State v. Frydenlund

555 P.3d 247

2024 MT 187

STATE of Montana, Plaintiff and Appellee,

v.Samuel Wade FRYDENLUND, Defendant and Appellant.

DA 23-0416

Supreme Court of Montana.

Submitted on Briefs: June 19, 2024

Decided: August 27, 2024

APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Pondera, Cause No. DC-22-22, Honorable Gregory L. Bonilla, Presiding Judge

For Appellant: David J. Lee, Lee Law Office, PC, Shelby, Montana Scott B. Owens, Owens Law Firm, PLLC, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Shari Lennon, Pondera County Attorney, Conrad, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶l Samuel Wade Frydenlund appeals the Ninth Judicial District Court’s denial of his motion to set aside the verdict when a Pondera County jury found him guilty of criminal trespass, a lesser included offense, after finding him not guilty of burglary. Frydenlund asserts that after the jury unanimously found him not guilty of burglary, it was precluded from considering the lesser included offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In May 2023, the State charged Frydenlund by second amended information with burglary, stalking, and partner or family member assault. Frydenlund provided notice that he intended to present at trial a defense of mental disease or defect. Frydenlund also filed a pretrial motion to request that the verdict form include criminal trespass, a misdemeanor in violation of § 45-6-203, MCA, as a lesser included offense of the burglary charge. The court denied Frydenlund’s motion, determining that it was premature, but stated that it would revisit the matter after the presentation of evidence at trial. Just before opening statements, Frydenlund moved to dismiss the latter two offenses because he was not arraigned on those charges. The court dismissed both offenses. Trial proceeded on the sole count of burglary.

¶3 The parties discussed jury instructions at the close of the second day of trial. Fry- denlund again requested the lesser included offense instruction for criminal trespass. The State expressed concern that if the jury agreed with his primary defense that Frydenlund was incapable of forming the requisite mental state to commit burglary, he likewise would not be able to form the mental state for criminal trespass. The court asked the State:

[C]ould this Court not provide the jury with a verdict form [ ] that asks the jury if the Defendant … on the count[ ] of burglary is guilty, not guilty, or not guilty by reason of mental disease and defect? If the answer is guilty or not guilty by reason of [ ] mental disease or defect, then the jury’s simply to stop. If it’s a not guilty verdict, wouldn’t they be able to proceed to … considering criminal trespass?

The State agreed with the court’s assessment. The court then queried both parties:

[T]he jury can stop because if it’s … not guilty … by reason of mental disease or defect, then, obviously, [ ] you can’t get the lesser included on that one. So, if it’s just a straight not guilty, which could happen, [ ] then they – then the jury could consider the lesser – lesser included. Are we in agreement on that?

The defense and the State agreed with the court’s proposed verdict form.

¶4 The court later discussed Frydenlund’s proposed jury instruction on the lesser included offense, which read:

The Defendant is charged with Burglary. Criminal Trespass is a lesser-included offense of Burglary. A lesser-included offense is one that is less serious than the charged offense. The Defendant cannot be convicted of more than one of these offenses.

Therefore, after considering all of the evidence as it pertains to the charge, and the lesser included offense, you should first consider the verdict on the greater offense of Burglary. In the event you find the Defendant guilty of Burglary, you need go no further as you will have reached a verdict in this case.

If you are unable after reasonable effort to reach a verdict on the greater offense, you may consider the lesser included offense of Criminal Trespass. You may find the Defendant guilty or not guilty of the lesser included offense of Criminal Trespass.

¶5 The prosecutor told the court that she thought the last paragraph of the jury instruction was "confusing" because the verdict form, as it read thus far, required the jury to "enter some verdict." The court agreed that this presented a "conundrum [ ] on the verdict form." Frydenlund’s counsel asserted that his jury instruction comported with § 46-16-607, MCA, and read the following provision in subsection (3) of the statute to the court: "When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense." The court clarified the "conundrum":

[A]s [the verdict form is] currently drafted, if [ ] they reach guilty on burglary, they’re instructed to stop. If they reach not guilty by reason of mental disease or defect, they’re instructed to stop. If they get to not guilty, then they can go on to [ ] the [ ] lesser included. … [A]s the instruction says, if you are unable to, after reasonable effort, to reach a verdict on the greater offense. The verdict form doesn’t contemplate that . . . which is why I’m saying can we fix that last paragraph … to comport with both the statute and the verdict form …. Well, actually I’m inclined not to do that and just let the verdict form speak for itself because I don’t want to confuse the jury.

¶6 Defense counsel responded that § 46-16-607(3), MCA, further states, "Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense." Frydenlund’s counsel thus agreed to amend the verdict form. The court offered, "Well, I guess we could say, ‘however, if you’re unable, after reasonable effort, to reach one of the above 3 verdicts on count 1, you may … proceed to the next page.’ " The defense agreed, adding "that alleviates that confusing third paragraph on the jury instruction." The State stipulated to the addition on the verdict form and Frydenlund’s proposed jury instruction regarding the lesser included offense.

¶7 The court confirmed that pursuant to the parties’ discussion and § 46-16-607, MCA, it would amend the verdict form "at the end of page one [to] insert language that says, however, if you are unable, after reasonable effort, to reach a verdict on count 1, [ ] you may consider – you may move on to page 2 and consider the lesser offense of criminal trespass." The defense and the State agreed. Frydenlund’s proposed instruction was read to the jury as Jury Instruction No. 34. The verdict form read as follows:

To the charge of COUNT 1: BURGLARY, we find the Defendant:

(Write on the above line "Guilty", "Not Guilty" or "Not Guilty By Reason Of Mental Disease Or Disorder")

If you answered "Guilty" or "Not Guilty By Reason Of Mental Disease Or Disorder," STOP. If you answered, "Not Guilty," OR if you are unable after reasonable effort to reach a unanimous verdict on Count I, you may consider Count II on the next page.

To the lesser included offense of CRIMINAL TRESPASS TO PROPERTY, we, the jury, find the Defendant, Samuel Frydenlund:

(Write "Guilty", "Not Guilty", or Not Guilty by Reason of Mental Disease or Defect)

¶8 The jury returned a unanimous verdict finding Frydenlund not guilty of burglary and guilty of criminal trespass. At sentencing, Frydenlund asserted that because the jury found him not guilty of the greater offense of burglary, it should not have considered the lesser offense of criminal trespass. The court continued the sentencing hearing, ordering the parties to brief the issue. Frydenlund moved to set aside the verdict, arguing that the verdict did not comport with § 46-16-607(3), MCA, and violated Frydenlund’s right to be free from double jeopardy.

¶9 The District Court denied Frydenlund’s motion. The court determined that "[i]t is not logically inconsistent to find a defendant not guilty of burglary but guilty of criminal trespass because criminal trespass requires proof of fewer elements than burglary." Frydenlund appeals.

STANDARD OF REVIEW

[1, 2] ¶10 Because Montana’s criminal procedure statutes do not provide for motions to set aside the verdict, we have deemed such a motion as a motion for a new trial. State v. Harris, 1999 MT 115, ¶ 15, 294 Mont. 397, 983 P.2d 881 (citing State v. Bell, 277 Mont. 482, 485, 923 P.2d 524, 526 (1996)); see also State v. Oschmann, 2019 MT 33, ¶¶ 5-6, 394 Mont. 237, 434 P.3d 280. We review a district court’s decision on a motion for a new trial to determine whether the court abused its discretion. Harris, ¶ 15 (citing Bell, 277 Mont. at 485, 923 P.2d at 526). We review a district court’s conclusions of law de novo to determine whether the court’s interpretation of the law is correct. Harris, ¶ 15 (citing Bell, 277 Mont. at 486, 923 P.2d at 526).

DISCUSSION

¶11 Frydenlund asserts that the District Court abused its discretion because the verdict form did not reflect what the parties and court agreed upon during the settlement of jury instructions and contained language that was contradictory to Jury Instruction No. 34 and the plain language of § 46-16-607(3), MCA, resulting in a violation of double jeopardy. The State claims, as a threshold matter, that Frydenlund waived his right to appeal by failing to object to the verdict form at trial.

¶12 This Court "may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment." Section 46-20-104(2), MCA. "Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2), MCA." Section 46-20-104(2), MCA.

[3] ¶13 The State...