Submitted on Briefs: December 5, 2018
District Court of the Seventeenth Judicial District, In and
For the County of Blaine, Cause No. DC-14-28 Honorable John
C. McKeon, Presiding Judge.
Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum,
Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana.
W. Harwood, Blaine County Attorney, Chinook, Montana.
JEREMIAH SHEA JUSTICE.
Terrence Felix Hardground appeals from the jury verdict and
sentence of the Seventeenth Judicial District Court, Blaine
County, for Failure of Sexual Offender to Provide Notice of
Change of Residence.
We review the following issue on appeal and reverse:
the District Court abused its discretion by granting the
State's Motion to Amend the Information on the day of
trial, immediately prior to opening statements.
AND FACTUAL BACKGROUND
On September 2, 2014, the State initially charged Hardground
by Information with one count of Failure of Violent Offender
to Provide Notice of Change of Residence, a felony in
violation of §§ 46-23-504(1)(c), -505, -507, MCA.
The Information stated that on or before December 19, 2013,
Hardground failed to appear in person and give notification
of his change of residence to the registration agency within
three business days. On October 20, 2014, the State filed an
Amended Information, adding "Sexual Offender" to
the offense description but leaving December 19, 2013, as the
offense date. On February 4, 2015, the State filed a Second
Amended Information. On February 23, 2015, the District Court
held a hearing for Hardground's initial appearance on the
Second Amended Information. The District Court expressed
concern that the facts constituting probable cause to charge
Hardground with the offense were not recited in the charging
documents and requested that the State file another amended
information. On February 25, 2015, the State filed a Third
Amended Information, which still included the December 19,
2013 offense date but added the predicate offense warranting
sexual offender registration-a 1994 conviction in the
Northern Cheyenne Tribal Court. After Hardground was arraigned on
the Third Amended Information and entered a plea of not
guilty, the District Court set a trial date for June 4, 2015.
On June 4, 2015, the District Court presided over a one-day
jury trial. Following the preliminary jury instructions, and
immediately prior to breaking for a lunch recess, the State
moved orally to amend the Information, pursuant to §
46-11-205(3), MCA, to reflect the proper date of the alleged
offense: August 5, 2014. The State contended the change of
date was not a substantive amendment and instead
characterized the correction as a "typographical
error." The State represented to the District Court that
the proper date was set forth in the State's original
Motion for Leave to File an Information, which described that
Blaine County Sexual or Violent Offender Registry
Administrator Debbie Gomke received a phone call on or around
August 5, 2014, with information that Hardground was out of
compliance with his offender registration requirements.
Hardground objected to the proposed amendment, arguing that
the jury was empaneled and defense counsel was prepared to
proceed "based on the fact that Mr. Hardground was
arraigned on the December 19, 2013 date" and
"on that specific set of facts." Hardground argued
that the requirement to register at a particular address in a
three-day window was specific to the offense charged. He
pointed out that the Information was amended four times, and
in each version the December 19, 2013 date appeared.
The District Court concluded, "there's certainly no
different offense charged, and there's no additional
offense charged. It's the same charge." The District
Court allowed the State to amend the Information to reflect
the August 5, 2014 date. During trial, the State offered
testimony as to where Hardground lived during August of 2014;
the State did not offer direct testimony as to where
Hardground lived in December of 2013. On June 4, 2015, the
jury convicted Hardground of Failure of Sexual Offender to
Provide Notice of Change of Residence. On November ...