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State v. Barrows

Supreme Court of Montana

August 21, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
CRAIG ALAN BARROWS, Defendant and Appellant.

          Argued and Submitted: June 27, 2018

          APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 16-35 Honorable James B. Wheelis, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle (argued), Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

          OPINION

          Ingrid Gustafson Judge.

         ¶1 Following jury trial, Appellant Craig Barrows (Barrows) was convicted of three counts of felony assault with a weapon and two counts of felony criminal possession of dangerous drugs and sentenced to serve 30 years at the Montana State Prison. He appeals from the December 27, 2016 Judgment and Sentence of the 19th Judicial District Court, Lincoln County. We reverse in part, affirm in part, and remand for action consistent with this opinion.

         ¶2 We restate the issues on appeal as follows:

1. Whether plain error review of the District Court's mid-trial dismissal of a felony drug charge and subsequent re-instatement of that charge is appropriate in light of Barrows's right to avoid double jeopardy?
2. Whether the District Court violated Barrows's right to represent himself?
3. Whether the District Court's written judgment conforms with its oral pronouncement and statutory IT and prosecution surcharges?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Double Jeopardy. Barrows was charged with three counts of felony assault with a weapon and two counts of felony criminal possession of dangerous drugs. One of the drug possession charges involved possession of methamphetamine and the other involved possession of Lorazepam, a benzodiazepine. In the State's case-in-chief, the investigating officer testified he did not send the Lorazepam he collected to the State Crime Lab. Instead, the officer typed the number located on the pills into "Drugs.com," to identify the pills as Lorazepam. During a recess conference with the parties before the State rested, the District Court sua sponte told Barrows that his defense counsel "has basically made sure that you are not going to be convicted of Lorazepam possession because I am not going to give that as a charge." Upon resuming trial, the State rested without putting on any additional evidence. The District Court dismissed that charge, stating "I will dismiss the Lorazepam case. The Lorazepam charge is off."

         ¶4 Barrows then presented his defense and testified on his own behalf. The prosecutor asked Barrows whether he knew there was Lorazepam in the vehicle he was driving when he was arrested. Barrows testified that he did.

         ¶5 When settling jury instructions, the State proposed instructions relating to the Lorazepam charge. The court asked if the defense objected to the State's proposed instruction stating, "I wasn't going to give it but since he admitted it." Defense counsel did not object. The court explained, "And my reasoning for letting that Lorazepam in was I thought there might be some actual evidence but just looking it up on the internet isn't enough in my opinion." The jury found Barrows guilty of all charges, including possession of Lorazepam. Barrows was sentenced to twenty years each for the three assault with a weapon charges and five years each for the two criminal possession of dangerous drugs charges. The court ran each felony assault with a weapon sentence concurrently and the felony drug possession ...


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