Submitted on Briefs: September 26, 2013
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 12-063B Honorable Katherine R. Curtis, Presiding Judge.
For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender; Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney, Alison Howard, Travis Ahner, Deputy County Attorneys; Kalispell, Montana
MICHAEL E WHEAT, Judge.
¶1 Judge Katherine Curtis of the Eleventh Judicial District Court, Flathead County, presided over the trial of Kandice Tellegen (Tellegen) for theft and accountability to burglary. The jury returned a verdict of guilty on both counts. Tellegen appeals from numerous alleged errors at trial.
¶2 We address the following issues on appeal:
Issue One: Did the District Court err by instructing the jury on the theory of accountability when the State had not directly charged an accountability based offense?
Issue Two: Did Tellegen's counsel render ineffective assistance by offering a "conduct-based" definition of "purposely?"
Issue Three: D id Tellegen's counsel render ineffective assistance by failing to object to her theft conviction on the grounds that it violated Montana's statutory restriction on multiple charges?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 13, 2012, Tellegen and her friends Ashley Ekern (Ashley), Aaron Zelenik (Aaron), and Jeff Weldele (Jeff) spent the afternoon together. T he group eventually decided that Jeff and Aaron would go and "scout a house" while Ashley and Tellegen waited at a fishing access near Kila, Montana. Ashley and Tellegen soon went looking for Jeff and Aaron, and spotted their car parked near an unknown house. Tellegen parked the car around back and approached the house. Jeff and Aaron then opened the garage door and told Tellegen to pull her car into the garage. Once inside, accounts differ as to whether Tellegen participated in loading the cars with items from the home.
¶4 The State filed an information charging Tellegen with accountability for burglary. The State later withdrew that charge and amended the information to charge Tellegen with burglary, conspiracy to commit burglary, and theft. After the presentation of evidence, the District Court and attorneys settled instructions. The State sought an accountability instruction for the burglary charge, which the District Court granted over Tellegen's objection. The District Court settled on an instruction defining the word "purposely" as a conduct-based mental state instead of a result-based mental state. Tellegen's attorney did not object to ...