No. 92-456 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

RICK LATER. 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby and Christine D. Somers, Butte, 

Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Kathy 

Seeley, Assistant andJoseph Thaggard, Special Dupty 

County Attorney, Helena, Montana: Thomas Scott, 

Beaverhead County Attorney, Dillon, Montana 

Submitted on Briefs: April 1, 1993 

Decided: September 17, 1993 

Filed: 

Clerk 
Justice James C. Nelson delivered the Opinion of the Court. 

After trial in the Fifth Judicial District Court, Madison 

County, Montana, a jury found the defendant, Rick Later, guilty of 

misdemeanor official misconduct and acquitted him of six other 

charges. The District Court imposed a fine of $350 and pursuant to 

5 45-7-401(4), MCA, concluded that defendant Rick Later had 

permanently forfeited his office of sheriff of Beaverhead County 

and the office was declared vacant. We reverse. 

The dispositive issue on appeal is whether the trial court can 

essentially "amend" the information with a jury instruction at the 

close of appellant's case-in-chief. 

The standard of review for discretionary trial court rulings 

is whether the trial court abused its discretion. Steer Xnc. v. 

(1990), 245 Mont. 470, 475, 803 P.2d 601, 

, defendant was charged with seven criminal 

Department of Revenue 

603-504. 

On January 3, 1992 

charges, including felony theft and the charge with which he was 

convicted, that being misdemeanor official misconduct. Defendant 

had worked in law enforcement in Beaverhead County from 1972 on and 

was sheriff from 1980 until his conviction on May 29, 1991. The 

State's motion to change the place of trial was granted and the 

case was tried in Madison County rather than Beaverhead County. 

Count VII of the Information alleged that the defendant had 

committed official misconduct in violation of 5 7-4-2511, MCA, and 

5 7-32-2144, MCA, when he failed to remit to Beaverhead County his 

reimbursement warrants for mileage received from the Montana Board 
of Crime Control. 

The two statutes referred to in Count 7111 provide in pertinent 

part: 

(2) No salaried county officer may receive for his own use 

any fees, penalties, or emoluments of any kind, except the 

salary as provided by law, for any official service rendered 

by him. Unless otherwise provided, all fees, penalties, and 

emoluments of every kind collected by a salaried county 

officer are for the sole use of the county and must be 

accounted for and paid to the county treasurer as provided by 

subsection (1) and credited to the general fund of the county. 

Section 7-4-2511(2), MCA. 

(1) A sheriff delivering prisoners at the state prison or a 

juvenile correctional facility or mentally ill persons at the 

Montana state hospital or other mental health facility 

receives actual expenses necessarily incurred in their 

transportation. 

Section 7-32-2144(1), MCA. 

When jury instructions were being settled in this case, 

counsel for the State conceded that $5 7-4-2511 and 7-32-2144, MCA, 

had been cited in errcr and indeed, did not apply to the 

appellant's conduct under Count VII. The State asserted that the 

mistake in the statutory citations aside, the information provided 

appropriate notice to the appellant. The State then offered an 

instruction citing a portion of 5 7-32-2143, MCA, which the State 

had decided was the statute applicable to the appellant's conduct. 

The District Court found that although 55 7-4-2511 and 7-32- 

2144, MCA, were mistakenly cited as the underlying offenses which 

formed the basis of the appellant's official misconduct, the 

statute outlining official misconduct was properly cited and the 

technical requirements of the charge were satisfied. It noted that 

although the information was "less than perfect," it did give the 
defendant notice of what he was charged with and how and why he was 

charged. The trial court then accepted the State's proposed 

instruction which quoted the excerpt below from 5 7-32-2143, MCA. 

Jury Instruction No. 16, submitted by the State, reads as 

follows: 

Montana law requires that all mileaae paid to sheriffs 

whose vehicles are ~rovided and maintained bv the countv shall 

be oaid over to the countv treasurer and deoosited in the 

countv aeneral fund. (Emphasis supplied.) 

The emphasized portion of the above jury instruction uses the 

precise language of ti 7-32-2143(2), MCA. However, § 7-32-2143, 

MCA, is a lengthy statute that takes up a full page in the code. 

To provide the jury with this instruction when the information 

alleges violations of two entirely different statutes modifies the 

information and calls into question the validity of the original 

information. One function of an information is to "notify a 

defendant of [the ~ffeme chargedj, thereby giving [the defendant; 

an opportunity to defend." State v. Tropf (1975), 166 Mont. 79, 

88, 530 P.2d 1158, 1163. TO, in essence, ltamendll the information 

at the close of the defendant's case-in-chief certainly does not 

give the defendant an opportunity to defend if the amendment is 

substantive. 

In the instant case, the "amendmentm at issue is one of 

substance. The prosecution requested a jury instruction which was 

an excerpted portion of a completely different statute than those 

cited in the information. It was those statutes against which the 

defendant was given notice by the information that he would have to 

defend. This jury instruction substantially alteredthe underlying 
offense which formed the basis for Count VII. It did not allow the 

defendant an opportunityto defend because the "amendment" occurred 

after the defense had rested. A defendant charged with official 

misconduct for violating a mandatory duty ought at least know with 

some certainty what duty he has allegedly violated in time to 

prepare an appropriate defense to this allegation. Therefore, the 

jury instruction represented a substantive ~~amendmentii tothe 

original information and because the change was effected so late in 

the trial, when there was no opportunity for the defendant to 

change his defense strategy if he had chosen, it was prejudicial to 

the defendant. 

"[The function of notifying a defendant of the offense 

charged, thereby giving the defendant an opportunity to defend] 

cannot be dispenced [sic] with when the information is amended as 

to substance. The defendant must be notified of the change and 

afforded a reasonable time after the amendment to prepare a 

defense . Further, when an amended information is filed 

substantively changing the charges against a defendant, the 

defendant should be arraigned under the new charges." State v. 

Cardwell (1980), 187 Mont. 370, 376, 609 P.2d 1230, 1233. 

(Citations omitted.) 

Our decision does not dilute the principle enunciated in state 

v. Longneck (1981), 196 Mont. 151, 640 P.2d 436, and in a line of 

similar cases, that an erroneous statutory reference will not 

invalidate the charge. The Lonqnecl$ line of cases concern 

informations which fully inform the defendant charged Itof what was 

intended to be charged and against what he was required to defend." 
&snuneck, 640 P.21 at 439, Those informations, however, containec: 

minor errors which did not prejudice a substantial right of tfie 

defendant. 

The instant case is entirely different. Here, the defendant 

was not fully apprised of the charges against him, was misled as to 

what unlawful statutory conduct was charged by erroneous citations 

to two statutes, was not apprised of the appropriate statute until 

after he presented his defense, and was then required to go to the 

jury on an instruction that substantially amended the original 

charge. 

We conclude that the trial court abused its discretion in 

accepting the proposed jury instruction and presenting an 

instruction to the jury which essentially amended the original 

information. 

REVERSED AND REMANDED. 

Justices 
Justice Fred J. FIeber dissents as follows: 

I dissent from the majority opinion and its conclusion that 

the dispositive issue was whether the trial court could amend the 

information with a jury instruction at the close of the defendant's 

case. I conclude that the primary issue presented to the Court was 

whether Sheriff Later was given sufficient notice of the nature of 

the crime with which he was charged under the information and 

supporting affidavits. 

Count VII of the Information alleged that the defendant had 

committedthe misdemeanor crime of official misconduct in violation 

of 5 7-4-2511, MCA, and 5 7-32-2144, MCA, when he failed to remit 

to the Beaverhead County treasurer his reimbursement warrants for 

mileage received from the Montana Board of Crime Control. Section 

7-4-2511(2), MU, states that any money received by a salaried 

county officer must be paid over to the county treasurer for 

crediting to the county's general fund. Defendant contended that 

the information did not sufficiently inform him of the charges 

against him and, therefore, that the District Court erred by 

approving a jury instruction with another statute as its source. 

As the majority emphasizes, g 7-32-2143, MCA, was not 

described in the information, nor was the information amended to 

refer to that code section. 

The test to be used in determining the sufficiency of an 

information is whether a person of common understanding would know 

what charge is intended. State v. Longneck (1981), 196 Mont. 151, 

154, 640 P.2d 436, 438, aff8d after remand, 201 Mont. 367, 654 P.2d 
971 (1982). The affidavit in suppork of the motion for leaye to 

file the information must be considered along with the information 

itself. State v. Hamilton (1992), 252 Nont. 496, 499, 830 P.2d 

1264, 1266. The general rule is that it is not a fatal defect that 

the information erroneously names the offense when the facts, acts 

and eireumstances are set forth with sufficient certainty to 

constitute an offense. Jhnuneck, 640 P.2d at 438 (citing State v. 

Schnell (1939), 107 Mont. 579, 88 P.2d 19, 22). This Court has 

used these principles in a number of cases ranging from official 

misconduct to deliberate homicide. For example, in Lonuneck, this 

Court stated: 

Ideally, the information should have named, in addition 

to the deliberate homicide charge, a separate count of 

aggravated assault to cover the nonfatal, first assault; 

or, it should have charged the defendant with only the 

nonfatal, first assault. Despite this inaccuracy in 

naming the offense, the facts detailed in the information 

and in the motion for leave to file the information 

sarvrad ta infer;-, the defendant of what was iiitendcd to be 

charged and against what he was required to defend. He 

could not have been surprised or misled at trial. 

Lonuneck, 640 P.2d at 439. 

In this case, the information charging the defendant provided: 

During the period of approximately February 22, 1990 to 

June 21, 1991 in Beaverhead County, Montana, the 

defendant committed the offense of Official Misconduct 

when, in his official capacity as a public servant, he 

purposely or negligently failed to perform a mandatory 

duty as required by law, namely sections 7-4-2511 and 7- 

32-2144, MCA, when he failed to remit to the Beaverhead 

County Treasury mileage fees paid by the Montana Board of 

Crime Control as reimbursement to Beaverhead County for 

the use of a Beaverhead County motor vehicle while the 

defendant was engaged in business with the Montana Board 

of Crime Control. 

In addition, the portion of the affidavit in support of the motion 
for leave to file the information which pertains to Count VII 

provided: 

The defendant's failure to remit to Beaverhead County the 

mileage fees paid to him by the Board of Crime Control 

for his use of a county vehicle constitutes as rsicl act 

of Official Misconduct in violation of section 45-7- 

40111)fa). MCA. Under that subsection of the statute, 

public official commits the crime of Official Misconduct 

when he wur~oselv or nesliaentlv fails to werform anv 

mandatorv dutv as rewired bv law or by a court of 

competent jurisdiction. In the instant case, the 

defendant failed to comply with the mandatory 

requirements of sections 7-4-2511, MCA, and 7-32-2144, 

MCA, when he did not. as mandated bv 7-4-2511 and 7-32- 

2144. MCA. remit to Beaverhead County the milease fees 

paid to him bv the Board of Crime Control for his use of 

a countv vehicle while conductins business with the 

Montana Board of Crime Controk. Based on these facts, 

the affiant believes that probable cause exists to charge 

the defendant in Count VII with Official Misconduct. 

(Emphasis supplied.) 

When jury instructions were being settled in this case, counsel for 

the State conceded that 15 7-4-2511 and 7-32-2144, MCA, had been 

cited in error. The District Court found that the statute 

outlining the crime of official misconduct, however, was properly 

cited and that the technical requirements of the charge were 

satisfied, noting that although the information was "less than 

perfect," it gave the defendant notice of what he was charged with 

and how and why he was charged. 

While the information failed to accurately cite the statutory 

reference, Count VII of the information and the affidavit described 

the exact offense and facts supporting the charge of official 

misconduct. I conclude that the affidavit and information were 

clearly sufficient to inform Sheriff Later of the charge against 

which he was required to defend. Section 45-7-401(1) (a), MCA, sets 
forth the crime charged and provides that purposely or negligently 

failing to perform a mandatory duty as required by law is official 

misconduct. Section 7-32-2143(2), MCA, describes the mandatory 

duty of sheriffs to pay over to the county treasurer for deposit in 

the county general fund all mileage fees paid to them when the 

county provides and maintains vehicles for a sheriff's official 

use. I conclude that Sheriff Later was given sufficient notice of 

the charges against him and what he would be required to defend 

against. 

Sheriff Later contends that Jury Instruction No. 16 was not 

supported by direct evidence or some logical inference from the 

evidence and came at a point in the trial when he had rested his 

case and could not have presented any evidence relative to S 7-32- 

2143, MCA. This Court has stated that the primary purpose of an 

information is to reasonably apprise the accused of the charges 

against him so that he has the opportunity to prepare and present 

his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971. 

This requirement is satisfied if the charges sufficiently express 

the language of the statute which defines the offense. State v. 

Hankins (1984), 209 Mont. 365, 680 P.2d 958. *It is not the 

function of the information to anticipate or suggest instructions 

to the jury . . . . It is a notice device, not a discovery device.*1 

State ex re1 McKenzie v. District Court (1974), 165 Mont. 54, 63, 

525 P.2d 1211, 1216. "The defendant has available extensive 

discovery procedure to determine the details of the prosecution*^ 

case." McKenzie, 525 P.2d at 1217, As is apparent, I disagree 
with the majority conclusion that there was a substantive 

amendment. 

This Court has previously concluded that an erroneous 

statutory reference will not invalidate the charge. In State v. 

Handy (1986), 221 Mont. 365, 719 P.2d 766, the complaint charged 

the defendant with driving under the influence of alcohol, but 

cited a statute under which the defendant could not have been 

convicted, as did the information in this case. This Court stated: 

Under the rule of Wnaneck and Schnell, an erroneous 

statutory reference will not invalidate the charge. . . . The disputed complaint charged appellant using the 

statutory language and we hold that the complaint 

adequately described, and gave notice to appellant of, 

the offense he was subsequently convicted of. 

Handv, 719 P.2d at 768. Like the defendant in m, Sheriff Later 

was adequately apprised of the charge against him here. Sheriff 

Later was given notice of the acts he had done which constituted 

LLbur L;L~IUC: of officiai iiiiscoiidiict and tar iiifoi3ii2ikiiiii correctly 

referred to the offense of official misconduct although it did not 

set forth correctly the statute which created the duty involved. 

In fact, the information alternatively charged Later with a felony 

for allegedly using the money he received for reimbursed mileage 

from the Montana Board of Crime Control for his own personal use. 

Later was well aware of the charges against him and was able to 

defend against them. 

The public policy underlying the technical requirements of a 

charging statute is to afford a defendant due process of law--to 

fairly apprise a defendant of what crime is being charged in order 

to fully defend against it. Sheriff Later received the required 

11 
due process here. He was acquitted of the charges alleging theft 

in relation to this conduct. He could not have been surprised by 

the evidence admitted against him at the trial. The statute 

listing the mandatory duty was incorrectly cited by the State, but 

the facts and circumstances described in the information 

unmistakably point to an alleged violation of § 45-7-401(l) (a), 

MCA, which was correctly cited by the State and which describes the 

crime of official misconduct. The name of a crime is controlled by 

the specific acts charged. State v. Collins (1987), 226 Mont. 188, 

191, 734 P.2d 686, 689 (citing State v. Schnell (1939), 107 Hont. 

579, 88 P.2d 19). Like Collins, the information here contained 

harmless error and was, therefore, sufficient to apprise Later of 

the crime charged. 

I conclude that the jury instruction was not a substantive 

amendment which in fact prejudiced the defendant. I would affirm 
September 17, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Leonard J. Haxby & Christine D. Somers 

Attorneys at Law 

P.O. 3008 

Butte, MT 59702-3008 

Hon. Jospeh P. Mazurek, Attorney General 

Kathy Seeley, Assistant, and Joseph Thaggard, 

Special Deputy County Atty. 

Justice Bldg. 

Helena, MT 59620 

Thomas Scott 

Beaverhead County Attorney 

Beaverhead County Courthouse 

Dillon. MT 59725 

ED SMITH 

CLERK OF THE SUPREME COURT