and Submitted: June 27, 2018
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.
Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle
(argued), Assistant Appellate Defender, Helena, Montana
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
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.
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
AND PROCEDURAL BACKGROUND
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."
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.
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 ...