NO. 93-272

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-xrc- .-

STEVEN TOWER,

Defendant and Appellant.

SEP27 1994

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Margaret L. Borg (argued), Public Defender's Office

Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal Wellenstein (argued), Assistant Attorney

General, Helena, Montana

Robert L. Deschamps, III, County Attorney,

Karen S. Townsend, Deputy County Attorney,

Missoula, Montana

Filed:

Submitted: May 24, 1994

Decided: September 27, 1994
Chief Justice J.A. Turnage delivered the Opinion of the Court.

Steven Scott Tower appeals from his conviction, in a jury

trial in the Fourth Judicial District Court, Missoula County, of

criminal sale of dangerous drugs. We affirm.

The issues are:

1 . Whether the State was required to set forth a theory of

accountability in the information in order to satisfy the legislature's purpose in enacting criminal statutes.

2 . Whether Tower was given sufficient notice of the charged

offense to satisfy the requirements of due process.

3 . Whether there was sufficient evidence presented at trial

to convict Tower of the criminal sale of dangerous drugs.

During the summer of 1992, Steven Tower, Tron Skarland, and

Tim Richardson lived together at a house on Mount Street in

Missoula, Montana. Tower's grandparents owned the house.

A confidential informant told local authorities that illegal

drug activities were occurring at the house. The local authorities

contacted the State of Montana Criminal Investigation Bureau (CIB)

for assistance in providing an undercover officer to attempt to

purchase illegal drugs from the residence.

CIB agent Mark Long, posing as a citizen of Butte, Montana,

became acquainted with the residents of the Mount Street house. H e

and Skarland met on three occasions in August and September of

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1992, and Long made three purchases of marijuana from Skarland at

the house.

On September 16, 1992, Long went to the Mount Street house to

make another, larger, marijuana purchase. Tower and Richardson

invited Long in to wait for Skarland's return. When Long told

Tower and Richardson he wanted to do some business, they said,

"Okay, how much?" Agent Long replied that he wanted four times

more than what he had purchased before, and Tower nodded his head

and said, "Okay, okay." Agent Long left the house without buying

any marijuana that evening.

The next evening, Agent Long, wearing a body wire, again went

to the Mount Street house. Once again, Skarland was not home, but

Richardson, Tower, and six or seven other people were there. When

Skarland did not return after about twenty minutes, Long told Tower

that he was going to go to the Town & Country Lounge. He asked

Tower to tell Skarland to meet him there, and Tower agreed to do

so.

Approximately one hour later, Tower and Skarland approached

Long in the parking lot of the Town & Country Lounge. Skarland was

driving a pickup truck and Tower was seated in the passenger's

seat. Long testified that he went to the passenger side of the

vehicle and said he wanted to buy a quarter-pound of marijuana.

Skarland replied that would be no problem, produced a plastic

baggie containing about an ounce of marijuana, and said something

to the effect of "This is the quality you'll be getting." After

Long agreed the quality was acceptable, he and Skarland negotiated

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a price of $700. Long testified that, during the negotiations,

Tower passed the sample from Skarland to Long. Long further

testified that, while he was counting out the money, Tower

explained that they were late because he had forgotten to give

Skarland the message that Long was waiting at the Town & Country

Lounge. Long gave the money to Tower and told him to count it.

When Tower announced it was only $650, Long gave him another $50.

Long testified that Skarland and Tower both said they needed

to go somewhere to pick up the marijuana for him. They agreed to

meet at Ole's convenience store a half-hour later for delivery of

the marijuana. Long testified that both Skarland and Tower gave

him directions to Ole's. Prior to meeting Long at Ole's, Skarland

and Tower, under surveillance, drove from the Town & Country Lounge

to a Toole Avenue house, which they entered briefly. When they

exited the house, the person who got into the passenger seat of the

truck was observed to be carrying a package.

When Skarland and Tower arrived at Ole's, minutes later, Tower

got out of the passenger seat of the truck and went into the store.

Long got into the truck and Skarland gave him a duffel bag. In the

duffel bag was a baggie containing four ounces of marijuana. Both

Skarland and Tower were subsequently arrested.

At trial, the jury heard an audio tape of the September 17

conversations between Long, Skarland, and Tower. Over Tower ' s

objection, the court instructed the jury about accountability for

a crime under §§ 45-2-301 and -302, MCA. The jury found Tower

guilty of criminal sale of dangerous drugs.

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Issue 1

Was the State required to set forth a theory of accountability

in the information in order to satisfy the legislature's purpose in

enacting criminal statutes?

One purpose of the Montana legislature in enacting criminal

statutes is "to give fair warning of the nature of the conduct

declared to constitute an offense." Section 45-1-102(c), MCA.

This statement of purpose was adopted from an Illinois statute, as

part of the 1973 general revision of criminal law in Montana.

Tower contends that to fulfill this purpose, when the State's case

against a criminal defendant is based upon the accountability

statutes, the State must give the defendant notice of that fact in

the information filed against the defendant.

Montana's accountability statutes are also patterned after

Illinois law. Section 45-2-301, MCA, provides:

Accountability for conduct of another. A person is

responsible for conduct which is an element of an offense

if the conduct is either that of the person himself or

that of another and he is legally accountable for such

conduct as provided in 45-2-302, or both.

Section 45-2-302, MCA, defines the circumstances under which such

accountability may exist. It provides in part that a person is

legally accountable for the conduct of another when:

(3) either before or during the commission of an offense

with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to

aid such other person in the planning or commission of

the offense.

When Montana's legislature adopts a statute from a sister

state, Montana courts follow the general rule of also adopting the

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construction which has been placed upon that statute by the highest

court of the sister state. Dew v. Dower (1993), 258 Mont. 114,

125-26, 852 P.2d 549, 556; State v. Murphy (1977), 174 Mont. 307,

311, 570 P.2d 1103, 1105. In State v. Oppelt (1978), 176 Mont.

499, 580 P.2d 110, and in Murvhv, 570 P.2d at 1105, this Court

noted that the accountability statutes borrowed from Illinois had

not been interpreted to require the theory of accountability to be

included in the charging document.

This rule is consistent with the previous law of accountability in Montana. State v. Zadick (1966), 148 Mont. 296, 300, 419

P.2d 749, 751. "[N]o other facts need be alleged in any indictment

or information against . . . an accessory, than are required in an

indictmentor information against his principal." Section 94-6423,

RCM (1947). The Criminal Law Commission comments to 5 45-2-302,

MCA, state that the statute "accepts the approach of the existing

law and endeavors to develop it in full and systematic fashion."

We hold that the State was not required, under the purpose

stated at § 45-1-102(c), MCA, to set forth a theory of accountability in the information.

Issue 2

Was Tower given sufficient notice of the charged offense to

satisfy the requirements of due process?

Tower cites the general rule that due process requires that a

person charged with an offense must be duly advised of the nature

and cause of the accusation against him. See Faretta v. California

(1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. He asserts

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that due process requires that the information against him should

have included language from the accountability statutes.

Under the Model Penal Code and subsequent recodifications of

criminal law in a majority of states, a person is legally accountable for the conduct of another when he is an accomplice of the

other person in the commission of the crime; distinctions between

what used to be referred to as the "principal" and "accessory

before the fact" have largely been abandoned. See 2 W. LaFave and

A. Scott, Jr., Substantive Criminal Law § 6.6 (1986). Criminal

accountability is not considered a substantive separate offense,

but merely a conduit by which to find a person criminally liable

for the acts of another. Matter of B.D.C. (1984), 211 Mont. 216,

220-21, 687 P.2d 655, 657.

A charging document must give a

plain, concise, and definite statement of the offense

charged, including the name of the offense, whether the

offense is a misdemeanor or felony, the name of the

person charged, and the time and place of the offense as

definitely as can be determined. The charge must state

for each count the official or customary citation of the

statute, rule, regulation, or other provision of law that

the defendant is alleged to have violated.

Section 46-11-401(l), MCA. In this case, the information alleged

that Tower "purposefully or knowingly sold a dangerous drug as

defined in Section 50-32-101, MCA, marijuana, to Mark Long."

Additionally, Tower's claim that he was surprised by the

accountability instruction is simply not persuasive. Prior to

trial, Tower and his counsel were provided with the audio tape,

access to the materials in the State's case file, and the opportunity to interview the State's witnesses. The opening statement of

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the State at trial clearly outlined the evidence which the State

intended to present. In light of the defense's knowledge of the

State's case, and the consistent history of the law of accountability in Montana, there was every reason to anticipate an accountability instruction.

We conclude that Tower was given fair warning of the nature

and cause of the accusation against him, and of the conduct

declared to constitute an offense. Because accountability is not

a separate offense, we hold that due process did not require that

the State set forth a theory of accountability in the information.

Issue 3

Was sufficient evidence presented at trial to convict Tower of

the criminal sale of dangerous drugs?

Skarland testified in Tower's behalf at trial. His testimony

minimized Tower's involvement in the sale of the marijuana. Tower

claims he had no active role in the marijuana sale and that he was

simply in the wrong place at the wrong time.

In reviewing the sufficiency of the evidence to support a jury

verdict of conviction in a criminal case, our standard of review is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State

v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150. Viewing

the evidence in this case in the light most favorable to the

prosecution, it showed that Tower gave Skarland the message to meet

Agent Long, and that he clearly understood the purpose of their

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meeting to be a sale of marijuana. Tower then accompanied Skarland

to the meeting, passed the marijuana sample from Skarland to Long,

and counted the money Long paid for the marijuana. He gave Long

directions to the meeting place for the delivery of the marijuana.

He went with Skarland to pick up the marijuana and carried the

package apparently containing the marijuana from the house to the

truck. He then accompanied Skarland to deliver the marijuana. We

conclude that a rational trier of fact could have found Tower

guilty, beyond a reasonable doubt, of the criminal sale of

dangerous drugs.

We therefore affirm the decision of the jury and of the

District Court.

Chief Justice

We concur:

Justices

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Justice James C. Nelson specially concurs.

While I concur in the Court's opinion and with the reasoning

set forth, I would also clarify our decisions in State v. Murphy

(197-J), 174 Mont. 307, 570 P.2d 1103, and State v. Oppelt (1978),

176 Mont. 499, 580 P.2d 110.

As stated, in Murwhv, we initially point out that in adopting

Montana's accountability statute from Illinois, we follow the rule

of statutory construction of "adopt[ing] the construction placed

upon [the statute] by the highest court of the state from which it

is adopted." Murwhv, 570 P.2d at 1105. Having said that, we then

go on to discuss and reject defendant's claim of surprise that the

state interjected the accountability theory in the trial and placed

it before the jury. Citing the language of the statute, we then,

however, observe:

While the record is clear that no surprise existed, this

Court does not condone the method used by the state in

charainu the defendant. If the state wlanned to charge

the defendant with aidins and abettina. in wrower

practice it should have done so from the onset. [Emphasis

added.]

Murwhv, 570 P.2d at 1105.

Moreover, we never reached defendant's claim that the

accountability instructions were improperly given because defense

counsel's failure to lodge proper objections at the time of

settlement of instructions precluded the defendant from assigning

error to the instructions on appeal. Murohv, 570 P.2d at 1105.

We next addressed this issue in State v. Oppelt (1978), 176

Mont. 499, 580 P.2d 110. In that case the state raised the issue

of legal accountability at trial and the court so instructed,

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although the theory of legal accountability was not set forth in

the information. Owwelt, 580 P.2d at 112. Nearly the entirety of

our opinion in Owwelt discussed the issue of admissibility of the

out-of-court identification from a photographic lineup. In the

final paragraph of the opinion, with no analysis whatsoever, we

nevertheless, concluded:

Nor did the court err in allowing the state to

introduce the theory of legal accountability at trial

when that theory was not listed in the Information. This

Court recently held that Montana follows the Illinois

rule that 'I* * * an indictment need not distinguish an

act performed by the accused himself and the act of

another for which he is legally accountable."

Oxwelt , 580 P.2d at 114 (citing Murwhv, 570 P.2d at 1105).

We did not so hold in Murwhy. In that case, as pointed out

above, we, in fact, criticized the state for not providing notice

of the accountability theory in the charging document, and,

instead, grounded our decision to affirm the conviction on the

rationale that "no surprise existed" and on the failure of defense

counsel to lodge proper objections to the jury instructions on

accountability. Murwhv, 570 P.2d at 1105.

Finally, in both Murwhv and in Owwelt, we also imply or state

outright that accountability is a separate offense. In Owwelt we

refer to the "legal accountability offense," and to legal

accountability as "that crime." Owwelt, 580 P.2d at 112. In

Murwhv, we refer throughout the opinion to "charg[ing]" the

defendant with aiding and abetting or with accountability. Murwhv,

570 P.2d at 1105. As we point out in our discussion of Issue 2 in

the instant case, criminal accountability is not a separate

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substantive offense, but is merely a conduit or theory by which to

find one person criminally liable for the acts of another. In re

B.D.C. (1984) r 211 Mont. 216, 220-21, 687 P.2d 655, 657.

Accordingly, our statements in Murphy and in Oppelt to the effect

that accountability is a separate offense are in error.

Both Murphy and Oppelt contain dicta and misstatements that

are at odds with our decision in the instant case. Accordingly,

those cases should be clarified.

For those reasons I specially concur.

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Justice Terry N. Trieweiler dissenting.

I dissent from the majority's conclusion that neither

constitutional nor statutory notice requirements are violated when

a defendant is convicted based solely on his accountability for the

acts of another without first being notified that his

accountability is the basis for the charges against him.

I agree with Justice Nelson's concurring opinion that neither

State v. Murphy (1977), 174 Mont. 307, 570 P.2d 1103, nor Statev. Oppelt

(1978) t 176 Mont. 499, 580 P.2d 110, support the majority's

decision. This Court's conclusion in Murphy was just the opposite

of the majority's conclusion in this case, and Murphy was

erroneously relied on in Oppelt for a rule of law that Murphy did not

establish.

However, unlike the author of the concurring opinion, I do not

agree that the majority's conclusion can logically be arrived at on

other grounds.

Both the Sixth Amendment to the United States Constitution,

and Article II, Section 24, of the Montana Constitution, guarantee

people who are accused of crimes the right to be informed of both

the nature and cause of the accusation against them. Furthermore,

those rights guaranteed in the Sixth Amendment are part of the "due

process of law" that is guaranteed by the Fourteenth Amendment to

the United States Constitution. As stated by the United States

Supreme Court in Faretta v. California (1975), 422 U.S. 806, 95 S. ct.

2525, 45 L. Ed. 2d 562:

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The Sixth Amendment includes a compact statement of

the rights necessary to a full defense:

"In all criminal prosecutions, the accused

shall enjoy the right . . . to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence."

Because these rights are basic to our adversary system of

criminal justice, they are part of the "due process of

law" that is guaranteed by the Fourteenth Amendment to

defendants in the criminal courts of the States. The

rights to notice, confrontation, and compulsory process,

when taken together, guarantee that a criminal charge may

be answered in a manner now considered fundamental to the

fair administration of American justice--through the

calling and interrogation of favorable witnesses, the

cross-examination of adverse witnesses, and the orderly

introduction of evidence. In short, the Amendment

constitutionalizes the right in an adversary criminal

trial to make a defense as we know it. See California v.

Green, 399 U..S. 149, 176 (Harlan, J., concurring).

Faretta , 422 U.S. at 818 (emphasis added) (footnote omitted).

The Supreme Court has elaborated on the extent of information

which must be included in an indictment to satisfy the

Constitution's notice requirements in Hamlingv.UnitedStates (1974), 418

U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590. There, the Court

stated:

Our prior cases indicate that an indictment is

sufficient if it, first, contains the elements of the

offense charged and fairly informs a defendant of the

charge against which he must defend, and, second, enables

him to plead an acquittal or conviction in bar of future

prosecutions for the same offense. Hagner v. United

States, 285 U.S. 427, 76 L.Ed. 861, 52 S.Ct. 417 (1932);

United States v. 346 U.S. 374, 98 L.Ed. 92, 74

s.ct. 113 (1953).

Debrow!

It is generally sufficient that an

indictment set forth the offense in the words of the

statute itself, as long as "those words of themselves

fully, directly, and expressly, without any uncertainty

14
or ambiguity, set forth all the elements necessary to

constitute the offence intended to be punished." United

States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882).

"Undoubtedly the language of the statute may be used in

the general description of an offence, but it must be

accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific

offence, coming under the general description, with which

he is charged."

Hamling, 41 L. Ed. 2d at 620-21 (citation omitted).

The majority and concurring opinions conclude that the

defendant in this case was adequately notified of the "nature and

causelt of the accusation against him by engaging in the legal

fiction that being accountable for someone else's sale of dangerous

drugs is the same as if defendant had sold dangerous drugs himself.

This conclusion is based on a semantic construct which has little

to do with reality and ignores the purpose for which we have a

notice requirement.

The purpose of a notice requirement is to inform someone

accused of a crime of the nature of his or her conduct which forms

the basis of the State's accusation. The nature of conduct which

must necessarily be proven to convict a person of the sale of

dangerous drugs is significantly different than that conduct which

is sufficient to show that a defendant assisted someone else with

the sale of dangerous drugs. In this case, Count II of the State's

information pursuant to which defendant was convicted merely

alleged that "[o]n or about September 17, 1992, the above-named

defendant purposely or knowingly sold a dangerous drug as defined

in 9 50-32-101, MCA, marijuana, to Mark Long."

15
HOW did that accusation adequately inform defendant that the

nature of his conduct for which he was actually being charged was

helping someone else sell dangerous drugs to Mark Long? How did

that mere allegation satisfy the requirement in Harding that when

the language of a statute is used, it must be accompanied by such

a statement of the facts and circumstances as will inform the

accused of the "SpecifiP nature of his offense?

Selling drugs and helping another sell drugs are two separate

and distinct activities. Those activities are made unlawful by two

separate and distinct statutes. No matter how many times this

Court says that quilt by accountability is not a separate offense,

common sense requires the conclusion that it is a separate offense.

If notice that the defendant is accused of selling dangerous drugs

is sufficient to inform the accused that he is really charged with

helping someone else sell dangerous drugs, then why is it even

necessary to have a separate statute making aiding and abetting the

commission of a crime, a crime in and of itself?

Even Montana statutory law requires more specific notice to

defendant than was provided in this case. Section 46-11-401, MCA,

provides in relevant part that "[t]he charge must state for each

count the official or customary citation of the statute, rule,

regulation, or other provision of law that the defendant is alleged

to have violated."

The majority concludes that that requirement was satisfied by

notifying defendant that he was accused of violating 5 45-g-101,

MCA, which prohibits the sale of dangerous drugs. However, based

16
on the proof presented in this case, the State could not have

convicted defendant of violating that statute alone. Defendant's

conviction can only be sustained by reading that statute in

combination with Montana's accountability statutes found at

§ 45-2-301 and -302, MCA. Therefore, by the plain language of

§ 46-11-401, MCA, the defendant in this case was entitled to notice

of the combination of statutes which form the basis of the State's

accusations against him.

Based on the facts in this case, as indicated by the State's

evidence, defendant had every right to prepare his defense based on

the presumption that the State could not prove that he committed

the act with which he was accused in Count II of the State's

information. There was absolutely no evidence that defendant

"sold, bartered, exchanged, or gave away" any dangerous drug as

defined in § 50-32-101, MCA. It was not until after the conclusion

of all the evidence and defendant had proceeded under that

assumption that he was first notified in the form of jury

instructions offered by the State that it intended to convict him

based on facts and a statute which were never alleged in the

information. This is exactly what is prohibited by the United

States Constitution, our State Constitution, and Montana's

statutory notice requirement. To hold otherwise by engaging in the

fiction that selling dangerous drugs is the same thing as being

accountable for someone else's sale of dangerous drugs makes a

mockery of those notice requirements.

17
The constitutional notice requirement of the Sixth Amendment

is very plain and the majority opinion simply engages in semantics

to circumvent that requirement. While that may accomplish the

desired social objective in this case, it does not satisfy this

Court's primary responsibility which is to enforce the plain

language of the Constitution.

For these reasons I dissent from the majority opinion.

Justice Karla M. Gray and Justice William E. Hunt, Sr., join in the

foregoing dissenting opinion.

\I

I I”,(/ 4

Justice -

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