341 P.3d 629
Mont.2014Background
- In the early morning of Sept. 7, 2012, a masked man (Burch) entered Ole’s convenience store with a .22 rifle and shot clerk Adam Gallegos during an attempted theft; Gallegos survived.
- Detectives located Burch, who said he had been drinking with Preston Hanna and that Hanna drove the car and supplied the rifle.
- Hanna told detectives he drove the group, removed a temporary tag, parked outside with lights off, remained in the car while Burch (masked) entered with the rifle, and fled after Burch returned and said he had shot the clerk.
- Hanna initially pleaded guilty to accountability for robbery under a plea agreement, but the district court rejected the agreement; Hanna withdrew his plea and went to trial.
- At trial the State presented testimony from the third occupant (Smith) and Hanna’s recorded statements; Hanna argued he did not know of Burch’s lethal intent and lacked time to withdraw after the shooting.
- Jury convicted Hanna of accountability for robbery; court sentenced him to 30 years (10 years suspended), ordered violent-offender registration, and deferred specifying restitution for victim medical expenses.
Issues
| Issue | State's Argument | Hanna's Argument | Held |
|---|---|---|---|
| Jury instruction on robbery/accountability | Instruction followed statute; Information charged robbery generally so jury could consider statutory alternatives | Instruction allowed conviction under robbery sub-elements Hanna was not specifically charged with; lack of unanimity instruction | Affirmed: instruction did not amend charge; unanimity claim not preserved and plain-error review unwarranted |
| "Getaway driver"/flight instruction | Proper exposition of law: flight can be part of robbery and make a getaway driver accountable | Instruction relied on dicta and was improper | Affirmed: instruction was a fair statement of law and not an abuse of discretion |
| Sufficiency of evidence (directed verdict) | Admissions and corroborating testimony (Smith; recorded confession) connected Hanna to robbery as accomplice, including facilitation by flight | Hanna argued evidence only showed driving away after the crime was finished; he lacked knowledge of armed plan (cites Rosemond) | Affirmed: reasonable juror could infer Hanna knew Burch went in armed/intended theft and aided/abeted by facilitating flight |
| Sentencing: restitution amount, increased sentence after rejected plea, SVORA registration | Court must specify restitution amount; court not required to justify greater sentence because it did not participate in plea negotiations; accountability counts as violent offense for registration | Hanna: court erred by not fixing restitution; punished him for going to trial; accountability isn’t listed in SVORA so registration improper | Partially remanded: conviction and sentence affirmed but remand to specify restitution amount; no improper punishment for trial; registration requirement valid |
Key Cases Cited
- State v. Tellegen, 314 P.3d 902 (Mont.) (accountability is not a separate offense; accomplice liability conduit)
- State v. Hardaway, 36 P.3d 900 (Mont.) (unanimity required as to principal factual elements when alternatives charged)
- State v. Kills on Top, 793 P.2d 1273 (Mont.) (flight can be part of robbery; getaway driver liability)
- State v. Case, 621 P.2d 1066 (Mont.) (principle on flight and when criminal purpose is completed)
- State v. Heafner, 231 P.3d 1087 (Mont.) (restitution amount must be stated as a specific dollar figure)
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (accomplice liability may require knowledge that a confederate would carry/use a gun)
- State v. Ferguson, 126 P.3d 463 (Mont.) (distinguishing definitions of "crime of violence" vs. "violent offense" for sentencing and registration)