                                                                                              12/12/2017


                                          DA 15-0593
                                                                                          Case Number: DA 15-0593

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 306



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DAVID GARY BURTON,

               Defendant and Appellant.


APPEAL FROM:           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


COUNSEL OF RECORD:

                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



                                                   Submitted on Briefs: September 6, 2017

                                                               Decided: December 12, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶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
                                          2
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

                                         3
(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).



1
  The record reflects that both Helfert and Corbally had Ruger .45 caliber handguns stolen. The
State identified Helfert’s gun as a revolver, and the federal charges involving a Ruger .45 caliber
handgun described it as a revolver, so we assume the federal charge involved Helfert’s handgun.
However, it is possible that Corbally’s Ruger .45 caliber handgun was also a revolver, and that the
federal charge referenced that handgun. This question does not impact our resolution of the issues
raised here.

                                             4
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



2
  The State apparently also removed the Helfert theft from the charges, even though several
valuables were taken that were not firearms.
                                             5
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
                                           6
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 OF REVIEW

¶10    We review a district court’s decision to grant or deny a defendant’s motion to

dismiss a charge under Montana’s statutory protection against double jeopardy,

§ 46-11-504, MCA, for correctness. State v. Cline, 2013 MT 188, ¶ 6, 371 Mont. 18, 305

P.3d 55 (citing State v. Neufeld, 2009 MT 235, ¶ 10, 351 Mont. 389, 212 P.3d 1063).

                                     DISCUSSION

¶11 1. Can a defendant appeal the denial of a motion under § 46-11-504(1), MCA, prior
to the entry of a final judgment?

¶12    The State moved to dismiss this appeal on the ground there is no final judgment

from which to appeal. We permitted the appeal to proceed, based on precedent that has

permitted interim appeals in double jeopardy cases. State v. Burton, No. DA 15-0593, Or.

(Mont. Oct. 13, 2015). The State asks us to reconsider this order, given that the Montana


                                         7
Rules of Appellate Procedure do not provide for interim appeals, and that this is a challenge

under statute, as opposed to constitutional double jeopardy.

¶13    Because we have already denied the State’s motion to dismiss, and ordered this

appeal to proceed, we will address the merits pursuant to the law of the case doctrine.

“[W]here a decision has been rendered by the Supreme Court on a particular issue between

the same parties in the same case, whether that decision is right or wrong, such decision is

binding on the parties and the courts . . . .” State v. Van Dyken, 242 Mont. 415, 425, 791

P.2d 1350, 1356 (1990).       The doctrine promotes judicial economy and finality of

judgments. In re Estate of Snyder, 2009 MT 291, ¶ 6, 352 Mont. 264, 217 P.3d 1027.

¶14    However, we also accept the State’s invitation to revisit the issue of interim double

jeopardy appeals, taken before a final judgment is entered, to clarify the process of review

prospectively.

          a. Appeals of constitutional double jeopardy issues.

¶15    Both the Fifth Amendment to the U.S. Constitution and Article II, Section 25 of the

Montana Constitution, protect individuals from being twice placed in jeopardy. The United

States Supreme Court has held that the Fifth Amendment protects not only against double

punishment, but against being tried twice for the same offense. Abney v. United States,

431 U.S. 651, 660-61, 97 S. Ct. 2034, 2041 (1977). The Abney Court concluded that a

double jeopardy challenge must be reviewable before a defendant’s exposure to a second

trial. Abney, 431 U.S. at 662, 97 S. Ct. at 2041. This holding was inconsistent with

Montana statute, which provided that criminal cases may be appealed “by the defendant

                                          8
only from a final judgment of conviction and orders after judgment which affect the

substantial rights of the defendant.” Section 46-20-104, MCA; see also M. R. App. P. 6(2).

Consequently, citing Abney, this Court held that a defendant could raise a constitutional

double jeopardy challenge, prior to a second trial, by way of a writ of supervisory control,

overruling prior contrary holdings. Keating v. Sherlock, 278 Mont. 218, 224-25, 924 P.2d

1297, 1300-01 (1996). This approach ensured, consistent with the Montana Rules of

Appellate Procedure, that defendants could have a denial of a double jeopardy challenge

reviewed by this Court prior to a second trial.

¶16    Since Keating, we have occasionally strayed from this procedure, and entertained

interim appeals raising double jeopardy challenges prior to entry of a final judgment. See,

e.g., State v. Violette, 2015 MT 67, 378 Mont. 320, 343 P.3d 574. In State v. Barron, 2008

MT 69, ¶ 8, 342 Mont. 100, 179 P.3d 519, we explicitly created a broadly-stated “interim

appeal” for all constitutional double jeopardy issues. (“We conclude that where the

challenge before us is one made on double jeopardy grounds, we will accept an interim

appeal for the sole purpose of considering the merits of the defendant’s double jeopardy

claims.”); see also State v. Duncan, 2012 MT 241, 366 Mont. 443, 291 P.3d 106.

¶17    However, interim appeals are not authorized by the Montana Rules of Appellate

Procedure and are, in retrospect, ill-founded. Such appeals are governed, as they must be,

by the usual appellate rules, which do not separately contemplate interim appeals, and are

necessarily time-consuming and significantly disruptive of a trial court proceeding. In

contrast, under the rules, this court can exercise supervisory control over a trial court that

                                          9
is proceeding under a mistake of law with relative promptness and efficiency, and thereby

reduce the delay and disruption associated with a mid-proceeding double jeopardy

challenge.

¶18    For these reasons, and because the constitutional necessity for pre-trial review under

Abney can be fulfilled by our supervisory control authority, we overrule our prior

jurisprudence recognizing a common law interim appeal for double jeopardy issues. The

interim appeal created by Barron sanctions delay and piecemeal litigation without a basis

in the statutes or rules. We return to Keating, and hold that constitutional double jeopardy

rulings by a district court may be challenged prior to a final judgment only by way of a

petition for writ of supervisory control, as authorized by M. R. App. P. 14(3).

¶19    We have likewise permitted appeals to this Court, following appeal to the district

court, of double jeopardy rulings entered by courts of limited jurisdiction, without a final

judgment. See City of Helena v. Whittinghill, 2009 MT 343, 353 Mont. 131, 219 P.3d

1244. Appeals of a double jeopardy issue from a court of limited jurisdiction to a district

court are permitted as a “narrow exception[]” to the general rules governing de novo

appeals to the district court, Whittinghill, ¶¶ 12-13, as district courts have no jurisdiction

to issue a writ of supervisory control over a limited jurisdiction court. State ex rel. Ward

v. Schmall, 190 Mont 1, 3, 617 P.2d 140, 141 (1980) (“Absent a constitutional provision

or statute bestowing upon the District Courts the authority to grant writs of supervisory

control over Justice of the Peace Courts, we are obligated to infer that District Courts do

not have such power[,]” and overruling cases). However, as with appeals from double

                                          10
jeopardy rulings originating in the district courts, there is no authority for interim appeals

to this Court from non-final orders originating in a court of limited jurisdiction following

appeal to the district court. Thus, consistent with our ruling above, pre-judgment double

jeopardy rulings entered by a court of limited jurisdiction can, following appeal to the

district court, be brought to this Court only by way of a petition for a writ of supervisory

control. See, e.g., Huertas v. Billings Mun. Ct., 2017 MT 261, 389 Mont. 158, ___ P.3d

___.

          b. Appeals of “statutory double jeopardy” issues.

¶20    Apart from federal and state double jeopardy constitutional jurisprudence, Montana

has enacted statutory protections against multiple prosecutions in certain instances.

Sections 46-11-503 to -505, MCA. Although the statutes do not employ terminology

associated with constitutional double jeopardy jurisprudence, they are commonly referred

to as “statutory double jeopardy” provisions. State v. Glass, 2017 MT 128, ¶ 9, 387 Mont.

471, 395 P.3d 469; Cline, ¶ 8.3 Our cases have utilized double jeopardy terms and concepts

in application of the statute, and at times our constitutional and statutory analyses have

intertwined. See, e.g., State v. Cech, 2007 MT 184, ¶ 10, 338 Mont. 330, 167 P.3d 389.

We have stated that these statutes generally provide criminal defendants “greater protection

against double jeopardy than the United States Constitution.” Cline, ¶ 8 (citations omitted).

For our purposes here, we simply note that there are also important distinctions between



3
 We have also used the term “multiple prosecutions” statute. State v. Maki, 2008 MT 379, ¶ 15,
347 Mont. 24, 196 P.3d 1281; Lacey v. State, 2017 MT 18, ¶ 27, 386 Mont. 204, 389 P.3d 233.
                                          11
the statutes and constitutional double jeopardy jurisprudence, for example, in their

treatment of the attachment of jeopardy. Compare § 46-11-504(2), MCA (statutory

protection premised upon an “acquittal, final order, or judgment” that terminated a former

prosecution), with State v. Cates, 2009 MT 94, ¶ 30, 350 Mont. 38, 204 P.3d 1224 (citations

omitted) (attachment of constitutional jeopardy occurs when the jury is impaneled).

¶21      The State urges that an interim appeal of an order denying relief under the multiple

prosecution statutes should be prohibited because they are not premised upon the

constitutional considerations at issue in Abney:

         Unlike these very unique and specific constitutional double jeopardy cases,
         claims of statutory violations like Burton’s are different and should be treated
         differently. Claims under [§ 46-11-504(1), MCA] have been reviewed and
         considered by this Court almost exclusively on direct appeal from final
         judgment—and no such cases have been considered under the very narrow
         Barron or Schillinger ‘interim appeal’ exception.4

¶22      The State’s argument is well taken. As with constitutional double jeopardy claims,

there is no basis in rule or statute for an interim appeal of claims under the multiple

prosecution statutes and, more, an interim appeal for violation of statute is not

constitutionally compelled. However, a petition for a writ of supervisory control pursuant

to M. R. App. P. 14(3) is available for a defendant to assert a pre-trial challenge that a

second prosecution will violate the statutes. See, e.g., State ex rel. Booth v. Mont.

Twenty-First Judicial Dist., 1998 MT 344, 292 Mont. 371, 972 P.2d 325 (considering both




4
    City of Three Forks v. Schillinger, 2007 MT 331, 340 Mont. 211, 173 P.3d 681.
                                              12
the statute and constitutional double jeopardy); State ex rel. Zimmerman v. Mont. Fourth

Judicial Dist., 168 Mont. 289, 541 P.2d 1215 (1975).

¶23 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?

¶24    Burton asserts a violation of § 46-11-504(1), MCA, which provides:

       When conduct constitutes an offense within the jurisdiction of any state or
       federal court, a prosecution in any jurisdiction is a bar to a subsequent
       prosecution in this state if:

       (1)    the first prosecution resulted in an acquittal or in a conviction and the
       subsequent prosecution is based on an offense arising out of the same
       transaction . . . .

¶25    We apply a three-part test to determine if the statute has been violated:

       1. The defendant’s conduct must constitute an equivalent offense within the
          jurisdiction of the court where the first prosecution occurred and within
          the jurisdiction of the court where the subsequent prosecution is pursued;

       2. The first prosecution must result in an acquittal or a conviction; and

       3. The subsequent prosecution must be based on an offense arising out of
          the same transaction.5

Cline, ¶ 9 (citations omitted); Neufeld, ¶ 11 (citations omitted); State v Gazda, 2003 MT

350, ¶ 12, 318 Mont. 516, 82 P.3d 20; Cech, ¶ 13 (citation omitted); Heddings v. State,

2011 MT 228, ¶ 22, 362 Mont. 90, 265 P.3d 600 (citations omitted); State v. Fox, 2012 MT




5
 “Conduct” is defined by statute as “an act or series of acts and the accompanying mental state.”
Section 45-2-101(15), MCA. “Offense” is defined twice, as “a crime for which a sentence of death
or of imprisonment or a fine is authorized[,]” § 45-2-101(49), MCA, and as “a violation of any
penal statute of this state or any ordinance of its political subdivisions[,]” § 46-1-202(15), MCA.

                                            13
172, ¶ 19, 366 Mont. 10, 285 P.3d 454 (citations omitted). If any one of the three factors

is not satisfied, there is no statutory violation. Cech, ¶ 13 (citations omitted).

¶26    We can state the test in application to this case as follows:

       1. Burton’s conduct must constitute an equivalent offense in the federal and
          Montana jurisdictions;

       2. The federal prosecution must have resulted in an acquittal or a conviction;
          and

       3. The State’s prosecution must be based on an offense arising out of the
          same transaction.

Burton challenges three of his state convictions, each of which we compare to the federal

offense in application of the statute.

       a. Count 4, burglary of the Corbally residence.

¶27    We resolve this claim under the first prong of the test, which requires that Burton’s

conduct constitute an equivalent offense in the federal and Montana jurisdictions. For the

first prong to be met, it is not necessary that a defendant be charged with identical offenses

in both jurisdictions, only that his conduct constitute an equivalent offense in both

jurisdictions. Cech, ¶ 18; Cline, ¶ 11. If a jurisdiction could have brought a charge for the

conduct, but declined to do so, the first prong would nonetheless be met. Cech, ¶ 18.

However, if a defendant’s conduct does not constitute an offense in the first jurisdiction,

but does in the second, the statute does not prohibit prosecution. Gazda, ¶ 15.

¶28    In Cline, Cline stole firearms and other, non-firearm merchandise from his

employer. Cline, ¶ 4. Cline was convicted in federal court of possession of stolen firearms,

and was charged by the State of Montana with theft by common scheme. Cline, ¶¶ 4-5.
                                          14
After Cline filed a motion to dismiss for violation of the multiple prosecution statute, the

state amended its complaint to charge Cline with only theft of the non-firearm items. Cline,

¶ 5. We held the first prong was not satisfied because “Cline’s theft of non-firearm items,

in contrast, did not form the basis of his conviction for theft of firearms. Cline never has

been punished, or put in jeopardy, for his theft of the non-firearm items.” Cline, ¶ 19.

¶29    Similarly, regarding the Corbally burglary charge, Burton broke into the household

and stole firearms and other valuables, including commemorative coins. He was convicted

of possessing the stolen firearms in federal court. The State brought charges for the

burglary and theft of the non-firearms, over which, as in Gazda, the federal court did not

have jurisdiction. Burton argues that the first prong is met because the firearms were taken

at the same time as the other valuables. While this might be an effective argument under

the third prong, our precedent makes clear that the theft of the firearms is not equivalent to

theft of the other valuables. Cline, ¶ 12.

¶30    Further, the state relied on conduct that was distinct from the conduct considered by

the federal court. The federal court considered that Burton possessed stolen firearms, but

did not consider that Burton broke into a home and stole other valuables, which provided

the basis for the state charge. Thus, Burton’s conduct does not constitute an equivalent

offense under the first prong, and we need not consider the other prongs.

       b. Count 1, felony deceptive practices for the use of Roncalli’s credit card.

¶31    We resolve this claim under the third prong, because the State’s prosecution was

not based on an offense arising out of the same transaction.

                                             15
¶32    “Same transaction” means:

       conduct consisting of a series of acts or omissions that are motivated by:

       (a) a purpose to accomplish a criminal objective and that are necessary or
           incidental to the accomplishment of that objective; or

       (b) a common purpose or plan that results in the repeated commission of the
           same offense or effect upon the same person or the property of the same
           person.

Section 46-1-202(23), MCA; see also Neufeld, ¶ 20 (citations omitted) (“Offenses arise

from the same transaction when a defendant’s underlying conduct which gives rise to each

prosecution is motivated by a purpose to accomplish the same criminal objective.”).

¶33    In Neufeld, we held that, where the two subject charging documents referenced the

same time, the same conduct, and the same victim, the charges involved the same

transaction. Neufeld, ¶ 19. In contrast, in Heddings, we held that because the state and

federal charges “involved different victims, different offenses and different time

periods[,]” they did not constitute the same transaction. Heddings, ¶ 27. Similarly, in Fox,

we held that because two separate victims were victimized at different times, it was not the

same transaction. Fox, ¶ 26. Fox molested two siblings. Fox, ¶¶ 7-9. He was convicted

in federal court of possession of nude photographs of one of the sisters, but the State was

not barred from pursuing charges based on his molestation of the other sister. Fox, ¶ 26.

¶34    Burton argues that using the credit card was incidental to the federal charges because

he used the credit card to fuel the vehicles used when he robbed Bowser’s Casino and

burglarized the Davis house, stealing a firearm. However, this connection is too attenuated

to even be considered “necessary or incidental” to the federal charge of possession of stolen
                                         16
firearms. Burton also argues the charges involved the same transaction because they were

part of a common purpose or plan. However, the crimes involved very different conduct

committed against different victims. Separate crimes do not have a common purpose or

objective merely because they occurred temporally within a defendant’s crime spree. A

more “necessary or incidental” purpose is required under the statute. Otherwise, all crimes

committed around the same time would constitute the same transaction.

¶35    Burton’s case is similar to Fox. Like Fox, Burton victimized different individuals.

As charged, Burton burglarized Roncalli and subsequently used her credit card. Burton

stole no firearms from Roncalli, and thus none of the federal charges were based on the

crimes that victimized Roncalli. Therefore, the state was not barred from prosecuting

Burton for his use of Roncalli’s credit card. The state charge did not involve any conduct

in relation to the theft or possession of firearms.

     c. Count 9, felony theft from McClain, Jack and Jill Sports Memorabilia,
Knudson, and Mihelish.

¶36    We likewise here conclude that the State’s prosecution was not based on an offense

arising out of the same transaction, and therefore the third prong was not satisfied.

¶37    Burton argues that all the thefts were motivated by a purpose to accomplish the same

criminal objective as the federal firearm charges, and thus constitute the same transaction.

However, the state charges involved non-firearm property and occurred at different

locations, upon different victims, and at different times, over a period of 13 months. The

record demonstrates no particular connection between the firearm crimes committed

against Kosena, Helfert, Davis, Corbally, and Capital Jewelry and Loan, with the thefts
                                          17
from McClain, Jack and Jill, Knudson, and Mihelish, except that they were part of Burton’s

lengthy crime spree. They did not involve “the repeated commission of the same offense

or effect upon the same person or the property of the same person.” Section 46-1-

202(23)(b), MCA.

¶38   Affirmed.


                                                /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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