State v. G. Denny, 485 P.3d 1227

Background

On March 29, 2018, Gregory Denny led police on a high‑speed chase driving a stolen Chevrolet Avalanche with a stolen dealer license plate; he lacked a valid license. He was charged with felony theft by possession of stolen property and multiple misdemeanors (obstructing, fleeing/eluding, speeding, driving without a license).
State witness Brian Osborn (incarcerated in county jail) testified that Denny obtained the stolen dealer plate in a transaction in exchange for methamphetamine and/or heroin; the defense ultimately stipulated to admission of that testimony as transaction evidence.
While testifying, Osborn referred to communicating with Denny “at the county jail”; later Detective Mahlum described an audio exhibit as a “jail visitation” call. Denny moved twice for mistrial on the basis those references revealed his inmate status; both motions were denied.
Denny requested a lesser‑included jury instruction for unauthorized use of a motor vehicle as an alternative to the theft‑by‑possession charge; the court refused that instruction.
Denny contended he received ineffective assistance because counsel stipulated to the drug‑for‑plate testimony; the court declined to resolve the IAC claim on direct appeal and suggested postconviction relief.
The jury convicted Denny on the felony theft count and four misdemeanors; the District Court imposed concurrent custodial sentences and restitution. The Supreme Court of Montana affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Denny)	Held
1) Whether mistrials were required after two references to “jail”	References were admissible or harmless; Denny’s conduct (jail communication/intimidation) made the references relevant and any prejudice self‑inflicted	Single or cumulative references to “jail” unfairly exposed Denny as an inmate and were highly prejudicial, requiring mistrial	Denied mistrial; court found references not a manifest necessity for mistrial, evidence admissible as concealment/transaction evidence, and prejudice insufficient to overturn verdict
2) Whether unauthorized use of a motor vehicle is a lesser‑included offense of theft by possession of stolen property	Unauthorized use requires different statutory elements (operation without consent; no requirement property be stolen or intent to deprive), so it is not a lesser‑included offense	Unauthorized use could be a lesser‑included offense and the evidence could support that verdict instead of felony theft	Refused instruction; held unauthorized use is a separate offense requiring proof different from theft by possession of stolen property, so no entitlement to the instruction
3) Whether Denny got ineffective assistance for counsel’s stipulation to drug‑for‑plate testimony	Counsel’s stipulation can be a legitimate trial strategy because the transaction evidence was admissible and probative	Stipulating to highly prejudicial drug evidence was deficient and likely affected the verdict	IAC claim not resolved on direct appeal; record does not show no conceivable strategic reason—claim better raised in postconviction proceedings

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (test for whether one offense is a lesser‑included of another)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Holbrook v. Flynn, 475 U.S. 560 (appearance of custody/restraints can prejudice jury and implicate right to fair trial)
State v. Castle, 948 P.2d 688 (Mont. 1997) (two‑step test for entitlement to lesser‑included instruction)
State v. Smith, 916 P.2d 773 (Mont. 1996) (Blockburger analysis applied to lesser‑included instruction question)
State v. Gunderson, 237 P.3d 74 (Mont. 2010) (standard for reviewing denial of mistrial)
State v. Long, 113 P.3d 290 (Mont. 2005) (when mistrial required; review of prejudicial influence/cumulative error)