State v. Bahr

• Decision Date: 10 November 2009
• Docket Number: No. DA 09-0066.,DA 09-0066.
• Citation: 353 Mont. 294,224 P.3d 610,2009 MT 378
• Parties: STATE of Montana, Plaintiff and Appellee, v. Vanessa Topaz BAHR, Defendant and Appellant.
• Court: Montana Supreme Court

224 P.3d 610

2009 MT 378

353 Mont. 294

STATE of Montana, Plaintiff and Appellee, v. Vanessa Topaz BAHR, Defendant and Appellant.

No. DA 09-0066.

Supreme Court of Montana.

Submitted on Briefs October 14, 2009.

Decided November 10, 2009.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Vanessa Bahr was required to maintain registration as a violent offender. She was charged with failure to provide the notice required by law of her change of address, a charge later amended to failing to provide notice of a change of residence. She was convicted after a jury trial and sentenced to five years with the Department of Corrections, all suspended on conditions. Bahr appeals and we affirm.

¶ 2 Bahr raises the following issues on appeal:

¶ 3 Issue One: Whether the District Court erred in refusing to dismiss the charge on the ground that the information was based upon conduct that was not a crime under Montana law.

¶ 4 Issue Two: Whether the District Court erred by allowing the State to amend the information on a matter of substance on the first day of trial.

¶ 5 Bahr was required to register as a violent offender as a result of a 1995 conviction for robbery, and as of 2002 maintained a registration in Glacier County, Montana. See § 46-23-504, MCA. She came to the attention of Great Falls Police in Cascade County, Montana, who were investigating a robbery. They determined that Bahr had been living in Cascade County for over a month without changing her registration information. Based upon these facts, in January, 2008 the State obtained leave to file an information charging her with "failure of violent offender to provide notice of address change," citing §§ 46-23-502(7); -502(9); -505; and -507, MCA.

¶ 6 In October, 2008, over nine months after being arraigned on the charge and four days before the start of trial, Bahr moved to dismiss the charge "for failing to allege an offense recognized by current Montana law." The basis of Bahr's motion was that the statutory offense was failing to provide notification of a change in residence, and that at the time of the incident there was no offense of failure to provide notification of a change of address. The District Court denied the motion to dismiss, and, over Bahr's objection, granted a motion by the State to file an amended information. The amended information changed the description of the offense from failure to provide "notice of change of address" to failure to provide "notice of change of residence." The amendment also changed one of the statutory references from "46-23-502(9)" to "46-23-502(10)."

¶ 7 Issue One: Whether the District Court erred in refusing to dismiss the charge on the ground that the information was based upon conduct that was not a crime under Montana law. Sexual and violent offenders may be required to register their whereabouts by providing the address at which they intend to reside, along with fingerprints and a photo. Sections 46-23-503, and -504, MCA. Prior to 2007, an offender who had a "change of address" was required to give notice of the change within 10 days. Section 46-23-505, MCA (2005). That statute was amended and, at the time Bahr was charged, it required an offender who had 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. Section 46-23-505, MCA (2007). Section 46-23-507, MCA, provided throughout this time: "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 than $10,000, or both."

¶ 8 Bahr was charged by information.

"An information is a written accusation of criminal conduct prepared by a prosecutor in the name of the State. The information must reasonably appraise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense." We read the information, and the affidavit in support thereof, as a whole to determine the sufficiency of the charging documents. We apply the "common understanding" rule to determine if the charging language of a document allows a person to understand the charges against him. Under this standard, "the test of the sufficiency of a charging document is whether the defendant is appraised of the charges and whether he will be surprised."

State v. Wilson, 2007 MT 327, ¶ 25, 340 Mont. 191, 172 P.3d 1264 (internal citations omitted). An information may be amended as to form with leave of the court at any time before verdict, and as to substance up to five days before trial. Section 46-11-205, MCA. A change is as to form when the same crime is charged, the elements of the crime and proof are the same and the defendant is informed of the charges. Wilson, ¶ 26.

¶ 9 An information that contains an erroneous name of the offense or an erroneous statutory reference is not necessarily invalid as long as the charging language passes the "common understanding" rule. State v. Brogan, 261 Mont. 79, 86, 862 P.2d 19, 23 (1993); State v. Longneck, 196 Mont. 151, 154, 640 P.2d 436, 438 (1981).

¶ 10 The District Court correctly concluded that the initial information properly charged an offense. The actual offense that Bahr was charged with did not change: a violation of § 46-23-507, MCA. That section makes it an offense punishable by fine and imprisonment for an offender to fail to "register, verify registration, or keep registration current...." Bahr's...