ambiguity or argue, or apparent ambiguity
on the face of the Washington judgment, is a basis for the jury to conclude
that he was not convicted of a sexual offense under Washington law and as
applicable under Montana law as charged in this case.

The court advised the parties “the bottom line then is” that the “State [] has the factual

burden or the burden of proving the fact that Mr. Dasilva was, in fact, convicted of

committing the offense of assault in the second degree with sexual motivation” and, upon

such proof, “[t]he jury will, then, be instructed by the Court at the appropriate time that

that is a sexual offense within the meaning of Title 46, Chapter 23, Part 5.” Ultimately,

the court gave Instruction 9 to the jury:
9
 A person commits the offense of Failure Of A Sex Offender To
Provide Notice Of Address Change if the person:

(1) is a transient;
(2) is a person required to register as a sex offender;
(3) is a person previously registered with a registration agency; and
(4) knowingly fails to report monthly, in person, to the registration
agency with which he was previously registered.

To convict the Defendant of the offense of Failure Of A [] Sex Offender To
Provide Notice Of Address Change, the State must prove each of these four
elements beyond a reasonable doubt.

Instruction 10 provided, “[u]nder Montana law, a person who has been convicted of

committing a sexual offense is required to register as a sex offender,” and Instruction 11

stated, “[a]s a matter of law, the Washington offense of Assault In The Second Degree

With Sexual Motivation, as defined by §§ 9.94A.030 and 9A.36.021(1)(a), Revised Code

of Washington (RCW), is a ‘sexual offense.’”

¶15 Under the standards of review, “‘[a] district court has broad discretion in

formulating jury instructions, and our standard of review is whether the court abused that

discretion.’” State v. Anderson, 2008 MT 116, ¶ 17, 342 Mont. 485, 182 P.3d 80

(citation omitted). However, while the court’s discretion is broad, “it is ultimately

restricted by the overriding principle that jury instructions must fully and fairly instruct

the jury regarding the applicable law.” State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100,

248 P.3d 303; see also State v. Thorp, 2010 MT 92, ¶ 32, 356 Mont. 150, 231 P.3d 1096.

“[I]nstructions must prejudicially affect the defendant’s substantial rights to constitute

reversible error.” Hovey, ¶ 10. The issue of whether a defendant’s due process rights

10
were violated is a question of law, and we review the district court’s conclusion for

correctness. Anderson, ¶ 17.

¶16 We are convinced upon a review of the trial proceedings that the District Court

correctly ruled and instructed the jury. DaSilva was convicted under Washington law

which provided “[a]ny adult . . . residing in this state who has been found to have

committed or has been convicted of any sex offense . . . shall register with the county

sheriff for the county of the person’s residence.” Wash. Rev. Code § 9A.44.130(1)

(1997) (emphasis added).3 The District Court correctly reasoned DaSilva “was required

to register” because his conviction fit within the definition of “sex offense” under

Washington law. DaSilva’s contentions were legal arguments appropriately raised in a

motion to dismiss. The only “factual issue” that DaSilva identified was in reality a legal

one, challenging whether the Judgment imposed a requirement to register in Washington.

Generally, “all questions of law, including . . . the construction of statutes and other

writings . . . must be decided by the court.” Section 26-1-201, MCA. The issues raised

by DaSilva were legal in nature, which the District Court properly determined and then

instructed the jury.

¶17 DaSilva cites United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995). In

Gaudin, the defendant was convicted by jury in the United States District Court for the

3
State v. Jenkins, 995 P.2d 1268, 1270 (Wash. App. 2000) concluded the 1998 version of this
statute was unconstitutional as applied for vagueness. We reached a similar conclusion
concerning the 2005 version of SVORA in State v. Knudson, 2007 MT 324, ¶ 30, 340 Mont. 167,
174 P.3d 469. Neither party raises this issue with regard to DaSilva’s duty to register here.

11
District of Montana of making material false statements in a matter within the jurisdiction

of a federal agency in violation of 18 U.S.C. § 1001. Gaudin, 515 U.S. at 507-09, 115 S.

Ct. at 2312-13. The Supreme Court held that Gaudin’s right to have the jury determine

guilt of every element of the crime was violated when the court instructed the jury that

false statements allegedly made were material as a matter of law. Gaudin, 515 U.S. at

508, 522-23, 115 S. Ct. at 2313, 2320. However, Gaudin distinguished from its holding

pure questions of law, recognizing that in both civil and criminal cases “the judge must

be permitted to instruct the jury on the law and to insist that the jury follow his

instructions.” Gaudin, 515 U.S. at 513, 115 S. Ct. at 2315 (citing Sparf v. United States,

156 U.S. 51, 105-06, 15 S. Ct. 273, 294-95 (1895)).

¶18 Similarly, we have stated that “[i]nstructing the jury on the law necessary for the

jury’s rendering of a verdict in a criminal case is a duty within the exclusive province of

the trial judge.” State v. Poncelet, 187 Mont. 528, 542, 610 P.2d 698, 706 (1980) (citing

§ 26-1-201, MCA); see also Thorp, ¶ 36 (affirming a jury instruction in a sexual

intercourse without consent case that the victim could not consent to sexual contact

because she was under the age of sixteen at the time of attack). This is what the District

Court did in this case. We conclude the court “fully and fairly” instructed the jury on the

law in this case and did not violate DaSilva’s due process rights.

12
¶19 2. Did the District Court err in granting a continuance of trial that was
requested by the State to permit an amendment to the Information?

¶20 The Information alleged DaSilva, “on or between November 18, 2008 and

February 23, 2009, a registered sex offender in the State of Washington, failed to provide

notice when he changed his address as required by Montana law,” initially charging him

with violation “of M.C.A. §§ 46-23-505, 46-23-507, 46-23-502(9)(b) (2007).” On

September 30, 2009, after trial had been continued twice upon motion of the State and

was scheduled for October 5, 2009, the State filed a motion for leave to amend the

Information to narrow the referenced time frame to between January 14, 2009, and

February 23, 2009, and add a reference to § 46-23-504(5), MCA, as another statute

DaSilva had violated. While § 46-23-505, MCA, one of the SVORA provisions

originally cited in the Information, requires an offender who has a change of name or

residence or a change in student, employment, or transient status, to give notice of the

change within 3 business days, Bahr, ¶ 7, § 46-23-504(5), MCA, additionally provides

that “[a] transient shall report monthly, in person, to the registration agency with which

the transient registered pursuant to subsection (1)(d).”4 DaSilva conceded to the

amendment to the time frame, but objected to the statutory addition, arguing it constituted

a substantive amendment that was untimely under § 46-11-205(1), MCA, which provides

“[t]he court may allow an information to be amended in matters of substance at any time,
4
The Legislature added the latter provision to SVORA in 2007, along with clarifying that a
transient “means an offender who has no residence,” § 46-23-502(12), MCA, and a residence
“does not mean a homeless shelter.” Section 46-23-502(7)(b), MCA. Laws of Montana, 2007,
ch. 483, §§ 19, 20, at 2173-75.

13
but not less than 5 days before trial . . . .” The parties argued the motion at a hearing the

following day, October 1, 2009, four days before trial.

¶21 The State explained the request for amendment arose from defense counsel’s

observation, after reviewing the State’s proposed jury instructions, that the instructions

did not match the offense charged. One of the State’s instructions referenced § 46-23-

504(5), MCA, and stated that two elements of the offense were “[t]hat the Defendant

informed his registration agency that he was a transient,” and “[t]hat the Defendant failed

to report monthly, in person, to the registration agency with which the [sic] he is

registered.” The State argued that SVORA should be viewed as a unitary scheme, that

the addition of § 46-23-504(5), MCA, was not a substantive amendment because § 46-23-

507, MCA, “is what constitutes the offense,” and that the amendment was merely a

“narrowing to specificity as to [] the manner in which he violated 507,” consisting of the

same factual theory—during the referenced time period DaSilva did not keep his

registration current. DaSilva argued the amendment completely changed the State’s

theory and took away his prepared defense to the charge, which was that his transiency

status had not changed, and therefore a directed verdict was possible in his favor.

Although agreeing with the State that SVORA should be viewed as a unitary statutory

scheme, the District Court concluded that for purposes of applying the five-day time

restriction of § 46-11-205(1), MCA, “this is, in fact, a proposed amendment as to

substance, even though it does not change the basic factual proof. It is, nonetheless, a

substantive change because of the distinction in the legal theory between -- on the one
14
hand, the original theory under 46-23-507 and 46-23-505(1) and (2) as opposed to the

distinct legal theory under 46-23-504(5) and 46-23-507.” Thus, the District Court denied

the amendment.

¶22 The State then asked for a continuance of the trial to allow for amendment of the

Information. The State noted the parties had identified October 22 as an available trial

date, and the State stated it would accept the added 17-day delay for purposes of a speedy

trial motion DaSilva had filed. DaSilva argued a continuance would render § 46-11-205,

MCA, meaningless and prejudice him, taking away his prepared defense. The District

Court concluded that substantial prejudice would not result to DaSilva, beyond the short

delay, because the factual theory of the State’s case was not changed and there was no

showing of loss of evidence. It reasoned that § 46-11-205, MCA, “contains no language

indicating to me that the Court cannot, in the interest of justice, grant a continuance to the

State to allow sufficient time to make the substantive amendment that it wants to make on

its legal theory and to, thereby, facilitate trial on the merits on the same factual theory

that existed at the beginning to the very end.” The District Court thus vacated its prior

denial of the amendment and continued the trial until October 22.

¶23 On appeal, DaSilva presents the issue as one of statutory interpretation of § 46-11-

205, MCA, arguing the District Court inserted authority into that statute to grant a

continuance for the purpose of allowing a substantive amendment, which renders § 46-

11-205, MCA, worthless. The State argues the District Court’s action comported with

the plain language of § 46-11-205(1), MCA, that “[t]he court may allow an information
15
to be amended in matters of substance at any time, but not less than 5 days before trial,”

and that the issue is one to be reviewed for abuse of discretion. Neither party challenges

the District Court’s conclusion the requested amendment was substantive in nature.

¶24 Section 46-13-202, MCA, governs continuances and provides that a court “may

upon the motion of either party or upon the court’s own motion order a continuance if the

interests of justice so require.” Section 46-13-202(2), MCA; State v. Garcia, 2003 MT

211, ¶ 14, 317 Mont. 73, 75 P.3d 313. “All motions for continuance are addressed to the

discretion of the trial court and must be considered in the light of the diligence shown on

the part of the movant.” Section 46-13-202(3), MCA. Accordingly, our standard of

review is for an abuse of discretion. State v. Duncan, 2008 MT 148, ¶ 37, 343 Mont.

220, 183 P.3d 111 (“We review discretionary rulings, including a district court’s decision

to grant or deny a motion to continue, for abuse of discretion only.”). “An abuse of

discretion occurs when a court acts arbitrarily without conscientious judgment or exceeds

the bounds of reason resulting in substantial injustice.” City of Missoula v. Robertson,

2000 MT 52, ¶ 34, 298 Mont. 419, 998 P.2d 144. Further, in reviewing a continuance,

we have stated “[a]n abuse of discretion can be present only when the district court’s

ruling prejudices the defendant.” State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200,

79 P.3d 817.

¶25 DaSilva argues the District Court’s ruling prejudiced him by preventing him from

mounting a valid defense to the original charge. The State argues the interests of justice

supported granting the continuance because the factual theory of the State’s case
16
remained the same, with the amendment setting forth the applicable law for the facts in

this case, and DaSilva was not substantially prejudiced by causing him to be unprepared

for trial. The State reasons that any time it amends an information to add a reference to a

statutory provision, a defendant may be precluded from raising a defense. The State

claims it was diligent in preparing for trial and moved for a continuance because it

discovered shortly before trial that DaSilva’s registration at the Mission rendered him a

transient under SVORA.

¶26 We are keenly aware that the question here is not “whether this Court would have

reached the same decision, but, whether the district court acted arbitrarily without

conscientious judgment or exceeded the bounds of reason.” Williams v. Union Fid. Life

Ins. Co., 2005 MT 273, ¶ 39, 329 Mont. 158, 123 P.3d 213. The District Court could

hardly have been faulted had it denied a continuance and required the State to try the case

under the original Information. However, the statutes do not mandate denial of all

continuances which are premised upon a request to amend an information, and we would

not impose such a rule. We have previously noted the “varying terminology” within

SVORA, Azure, ¶ 16, and that numerous amendments have been made to the scheme.

See Juvenile Male, ¶ 5. The transiency statutes, upon which DaSilva was convicted, were

added to SVORA less than two years before the offense here. The trial was delayed 17

days, and the State’s factual contentions did not change, only its legal theory. While the

defendant may still be prejudiced, we reasoned in State v. Van Natta, 200 Mont. 312,

321-22, 651 P.2d 57, 59, 61-62 (1982), that there was no prejudice to the defendant when
17
the information was amended as it was based on the same set of facts. DaSilva had three

weeks to prepare for trial following the entry of the order granting the continuance on

October 2, 2009. We cannot conclude under an abuse of discretion review that the

District Court acted arbitrarily and erred by granting the trial continuance under these

circumstances.

¶27 DaSilva also argues the amendment was invalid because it was not accompanied

by an affidavit of probable cause and the District Court did not arraign him on the

amended Information. The State responds that DaSilva did not object on these grounds

and has waived review. Alternatively, the State points out that the motion to amend

provided the “original affidavit supports the amendment,” and argues the failure to hold

an arraignment constituted harmless error.

¶28 In State v. Longneck, 201 Mont. 367, 372, 654 P.2d 977, 980 (1982), we

concluded the purposes of arraignment “to call the defendant into court to answer the

charges against him and to inform him of certain rights, were waived by the defendant

when he proceeded to trial and defended” against the charge. “Arraignment may be so

waived without any violation of the due process clause ‘so long as the accused had

sufficient notice of the accusation and an adequate opportunity to defend himself.’”

Longneck, 201 Mont. at 372, 654 P.2d at 980 (quoting Garland v. Washington, 232 U.S.

642, 645, 34 S. Ct. 456, 457 (1914)). We conclude DaSilva forfeited these issues, and he

has not sought review by plain error or other means. Thus, we decline to address them

further.
18
¶29 Affirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS

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