                                                                                        September 23 2014


                                          DA 13-0555

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 261N


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MICHAEL HOWARD MOULLET,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 12-173
                       Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Ashley Harada, Harada Law Firm, PLLC, Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Scott D. Twito, Yellowstone County Attorney, Billings, Montana



                                                   Submitted on Briefs: August 27, 2014
                                                              Decided: September 23, 2014


Filed:

                           ___________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1         Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2         On March 22, 2012, the State filed an information charging Michael Moullet with

burglary in violation of § 45-6-204(1)(a), MCA. Specifically, the charging document alleged

that on December 12, 2011, at approximately 5:00 a.m., Moullet utilized a pry bar to

unlawfully break through the front door of his grandchildren’s residence on the 400 block of

Grand Avenue in Billings, Montana, with the purpose of committing the offense of

kidnapping. On January 15, 2013, the State filed an Amended Information along with an

Amended Affidavit and Motion for Leave to File Amended Information charging Moullet

with two alternative counts of burglary. Count I charged Moullet with burglary based upon

his alleged unlawful entry into his grandchildren’s residence with the purpose to commit the

offense of unlawful restraint. In the alternative, Count II charged Moullet with burglary

based upon his alleged unlawful entry into his grandchildren’s residence with the purpose to

commit the offense of custodial interference.1

¶3         The Amended Affidavit alleged that the victims, M.H. and her husband N.H.,

contacted 911 at approximately 5:00 a.m. on December 12, 2011. While sleeping in their

basement bedroom with M.H.’s two minor children, M.H. and N.H. were awakened by a

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         Custodial interference is committed “if, knowing that the person has no legal right to do so,
the person takes, entices, or withholds from lawful custody any child . . . entrusted by authority of
law to the custody of another person or institution.” Section 45-5-304(1), MCA.


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loud noise followed by footsteps in the upstairs of their residence. N.H. ran upstairs and

discovered that the front door had been pried open. N.H. also found a pry bar sitting on a

bookshelf near the front door. The front door frame and lock had considerable damage.

N.H. then noticed that Moullet was pacing around his vehicle outside the residence after the

alleged break-in. Before chasing him into his van, N.H. heard Moullet say “I spoke to God

and God sent me to come get the boys.” He then saw Moullet flee the residence in a blue

van. Although M.H.’s children had slept in the basement that evening, M.H. went upstairs to

check on her children’s bedrooms. M.H. noticed that the children’s bedroom doors had been

opened and that the lights had been turned on. According to M.H., Moullet was the paternal

grandfather of her two minor children living in the residence. Moullet left the residence

without taking the children. He was later apprehended by law enforcement.

¶4       On January 22, 2013, Moullet moved to dismiss Count II arguing that, under

§ 45-5-304(3), MCA, custodial interference is not committed if a defendant, as an alleged

first offender, “voluntarily returns the child . . . to lawful custody before arraignment” or if a

defendant has left the state, he “voluntarily returns the child . . . before arrest.”

Section 45-5-304(3), MCA. Moullet asserted that the State’s charging document failed to

specify that Moullet intended to not only take his grandchildren, but also that Moullet would

not have returned them prior to arraignment or prior to his arrest if he left the state of

Montana. The District Court denied Moullet’s motion. On January 24, 2013, following a

trial, the jury found Moullet not guilty on Count I and guilty on Count II. The District Court

sentenced Moullet to ten (10) years of incarceration at the Montana State Prison.




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¶5       Moullet now appeals his conviction contending that the District Court erred in

denying his Motion to Dismiss Count II because the State failed to allege facts as to whether

this was Moullet’s first alleged offense of custodial interference; whether Moullet intended

not to voluntarily return his grandchildren prior to his arraignment or prior to his arrest if he

had left the state; and the length of time Moullet intended to keep his grandchildren. The

State argues that the District Court did not abuse its discretion in denying Moullet’s Motion

to Dismiss Count II. The State contends that the charging documents sufficiently established

probable cause that Moullet committed burglary and that the charging document need not

state the absence of a defense. Additionally, the State argues that the defense set forth in

§ 45-5-304(3), MCA, applies when a person is charged with custodial interference, not

burglary.

¶6       We review a district court’s determination that a motion to file an information is

supported by probable cause for abuse of discretion. State v. Harlson, 2006 MT 312, ¶ 21,

335 Mont. 25, 150 P.3d 349.          If the district court’s determination is based on an

interpretation of law, the Court reviews the district court’s legal conclusion de novo. State v.

Kern, 2003 MT 77, ¶ 19, 315 Mont. 22, 67 P.3d 272.

¶7       Count II of the Amended Information alleged that Moullet committed burglary, a

charge that arises when a person knowingly enters or remains unlawfully in an occupied

structure with the purpose to commit an offense therein. Section 45-6-204(1)(a), MCA.

Specifically, it states that Moullet “unlawfully entered his grandchildren’s residence . . . and

had the purpose of committing the offense of custodial interference in the occupied

structure.”


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¶8       In reading the charging documents together, the Amended Information and

Amended Affidavit establish more than a mere probability that Moullet committed the

offense of burglary with the intent to commit custodial interference, and the facts are

sufficient to establish probable cause. The State, when filing an amended information

pursuant to § 46-11-201, MCA, is under no obligation to allege facts identifying possible

defenses specified in § 45-5-304(3), MCA, a statute under which Moullet was not charged.

¶9       Moullet was charged with burglary, not custodial interference; thus, the defense set

forth in § 45-5-304(3), MCA, is inapplicable. See State v. Price, 2002 MT 229, ¶ 42, 311

Mont. 439, 57 P.3d 42 (“Subsection (3) provides an escape clause to the charges under (1) of

§ 45-5-304, MCA, that is available for all defendants to raise and argue at trial”); see also

State v. Lance, 201 Mont. 30, 33, 651 P.2d 1003, 1004 (1982). “The essential elements of

burglary have always been the wrongful presence of the burglar with an intent to commit

another offense.” State v. Wells, 202 Mont. 337, 352, 658 P.2d 381, 389 (1983) (emphasis

added). Moreover, “[i]t is not necessary to demonstrate that the related offense was in fact

committed where the intent to commit it is shown,” as “the burglary occurs at the time of

unlawful entrance upon the premises.” Wells, 202 Mont. at 352-53, 658 P.2d at 389.

¶10      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. Since the

charging documents establish more than a mere probability that Moullet committed the

burglary of which he was convicted, the District Court did not abuse its discretion in denying

Moullet’s Motion to Dismiss Count II. We affirm.




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                              /S/ PATRICIA COTTER

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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