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State v. Burton

Supreme Court of Montana

December 12, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID GARY BURTON, Defendant and Appellant.

          Submitted on Briefs: September 6, 2017

         District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 12-16 Honorable Kathy Seeley, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender; Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana

          Leo Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney; Helena, Montana

          OPINION

          Jim Rice, Justice.

         ¶1 David Burton appeals the denial of his motion to dismiss charges under § 46-11-504(1), MCA, by the Montana First Judicial District Court, Lewis and Clark County. We affirm, and address the following issues:

1. Can a defendant appeal the denial of a motion for dismissal under § 46-11-504(1), MCA, prior to the entry of a final judgment?
2. Did the District Court err by denying Burton's motion under § 46-11-504(1), MCA, to dismiss the charges of deceptive practices, burglary, and felony theft, given his federal conviction for possession of stolen firearms?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 The Lewis and Clark County Sheriff's Office and Helena Police Department connected Burton to a series of crimes that started in 2010 and culminated in December of 2011. Prosecutors alleged the following crimes were committed by Burton: On September 7, 2010, a Ruger .380 caliber pistol was stolen from Timothy Kosena's vehicle in the Helena Valley. On November 28, 2010, the Helena Valley home occupied by the McClain family was broken into and several items of value, along with personal documents, were taken. On February 5, 2011, owners reported that Jack and Jill Sports Memorabilia in downtown Helena was broken into, with merchandise and a cash register stolen. On October 5, 2011, a laptop computer and several tools were reported stolen from Glen Knudson's vehicle as it was parked in Helena or the Helena Valley. On November 16, 2011, the Helfert home in the Helena Valley was broken into and several items of value, including a Ruger .45 Colt revolver and a Llama pistol, were missing. On December 7, 2011, it was reported that jewelry was missing from the Mihelish home in the Helena Valley. On December 8, 2011, in the middle the night, J.L., a 13-year-old girl, was abducted from her bedroom in the Helena Valley while her mother slept. She was driven to a remote area where she was sexually assaulted and then released on foot. The next day, December 9, 2011, the Corbally home in the Helena Valley was broken into and several valuables, including a Springfield 9 millimeter pistol, a Springfield .40 caliber pistol, a Ruger .45 caliber pistol, a Ruger 12 gauge shotgun, and a Rock River AR rifle, were stolen. On December 15, 2011, it was reported that Capital Jewelry and Loan was broken into and a Center Arms Galil rifle was stolen. The same day, the Davis home in the Helena Valley was broken into and several valuables, including a Ruger 9 millimeter pistol, were taken. Again the same day, the Roncalli home in the Helena Valley was broken into and several valuables and a credit card were missing. On December 17, 2011, it was reported that King Lewy's Auto Plaza in Helena was broken into, and it appeared that a van had been stolen and later returned. The credit card taken from the Roncalli home was used to fuel the stolen van. Later that night, Bowser's Casino in Helena was robbed at gunpoint. The same van was used as a get-away vehicle.

         ¶3 The Roncalli credit card was used at several other businesses, and using security camera footage, police were able to identify Burton and arrest him. Burton was first charged in January 2012, and as he was connected to additional crimes, charges were added. In July 2012, the state filed an amended information, stating 13 counts: (1) felony deceptive practices, common scheme (Roncalli); (2) burglary (Roncalli); (3) misdemeanor theft (Roncalli); (4) burglary (King Lewy's); (5) robbery (Bowser's); (6) felony theft (Bowser's); (7) burglary (Corbally); (8) felony theft (Corbally); (9) burglary (J.L); (10) aggravated kidnapping (J.L.); (11) sexual intercourse without consent (J.L.); (12) felony theft (Davis, Capital Jewelry and Loan, Mihelish, Helfert, Knudson, Jack and Jill, McClain, Kosena); and (13) alternatively to count twelve, felony theft for possession of the stolen property.

         ¶4 In December 2012, federal prosecutors obtained an indictment against Burton for four federal charges: (1) felon in possession of firearms; (2) possession of stolen firearms; (3) robbery affecting commerce; and (4) utilization of a firearm during a crime of violence. The federal indictment identified five guns as the basis for the charges: a Ruger .380 caliber pistol, a Ruger .45 caliber revolver, a Ruger 9 millimeter pistol, a Rock River rifle, and a Galil rifle. The State's affidavit identified a Ruger .380 as being stolen from Kosena, a Ruger .45 caliber revolver from Helfert, a Ruger 9 millimeter from Davis, a Rock River rife from Corbally, and a Galil from Capital Jewelry.[1]

         ¶5 Shortly thereafter, the State, in consideration of § 46-11-504(1), MCA, filed a second amended information "to remove from the [first amended] information [] transactions that are the subject of the federal indictment." The State removed counts four, five, and six (the burglary of King Lewy's, and the robbery and theft of Bowser's Casino). The state also removed the firearms from the list of property stolen from the Corballys and reduced count eight from felony theft to misdemeanor theft. Further, the State amended alternative counts twelve and thirteen to remove the victims from whom only firearms were stolen, and also removed all firearms from the lists of property stolen from other victims.[2]Thus, the second amended information stated charges of: (1) felony deceptive practices, common scheme (Roncalli); (2) burglary (Roncalli); (3) misdemeanor theft (Roncalli); (4) burglary (Corbally); (5) misdemeanor theft (Corbally); (6) burglary (J.L.); (7) aggravated kidnapping (J.L.); (8) sexual intercourse without consent (J.L.); (9) felony theft (Davis, Mihelish, Knudson, Jack and Jill, and McClain); and (10) alternatively to count nine, felony theft.

         ¶6 Burton filed a motion to dismiss under § 46-11-504(1), MCA, which the District Court denied. The District Court granted Burton's motion to sever the aggravated kidnapping, sexual intercourse without consent, and burglary charge related to J.L. In October of 2014, a jury found Burton guilty of aggravated kidnapping and sexual intercourse without consent, but not guilty of burglary.

         ¶7 Subsequently, Burton pled guilty to federal count two, possession of stolen firearms. The other federal charges were dismissed. At the plea hearing, federal prosecutors made an offer of proof demonstrating their intention to prove that Burton possessed the five stolen firearms listed in the indictment, explaining the elements of the offense: Burton knowingly possessed stolen firearms, he knew or had reasonable cause to believe they were stolen, and the firearms were transported between one state and another before they were stolen. The charge did not include the assertion that Burton had himself stolen the firearms.

         ¶8 In March of 2015, Burton's second trial was held on the remaining State charges. The jury found him guilty of the remaining counts, except for burglary (Roncalli) and the alternative theft charge. At trial, the State attempted to offer evidence of the stolen firearms. The District Court denied admission of the evidence, and gave the following jury instruction, without objection from Burton:

Ladies and gentlemen I want to make a statement to you before we get started. At the end of the day there was an exhibit that was being offered when we broke. I have refused that exhibit.
You need to be aware of something. The charges in this case-there are no charges that Mr. Burton stole firearms. So I am going to read you an instruction.
The defendant is not being tried for theft of firearms. He may not be convicted for any other offense other than those charged in this case. For the jury to convict the defendant of any other offenses than that or those charged in the case may result in unjust double punishment of the defendant.
So if we hear some testimony or some reference to firearms, there will be an instruction telling you what to use that for. But if not, you are not to consider it.

         After that, no other mention of firearms was made by the parties. Further, the Davis theft was removed from the instructions and verdict form. This action meant that none of the victims from whom firearms had been stolen remained in the count nine theft charges.

         ¶9 In May 2015, Burton was sentenced in federal court to ten years in prison, to run consecutively to his sentence for crimes related to J.L., and concurrent to all other state counts. Based on the outcome of the federal prosecution, Burton moved to dismiss all the state felony charges on statutory multiple prosecution grounds. The District Court denied Burton's motion, noting the State's removal of all charges covered by the federal prosecution, Burton's motion in limine to prohibit the introduction of evidence concerning the federally charged conduct, and the District Court's refusal to admit firearms evidence offered by the State at trial. Burton immediately filed this appeal, on statutory grounds, challenging only counts (1) felony deceptive practices (Roncalli); (4) burglary (Corbally); and (9) felony theft (Mihelish, Knudson, Jack and Jill, and McClain). Consequently, Burton has not yet been sentenced for the state charges in this proceeding.

         STANDARD ...


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