No. 05-362
IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 125

____________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. KEITH EUGENE DOYLE, Defendant and Appellant.

____________________________________ APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, Cause No. DC 03-110, The Honorable Kurt Krueger, Presiding Judge.

COUNSEL OF RECORD: For Appellant: Palmer Hoovestal, Hoovestal Law Firm, Helena, Montana W. M. Hennessey, Hennessey Law Firm, Butte, Montana For Respondent: Hon. Mike McGrath, Attorney Genera l; Mark W. Mattioli, Assistant Attorney General, Helena, Montana Robert McCarthy, County Attorney; Michael W. Clague, Samm Cox and Mollie Maffei, Deputy County Attorneys, Butte, Montana

____________________________________ Submitted on Briefs: January 17, 2007 Decided: May 31, 2007 Filed:

_____________________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Keith Eugene Doyle (Doyle) appeals from his conviction in the Second Judicial District, Silver Bow County, of deliberate homicide by accountability. We affirm. ¶2 Doyle presents the following lita ny of issues for review: ¶3 1. Whether the State of Montana (State) violated Doyle’s right to speedy trial. ¶4 2. Whether the District Court violat ed Doyle’s Sixth Amendment right to confrontation by limiting his cross ex amination of the State’s witness. ¶5 3. Whether sufficient credib le evidence exists to s upport Doyle’s conviction of deliberate homicide by accountability. ¶6 4. Whether the District Court properly denied Doyle’s instruction for lesser included offenses of criminal e ndangerment and negligent homicide. ¶7 5. Whether the District Court properly instructed the jury on the elements of “purposely” and “knowingly.” ¶8 6. Whether the District Court abused its discretion in denying Doyle’s motion for mistrial. FACTUAL AND PROCED URAL BACKGROUND ¶9 Richard Solwick (Solwick) was beaten to death inside his Butte apartment on the night of March 3, 2003. The State charge d Dean Maestas (Maestas) and Cheren Day (Day) with deliberate homicid e, or in the alternative, deliberate homicide by accountability, for Solwick’s mu rder. Law enforcement offi cers also named Doyle as a third suspect in Solwick’s murd er. Doyle fled Montana the day after Solwick’s death.

2He absconded to Washington, Southern Calif ornia, and Missouri be fore returning to Butte in late March. ¶10 Butte law enforcement office rs arrested Doyle on May 5, 2003. The court set Doyle’s bail at $250,000. Th e State charged Doyle on Ma y 30, 2003, with deliberate homicide, or in the alterna tive, deliberate homicide by accountability. Maestas and Day pled guilty to deliberate homicide by accountability. They agreed to testify in Doyle’s trial in exchange for a lighter sentence. The court set Doyle’s jury trial for December 15, 2003. Doyle moved to continue the trial date on November 4, 2003. He also moved the court on May 11, 2004, September 9, 2004 , and November 23, 2004, to continue subsequent trial settings. Trial began January 3, 2005. ¶11 Maestas testified that he and Day went to Solwick’s apartment on the night of March 3, 2003, in search of Doyle. Maesta s admitted that he had been drinking at the Corner Bar, was inebriated, and wanted to fight Doyle because he had heard from Solwick that Doyle had called him a “punk” wh o could not be trusted. Meastas testified that he knocked on the front door, walked inside, and conf ronted Doyle about what had been said. A “shoving match” ensued betwee n Doyle and Maestas. Maestas then turned his attack toward Solwick. He punched and kicked Solwick several times. Maestas also held a steak knife to Solwick’ s throat. The knife left an abrasion on Solwick’s neck, but did not cut Solwick’s skin. Maestas testif ied that Doyle became “pretty much upset about the situation” and began beating Solwic k with a hammer. Maestas further testified that he did not know if Solwic k was alive when he left Solw ick’s apartment. He went

3home, changed clothes, and returned to Solwic k’s apartment only to find him dead on the living room floor. ¶12 Day provided a sim ilar account. Day testified that she and Maestas left the Corner Bar to confront Doyle. They walked into Solwick’s apartment. Doyle and Maestas began to brawl. Day further testified that the attack turned to Solwick because “the whole melee had been started by a lie that [Solwick] said.” Day testified that both Maestas and Doyle punched Solwick as he sat in a chair in his living room. Day tipped the chair over and Solwick fell to the grou nd. Day testified that Solwick grabbed a hammer and that Doyle took it aw ay from him. Day testified that she left the apartment as soon as she saw “a weapon.” ¶13 Doyle testified that he and Solwick had been drinking be er at Solwick’s apartment when Maestas and Day “barged” through the front door. Doyle stated that Maestas confronted him and Solwick about Doyle having called Maesta s a “punk” and that Maestas assaulted Solwick. Doyle testified th at he left Solwick in the apartment with Maestas and Day, because he did not want to be around when Maestas was handing out “sucker shots.” Doyle spent the night at his si ster’s house. Doyle testified that he was shocked to learn the next day from his girlfriend, who lives in the apartmen t downstairs from Solwick, that Solwick had been murdered. Doyle further testified that he fled to Washington and then Southern California, where he consid ered crossing the border to Mexico. Doyle testified that he realized th at the idea was “crazy ” as he became more sober. Doyle traveled to Missouri to vis it his father. Doyle contacted authorities by

4phone on three occasions while he was on the r un. He provided a statement to detectives on March 27, 2003, following his return to Butte. ¶14 The jury found Doyle guilty of deliberat e homicide by accountability. The court sentenced Doyle to 65 years in Montana State Prison. Doyle appeals his conviction. DISCUSSION ¶15 Whether the State violated Doyle’s right to a speedy right? ¶16 Doyle argues that the State violated hi s right to a speedy trial based on the 598 days that elapsed between his arrest on May 5, 2003, and the beginn ing of his trial on January 3, 2005. Doyle asserted his right to speedy trial in a motion to dismiss filed two months before the start of trial. The court held a hearing on Doyl e’s motion. The court allocated four of five delays to Doyle and found that Doyl e suffered no prejudice to his defense in light of his request for “numerous continuances.” ¶17 Whether a defendant has been denied th e right to a speedy trial constitutes a question of law. We review for correctne ss the district court’s legal conclusions on speedy trial. State v. LaGree , 2007 MT 65, ¶ 10, 336 Mont . 375, ¶ 10, 154 P.3d 615, ¶ 10. We refuse to disturb the trial court’s fi ndings underlying a sp eedy trial ruling unless such findings are clearly erroneous. State v. Spang , 2007 MT 54, ¶ 7, 336 Mont. 184, ¶ 7, 153 P.3d 646, ¶ 7. ¶18 The Sixth Amendment to the United States Constitu tion and Article II, Section 24 of the Montana Constitution guaran tee a criminal defendant the right to a speedy trial. We analyze speedy trial claims ba sed on the guidelines set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972). We cons ider the following factors in determining 5whether a defendant was denied the right to a speedy trial: 1) the le ngth of the delay, 2) the reason for the delay, 3) the defendant’s time ly assertion of the right to a speedy trial, and 4) the prejudice to the de fense caused by the delay. City of Billings v. Bruce , 1998 MT 186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19. No single factor controls the speedy trial analysis. We engage in a lengthy and difficult balancing process. State v. Highpine , 2000 MT 368, ¶ 14, 303 Mont. 42 2, ¶ 14, 15 P.3d 938, ¶ 14. ¶19 The first and third factors of Doyle’s speedy trial analysis are not at issue. The parties agree that a sufficient number of days had elapsed between Do yle’s arrest and the start of trial to trigger further speedy trial analysis. See Bruce , ¶ 55 (a delay of 200 days or more between the date that the State filed initial charges and trial triggers further speedy trial analysis regardless of which pa rty caused the delay). The State also concedes that Doyle satisfied th e third factor by asserting his right to a speedy trial before trial. Doyle challenges the court’s conclu sions on the second and fourth factors: the reason for the delay and whether such delay caus ed prejudice to the defense. We address Doyle’s contentions in turn. Reason for the Delay ¶20 Doyle argues that the State should have been held resp onsible for all 598 days of delay. He contends that the court incorrectly assigned fault to him for four of the five delays based on the fact that he had “moved to continue the trial setting or hearings on five separate occasions.” Doyle admits that he sought to conti nue an omnibus hearing and three trial settings. Doyle contends th at no delay occurred as a result of his continuance of the omnibus hearing as the cour t had not yet set a trial date. Doyle further 6argues that the State’s failure to release cruc ial evidence in a timel y manner forced him to move for the first two continuances for tria l. Doyle also blames the State’s untimely disclosure of two witnesses fo r the third trial delay. ¶21 The court allocates the total number of da ys of delay between the parties for the purpose of determining which party carries the burden of proof under the prejudice factor. Spang , ¶ 11. The court determines which part y is responsible for specific periods of delay based on the unique facts of each case. Bruce , ¶ 56. If the court determines that 275 or more days of de lay are attributable to the State, then the State carries the burden to show that the defendant was not prejudiced by the delay. The State’s proof includes demonstrating a lack of prejudi ce based on: 1) the defendant’s pretrial incarceration, 2) the defendant’s anxiety and concern, and 3) the impairment to the defense. Spang, ¶ ¶ 11- 12. The State may shift the burden to demons trate prejudice caused by the delay back to the defendant if the State can show a lack of prejudice based on one of those factors. The district court then weighs the competing evidence. Bruce , ¶ 56. ¶22 The District Court, in assigning fault for the delay, failed to allocate the specific number of days of delay for which the State a nd Doyle were to be held responsible. The court’s skeletal order simply held Doyle re sponsible for four of the five delays and required Doyle to demonstrate that he suffered prejudice as a result of such delays. The court does not distinguish wh ether Doyle carried the burden of proof because fewer than 275 days of delay had been attributed to th e State or whether the State carried the initial burden of proof and presented enough evidence to shift the burden to Doyle to show prejudice. District courts must allocate co rrectly the specific number of days of delay 7between the parties in order to avoid this type of confusion c oncerning the burden of proof. See Bruce , ¶¶ 56-65. ¶23 Regardless of the court’s distribution of the burden of proof, however, our review of the record indicates that the State demons trated at the speedy tr ial hearing that Doyle suffered no prejudice. The State presented the testimony of two detectives from the Butte-Silver Bow Law Enforcemen t Agency at Doyle’s speedy trial hearing. Detective Butch Harrington testified that he interviewed 22 witnesses while investigating Solwick’s murder and that none of the defense witne sses indicated any memory loss as to what happened on the night of th e incident. Former Captain of Detectives Jeffrey Miller testified that one witness had died before D oyle’s trial and that the witness’s death had been detrimental to the State’s case. ¶24 Harrington’s and Miller’s test imony constituted sufficient evidence to satisfy the State’s initial burden to demonstrate a lack of prejudice to Doyl e based on alleged impairment to his defense--one of the factors enumerated in Bruce , ¶ 56. Once the State demonstrates a lack of prejudice to the defendan t, the burden shifts to the defense to show that such delay caused prejudice. Bruce , ¶ 56. Doyle must demonstrate that the delay prejudiced his defense regardless of whether th e court attributed the majority of the delay to Doyle or attributed all of the delay to the State. Prejudice to Defense ¶25 Doyle remained in jail on $250,000 bail since his arrest in May 2003 through his trial in January 2005. Doyl e moved the court on three o ccasions to reduce the bail amount. The court refused to reduce Doyle’s bail based on “the gr avity of the alleged 8offense” and the “high probability Defendant will flee.” Doyle contends that he suffered significant prejudice as a result of the 21 mo nths of pre-trial incarceration. ¶26 We evaluate prejudice “based on the three interests that speedy trials are supposed to protect: 1) prevention of op pressive pretrial incarcera tion; 2) minimization of the defendant’s anxiety and concern; and 3) av oidance of impairment of the defense.” State v. Longhorn , 2002 MT 135, ¶ 33, 310 Mont . 172, ¶ 33, 49 P.3d 48, ¶ 33. The degree of prejudice necessary to establish denial of sp eedy trial depends on other considerations such as the length of delay a nd the reason for the delay. Le ss delay or prejudice need be shown with the greater degree of fault attribut ed to the State for th e delay. Conversely, greater delay and prejudice woul d have to be shown where th e delay was not the fault of the State. Longhorn , ¶ 18. We address each of the fa ctors for prejudice in turn, keeping in mind that Doyle carries the burden of proof to demonstrate prejudice as discussed in ¶¶
20-24. ¶27 1. Pretrial Incarceration ¶28 The right to speedy tria l is designed to prevent oppressive pretrial incarceration, not all pretrial incarceration. Longhorn , ¶ 36. (Emphasis added). We must consider, therefore, whether the protracted pretrial incarceration unduly prejudiced the defendant. Longhorn , ¶ 36. Doyle points out th at he remained “continuous ly incarcerated since his arrest on May 5, 2003.” Doyle cites no legal authority and makes no argument that his pretrial incarceration was oppressive other than to call attention to the fact that he has been confined since the date of his arrest. “‘[I]t is not this Court’s obligation to conduct legal research on appellant’s behalf, to guess as to his precise position, or to develop legal 9analysis that may lend support to his position.’” Pankratz Farms, Inc. v. Pankratz , 2004 MT 180, ¶ 82, 322 Mont. 133, ¶ 82, 95 P.3d 671, ¶ 82 (quoting In re Estate of Bayers , 1999 MT 154, ¶ 19, 295 Mont . 89, ¶ 19, 983 P.2d 339, ¶ 19. We conclude that Doyle failed to establish any prejudice under the first factor, pretrial incarceration. ¶29 2. Anxiety and Concern ¶30 Criminal charges bear a certain amount of inherent anxiety and concern. We must focus, therefore, on th e extent that the delay aggravated the defendant’s anxiety and

concern. Spang , ¶ 22. (Emphasis added). ¶31 Doyle alleges that he suffered significa nt anxiety as a result of the “filthy” conditions at the Butte-Silver Bow County Jail. Doyle testified at hi s speedy trial hearing that the jail served green eggs and underco oked pork that would “make people stink.” Doyle further testified that the jail lacked adequate ven tilation and that the smell of people “farting” and defecating “on the toilets” while other inmates were watching television would rouse jailhouse fights. Doyle also blames his 40-pound weight gain on the jail’s inadequate recreational facilities. We recognize that Doyle understandably may have suffered anxiety and concern dur ing his incarceration at the jail. In the context of a speedy trial claim, however, Doyle must demons trate that the delay aggravated his level of anxiety and concern. Spang , ¶ 22. Doyle presents a catalog of complaints about jail conditions, but makes no argument and presents no evidence that the delay enhanced his level of anxiety and concern. ¶32 Doyle next argues that the jail’s failure to provide medical care for his preexisting back injury deepened his anxiety and concer n. The record belies Doyle’s contentions. 10Doyle testified that he received medical care for his ailing back on at least six occasions while being held in the county jail. Medica l professionals prescribed medications for Doyle’s condition and instructed Doyle on ho w to perform rehabilitation exercises on his

own. Doyle fails to establish any prejudice base d on the medical care that he received while in custody. ¶33 Doyle also argues that the delay caused his relationships with his girlfriend, Katerina Bowen (Bowen), and their toddler daugh ter to deteriorate. Doyle’s convictions of domestic abuse and child endangerment in January 2003 undercut his contentions. Doyle admitted that both Bowe n and their daughter were vic tims of the abuse and that part of his criminal senten ce included having no contact with th em until he completed anger management classes. Doyle testifie d that he had been “drinking heavy” and “dodging responsibilities.” Doyle never comple ted the anger management classes before his arrest for Solwick’s murd er. The rift in Doyle’s relationships started with his domestic abuse conviction in Janu ary and continued with his admitted failure to live up to his responsibilities. Doyle fails to show how the delay aggravat ed his already failing relationships. ¶34 3. Impairment to the Defense ¶35 Impairment to the defense constitutes the most important factor in the prejudice analysis as it impacts directly the fairness of the trial process. Spang , ¶ 12. We focus on evidence issues, witne ss reliability, and the defendant’s ability to prepare a defense in determining whether the delay caused impairment to the defense. Spang , ¶ 24.

11¶36 Doyle asserts that investigators used the delay to pressure Bowen into testifying against him. Bowen made statements to dete ctives that implicated Doyle in Solwick’s murder. Bowen recanted portions of her statemen t at trial. Bowen te stified that she gave the statements voluntarily, but felt pressure d by the Department of Family Services (DFS) to make a statement against Doyle in order for her to keep her children at home. ¶37 Even if DFS had pressure d Bowen, her testimony give s no indication that the delay actually caused or aggrav ated such pressures. DFS had been supervising Doyle’s and Bowen’s family since Doyle’s arrest fo r domestic abuse in January 2003, three months before Solwick’s murder. Doyle pr esented no evidence indicating that the alleged pressure extended by DFS on Bowen to testify against him resulted from the delay. ¶38 Doyle next argues that he suffered impair ment to his defense as a result of the delay because one witness had di ed and two others were unava ilable by the time of trial. The State points out that the three unavailable witnesses were listed as witnesses for the State. Doyle ignores the State’s argument in his reply brief. Doyle presented no evidence to support his position that these th ree unavailable witnesses would have aided in his defense. ¶39 We conclude that Doyle fails to establis h that the delay prejudiced him under any one of the three interests that a speedy trial is designed to protect. The record shows that Doyle complained about living co nditions at the jail that bore no relation to the delay; that Doyle received medical care while in custody of the jail; and that Doyle presented no evidence tending to pr ove that the delay impaired his defense. The District Court 12properly denied Doyle’s motio n to dismiss in light of Doyle’s failure to establish prejudice aggravated by the delay. ¶40 Whether the District Court violated Doyle’s Sixth Amendment right to confrontation by limiting cross examination of the State’s witness. ¶41 Doyle asserts that the district court abus ed its discretion when it denied him the opportunity to question Maestas regarding his criminal history. Doyle moved the court to allow him to cross examine Maestas about hi s prior convictions after Maestas testified that he lied to authorities, because he was “s cared” and that he “n ever had an ything like this happen” to him before. ¶42 Doyle argued in District Court, and ma kes the same argument on appeal, that Maestas’s testimony opened the door to his crim inal history as it tended to prove that he had been involved in simila r criminal situations, and, therefore, lied on direct examination. Doyle wanted to question Maestas on his co nvictions for felony theft, felony burglary, and a string of misdemeanor offenses. Doyle also sought to question Maestas about an assault for which he had never been convi cted. The court denied the motion after noting that Maestas’s criminal history was not relevant in that it did not include convictions for “felony assaults or aggravated assaults or anything of that
nature.” ¶43 The district court maintains broad discretio n in its decision to limit the scope of cross examination. State v. Beavers , 1999 MT 260, ¶ 20, 296 Mo nt. 340, ¶ 20, 987 P.2d 371, ¶ 20. We refuse to overturn the distri ct court’s evidentiary rulings absent an abuse of discretion. A court abuses its discretion if it acts arbitrar ily or exceeds the bounds of 13reason resulting in substantial injustice. State v. English , 2006 MT 177, ¶ 50, 333 Mont. 23, ¶ 50, 140 P.3d 454, ¶ 50. ¶44 M. R. Evid. 609 prohibits th e admissibility of a witness’ s prior convictions for the purposes of impeachment. We have held, how ever, that a witness may open the door to past convictions by offering a self-serving st atement on direct examination that the court knows to be false. We de termined that a w itness can be impeach ed with a prior conviction if the witness fails to tell the truth on direct examination. State v. Bingham , 2002 MT 350, ¶ 37, 313 Mont. 376, ¶ 37, 61 P.3d 153, ¶ 37. ¶45 Doyle’s argument mischaracterizes Maestas’ s testimony. The co mplete transcript demonstrates that Maestas’s statement referr ed to his involvement in Solwick’s murder, not his criminal history. The transcript reads as follows: Q. Why were you providing this fa lse information, or that false information? A. At that time, I didn’t want to be implicated; I was scared. I’ve never had anything like this happen to me. It’s not like this occurs to me, you know, all the time at any time. Q. When you say this occurs, what do you mean by this? A. I’ve never had anything like this ever happen to me. Q. When you say this, what do you mean by this? A. This—such a crime of this—you know—it’s just something terrible. I’ve never seen a dead body. I’ve ne ver watched somebody be killed, you know. ¶46 Doyle attempted to impeach Maestas on th e grounds that his prior convictions show that he lied on direct examination about being in similar situations. Maestas’s prior

14convictions for theft, burglary and other mi sdemeanor offenses do not undermine his testimony that he has never “seen a dead body” or “watched somebody be killed.” M. R. Evid. 609 precludes this kind of impeachment. ¶47 Doyle challenges the constitutio nality of M. R. Evid. 609. Doyle asserts that the rule prevented him from confronting his accu sers as guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24 or the Montana Constitution. Doyle’s asserts that his defense relied on th e credibility of the w itnesses and that the court’s evidentiary rulings robbed him of th e opportunity to disc redit Maestas in his statement that he “never had anything like this happen.” ¶48 We already have determined in ¶ 46 th at Doyle’s efforts to mine Maestas’s criminal history would have been improper under M. R. Evid. 609 in light of the fact that the crimes would not have disc redited Maestas’s statement. Even if the criminal record tended to discredit Maestas, th e evidence would have been inadmissible as cumulative. Doyle razed Maestas’s credibility on cro ss examination by drawing out several inconsistencies between Maes tas’s testimony at trial and the statements he gave detectives during the investiga tion. Maestas admitted that he was a liar “at some point.” We conclude that the court di d not violate Doyle’s right to confrontation by limiting his cross examination of Maesta s based on M. R. Evid. 609. ¶49 Doyle next argues that the District Co urt improperly sustained an objection from the State during Doyle’s cro ss examination of Maestas. The relevant portion of the transcript reads as follows:

15A: Normally, when I am fighting I sw ing with both arms, you know, both hands. Q: Do you fight normally? The State: Objection. A: When I have to. The court: Sustained. Q: Well, you didn’t have to fight on March 4 th , 2003, did you? A: Probably not. ¶50 Doyle argues that he should have been allowed to ask follo w-up questions to Maestas’s testimony to show that since he norm ally engages in fights that he was the one who killed Solwick on March 3, 2003. Evidence of a pers on’s character is generally inadmissible for the purposes of proving acti on in conformity therewith. M. R. Evid. 404(a). Evidence of other crimes, wrongs, or acts, however, may be admissible to prove the character of a person to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Doyle does not offer the character eviden ce under one of the recognized exceptions. We conclude that the District Court did not abuse its disc retion by sustaining the objection to Doyle’s line of questioning. ¶51 Lastly, Doyle argues that the court impr operly prevented him from asking Maestas whether the State had been the sole determiner of Maestas’s veracity with respect to the plea agreement. Doyle cites U.S. v. Schoneberg , 396 F.3d 1036 (9 th Cir. 2005), to support his brief argument that the court’s rulin g violates his right to confrontation. The

16trial court in Schoneberg violated the defendant’s right to confrontation when it refused to allow cross examination of a co-defendant as to how hi s plea agreement “might have affected [the co-defendant’s] motivation to sa tisfy the Assistant Unite d States Attorney.” Schoneberg , 396 F.3d at 1042. The transcript in this case reveals that Doyle cross examined Maestas extensively ab out the benefits of his plea agreement. The jury had been apprised adequately of the potential bi ases and motives behind Maestas’s testimony in light of Doyle’s cross examin ation. We conclude that the District Court did not violate Doyle’s Sixth Amendment right. ¶52 Whether sufficient credible evidence ex ists to support Doyle’s conviction of deliberate homicide by accountability. ¶53 Doyle contends that the evidence suppor ting his conviction does not meet the standard set forth in the court’s instruction of the law. The court inst ructed the jury that a “conviction cannot be had on the testimony of one legally accountable unless it is corroborated by other evidence wh ich in itself and without the aid of the testimony of the person legally accountable, te nds to connect the Defendan t with the commission of the offense or the circumstances thereof.” Doyle argues that the jury’s verdict conflicts with the court’s instruction, because the deci sion rests solely on Maestas’s and Day’s uncorroborated testimony that Doyle killed Solw ick. Doyle argues that physical evidence presented by the State only proves that he wa s present at the crime scene, but fails to connect him to the act of Solwick’s murder. ¶54 We review a question on the sufficiency of the evidence to determine whether, after viewing the evidence in th e light most favorable to the prosecution, any rational trier 17of fact could have found the essential elemen ts of the crime beyond a reasonable doubt. Circumstantial evidence may be suffi cient to sustain a conviction. State v Mooney , 2006 MT 121, ¶ 10, 332 Mont. 249, ¶ 10, 137 P.3d 532, ¶ 10. ¶55 In order for the jury to convict Doyle of deliberate homicide by accountability, the jury would have had to conclu de that the State met its burd en of proof of showing beyond a reasonable doubt that Doyle: 1) had the pu rpose to promote or fa cilitate commission of deliberate homicide; and 2) had aided or abetted Maestas and Day in the planning or commission of deliberate homicide. Secti ons 45-2-301-302, MCA; § 45-5-102, MCA;
State v. Lantis , 1998 MT 172, ¶ 33, 289 Mont. 480, ¶ 33, 962 P. 2d 1169, ¶ 33. The concept of accountability contemplates that the defendant played an active role in facilitating the commission of an offense. State v. Fish , 190 Mont. 461, 471, 621 P.2d 1072, 1078 (1980). ¶56 The State presented suffici ent evidence independent of Maestas’s and Day’s testimony that Doyle played an active role in the commission of Solwick’s murder. The State introduced gruesome photos showing Solwick’s beaten and bloody body. State Medical Examiner Gary Dale (Dr. Dale) tes tified that Solwick li kely died from blunt force trauma and suffered multiple injuries c onsistent with those likely to occur as a result of repeated blows from a hammer. Dr. Dale also could not rule out asphyxiation as a possible cause of Solwick’s death. ¶57 Doyle denied bl udgeoning Solwick with a hamme r, but admitted that he owned the hammer likely used to k ill Solwick. Doyle also de nied choking or suffocating Solwick. Bowen and Bowen’s si ster told investigators, ho wever, that Doyle had admitted 18to them that he suffocated Solwick. Bowen also told investigators that Doyle told her that he smothered Solwick because he did not want him to “call the cops.” An acquaintance of Maestas’s, John Dunn (Dunn), corroborated their statements at trial, testifying that Doyle described feeli ng Solwick take his last breath. ¶58 Other evidence also points to Doyle’s guilt. Evidence of Doyle’s flight, although inconclusive to prove Doyle’s guilt, may have been one of the many circumstances that the jury considered in rendering its verdict. State v. Davis , 2000 MT 199, ¶ 40, 300 Mont. 458, ¶ 40, 5 P.3d 547, ¶ 40. In another attempt to thro w law enforcement officers off his trail, Doyle told investigators that Maestas had been wear ing dark pants and a Starter jacket on the night of Solwick’s murde r. The State presented a surveillance video from a convenience store that captured Doyle wearing thos e same clothes just hours before Solwick’s murder. Investigators re covered the pants from Dunn’s garbage. Analysis at the Montana State Crime Lab revealed that the pants contained both Solwick’s blood and Doyle’s DNA. We concl ude that sufficient ev idence supports the jury’s finding that Doyle ha d the purpose to promote or facilitate the commission of deliberate homicide and that Doyle had aided or abetted Maestas and Day in the planning or commission of the offense. ¶59 Doyle next argues that no evidence suppo rts his conviction of deliberate homicide by accountability in light of the fact that the State never obtained a conviction on the underlying offense. Both Maestas and Day pled guilty to deliberate homicide by accountability without admitting that they delivered the fatal bl ow to Solwick. The jury acquitted Doyle of deliberate homicide in fi nding him guilty of de liberate homicide by 19accountability instead. Do yle contends that he cannot be held accountable for an offense that the court never determ ined to have occurred. ¶60 Section 45-2-303, MCA, provides, and we have long held, that a person may be “convicted for accountab ility on proof that th e offense was committe d, even though the other person claimed to ha ve committed the offense has not been convicted or is convicted of a different crime.” State v. Gibbs , 244 Mont. 251, 258, 797 P.2d 928, 932 (1990). We upheld Gibbs’s conviction of tr afficking in body parts of game animals through accountability based on § 45-2-303, MCA, even though a jury did not convict her husband of the underlying offense of traffi cking. We determin ed that criminal accountability need no t be founded on the convicti ons from the same crime by the principal offender when “stronger proof” dem onstrated that Gibbs had “aided and abetted trafficking.” Gibbs , 244 Mont. at 258, 797 P.2d at 932. ¶61 Doyle challenges the constitutionality of § 45-2-303, MCA, on grounds that it violates his due process rights under the F ourteenth Amendment to the United States Constitution and Article II, Sect ion 17 of the Montana Cons titution. Doyle argues that the statute relieves the State from its burden to prove beyond a reasonable doubt that an offense had been committed, thereby conflicting with due process protections that require convictions to be predicated on “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). ¶62 Doyle’s argument lacks merit. The plain language of § 45-2-303, MCA, provides that a person may be convicted for accountability only “upon proof that the offense was 20committed . . . although the other person claimed to have co mmitted the offense has not been prosecuted or convicted, has been convicted of a differe nt offense, is not amenable to justice, or has been acquitted.” (Emphasi s added). The statute in no way lessens the State’s burden to prove that the underlying offense had b een committed. Moreover, the record shows that the State met its burden to show that a deliberate homicide had been committed against Solwick. Th e State introduced photograph s showing that Solwick had been beaten severely. Dr. Dale testified that Solwick likely died as a result of the blunt force trauma that he suffered as a result of th ese injuries. Dr. Dale also testified that asphyxiation could have been a cause of Solwick’s death. This evidence supports the State’s proof that a deliberate homicide ha d occurred. We conclude that Doyle’s conviction of deliberate homicide by account ability under § 45-2-303, MCA, does not violate Doyle’s due process rights. ¶63 Whether the District Court properly inst ructed the jury on the elements of “purposely” and “knowingly.” ¶64 The court read the following instruction to the jury over Doyle’s objection: “If purposely or knowingly causing the death of Richard Solwick was not within the contemplation or purpose of the Defendan t, either element can nevertheless be established if the result involves the same ki nd of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the Defendan t’s liability or on the gravity of the offense.” ¶65 Doyle argues on appeal that the in struction constituted an improper “ Rothacher 21instruction” that relieves the State of its burden to prove beyond a reasonable doubt the “knowingly” and “purposely” el ements of an offense. See State v. Rothacher , 272 Mont. 303, 901 P.2d 82 (1995). Doyle also relies on State v. Lantis , 1998 MT 172, 289 Mont. 480, 962 P.2d 1169, to support his contentio n that the “clumsy and confusing” language in the instruction improperly di rected the jury to impute Ma estas’s contemplated result onto Doyle. ¶66 We review jury instructions in a criminal case to determine if they fully and fairly instructed the jury on the law applicable to the case. State v. Dubois , 2006 MT 89, ¶ 30, 332 Mont. 44, ¶ 30, 134 P.3d 82, ¶ 30. The district court maintain s broad discretion in instructing the jury. We review the court’s decision on jury instructions for an abuse of discretion. State v. Ditton , 2006 MT 235, ¶ 18, 333 Mont. 483, ¶ 18, 144 P.3d 783, ¶ 18. We will reverse the court only if the jury instruction prejudicially affected the substantial rights of the defendant. Dubois , ¶ 30. ¶67 Rothacher and Lantis confute Doyle’s argument. We determined in Rothacher that the court’s instruction “that the State me rely needed to prove that Rothacher acted purposely, without regard to the result th at he intended” constituted an improper statement of the law. Rothacher , 272 Mont. at 310, 901 P.2d at 86. We deemed the court’s error harmless, however, in light of th e fact that the court properly instructed the jury based on the statutory provis ions of § 45-2-201(2)(b), MCA. Rothacher , 272 Mont. at 313, 901 P.2d at 88. Th e language of Doyle’s contested instruction nearly replicates the language of § 45-2-201(2)(b), MCA, and, th erefore, properly info rmed the jury “that the requirement of purposeful and knowing causation [for the offense of deliberate 22homicide] can occur with out intending a specific result, so lo ng as the same type of harm or injury was contemplated.” Rothacher , 272 Mont. at 313, 901 P.2d at 88. ¶68 We merely recognized in Lantis the differences in applying § 45-2-201(2)(b), MCA, to the offenses of deliberate homic ide and deliberate homicide by accountability. We determined that the mean ing of the term “result” as referenced in the statute constitutes the “death of anothe r human being” when applied to the offense of deliberate homicide. In contrast, the “result” as cont emplated by § 45-2-201( 2)(b), MCA, in the context of deliberate homicide by accountab ility means “not the death of another human being, but rather some act designed to promot e or facilitate causing the death of another human being.” Lantis , ¶ 36. ¶69 A reasonable juror could inte rpret the plain language of the instruction as directing the jury to consider whethe r Doyle’s contemplated “result” included “some act designed to promote or facilitate causing the death of another human being” in the context of deliberate homicide by accountability. Lantis , ¶ 36. The court’s in struction, therefore, “fully and fairly instructed the jury on the la w applicable” to Doyle’s case based on Rothacher , Lantis , and § 45-2-201(2)(b), MCA. Dubois , ¶ 30. We conclude that the District Court did not abuse its discretion in instructing the ju ry based on § 45-2- 201(2)(b), MCA. ¶70 Whether the District Court properly denied Doyle’s instruction for lesser included offenses of criminal endanger ment and negligent homicide. ¶71 A defendant is “‘entitled to a jury instru ction on a lesser in cluded offense when one of the parties requests it and the record contains evidence from which the jury could 23rationally find the defendant guilty of the lesser included offens e and acquit of the greater.’” Adams v. State , 2007 MT 35, ¶ 43, 33 6 Mont. 63, ¶ 43, 153 P.3d 601, ¶ 43, (quoting Beavers, ¶ 23). The offense must constitute an included offense of the crime charged in order for the court to instruct the jury on the lesse r included offense. Beavers , ¶ 23. ¶72 Doyle argues that he introduced sufficien t evidence at trial that entitled him to present to the jury instruc tions on the lesser and includ ed offenses of criminal endangerment and negligent homicide. Doyle offers his testimony that he left Solwick’s apartment during Maestas’s atta ck on Solwick, because “he wasn’t going to sit there while Maestas started taking sucker shots” as sufficient evidence to warrant instruction on the lesser included offenses. ¶73 Doyle was not entitled to either instruc tion. Criminal endangerment does not constitute a lesser included offense of de liberate homicide by accountability based on the defendant’s failure to act under § 45-2-201(2)(b), MCA. State v. Olivieri , 244 Mont. 357, 360, 797 P.2d 937, 939 (1990). The State based Doyle’s charge of deliberate homicide by accountability on § 45-2-2 01(2)(b), MCA. Doyle also pr esented no evidence at trial supporting an instruction on negligent homicide. Doyle o ffers no eviden ce and we can find no evidence in the record that would even suggest that Solwick’s murder had been the result of a negligent act. The photographs of Solwick’s body plainly reveal that he had been bludgeoned to death. We conclude that the court did not abuse its discretion in refusing to instruct the jury on the lesser included offenses of criminal endangerment and negligent homicide. 24¶74 Whether the District Court abused its di scretion in denying Doyle’s motion for mistrial. ¶75 Doyle moved for a mistrial after the court ordered jurors to continue deliberating when they were at “an impasse.” Doyle cont ends the court’s decision denying his motion constitutes an abuse of discretion, because the court improperly pr essured the jury to reach a decision and created the impression that the jury could only return a unanimous verdict rather than a hu ng jury. He contends that the c ourt failed to explain to the jurors that they should never give up their honest opinion concerning Doyle’s guilt or innocence. ¶76 We review a district court's grant or deni al of a motion for a mi strial to determine whether the district court abused its discretion. State v. Steele , 2004 MT 275, ¶ 15, 323 Mont. 204, ¶ 15, 99 P.3d 210, ¶ 15. Nothing in the record indicates that the court abused its discretion in denying Doyle’s motion for mi strial. Contrary to Doyle’s argument, the court had instructed the jurors that they should not “surrende r an honest opinion as to the weight or effect of the evidence or as to the innocence or guilt of the Defendant because the majority of the jury feel s otherwise, or for the pur pose of returni ng a unanimous verdict or to prevent a mistrial.” ¶77 The transcript also shows that the cour t never forced deliberations. The court simply sent the jury home af ter the jury informed the court that it could not reach a decision on the first day after ten hours of deliberations. The jury resumed deliberations the next morning. The jury sent a second note to the court at the end of the second day of deliberations, informing the court that it was at “an impasse.” The court then asked the 25jurors whether they wanted to go home early or order dinner and continue with deliberations. The jurors chose to break for the day. The jury re convened on the third day and returned a unanimous verdict co nvicting Doyle of deliberate homicide by accountability. We conclude that the court did not abuse its discretion in denying Doyle’s motion for mistrial

. ¶78 We affirm Doyle’s conviction.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ PATRICIA COTTER

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