State v. Cline, DA 12–0492.

• Docket Nº: No. DA 12–0492.
• Citation: 305 P.3d 55, 371 Mont. 18
• Case Date: July 15, 2013
• Court: United States State Supreme Court of Montana

371 Mont. 18
305 P.3d 55

STATE of Montana, Plaintiff and Appellee,
v.
Curtis Donald CLINE, Defendant and Appellant.

No. DA 12–0492.

Supreme Court of Montana.

Submitted on Briefs March 13, 2013.
Decided July 15, 2013.

[305 P.3d 56]

For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney; Melissa Broch, Deputy County Attorney, Helena, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

[371 Mont. 19]¶ 1 The State of Montana (State) charged Curtis Cline (Cline) with theft by common scheme, in violation of § 45–6–301(a), MCA. Cline filed a motion to dismiss the charge. Cline argued that the charge violated his

[305 P.3d 57]

right not to be subject to double jeopardy under § 46–11–504, MCA. The District Court denied Cline's motion to dismiss. Cline appeals. We affirm.

¶ 2 Cline presents the following issue on appeal:

¶ 3 Whether the theft by common scheme charge subjected Cline to double jeopardy?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 Cline stole numerous firearms and other merchandise from his employer, Bob Ward & Sons, between December 2010 and June 2011. The United States charged Cline with theft of firearms from a federal licensee, in violation of 18 U.S.C. § 922(u), and possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Cline entered a guilty plea to these federal charges.

¶ 5 The State separately charged Cline with the theft of the firearms and the non-firearm merchandise that Cline had stolen from Bob Ward & Sons. Cline filed a motion to dismiss for violation of his statutory double jeopardy rights. The State amended its complaint to include only the non-firearm merchandise. Cline argued that this amendment did not cure the double jeopardy violation. The District Court denied the motion to dismiss. Cline entered a conditional guilty plea that preserved his right to appeal the District Court's denial of his statutory double jeopardy motion to dismiss.

[371 Mont. 20]STANDARD OF REVIEW

¶ 6 A district court's decision to grant or deny a defendant's motion to dismiss a charge on the basis of double jeopardy presents a question of law that we review for correctness. State v. Neufeld, 2009 MT 235, ¶ 10, 351 Mont. 389, 212 P.3d 1063.

DISCUSSION

¶ 7 Whether the theft by common scheme charge subjected Cline to double jeopardy?

¶ 8 Section 46–11–504(1), MCA, sets forth Montana's statutory protection against double jeopardy. This statute provides that when conduct constitutes an offense within a different jurisdiction, a prosecution in that different jurisdiction bars a subsequent prosecution in Montana for an offense that arose out of the same transaction. We have interpreted this statute as providing criminal defendants with greater protection against double jeopardy than the United States Constitution. State v. Cech, 2007 MT 184, ¶ 13, 338 Mont. 330, 167 P.3d 389.

¶ 9 We apply a three part test to determine whether double jeopardy bars a subsequent prosecution. State v. Fox, 2012 MT 172, ¶ 19, 366 Mont. 10, 285 P.3d 454. We look first to whether the defendant's conduct constitutes an equivalent offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued. We next look at whether the first prosecution resulted in an acquittal or a conviction. Finally, we look at whether the second jurisdiction based the subsequent prosecution on an offense that arose from the same transaction. All three factors must be met to bar a subsequent prosecution. Fox, ¶ 19.

¶ 10 The State admits that Cline's first prosecution resulted in a conviction. The State further admits that it based the subsequent prosecution on an offense that arose out of the same transaction as Cline's federal prosecution. We must determine, therefore, whether Cline's conduct constitutes an equivalent offense within both jurisdictions.

¶ 11 We described the equivalent offense requirement in Fox. “[T]he same conduct must subject a defendant to the possibility that he could be convicted of an ‘equivalent offense’ in each jurisdiction.” Fox, ¶ 21. The two offenses need not be identical to be considered equivalent. Further, the equivalent offense requirement can be met even if the defendant is not charged with the offense in both jurisdictions. A [371 Mont. 21]defendant can meet the equivalent offense requirement as long as his conduct constitutes “an equivalent offense in both jurisdictions.” Fox, ¶ 21.

¶ 12 Cline's conduct resulted in two distinct types of offenses: theft of firearms and

[305 P.3d 58]

theft of non-firearm items. Theft of firearms qualifies as an equivalent offense as it constitutes an offense under both federal and Montana law. See18 U.S.C. § 922(u); § 45–6–301(a), MCA. Cline argues that the fact that one of his offenses constitutes an “equivalent offense” should bar the subsequent prosecution for any of the other offenses that he committed as part of that same transaction. The State counters that the equivalent offense requirement should be offense specific. The State admits that theft of firearms represents an equivalent offense under federal and state law, and, therefore, it cannot prosecute Cline for theft of the firearms. The State argues, however, that Cline's theft of the non-firearm items does not represent an equivalent offense. The State points out that the United States could not have prosecuted Cline for the non-firearm related offenses.

¶ 13 We have considered whether double jeopardy bars a subsequent prosecution when multiple offenses arise out of the same conduct. When the first jurisdiction could prosecute a defendant for both offenses, but chooses to prosecute only one offense, the second jurisdiction cannot then prosecute the second offense. For example, the State of Washington successfully prosecuted Casey Cech (Cech) for possession of stolen property. Cech, ¶ 5. Cech had stolen a vehicle in Montana and had driven the vehicle to Washington. Montana later attempted to prosecute Cech for theft of the vehicle. We determined that Washington law included an “equivalent offense” to theft of the vehicle. We further determined that Washington could have prosecuted Cech for theft of the vehicle when it prosecuted Cech for possession of the stolen vehicle. Washington's exercise of its prosecutorial discretion not to prosecute Cech for theft of the vehicle barred Montana under double jeopardy principles from prosecuting Cech separately for theft of the vehicle. Cech, ¶ 18.

¶ 14 Double jeopardy does not bar prosecution of two separate offenses in the two jurisdictions when a defendant's conduct constitutes an offense in one jurisdiction and a separate offense in a second jurisdiction. John Gazda (Gazda) shot and killed Bronson Smith in Montana. State v. Gazda, 2003 MT 350, ¶ 2, 318 Mont. 516, 82 P.3d 20. The United States charged Gazda, a felon, with possession of a weapon and possession of ammunition. Gazda, ¶ 2. Montana later charged Gazda with deliberate homicide. Gazda, ¶ 3. Montana's [371 Mont. 22]prosecution did not violate Gazda's right against double jeopardy. The United States did not have authority to prosecute Gazda for deliberate homicide. No equivalent offense existed under federal law that would capture Gazda's misconduct. As a result, double jeopardy did not bar Montana from prosecuting Gazda for deliberate homicide. Gazda, ¶ 17.

¶ 15 Cline argues that double jeopardy bars a second prosecution when any overlap of jurisdiction exists. Cline points out that Montana could not have prosecuted Gazda for having been a felon in possession and that the United States could not have prosecuted Gazda for homicide. Cline argues that this lack of overlap underpinned the Court's conclusion that double jeopardy did not bar Montana's subsequent prosecution. Cline contends that Montana could not have prosecuted Gazda for homicide if Montana had an equivalent offense to felon in possession.

¶ 16 Cline cites State v. Sword, 229 Mont. 370, 747 P.2d 206 (1987), to support his interpretation of the equivalent offense requirement. Phil Sword (Sword) shot and killed a grizzly bear in the Great Bear Wilderness in Montana. Both federal and state law banned the shooting of grizzly bears in the Great Bear Wilderness. Sword obtained a trophy...