DA 10 - 0437 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 251 STATE OF MONTANA, Plaintiff and Appellee, v. ALICIA JO HOCTER, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DC 09 - 090 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD:

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 Submitted on Briefs: August 3, 2011 De cided: October 11, 2011 Filed:

__________________________________________ Clerk October 11 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Alicia 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 predic ated on a defendant’somission or failure to act . BACKGROUND ¶5 On March 4, 2009, the State filed an information charging Hocter with attempted deliberate homicide, §§ 45 - 5 - 102 and 45 -4 - 103, MCA (2007), and, in the alternative, attempted mitigated deliberate homicide, §§ 45 - 5 - 103 and 45 -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. H er 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 allegedthat 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, H oc ter tripped and lost her temp er. 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 stop3

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 didnot 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 ag reed to drop bothattemptedhomicide ch arg es andHocter

ag reed 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 g uilty plea. The State filed an amended information reflecting the new charges. ¶8 OnNovember 16, 2009 , Hocter appeared at a change of plea hearing. She engaged in the following co lloquy 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

A ggravated Assault, a Felony, and Criminal Endangerment, a Felony, on or about February 1 8 th , 2009, in Cascade County, Montana. W hat 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 wasit? [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.

. . .4

[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

wouldtake 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 thro ugh 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 ov

er 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 .

. . .5

[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 sh e 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 m y 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. Th e District Court informed her that it refused to accept the plea agreement. H octer 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 dismis s the criminal endangerment charge . She arg uedthat the Third Amended I nformation ando riginal affidavit did not provide adequate notice of the State’s theory regarding the criminal endangerment charge. H octer asserted that the charging documents failed to specify6

whether criminal endangerment was predicated on H octer’s affirmativec onduct, or her fa ilure to provide medical assistance to S.B . The District Courtdenied Hocter ’s motion, concluding

that the State had “stated sufficient factsin 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. S he arg ued that the State could not charge criminal endangerment under an omissionor f ailure to acttheory without articulating what leg al duty she had failed to perform. The District Court rejected this argument, concluding that the criminal endang

erment 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 object ed 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 butnoted they were preserved for appeal. With reg ard to criminal endangerment, theDistrict Court instructed the j ury as follows: A person commits the offense of criminal endangerment if the person knowingly eng

ag es 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 fai led or omitted to act to aid [S . B . ] [;] 2. wi th the knowledge that her failure or omission to act created substantial risk of death or serious bodily injury to [S. B . ] [.]7

If you find from your consideration of the ev idence that the State has proved beyond a re asonable doubt that the Defendant knowingly eng aged 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 ev idence that the State has not proved beyond a reasonable doubt that Defendant knowingly eng aged 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 gu i lty of both aggravated assaultand criminal endangerment. She filed a timely appeal to this Court. STANDARDS OF REVIEW ¶13 This Court rev

iews the denial of a motion to dismiss in a criminal case de nov o. State v. Hardaway , 2001 MT 252, ¶ 64, 307 Mont. 139, 3 6 P.3d 900. ¶14 “In considering whether a district court has correctly instructed the jury in a criminal case, we determine whether the instructions, taken as a whole, fully and fairly instructed the jury on the law applicable to the case.” State v. Cybulski , 2009 MT 70, ¶ 34, 349 Mont. 429, 2 04 P.3d 7. Recognizing thatad istrict court has broad discretion when instructing a jury, we review jury instructions for an abuse of discretion. State v. Swann , 2007 MT 126, ¶ 32, 337 Mont. 326, 160 P.3d 511. The instructions must prejudicially affect the defendant ’ s substantial rights to constitute reversible error. State v. Christiansen , 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949. DISCUSSION ¶15 Did the District Court err when it denied Hocter’s motion to dismiss t he charge of criminal endangerment?8

¶16 Charging documents must “reasonably appraise the accused of the charges” so that she has the opportunity to prepare and present a defense. State v. Wilson , 2007 MT 327, ¶ 25, 340 Mont. 191, 172 P.3d 1264. T o determine whether charging documents are sufficient, this Court reads both the information and supporting affidavit together. Wi lson , ¶ 25 . The standard for sufficiency is “whether a person of common understanding would know what was charged.” Hardaway , ¶ 67. Ho cter arguesthat the District Court should have dismissed the charge of criminal endangermentb ecause the charging documents were insufficient to g ive her notice that the criminal en dangerment charge was based on her

failure to seek aid for

S.B . Hocter a s serts she had no knowledge of what she was charged with until the first day of trial . ¶17 Wec onclude Hocter had a ctual notice of the State ’ s theories of criminal endangerment in 2009 , over six months before she first objected to the sufficiency of the charging information . Both the criminal endangerment and aggravated assault counts were added to the charging information based on an agreement between the prosecution and Hocter. When Hocter sought to plead guilty in November 2009 , she engaged in a c o lloquy with the District Court and explained how her conduct, or lack thereof, constituted criminal endangerment . ¶18 Hocter articulated f acts that supported two theories of criminal endangerment, one premised onh er

f ailure to provide medical care to S.B . , and one p remised on her affirmative conduct towardsS .B . H octer admittedt he following facts: (1) Hocter had undertaken to care for S.B., (2) after striking S.B. against the crib, Hocter placed S.B. in the crib “roug

hly,” (3) Hocter left S.B. alone in the crib, ( 4) Hocter became aware that9

S.B. was injured very badly, and(5 ) Hocter did not see k any medical attention for S.B . Thus, in November 2009, over six monthsb efore she first claimedthatthe charging information was insufficient , H octer possessed actual knowledgeo f thef acts that the State was obligated to prove to support thetwo theori es of criminal endangerment . The District Court did not err when it denied Hocter’s motion to dismiss the charge of criminal endangerment. ¶19 Whether the District Court erred i n instructing the jury on criminal endangerment predicated on a defendant’s omission or failure to act. ¶20 At the outset, the State argues that the Court should decline to consider this issue because Hocter failed to offer a jury instruction . This Court de clines to “predicate error upon the failure to give an instruction when the party alleging the error failed to offer the instruction.” State v. Swan , 279 Mont. 483, 4 86, 928 P.2d 933, 935 (1996). H octer objected to the criminal endangerment jury instruct ion because she believed she had no duty to render aid to S.B . , and thus the criminal endangerment charge should not have been submitted to the jury . In such circumstances she cannot be faulted for not submitting an instruction . Hocter preserved this issue for appeal. ¶21 Hocter argues that the District Court failedto fully and fairly instruct the jury with reg ard to the charge of criminal endangerment based on her failure to aid S.B . Hocter asserts that the District Court’s instructions did noti dentify a leg ally imposed duty that requiredh er to render medical assistance to S.B . The criminal endangerment statute provides, in pertinent part, “[a] person who knowingly engages in conduct that creates a substantial risk of

d eath or serious bodily injury to an other commits the offense of10

criminal endangerment.” Section4 5 - 5 - 207, MCA. I n order to convict a defendant of criminal endangerment, the Statemust prove two elements: (1) the defendant engaged in conduct that created a substantial risk of death or serious bodily injury to another person , and (2) the defendant acted knowingly with reg ard to that conduct . See Cybulski , ¶¶ 35 - 37. ¶22 “ Conduct ”i s defined as, “an act or series of a cts and the accompanying mental state.” Section4 5 - 2 - 101(15), MCA. A n “act” has its“usual and ordinary meaning and includes any bodily movement, any form of communication, and when relevant, a failure or omission to take action.” Section 45 -2 - 101(1), MCA. A material element of ev

ery criminal offense is a “v oluntary act.” Sect ion 45 -2 - 202, MCA. A “voluntary act” includes anomission or failure “to perform a duty that the law imposes on the offender and that the offender is phy sically capable of performing. . . . ” Section 45 - 5 - 202, MCA. Thus, f ai lure or omission to take actio n pursuant to a duty imposed by law can constitute

“ conduct ” for the purposes of c riminal endangerment. The question here is whether Hocter’s fa ilure to take action to aid S.B., under these circumstances, constitutedcriminal endangerment. ¶23 This Court hasrecog nized thatnotevery

f ailure to take actionsubject sa person to criminal liability . “For criminal liability to be based upon a failure to act, there must be a duty imposed by the law to act, and the person must be physically capable of performing theact.” State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court , 2000 MT 22, ¶ 14, 298 Mont. 146, 995 P.2d 951. Inthe absence of “a duty that the law imposes,”a person cannot be criminally liable for failure to “rescue or summon aid for another p erson11

who is at risk or in danger, even though society recognizes that a moral obligation might exist.” Kuntz , ¶ 14. This Court has recitedat least six common law exceptions that apply to theg eneral rule: ( 1) a duty based on a personal relationship, such as parent - child or husband - wife; ( 2) a duty based on statute; (3) a duty based on contract; ( 4) a duty based upon voluntary assumption of care; ( 5 ) a duty to control the conduct of others; and ( 6 ) a duty based on being

alandowner. Kuntz , ¶ 15. Wheth er a legal duty to act exists is a question of law for the court. Kuntz , ¶ 39. Whether a defendant failed to act pursuant to that duty is a question for the finder of fact. Kuntz , ¶ 39. ¶24 A parent’s criminal liability based upon a failure to act in accordance with common law affirmative duties to protect their children is recognized in numerous jurisdictions, including this one. State v. Powers , 198 Mont. 289, 298 -299, 645 P.2d 1357 , 1362 - 1363 ( 1982)(mother convictedo f deliberate homicidef or causing c hild’s death by her failure to perform duties as a parent ) ; State v. Hoffman , 196 Mont. 268, 271 - 272, 639 P.2d 507 , 509( 1982) (mother’s failure to obtain medical aid for child was sufficient degree of

n eg ligence as to constitute negligent homicide) ; s ee a lso People v. Stanciel , 606 N.E.2d 1201 ( Ill. 1992) (mother guilty of homicide by sanctioning ongoing abuse of child by boyfriend ); State v. Williquette, 385 N.W.2d 145 ( Wis. 1986) (mother gu ilty of child abuse by sanctioning continuous physical and sexual abuse of children by husband ); State v. Walden , 293 S.E.2d 780 (N.C. 1982) (mother guilty of assault f or fa ilure to prevent abuse ); Smith v. State , 408 N.E.2d 614 (Ind. App. 1980) (mother held criminally responsible for failing to prevent fatal beating of child by her boyfriend ) .12

¶25 Numerous jurisdictions hav e recognized that in addition to biological and adoptive parents and legal guardians, there may be other adults who establish familial relationships with and assume responsibility for the care of a chil d, thereby creating a leg al duty to p rotect that child from harm. See e.g . State v. Miranda , 715 A.2d 680 (Conn. 1998) (boyfriend who considered himself victim’s stepfather had assumed duty of care for the child); People v. Wong , 182 A.D.2d 98 (N.Y. App. Div. 1992), rev’d on other grounds , 619 N.E.2d 377 (N.Y. 1993) (babysitter s’ fa ilure to prov ide medical care af

ter harming child sufficient grounds for charge of manslaughter) ; State v. Orosco , 833 P.2d 1155 (N.M. 1991) ( defendant, who lived with and assumed care of victim, stood in position of parent and could be held criminally liable for another’s abuse ); People v. Salley, 153 A.D.2d 704 (N.Y. App. Div. 1989) ( because defendant had assumed parental obligations and disregarded unjustifiable risk to child, she could be properly convicted of manslaughter). We h av e recognized a “m

utual reliance” duty owed to “two people, though not closely related, [who] live together under one roof.” Kuntz, ¶ 19. ¶26 In Kuntz , this Court found the idea that persons in a relationship involving cohabitation would not have a legal duty to summon medical aidf or one another “untenable . ” See Kuntz , ¶ 19. Note xtending this duty to the children present insuch relationships would constitute an absurd distinction, particularly giv en that children are dependent upon others for care and intervention w hen s ick or injured . C ensus information shows that children under the age of five years frequently l ive in the households of cohabitating adults . Rose M. Kreider & Diana B. Elliott, Am erica’s Families and Living Arrangements: 2007, C urrent Population Reports, P20 - 561, 17 ,U.S.13

Census Bureau, Washington, DC( 2009) . “ To distinguish among c hildren in deciding which ones are entitled to protection based upon whether their adult caregivers hav e chosen to have their relationships officially recognized hardly advances the public policy of protecting children from abuse.” Miranda , 715 A.2d at 690. ¶27 In this case, Hocter stated that she had been involved in S.B.’s life since her birth, and that she loved S.B. no differently than her own one - month - old daughter who was also in her care . We conclude that Hocter had established a personal relationship akin to that of a parent with S.B., and that she had voluntarily assumed responsibility f or the we lfare of S.B. A s such, there existed a common law duty of protect S.B. from harm, and the breach of this duty was theappropriate basis for a conviction pursuant to § 4 5 - 5 -207, MCA (2007) . ¶28 While district courts must instruct the jury on each theory whic h is supported by the record, defendants are not entitled to have the jury instructed on every nuance of their theory of the case. Cyb ul ski , ¶ 36. F urther, courts are not at liberty to introduce additional elements to astatute. Section 1 -2 - 101, MCA (courts may not insert what has been omitted from statutes or omit what has been inserted). The D istrict Court’s instruction to the jury was based upon the pattern instructionf or criminal endangerment and included the relevant mental state requirements . Th e District Court properly determined thatHocter owed S.B. a duty to summon medical aid , as questions of law are not properly considered by the trier of fact . The instructions given by the District Court properly requiredthe jury to determine whether Hocter breached thatduty.14

¶29 Based on the foregoing, we conclude that the District Court did not err when it denied Hocter’s motion to dismiss the charge of criminal endangerment , and fully and fa irly instruct edthe jury on the offense of criminal endangerment for fa ilure or omission to act to aid . Affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ JIM RICE /S/ PATRICIA COTTER /S/ JAMES C. NELSON