State v. Allen

• Decision Date: 08 October 1996
• Docket Number: No. 95-282,95-282
• Citation: 925 P.2d 470,278 Mont. 326
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bryan Keith ALLEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 470

925 P.2d 470

278 Mont. 326

STATE of Montana, Plaintiff and Respondent, v. Bryan Keith ALLEN, Defendant and Appellant.

No. 95-282.

Supreme Court of Montana.

Submitted on Briefs Aug. 29, 1996.

Decided Oct. 8, 1996.

Sherry Petrovich Staedler, Public Defender Project, Anaconda, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Micheal Wellenstein, Asst. Attorney General, Helena, Edward G. Beaudette, County Attorney, Anaconda, for Plaintiff and Respondent.

LEAPHART, Justice.

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 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 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 1/2 Leslie St., Opportunity, [A]naconda, 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 § 45-6-204(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 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.

(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...