State v. Harlson, 05-251.
| Decision Date | 05 December 2006 |
| Docket Number | No. 05-251.,05-251. |
| Citation | 335 Mont. 25,150 P.3d 349,2006 MT 312 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Leon HARLSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Richard J. Carstensen, Billings, Montana.
For Respondent: Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Christopher A. Morris, Deputy County Attorney, Billings, Montana.
¶ 1 Leon Harlson appeals from his convictions in the Thirteenth Judicial District Court, Yellowstone County, of two counts of theft and one count of criminal endangerment. Harlson alleges multiple errors both before and during trial. We affirm.
¶ 2 Harlson raises the following issues on appeal:
¶ 3 1. Did the District Court abuse its discretion when it allowed the State to amend the information?
¶ 4 2. Did the District Court abuse its discretion in denying Harlson's motion to dismiss for failure of the affidavit to show probable cause?
¶ 5 3. Did the District Court abuse its discretion when it denied Harlson's motion to sever?
¶ 6 4. Did the District Court err in denying Harlson's motion to dismiss for lack of speedy trial?
¶ 7 5. Did the District Court abuse its discretion in prohibiting Harlson's proposed rebuttal witness concerning the value of the trucks at issue in Counts I and II?
¶ 8 6. Did the prosecutor improperly comment during closing argument on Harlson's failure to testify?
¶ 9 On May 25, 2003, Perry Metcalf and Barbara Hensley were arrested at Hensley's Billings, Montana, residence and taken to jail. Metcalf's truck was left parked outside Hensley's house. Hensley's friend Georgia Frankfurth obtained the keys to Metcalf's truck for the purpose of moving the vehicle to a safer location. However, since Frankfurth did not have a driver's license, she asked her son, Leon Harlson, to move the truck. Harlson apparently kept the vehicle for several days. On June 1, 2003, Metcalf reported to the Billings Police Department (BPD) that his truck had been stolen. On June 5, 2003, Harlson drove Metcalf's truck to the Wild West Saloon. He pulled up behind Angela Brown as she was cleaning a spilled beverage out of her truck and borrowed a lighter from her. Brown then entered an adjacent business to pick up her step-father. Brown's step-father saw Harlson drive off in Brown's truck. Brown reported the theft to the BPD.
¶ 10 Lieutenant Timothy O'Connell of the BPD observed Harlson driving the truck at about fifty miles per hour in a residential area with a twenty-five mile-per-hour speed limit. He also observed Harlson fail to stop at a stop sign. Officer Tim Hawkins also responded to the report of the stolen truck. He followed the truck and could barely keep up with it while driving sixty miles per hour. Harlson left the truck at 727 Howard Street and ran into a residence. Several police officers arrived and searched the area. Harlson eventually came out of the residence.
¶ 11 Officer Hawkins could smell the odor of alcohol on Harlson and observed that Harlson's eyes were red and bloodshot. Officer Hawkins noted that Harlson acted lethargic and slurred his speech. He transported Harlson to the DUI processing center, where Harlson failed field sobriety tests. Harlson refused to perform a breath test.
¶ 12 The State charged Harlson by information with two counts of felony theft and one count of felony criminal endangerment. The first trial ended in a mistrial when his attorney discovered a conflict of interest. Before the second trial, the State filed an amended information which added a misdemeanor count of driving under the influence (DUI). A jury convicted Harlson of both theft counts and the criminal endangerment count, and found Harlson not guilty of DUI. This appeal followed Harlson's sentencing. Further facts will be discussed as necessary.
¶ 13 ISSUE 1: Did the District Court abuse its discretion when it allowed the State to amend the information?
¶ 14 We review a district court's decision to allow the State to amend a criminal complaint or information for abuse of discretion. State v. Allen, 278 Mont. 326, 330, 925 P.2d 470, 472 (1996).
¶ 15 Section 46-11-205(1), MCA, provides:
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.
¶ 16 In analyzing issues arising under § 46-11-205, MCA, we require stricter adherence to the procedural rules when the amendment is one of substance rather than form. State v. Kern, 2003 MT 77, ¶ 41, 315 Mont. 22, ¶ 41, 67 P.3d 272, ¶ 41. In this case, the State filed an amended affidavit and motion for leave to file amended information (motion to amend) on March 22, 2004, listing DUI as an additional charge. This amendment was one of substance, since it altered the nature of the offense and essential elements of the crime, and changed the proofs and defenses required by adding a DUI charge. See Kern, ¶ 42 (citing City of Red Lodge v. Kennedy, 2002 MT 89, ¶ 14, 309 Mont. 330, ¶ 14, 46 P.3d 602, ¶ 14). In Kern, even though the State moved to amend the information orally rather than in writing, we determined that the defendant was made aware of each change and his substantial rights were not prejudiced. Kern, ¶ 43.
¶ 17 Harlson argues that the State, in filing the amended information against him, failed to follow the requirements of § 46-11-205, MCA. Harlson alleges that the State failed to timely file the motion to amend. The State, however, filed both the motion to amend and the amended information more than five days before trial as required by § 46-11-205(1), MCA. Although Harlson alleges that the motion to amend failed to provide a statement as to the nature of the proposed amendment, the motion clearly states that the additional charge was DUI. Harlson also alleges that the failure of the State to file a written notice denied him the time to object. This contention is belied by the record which shows that the State filed the written motion to amend on March 22, 2004, and Harlson objected to this filing by motion on March 30, 2004.
¶ 18 Harlson correctly stated that the State failed to include a copy of the proposed amended information with the motion to amend, as required by § 46-11-205(1), MCA. As noted, the State filed the motion to amend on March 22, 2004, and the amended information three days later. This timely filing cured any possible prejudice to Harlson's substantial rights. Even with the stricter adherence to the procedural rules necessary with an amendment of substance, the State's failure to include a copy of the proposed amended information with its motion does not amount to reversible error. See Kern, ¶ 43. This Court previously stated its unwillingness to "lay down a rule which would permit the guilty to escape punishment on technical grounds and when all his substantial rights have been protected ...." State v. Wehr, 57 Mont. 469, 479, 188 P. 930, 932-33 (1920).
¶ 19 Harlson also argues that the State amended the information to add the DUI count in order to introduce evidence, excluded in the first trial, that Harlson was intoxicated. We need not consider this argument, however, since Harlson failed to raise or address it in his motions before the District Court. We will not address an issue raised for the first time on appeal or a party's change in legal theory. State v. Wetzel, 2005 MT 154, ¶ 13, 327 Mont. 413, ¶ 13, 114 P.3d 269, ¶ 13.
¶ 20 ISSUE 2: Did the District Court abuse its discretion in denying Harlson's motion to dismiss for failure of the affidavit to show probable cause?
¶ 21 We review a district court's determination that a motion to file an information is supported by probable cause for abuse of discretion. State v. Dunfee, 2005 MT 147, ¶ 31, 327 Mont. 335, ¶ 31, 114 P.3d 217, ¶ 31.
¶ 22 Harlson contends that the District Court abused its discretion in failing to dismiss the four charges against him in the amended information. He argues that the State failed to include sufficient evidence in the amended affidavit to support a finding of probable cause as required under § 46-11-201, MCA.
¶ 23 Section 46-11-201, MCA, provides:
(1) The prosecutor may apply directly to the district court for permission to file an information against a named defendant.
....
(2) An application must be by affidavit supported by evidence that the judge or chief justice may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge or chief justice shall grant leave to file the information, otherwise the application is denied.
¶ 24 To establish the sufficiency of charging documents, we must read the information together with the affidavit in support of the motion for leave to file the information. State v. Elliott, 2002 MT 26, ¶ 26, 308 Mont. 227, ¶ 26, 43 P.3d 279, ¶ 26. The affidavit in support need not make out a prima facie case that a defendant committed an offense; a mere probability that the defendant committed the offense is sufficient. Elliott, ¶ 26.
¶ 25 Counts I and II of the charging documents allege that Harlson committed theft in violation of § 45-6-301, MCA, which provides:
(1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the property.
The theft of property...
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