State v. Tellegen, 2013 MT 337

On Jan. 13, 2012 Tellegen and friends scouted a house and loaded items from a residence after entering unlawfully; the State initially charged accountability for burglary, then amended to burglary, conspiracy to commit burglary, and theft, later dropping accountability for burglary.
District Court instructed on accountability for burglary using a conduct-based definition of “purposely”; Tellegen’s counsel did not object to this instruction.
The jury convicted Tellegen of burglary and theft; theft was charged as a predicate offense to burglary under a 2009 statutory change.
Tellegen appeals arguing: (1) the district court erred by instruction on accountability without a charged accountability offense, (2) counsel provided ineffective assistance by advocating a conduct-based definition of “purposely,” and (3) counsel failed to object to a theft conviction as a violation of the multiple-charges rule.
Standards include abuse of discretion for jury instructions and Strickland v. Washington for ineffective assistance, with de novo review of mixed questions of law and fact.
The court reverses Tellegen’s theft conviction for statutory reasons but affirms accountability to burglary; remands for recalculation of fees, costs, and fines.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether accountability instruction was proper without a charged accountability offense.	Tellegen	Tellegen	Tower controls; accountability not a separate offense; notice given
Whether conduct-based definition of “purposely” was ineffective assistance.	Tellegen	Tellegen	No prejudice; could convict under result-based standard
Whether failure to object to theft as a predicate offense violated statutory limits on multiple charges.	Tellegen	Tellegen	Theft should be vacated; double-charging violates §46-11-410(2)(a); conviction reversed

State v. Tower, 267 Mont. 63 (Mont. 1994) (accountability not a separate offense; notice to defendant of theory)
State v. Maetche, 343 Mont. 464 (Mont. 2008) (accountability is a conduit to liability, not a separate offense)
State v. Abe, 290 Mont. 393 (Mont. 1998) (accountability framework in Montana law)
State v. Murphy, 174 Mont. 307 (Mont. 1977) (notice of accusations and theories prior to trial)
State v. Medrano, 285 Mont. 69 (Mont. 1997) (notice of accountability theory where defendants acted in concert)
State v. Spotted Eagle, 358 Mont. 22 (Mont. 2010) (distinguishable from continuation of charge shifting in accountability)
State v. Andress, 2013 MT 12 (Mont. 2013) (ineffective assistance where conduct-based vs. result-based ‘purposely’ conviction; no prejudice)
State v. Russell, 347 Mont. 301 (Mont. 2008) (predicate offense and multiple charges; charging choices govern outcomes)