NO. 95-282

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Sherry Petrovich Staedler, Public Defender Project,

Anaconda, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal Wellenstein, Ass't Attorney General,

Helena, Montana

Edward G. Beaudette, County Attorney,

Anaconda, Montana

Filed:

Submitted on Briefs: August 29, 1996

Decided: October 8, 1996

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Clejrk
Justice W. William Leaphart delivered the Opinion of the Court

Bryan Keith Allen (Allen) appeals from the judgment and

sentence of the Third Judicial District Court, Deer Lodge County,

jury verdict convicting him of assault, aggravated burglary, and

aggravated assault. We affirm.

We restate the following issues raised by Allen:

(1) Did the District Court abuse its discretion in permitting

the State to amend its information after the State's

case-in-chief?

(2) Did the District Court err in denying Allen's motion for

a directed verdict?

(3) Did the District Court abuse its discretion by not

admitting testimony of the victim's character?

(4) Did the District Court increase Allen's punishment

because he exercised his constitutional right to a trial?

BACKGROUND

Allen and Sandra Evans (Evans) had been involved in a

turbulent relationship for several years. One evening in April,

1994, Allen and Evans began arguing at a local tavern. After this

argument, Allen went to Evans' home and requested permission to

enter. After Allen entered Evans' home, they began arguing. The

argument became violent and Allen started head butting Evans in the

face and banging her head against the wall. Allen then twisted her

neck and told her that he "ought to just beat her to death." Allen

proceeded to throw Evans into the bathtub and threatened to drown

her. From this assault, Evans suffered a broken nose and numerous

cuts and bumps on her face.
While Allen was beating Evans, Evans' son, D.E., was awakened.

D.E. telephoned his grandparents. After Evans was able to escape

from the house, Allen approached D.E. and asked him where Evans had

gone. Allen then put D.E. behind a door and began hitting D.E.

with the door. When D.E.'s grandparents arrived at Evans' home,

Allen left. The police were contacted and eventually apprehended

Allen.

In May of 1994, the State of Montana charged Allen by

information with assault (against D.E.) and aggravated assault

(against Evans). In June of 1994, the State amended the

information by adding the charges of aggravated burglary and

attempted deliberate homicide (of Evans). In the information, the

State alleged that Allen was guilty of aggravated burglary because

he remained in Evans' home and attacked both Evans and D.E. Allen

pled not guilty and the trial was held in December of 1994.

At trial, after the close of the State's case-in-chief, Allen

moved for a directed verdict on the charges of aggravated burglary

and attempted deliberate homicide. Allen contended that the State

failed to prove that he committed the additional offense necessary

to prove an aggravated burglary. In response to the motion, the

State moved to amend the information and Allen objected. The

District Court granted the motion to amend the information and

denied Allen's motion for a directed verdict. The jury found Allen

guilty of aggravated burglary, aggravated assault (against Evans),

and assault (against D.E.). Following the jury's verdict, Allen

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brought this appeal requesting relief in the form of either a

reversal, a new trial or a re-sentencing.

DISCUSSION

(1) Did the District Court abuse its discretion when it

allowed the State to amend its information after its

case-in-chief?

The standard of review for a district court's decision to

permit the State to amend an information is abuse of discretion.

State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 975. An

information is a written accusation of criminal conduct prepared by

a prosecutor in the name of the State. The information must

reasonably apprise the accused of the charges against him, so that

he may have the opportunity to prepare and present his defense.

Matson, 736 P.2d at 975.

Allen was originally charged with aggravated assault (against

Evans), and assault (against D.E.). Prior to trial, the State

charged Allen by amended information with aggravated burglary,

aggravated assault (against Evans), attempted deliberate homicide

(of Evans), and assault (against D.E.). At trial, Allen made a

motion for a directed verdict. Allen argued that in order to prove

the aggravated burglary, the State had to prove that Allen

committed all three elements of the charge: (1) remaining

unlawfully in an occupied structure; (2) that he was there with the

purpose to commit an offense therein; and (3) he inflicted bodily

injury on another. See § 45-6-204, MCA. At the time Allen

objected to the information, it stated that Allen was guilty of

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aggravated burglary because he remained in Evans' home and

assaulted both Evans and D.E. The information did not refer to a

separate offense as grounds for an aggravated burglary charge.

In order to prove aggravated burglary, the State had to prove

that "in the course of committing the offense . . . he purposely,

knowingly, or negligently inflicts or attempts to inflict bodily

injury upon anyone." Section 45-6-204(2) (b), MCA. Allen contends

that, assuming the State proved that he assaulted Evans and D.E. as

part of the burglary, the State failed to establish aggravated

burglary by proving that he also inflicted bodily injury on

another; that is, someone other than Evans or D.E. Even assuming,

without so holding, that the charge of aggravated burglary requires

proof of a separate charge of infliction of bodily injury upon an

additional party, that argument was satisfied by both the amendment

to the information and the proof adduced at trial.

At the beginning of Allen's trial, the June 15, 1994, amended

information stated:

On or about April 29, 1994, at approximately 02:30

a.m. in Opportunity, Anaconda, Montana, BRYAN KEITH ALLEN

knowingly entered or remained unlawfully in the occupied

structure at 17 l/2 Leslie St., Opportunity, [Alnaconda,

Montana, with the purpose to commit an offense therein

and in the course of committing the offense therein

purposely, knowingly or negligently inflicted bodily

injury upon SANDRA LEE EVANS and D.E., a minor, thereby

committing the crime of AGGRAVATED BURGLARY, a felony, in

violation of § 45-&204(2)(b) MCA.

After its case-in-chief, the State again amended the above

information. In its amendment, the State made the assault against

Evans the basis for the aggravated assault and burglary, while the

assault against D.E. was the additional charge forming the basis of

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the charge of aggravated burglary. Allen argues that these

amendments to the information were changes of substance and not

form in two respects. First, Allen maintains that the amended

information changed the nature of the charge. Second, Allen argues

that the amended information lowered the State's burden of proof.

In support of these contentions, Allen cites to State v. SorLokken (1991), 247 Mont. 343, 805 P.2d 1367. In Sor-Lokken, this

Court held that an amendment is one of form and not substance when,

"the same crimes are charged, the elements of the crimes remain the

same, the required proof remains the same, and the defendant is

informed of the charges against him." Sor-Lokken, 805 P.2d at 1371

(citing Matson, 736 P.2d at 975). This requirement may be

satisfied if the charges sufficiently express the language of the

statute which defines the offense. Matson, 736 P.2d at 975 (citing

State v. Hankins (1984), 209 Mont. 365, 372, 680 P.2d 958, 962).

In addition to the requirements set out in Sor-Lokken, § 46-

11-205 MCA, also restricts the State's ability to make substantive

changes to an information. Specifically, § 46-11-205, MCA, states:

46-11-205. Amending information as to substance or

form. (1) 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.

(2) If the court grants leave to amend the

information, the defendant must be arraigned on the

amended information without unreasonable delay and must

be given a reasonable period of time to prepare for trial

on the amended information.

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(3) The court may permit an information to be

amended as to form at any time before a verdict or

finding is issued if no additional or different offense

is charged and if the substantial rights of the defendant

are not prejudiced.

The State's amendment to Allen's information did not relieve the

State of the burden of proving any of the elements of aggravated

burglary. Rather, it allowed the State to satisfy the aggravating

element by reference to proof that was already offered in the

context of the separate charge of assault on D.E. Applying both

the test set forth in Sor-Lokken, and the above statute to the

record in this case, we conclude that the State's amendments to the

information were changes in form and not substance. Although these

changes were made after the State's case-in-chief, Allen was

charged with the same crime, the elements remained the same, the

proof required remained the same, and Allen was fully informed of

the charges against him. Allen was not prejudiced by these

amendments. Because the changes to the information were merely of

form and not substance, we affirm the District Court's decision

permitting the State to amend its information.

(2) Did the District Court err in denying Allen's motion for

a directed verdict?

A district court's decision to grant or not to grant a

directed verdict will not be disturbed absent an abuse of

discretion. A decision to grant an acquittal is appropriate only

where there is no evidence to support a guilty verdict. State v.

Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141; State v.

Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547.

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In the instant case, the District Court was justified in

finding that there was enough evidence for the jury to consider the

charges against Allen. Allen argued that the aggravated burglary

statute requires both the purpose to commit an offense, and the

infliction of bodily injury. See Section 45-6-204(2), MCA. Allen

maintains that since the State was relying on his assault of both

Evans and D.E. as the requisite offense for the simple burglary, it

needed to prove infliction of bodily injury upon someone other than

Evans or D.E. in order satisfy its burden of aggravated burglary.

Section 45-6-204(2), MCA. In other words, Allen argues that since

his assaults of Evans and D.E. were the basis for the burglary

charge, they could not also support the aggravated burglary charge.

Without ruling on the validity of Allen's analysis of the

requirements of aggravated burglary under these facts, we note that

the record indicates that the State presented the jury with

testimony from Evans, and D.E., both of whom explained that Allen

remained in Evans' home and assaulted D.E. after he assaulted

Evans. From the record, it is clear that the jury was presented

with sufficient evidence to find each of the elements of each

crime. Therefore, we find that there was sufficient evidence to

support a jury conviction and affirm the District Court's decision

not to grant Allen a directed verdict.

(3) Did the District Court abuse its discretion by not

admitting testimony of the victim's character?

The standard of review for evidentiary rulings is whether the

district court abused its discretion. State v. Gollehon (19931,

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262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of

whether evidence is relevant and admissible is left to the sound

discretion of the trial judge and will not be overturned absent a

showing of abuse of discretion. Gollehon, 864 P.2d at 1263. See

_also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063,

1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378,

380.

Allen argues that the District Court erred when it sustained

the State's objection to his inquiry of Evans regarding a previous

physical altercation between Allen and Evans. During his crossexamination of Evans, defense counsel inquired about an altercation

between Allen and Evans in which Evans supposedly lied about Allen

having injured her. In that 1991 incident, Evans maintained that

Allen had twisted her arm and snapped it. Allen maintained that

none of this was true. When defense counsel questioned Evans about

this incident, the State objected, stating that defense counsel was

going beyond the scope of direct examination. This objection was

sustained. Furthermore, Allen did not contend that under Rule

608(b), M.R.Evid., he should be allowed to pursue this line of

questioning. Rather, Allen presents an argument based on Rule

608(b), M.R.Evid., for the first time on appeal to this Court.

In order to have properly preserved this issue for appeal,

Allen should have offered the testimony as character evidence under

Rule 608(b), M.R.Evid., thereby affording the trial court an

opportunity to evaluate the questions in the context of that Rule.

This he did not do. He did not raise the issue of admissibility

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under Rule 608 with the District Court. Rather, he simply

acquiesced in the court's ruling that the questioning exceeded the

scope of the direct. Because Allen failed to argue to the District

Court that he should be allowed to question Evans as to credibility

pursuant to Rule 608, M.R.Evid., we can not now address the merits

of that argument raised for the first time on appeal. Marsh v.

Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093; Buhr v.

Flathead County (1994), 268 Mont. 223, 237, 886 P.2d 381, 389.

Therefore, we hold that the District Court's decision to restrict

cross-examination which exceeded the scope of the direct

examination was not an abuse of discretion.

(4) Did the District Court increase Allen's punishment

because he exercised his constitutional right to a trial?

District courts have broad discretion in sentencing defendants

convicted of criminal offenses. State v. Smith (Mont. 1996), 916

P.2d 773, 780, 53 St.Rep. 459, 463 (citing State v. Lloyd (1984),

208 Mont. 195, 199, 676 P.2d 229, 231). This Court will generally

review a criminal sentence only for legality--that is, to determine

whether it is within the statutory parameters established by the

legislature; where a sentence is within those parameters, we

generally will affirm it. ,Smith 916 P.2d at 780; See also State - -

v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1091.

However, there are exceptions to these general rules.

Punishing a person for exercising a constitutional right is a

basic due process violation. State v. Baldwin (19811, 192 Mont.

521, 525, 629 P.2d 222, 225. Pointing to the disparity between the

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pre-trial plea offer and the ultimate sentence imposed, Allen

contends that his sentence may have been in retaliation for

rejecting the plea offer and going to trial. Relying on Baldwin,

Allen maintains that the disparity between the sentence he received

and the pre-trial plea offer was a result of the District Court's

punishing him for exercising his constitutionally protected right

to a trial. As this Court explained in Baldwin, 629 P.2d at 225,

"[a] policy of leniency following a plea is proper, but its

converse, 'extra' severity following trial is not." However, a

mere disparity between the sentence offered during plea bargaining

and that ultimately imposed is not, of itself, improper. Baldwin,

629 P.2d at 225; In re Lewallen (Calif. 1979), 590 P.2d 383, 386.

This case significantly differs from Baldwin where the

sentencing court wrote defense counsel a letter which explained,

[ulpon a plea of guilty the minimum sentence that I would

give Mr. Baldwin would be a 5 year sentence with all but

45 days suspended, said 45 days to be served in the State

Prison at Deer Lodge, Powell County, Montana. . . I

feel that this is as lenient as I can possible be in the

case, and that if he does not want to enter a plea on

these conditions why should we prepare to go to trial on

the merits of the case.

Baldwin, 629 P.2d at 224. Unlike Baldwin, where the district court

participated in the plea bargaining process, Allen has presented no

evidence that the District Court in this case was involved in pretrial plea negotiations. Although there is a disparity between the

sentence proposed by the State and the sentence Allen ultimately

received, Allen has failed to show that this disparity is the

result of the District Court's punishing him for going to trial.

Because Allen has failed to substantiate his claim that he was

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punished for exercising his right to a trial, we affirm the

District Court's sentence.

Accordingly, we affirm the District Court.

We concur:

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October 8, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States

following named:

Sherrv Petrovich Staedler

mail, prepaid, to the

Hon. Joseoh P. M m