State v. Hocter

• Decision Date: 11 October 2011
• Docket Number: No. DA 10–0437.,DA 10–0437.
• Citation: 262 P.3d 1089,362 Mont. 215,2011 MT 251
• Parties: STATE of Montana, Plaintiff and Appellee,v.Alicia Jo HOCTER, Defendant and Appellant.
• Court: Montana Supreme Court

362 Mont. 215

262 P.3d 1089

2011 MT 251

STATE of Montana, Plaintiff and Appellee,

v.Alicia Jo HOCTER, Defendant and Appellant.

No. DA 10–0437.

Supreme Court of Montana.

Submitted on Briefs Aug. 3, 2011.Decided Oct. 11, 2011.

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.Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[362 Mont. 216]¶ 1Alicia Hocter appeals from her conviction in the District Court, Eighth Judicial District, Cascade County.We affirm.

ISSUE

¶ 2 Hocter raises two issues on appeal:

¶ 3 1.Did the District Court err when it denied Hocter's motion to dismiss the charge of criminal endangerment?

¶ 4 2.Whether the District Court erred in instructing the jury on criminal endangerment predicated on a defendant's omission or failure to act.

BACKGROUND

¶ 5 On March 4, 2009, the State filed an information charging Hocter with attempted deliberate homicide, §§ 45–5–102and45–4–103,MCA(2007), and, in the alternative, attempted mitigated deliberate homicide, §§ 45–5–103and45–4–103,MCA(2007).On February 18, 2009, at approximately 3:00 p.m., Hocter was at her apartment that she shared with her boyfriend.Her boyfriend was out at the time, and she was caring for both her one-month-old child, and her boyfriend's six-month-old daughter S.B.

¶ 6 The affidavit that accompanied the charging information alleged that S.B. was crying and Hocter could not comfort her.Hocter picked S.B. up and dug her fingers into S.B.'s abdomen.As S.B. was wriggling, Hocter tripped and lost her temper.She swung S.B. head-first into the top bar of her crib at least twice.The first strike caused S.B.'s head to recoil and potentially double-strike.The second strike resulted in a sudden stop of S.B.'s head into the rail.Hocter then tossed S.B. into the crib, turned music up, and left the room.Hocter subsequently realized that S.B. needed help.She claimed that she could not find her phone to call 911.Additionally, she asserted that despite S.B.'s distress, she did not seek help from her neighbors because she did not want to leave her one-month-old infant.S.B. is now permanently blind with long-term handicaps in vision, motor functioning and cognitive functioning.

¶ 7 In early November, Hocter and the State entered into a plea agreement.The State agreed to drop both attempted homicide charges and Hocter agreed to plead guilty to new charges of aggravated assault, § 45–5–202,MCA(2007), and criminal endangerment, § 45–5–207,MCA(2007).The agreement stated that if the District Court refused to adopt the agreement, Hocter could withdraw her guilty plea.The State filed an amended information reflecting the new charges.

¶ 8 On November 16, 2009, Hocter appeared at a change of plea hearing.She engaged in the following colloquy with the District Court:

[Court]: Alright.So, the State then alleges, under the Amended information that's filed here today, that you committed the offense of Aggravated Assault, a Felony, and Criminal Endangerment, a Felony, on or about February 18th, 2009, in Cascade County, Montana.What is it that you did that constitutes those offenses?

[Hocter]: I struck a child, [S.B.], on a crib with more force than I had known, causing serious injury, bodily injury.

[Court]: All right.And whose child was it?

[Hocter]: It was my boyfriend's, at the time.

...

[Court]: Okay.And how did you come to have contact with the child?Were you taking care of the child?

[Hocter]: Yes.

...

[Court]: Okay.So, what happened?How did this all happen?

[Hocter]: I had been under a lot of stress and the best way to explain it, is that I had been mourning that day because it was the anniversary of my mother's passing and [S.B.] had been colicky and I had only recently given birth.

...

[Court]: Okay.

[Hocter]: And the stress had gotten to me.

[Court]: All right.So, what happened?Was [S.B.] crying because she was colicky?

[Hocter]: Yes.

[Court]: Okay.And what—

[Hocter]: I went to take her to her crib and to put her down to see if she would take a nap and I don't remember right after that, but I had come back and she had been very seriously injured.And I tried to find a phone, could not find one.

[Court]: Well, now, back up.Now, I know you said you hit her, but I want you to take me through exactly what happened.

...

[Hocter]: That I had took her into the room and I was very frustrated.I had held her by the waist and chest area and struck her on to the crib.And then, roughly put her into her crib and walked out, shutting the door.

[Court]: Okay.When you say you had struck her, you're holding by the waist and you struck her on the crib, how did you do that?Did you swing her and hit her head on the crib or what?

[Hocter]: I don't know how best to describe it.It was as if—well, I had her by the waist in the ribcage area and it's not that I had swung her over my shoulder or anything, it was more from my body to the crib.And then, that was it.

[Court]: And when you say you struck her on the crib, then did her head hit the crib?

[Hocter]: Yes.

...

[Court]: How many times did you do that?

[Hocter]: A couple times, like twice.

[Court]: All right.Did you see that the baby was hurt or injured at that time?

[Hocter]: At the time, I did not.

[Court]: What did you do, then, after you hit her on the crib twice?

[Hocter]: I roughly put her in the crib.

... [Court]: I understand that you say you didn't remember this until later, but in looking back at it—

[Hocter]: Yes.

[Court]:—did you—

[Hocter]: I know that she was injured very badly

...

[Court]: Did you get any help?

[Hocter]: As much as I could.

...

[Court]: And then, did you call an ambulance?

[Hocter]: I couldn't find a phone.

[Court]: So then what happened?

[Hocter]: I had to wait until my boyfriend came home and he had looked around for a phone; it had taken him 10 to 15 minutes to look for a phone, also.And he finally found one and called an ambulance.

[Court]: So, how long was it from the time that you went back in there and realized the kind of shape that she was in, until you were able to get an ambulance called through your boyfriend?

[Hocter]: I'm not positive; it was an hour, hour and a half.

...

[Court]: All right.And why didn't you just take the child to the hospital?

[Hocter]: Because I don't have a license and I don't have a vehicle.

The District Court accepted Hocter's guilty pleas, ordered a presentence investigation report and scheduled a sentencing hearing.

¶ 9 On February 25, 2010, Hocter appeared at sentencing.The District Court informed her that it refused to accept the plea agreement.Hocter was given the opportunity to withdraw her guilty pleas, which she did.Trial was set for June 14, 2010.

¶ 10 On June 15, 2010, after a jury was sworn in, Hocter moved to dismiss the criminal endangerment charge.She argued that the Third Amended Information and original affidavit did not provide adequate notice of the State's theory regarding the criminal endangerment charge.Hocter asserted that the charging documents failed to specify whether criminal endangerment was predicated on Hocter's affirmative conduct, or her failure to provide medical assistance to S.B.The District Court denied Hocter's motion, concluding that the State had “stated sufficient facts in the affidavit to support either of those theories.”The State ultimately opted to pursue a criminal endangerment charge based on Hocter's failure to aid S.B.

¶ 11 On June 16, 2010, the third day of trial, Hocter renewed her motion to dismiss the criminal endangerment charge.She argued that the State could not charge criminal endangerment under an omission or failure to act theory without articulating what legal duty she had failed to perform.The District Court rejected this argument, concluding that the criminal endangerment statute contains a duty to “not purposely or knowingly subject third parties to a substantial risk of death or serious bodily injury by conduct.”

¶ 12 After the close of evidence, the parties held a conference to settle jury instructions.Hocter objected to the District Court-drafted criminal endangerment instruction, arguing that it created a duty “that the law does not allow.”The District Court rejected Hocter's contentions but noted they were preserved for appeal.With regard to criminal endangerment, the District Court instructed the jury as follows:

A person commits the offense of criminal endangerment if the person knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another.

...

In this case, the State alleges that the Defendant committed the offense of criminal endangerment by failing or omitting to act to aid [S.B.].Accordingly, to convict Defendant of the offense of criminal endangerment, the State must prove that Defendant:

1.Knowingly failed or omitted to act to aid [S.B.][;]

2. with the knowledge that her failure or omission to act created substantial risk of death or serious bodily injury to [S.B.][.]

If you find from your consideration of the evidence that the State has proved beyond a reasonable doubt that the Defendant knowingly engaged in conduct that created substantial risk of death or serious bodily injury to [S.B.], then you should find Defendant“guilty.”On the other hand, if you find from your consideration of the evidence that the State has not proved beyond a reasonable doubt that Defendant knowingly engaged in conduct that created a substantial risk of death or serious bodily injury to [S.B.] you should find Defendant“not guilty.”

(Emphasis added.)The jury found Hocter guilty of both aggravated assault and criminal endangerment.She filed a timely appeal to this Court.

STANDARDS OF REVIEW

¶ 13This Court reviews...