                                                                                               06/28/2016


                                           DA 14-0307
                                                                                           Case Number: DA 14-0307

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 157



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RILEY JAMES CHARLO-WHITWORTH,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADC 13-59
                        Honorable Gregory G. Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Lisa S. Korchinski, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        John Parker, Cascade County Attorney, Amanda Lofink, Deputy County
                        Attorney, Great Falls, Montana



                                                     Submitted on Briefs: April 6, 2016

                                                                Decided: June 28, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Riley Charlo-Whitworth appeals his jury conviction of aggravated assault,

criminal endangerment, and assault on a minor in the Eighth Judicial District Court,

Cascade County. We affirm.

¶2    We restate the issue on appeal as follows:

      Did the District Court err in not giving the defendant’s proposed instruction on
      accomplice liability?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    Riley Charlo-Whitworth (“Whitworth”) and Alexis Paul (“Paul”) were engaged in

a romantic relationship. Whitworth was cohabitating with Paul and her 2-year-old child,

M.P., in Great Falls.   The record shows that on the evening of January 25, 2013,

Whitworth drove Paul to her second job at around 7:00 p.m. Whitworth was then the sole

caretaker of M.P. He put the child to bed around 8:30 p.m., but M.P. woke up crying

around 10:00 p.m. Whitworth admitted during questioning by the police that he was

frustrated with M.P. and shoved the child into a wall. Whitworth admitted he spanked

the 2-year old child’s genitals and hit him with hammer-fisted blows. M.P. was bleeding

so Whitworth gave him a bath.

¶4    Around midnight Whitworth had to pick up Paul from work, so without any prior

notice, he brought M.P. to Paul’s uncle and aunt, who lived approximately three miles

away. After the child arrived, the aunt and uncle saw M.P.’s injuries, and noticed that

M.P. was in pain and unresponsive. Whitworth told them that M.P. had fallen down the

stairs. He left M.P. with the aunt and uncle. He returned 20 minutes later with Paul. The

                                            2
aunt and uncle suggested to Paul that the child had been physically abused and that she

should take M.P. to the hospital.

¶5     Paul, Whitworth and M.P. returned to their apartment. After a while Paul realized

that M.P. was seriously injured and Whitworth drove them to the hospital, where they

arrived at 2:50 a.m.1 After examining M.P. the doctor found that the child had suffered

severe trauma to his pancreas and several blows to his body and genitals, as well as a

serious tear in his mouth. Due to the severity of M.P.’s injuries, he was flown to

Harborview Medical Center in Seattle for necessary medical care.

¶6     Whitworth was charged with several counts including Aggravated Assault,

Criminal Endangerment and Assault on Minor. Whitworth’s theory of defense was that

the injuries were inflicted by Paul, not him. At trial the aunt and uncle testified as to the

events of that night. Whitworth proposed jury instructions directing the jury to view the

aunt and uncle’s testimony with distrust, pursuant to § 26-1-303(4), MCA, which

provides that the “testimony of a person legally accountable for the acts of the accused

ought to be viewed with distrust.” The District Court declined to provide that instruction.

Whitworth was convicted of three felony counts and the Court imposed a sentence of 35

years in the Montana State Prison. Whitworth appeals.

                               STANDARD OF REVIEW

¶7     We review jury instructions to assess whether they fairly and fully instruct the jury

on the applicable law. State v. Allen, 2010 MT 214, ¶ 22, 357 Mont. 495, 241 P.3d 1045


1
   Paul subsequently pleaded guilty to Criminal Endangerment in a separate proceeding for
failing to promptly provide medical attention to the child.
                                              3
(citing State v. Dewitz, 2009 MT 202, ¶ 66, 351 Mont. 182, 212 P.3d 1040). A district

court has broad discretion in instructing the jury. State v. Courville, 2002 MT 330, ¶ 15,

313 Mont. 218, 61 P.3d 749.

                                      DISCUSSION

¶8     Did the District Court err in not giving the defendant’s proposed instruction on
       accomplice liability?

¶9     Montana law specifically states that “[a] person may not be found guilty of an

offense on the testimony of one responsible or legally accountable for the same

offense . . . unless the testimony is corroborated by other evidence that [independently]

tends to connect the defendant with the commission of the offense.” Section 46-16-213,

MCA. Legal accountability exists when “either before or during the commission of an

offense with the purpose to promote or facilitate the commission, the person solicits, aids,

abets, agrees, or attempts to aid the other person in the planning or commission of the

offense.” Section 45-2-302(3), MCA. Section 26-1-303(4), MCA, directs the district

court to instruct the jury “on all proper occasions” that “testimony of a person legally

accountable for the acts of the accused ought to be viewed with distrust.”

¶10    In State v. Johnson, we held that the district court should give the accomplice

liability instruction on “all proper occasions” and that it is within the district court’s

discretion to judge whether the case is a “proper occasion.” 257 Mont. 157, 163, 848

P.2d 496, 499 (1993); § 26-1-303(4), MCA. It is proper to give the instruction if there is

significant accomplice testimony and the defendant requested the instruction. Johnson,

257 Mont. at 163, 848 P.2d at 499; § 26-1-303(4), MCA.


                                             4
¶11    The purpose of the accomplice liability instruction is rooted in common sense. In

our criminal justice system, we presume that witnesses will testify truthfully. Section

26-1-302, MCA. Nevertheless, Montana statutes also recognize the principle that if a

person can avoid or lessen her punishment by testifying against another, that person will

have strong motivations to not speak truthfully. Entitling a jury to view such testimony

with disfavor is the specific purpose of the accomplice liability instruction in

§ 26-1-303(4), MCA.

¶12    However, the propriety of that instruction presupposes the existence of an

accomplice. Section 45-2-302(3), MCA. Accordingly, if the defendant claims at trial

that he did not commit the acts for which he is being tried, he cannot then ask the court to

instruct the jury that a testifying witness aided the defendant in the commission of those

acts. In other words, a person cannot be an accomplice to a person who did not commit

the crime. Further, if there is no evidence to suggest that a testifying witness is legally

accountable, then it is not proper to give the accomplice liability instruction. State v.

Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, 77 P.3d 239.

¶13    Our analysis in Hall clearly addressed this principle. If the defendant claims “he

did not do it, he was not there, and is not culpable or responsible, so be it. But then in

such an event, [the testifying witness] is not an accomplice, nor is he legally accountable

within the meaning of the instruction. He just did it.” Hall, ¶ 28 (quoting the district

court). Relying on the specific facts of the case, we held in Hall that “it is not proper to

give an accountability instruction where it is not supported by the evidence and is

inconsistent with the defendant’s claim of innocence.” Hall, ¶ 30. Hall stands for the
                                             5
proposition that if there is no evidence to establish legal accountability, then it is

improper to instruct the jury that they should view the nonexistent accomplice’s

testimony with disfavor. Hall, ¶ 30. There must be a basis to support an accomplice

liability instruction either in the facts of the case or in the theory of the defense. See, e.g.,

State v. Green, 2009 MT 114, ¶ 18, 350 Mont. 141, 205 P.3d 798 (it is proper to not

request the accomplice liability instruction if it is inconsistent with theory of the defense),

(citing State v. Johnson, 257 Mont. 157, 163, 848 P.2d 496, 499 (1993).) See also State

v. Higley, 190 Mont. 412, 429, 621 P.2d 1043, 1054 (1980), (the propriety of a jury

instruction is in part assessed on the defense’s theory of the case). Furthermore, jury

instructions must be applicable to the case. Higley, 190 Mont. at 429, P.2d at 1054. In

other words, there must be some basis in the facts or evidence for presenting the law to

the jury. State v. David Hall, 1999 MT 297, ¶ 43, 297 Mont. 111, 991 P.2d 929. The

rule that jury instructions must fully and fairly instruct the jury on the law applicable to

the record is embedded in Montana jurisprudence. State v. Bosch, 125 Mont. 566, 574,

242 P.2d 477, 481 (1952); Jeffries Coal Co. v. Mont. State Indus. Accident Bd., 131

Mont. 511, 521, 312 P.2d 128, 134 (1957); State v. Reiner, 179 Mont. 239, 244, 587 P.2d

950, 953-54 (1978); Dewitz, ¶ 66. In Hall’s particular case, the facts did not support an

accomplice liability instruction, and such an instruction was inconsistent with his defense

of total innocence. See also Allen, ¶ 22.

¶14    In this case, Whitworth argues on appeal that the District Court committed

reversible error when it declined to instruct the jury pursuant to § 26-1-303(4), MCA. In

support of his argument, Whitworth claims that the aunt and uncle were responsible for
                                                6
the welfare of M.P. after seeing his injuries, and that their testimony was an effort to shift

blame from Paul. As such they were at least accomplices to the crime of criminal

endangerment.

¶15    Whitworth’s arguments do not survive scrutiny. First of all, to the extent that

Whitworth suggests that the aunt and uncle were accomplices to Paul, the instruction is

not proper. Statutes are to be interpreted according to the plain meaning of the language

used. Mitchell v. State, 2015 MT 120, ¶ 9, 379 Mont. 127, 347 P.3d 1278. Section

26-1-303(4), MCA, clearly limits the use of the instruction to cases where the witness is

suggested to be an accomplice “for the acts of the accused,” in this case Whitworth.

¶16    In order to qualify for an accomplice liability instruction for the assault charges,

Whitworth has to present evidence that the aunt and uncle were involved in the physical

abuse of M.P. Hall, ¶ 30. Nothing in the record suggests that the aunt and uncle aided

Whitworth in any manner other than watching the child. The evidence indicates that

M.P. arrived at their house after sustaining the injuries.

¶17    Moreover, neither was charged with criminal endangerment and nothing in the

record indicates they committed that offense. They testified that they were deceived by

Whitworth’s story that the child had fallen down the stairs. And significantly, suggesting

that the aunt and uncle were accomplices to Whitworth for the offense is inconsistent

with his theory of defense. As such, it would not be proper to give the proffered

instruction. State v. Root, 2015 MT 310, ¶ 15, 381 Mont. 314, 359 P.3d 1088.

¶18    We cannot conclude that the District Court abused its discretion when it declined

to instruct the jury that the aunt and uncle were accomplices in the actions for which
                                               7
Whitworth was charged. The instruction was not consistent with his theory of defense

nor is it supported by any evidence in the record that the aunt and uncle were legally

accountable for these crimes.

                                   CONCLUSION

¶19   For the foregoing reasons, we affirm the District Court.



                                                /S/ MIKE McGRATH


We Concur:

/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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