State v. Rodriguez

551 P.3d 292

2024 MT 132

STATE of Montana, Plaintiff and Appellee,

v.Esandro Roman RODRIGUEZ, Defendant and Appellant.

DA 21-0499

Supreme Court of Montana.

Submitted on Briefs: October 25, 2023

Decided: June 25, 2024

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-19-793, Honorable John A. Kutzman, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Matthew Robertson, Deputy County Attorney, Great Falls, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Esandro Rodriguez (Rodriguez) was convicted by a jury of aggravated kidnapping, accountability for aggravated burglary, and two separate counts of accountability for assault with a weapon. Rodriguez appeals, contending there was insufficient evidence to support his conviction of aggravated burglary by accountability. Alternatively, Rodriguez argues his convictions for aggravated burglary by accountability and assault with a weapon by accountability against Leah Gray violate § 46-11-410, MCA, the multiple conviction statute, which warrants plain error reversal or reversal for ineffective assistance of counsel in failing to object to the duplicative convictions.

¶2 We restate the issues as follows:

1. Whether there was sufficient evidence to convict Rodriguez of accountability for aggravated burglary.

2. Whether Rodriguez's convictions for assault with a weapon by accountability and aggravated burglary by accountability violate § 46-11-410, MCA?

We affirm on Issue 1 and reverse on Issue 2.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 27, 2019, around 10:00 p.m., Jesse Daniels (Daniels) and his girlfriend, Lauren Aviles (Aviles), met up with Rodriguez for the purposes of finding Michael Crawford (Michael) and collecting money Michael owed them for a past drug transaction, and ultimately purchasing methamphetamine for themselves. Aviles drove Daniels and Rodriguez in her vehicle, an older model white Mercury Grand Marquis, toward Countryside Village in Great Falls, where Michael’s mobile home was located. As they neared the Village, they saw Michael, Michael’s girlfriend, Amanda, and Michael’s mother’s partner, "Junior," walking along the street toward Walmart.

¶4 Daniels confronted Michael about the money he owed them. Michael ran away, and Daniels and Rodriguez held Amanda and Junior at gunpoint and forced them into the car. While the two men kept their guns trained on Amanda and Junior, Aviles drove to Michael’s mobile home. Daniels demanded that Junior call Michael. Rodriguez threatened Amanda and held a gun to her lower back for the duration of the drive.

¶5 When the group arrived at the home, Michael’s mother, Leah, was smoking a cigarette on the porch. Moments before, Michael had arrived at the home, told Leah about Amanda and Junior being taken, and ran into the home. Daniels, Rodriguez, Junior, and Amanda walked up to mobile home, and Daniels asked Leah where Michael was. Behind Daniels, Rodriguez, still holding his gun, stood with Amanda and Junior. Leah told Daniels that Michael was not there, and when Daniels moved toward the door, Leah grabbed his arm and told him not to go inside. Daniels said he "wasn’t playing," and pressed a gun to Leah’s stomach. Leah initially froze, but then pushed Daniels, and she and Junior ran inside, and shut and locked the door. Daniels went to the annex door on the mobile home and began knocking and pounding on that door, yelling for Michael to come out.

¶6 Leah’s daughter-in-law, Celeste, opened that door, unaware that Daniels and Rodriguez were armed. She was startled by the commotion and had intended on telling them that her two-year-old daughter was trying to sleep. However, Daniels returned to the main door. He barged into the living room and knocked over Celeste’s 2-year-old daughter. Leah and Junior ran into the kitchen. Chasing after them, Daniels, gun in hand, ran past the dining area and into the kitchen. Leah yelled for her mother, stating that Daniels had a gun and telling her to call 911. Leah heard her two-year-old granddaughter crying and spun around as Junior rushed by her in the kitchen, where Daniels entered and came face to face with Junior. When Daniels realized that police were being contacted, he turned and fled. Junior testified that Daniels held a gun to him in the car and outside the home, but not inside the home. While Daniels was inside, Rodriguez, Aviles, and Amanda remained outside.

¶7 After Daniels fled, Daniels and Rodriguez forced Amanda back into Aviles’s car and drove off. Rodriguez kept his gun trained on Amanda. Later that night, they met Michael at a McDonalds’s parking lot, and he paid them the money they demanded. Daniels then told Rodriguez to release Amanda. Thereafter, Daniels, Aviles, and Rodriguez drove to Oregon.

¶8 On October 9, 2019, a Great Falls Police Department (GFPD) officer conducted a traffic stop of Aviles’s white Mercury Grand Marquis, which matched the description of a vehicle police were attempting to locate, and alerted Officer Hronek, who had been looking for Daniels, Rodriguez, and Aviles, Daniels was then driving the vehicle, and Aviles was a passenger. GFPD detectives obtained a search warrant for Aviles’s vehicle, finding weapons and a notebook and pictures belonging to Rodriguez in the car. Rodriguez was located and questioned, and ultimately charged with several offenses arising out of the incident: Count I, aggravated kidnapping of Junior; Count II, aggravated kidnapping of Amanda; Count III, accountability to assault with a deadly weapon against Junior; Count IV, accountability to aggravated burglary; Count V, accountability to assault with a weapon against Leah; and Count VI, accountability to assault against Celeste. Rodriguez was tried and convicted on Counts II through V; he was acquitted on Count I. Count VI was dismissed at trial upon the State’s motion.

¶9 Rodriguez appeals, raising issues that challenge his convictions of Count IV and V. Additional facts will be discussed herein.

STANDARD OF REVIEW

[1–4] ¶10 A claim of insufficiency of evidence is reviewed de novo regardless of whether it was raised below. State v. Robertson, 2014 MT 279, ¶ 16, 376 Mont. 471, 336 P.3d 367. "When reviewing a challenge to the sufficiency of the evidence, this Court determines whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Christensen, 2020 MT 237, ¶ 11, 401 Mont. 247, 472 P.3d 622. Thus, "[i]t is within the province of the jury to determine the weight and credibility afforded to the evidence, and it is not this Court’s function to agree or disagree with the jury’s verdict." Byers v. Cummings, 2004 MT 69, ¶ 16, 320 Mont. 339, 87 P.3d 465. The State must prove every fact necessary to constitute the crime beyond a reasonable doubt. State v. Craft, 2023 MT 129, ¶ 19, 413 Mont. 1, 532 P.3d 461.

[5] ¶11 Further, "[w]e have discretion to review an unpreserved claim for plain error and do so sparingly when a defendant’s fundamental constitutional rights are implicated and the error calls the fairness of the proceedings into question." State v. Dineen, 2020 MT 193, ¶ 8, 400 Mont. 461, 469 P.3d 122.

DISCUSSION

¶12 1. Whether there was sufficient evidence to convict Rodriguez of accountability for aggravated burglary.

[6] ¶13 Rodriguez argues that his accountability for aggravated burglary convic- tion was not supported by sufficient evidence. Specifically, Rodriguez argues that Daniels assaulted Leah only outside the mobile home, not inside, and that this factual distinction undermines the predicate offense the State alleged to support the charge of aggravated burglary against Daniels, for which Rodriguez was found to be accountable. We must necessarily dissect the elements of these offenses.

¶14 The offense of aggravated burglary as stated in § 45-6-204(2), MCA (2017), includes several alternate subsections under which the crime may be charged. We are here concerned with the charge as it was brought by the State in this ease, including the elements that a person commits the offense when he (1) "knowingly enters or remains unlawfully in an occupied structure" (-204(2), MCA); and (2) "knowingly or purposely commits any other offense within that structure" (-204(2)(a)(ii), MCA); and (3) "in effecting entry or in the course of committing the offense or in immediate flight after effecting entry or committing the offense … the person is armed with explosives or a weapon …. " (-204(2)(b)(i), MCA).

¶15 The predicate offense for this aggravated burglary charge, as required by 45-2-204(2)(a)(ii), MCA ("… knowingly or purposely commits any other offense within that structure"), was an alleged assault with a weapon by Daniels upon Leah inside the mobile home, in violation of § 45-5-213(1)(b), MCA (2017). Thus, as alleged against Rodriguez and tried, the jury was instructed that the State must prove beyond a reasonable doubt for Count IV, aggravated burglary by accountability:

1. That Mr. Daniels knowingly entered or remained unlawfully in an occupied structure; AND 2. That Mr. Daniels knowingly or purposely committed the offense of Assault with a Weapon in the occupied structure; AND 3. That in effecting entry Mr. Daniels was armed with a weapon; AND 4. That the Defendant, Esandro Roman Rodriguez, solicited, aided, abetted, agreed or attempted to aid, Mr. Daniels in the planning or commission of the offense, with the purpose of promoting or facilitating the commission of the offense.

Jury Instruction No. 25 (emphasis added).

¶16 Then, Rodriguez was also charged, as Count V, with the predicate offense itself, assault with a...