09/24/2026
DA 24-0386
Case Number: DA 24-0386
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 229
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAY STEVEN HUBBER,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DC-22-12
Honorable Robert Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens (argued), Stephens Brooke, P.C., Missoula, Montana
Palmer A. Hoovestal (argued), Hoovestal Law Firm, PLLC, Helena,
Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar (argued),
Assistant Attorney General, Helena, Montana
Matt Enrooth, Butte-Silver Bow County Attorney, Ann Shea, Kelli Fivey,
Deputy County Attorneys, Butte, Montana
Argued: April 23, 2026
Submitted: April 28, 2026
Decided: September 24, 2026
Filed:
Clerk
Justice Katherine M. Bidegaray delivered the Opinion of the Court.
¶1 Jay Steven Hubber appeals from the judgment of the Montana Second Judicial
District Court, Butte-Silver Bow County, entered after a jury convicted him of deliberate
homicide by accountability and aggravated burglary.
¶2 We address the following restated issues:
1. Whether the unpreserved mental-state instructions require reversal under
plain-error review.
2. Whether trial counsel rendered ineffective assistance by accepting the
challenged mental-state instructions.
3. Whether sufficient evidence supported Hubber’s conviction for deliberate
homicide by accountability.
4. Whether the District Court’s rulings concerning Hubber’s asserted authority as
a bondsman require reversal.
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Hubber was a licensed bail bondsman operating Alibi Bail Bonds. He posted two
bonds for David Sandoval in Butte City Court, one for $15,000 and one for $10,000. In
the bond paperwork, Sandoval agreed that the company would have “control and
jurisdiction” over him during the term of the bonds, that it could apprehend and surrender
him if he violated his obligations, and that, if he was captured outside the state, reasonable
force could be used to effectuate his return. The paperwork reflected multiple addresses
associated with Sandoval, including 815 South Main in Butte, a residence William Harris
owned and occupied.
2
¶5 Sandoval repeatedly failed to appear. On October 14, 2021, Butte City Court
forfeited Sandoval’s two city-court bonds and issued two misdemeanor warrants. On
November 10, 2021, and December 14, 2021, the District Court issued bench warrants after
Sandoval again failed to appear and violated release conditions.
¶6 On December 18, 2021, Hubber located Sandoval at 815 South Main, Harris’s
residence. Sandoval initially agreed to go with Hubber, but he escaped through a window
after Hubber allowed him to enter a nearby house to obtain money. Sandoval testified that,
before the escape, Hubber displayed his pistol and said that, if matters became too chaotic,
he would “start capping” people. Hubber contacted law enforcement for assistance.
Officer McMahon responded but explained that law enforcement could not enter the nearby
residence under the circumstances then presented.
¶7 On December 19, 2021, Hubber learned that Sandoval had returned to 815 South
Main. After drinking beer at the Acoma Bar, Hubber enlisted Jesse Jaeger, Nicholas
Jaeger, and Jacqueline Schwartz to assist him. Nicholas agreed to help in part to work off
a debt he owed Hubber. Earlier that day, Hubber texted another bondsman that he wanted
to “smoke” people who were trying to take advantage of bondsmen; Hubber later testified
that he used “smoke” to mean arrest. Before going to the house, Hubber again contacted
dispatch and asked for law-enforcement assistance in apprehending Sandoval. Dispatch
confirmed that officers were unavailable, and Hubber said that his group would handle the
arrest.
¶8 Hubber and Nicholas Jaeger approached the front of the house while Jesse Jaeger
and Schwartz positioned themselves at the back. The witnesses disputed whether someone
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opened the front door for Hubber and Nicholas and whether they announced that they were
bondsmen. Once inside, they proceeded to a rear bedroom where Sandoval and Harris
were located. Hubber told Sandoval that he was under arrest, deployed his taser, and
struggled with Sandoval on and beside the bed while attempting to subdue and handcuff
Sandoval. Harris ordered Hubber and Nicholas to leave.
¶9 What happened next was sharply disputed. Some witnesses testified that other
occupants stood in or near the bedroom doorway holding boards or sticks. The witnesses
disputed whether Harris held scissors, a knife, or a beer bottle; whether Harris kicked
Hubber; and how Nicholas obtained Hubber’s pistol. After the jury viewed Sandoval’s
recorded statement, Detective Costello summarized its beginning: “Essentially, David
[Sandoval] said that Jay [Hubber] handed him the gun and Nick [Jaeger] shot Bill [Harris].”
At trial, however, Sandoval testified that he did not know how Nicholas obtained the pistol.
Nicholas initially told law enforcement that Hubber threatened to shoot Harris “between
the eyes” and that Nicholas took the pistol from Hubber’s holster. At trial, Hubber testified
that he did not know how the pistol left his holster. Asked whether he handed Nicholas the
pistol, he answered, “No. Not to my knowledge.” He denied directing Nicholas to shoot
or expecting him to shoot. Nicholas testified that he saw the pistol in Hubber’s hand while
Sandoval held Hubber’s wrist, took the pistol to prevent Sandoval or another occupant from
obtaining it, and shot Harris because he perceived an immediate threat. Nicholas shot
Harris twice, killing him. Hubber attempted to assist Harris, called 911, and remained at
the scene. During his police interview, Hubber criticized Nicholas for shooting Harris
rather than punching him.
4
¶10 The State charged Hubber with aggravated burglary and deliberate homicide under
the felony-murder theory and later added deliberate homicide by accountability as an
alternative. Before trial, Hubber moved to dismiss aggravated burglary, arguing that
statutory, contractual, and common-law bondsman authority privileged his entry and arrest.
The District Court denied the motion and later prohibited Hubber from asserting that his
bondsman status gave him a legal right to enter 815 South Main. The court nevertheless
admitted evidence concerning Hubber’s status, the bonds and warrants, Sandoval’s use of
the address, Hubber’s purpose to apprehend Sandoval, his calls to law enforcement, and
the disputed manner of entry.
¶11 The District Court instructed the jury that a person acts purposely when it is the
person’s conscious object “to engage in conduct of that nature.” When the court asked
whether Hubber objected, counsel answered, “No, Your Honor. It’s a pattern instruction.”
The court separately instructed the jury that accountability required Hubber, before or
during the commission of deliberate homicide and with the purpose to promote or facilitate
it, to solicit, aid, abet, agree, or attempt to aid another in planning or committing that
offense. The court also instructed the jury that felony murder and deliberate homicide by
accountability were alternatives and that it could not convict Hubber of both.
¶12 The jury acquitted Hubber of deliberate homicide under the felony-murder theory
but convicted him of deliberate homicide by accountability and aggravated burglary. The
District Court sentenced Hubber to 60 years at the Montana State Prison, with 20 years
suspended, on the deliberate-homicide conviction, and to a concurrent 20-year term on the
aggravated-burglary conviction. Hubber appeals.
5
STANDARD OF REVIEW
¶13 We review jury instructions to determine whether, as a whole, they fully and fairly
instruct the jury on the law applicable to the case, recognizing that a district court has broad
discretion in instructing the jury but also a duty to state the law correctly. State v. Doyle,
2007 MT 125, ¶ 66, 337 Mont. 308, 160 P.3d 516. An unpreserved claim of instructional
error is reviewable, if at all, under the plain-error doctrine. State v. Taylor, 2010 MT 94,
¶¶ 12-13, 356 Mont. 167, 231 P.3d 79.
¶14 Ineffective assistance claims present mixed questions of law and fact that we review
de novo. State v. Secrease, 2021 MT 212, ¶ 9, 405 Mont. 229, 493 P.3d 335. Under
Strickland v. Washington, 466 U.S. 668, 687, 694-96, 104 S. Ct. 2052, 2064, 2068-69
(1984), a defendant must prove deficient performance and a reasonable probability that,
absent counsel’s error, the result would have been different. We assess prejudice in light
of the totality of the evidence. Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2068-69.
¶15 We review sufficiency of the evidence by determining whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could find
the essential elements of the offense beyond a reasonable doubt. State v. Michelotti,
2018 MT 158, ¶ 9, 392 Mont. 33, 420 P.3d 1020.
¶16 We review de novo a district court’s interpretation of statutes and its application of
a statute to a particular set of circumstances for correctness. State v. Felde, 2021 MT 1,
¶ 8, 402 Mont. 391, 478 P.3d 825. We review for correctness the legal determinations a
district court makes when giving jury instructions, including whether the instructions, as a
6
whole, fully and fairly instruct the jury on the applicable law. State v. Lackman, 2017 MT
127, ¶ 8, 387 Mont. 459, 395 P.3d 477.
DISCUSSION
¶17 1. Whether the unpreserved mental-state instructions require reversal under
plain-error review.
¶18 The District Court instructed the jury that a person acts “knowingly” when the
person is aware that a high probability exists that the person’s conduct will cause a specific
result. It instructed the jury that a person acts “purposely” when it is the person’s conscious
object to engage in conduct of that nature. Hubber did not object when the court settled
the instructions.
¶19 The State concedes that the court should have given the result-based definition of
“purposely” in place of the conduct-based definition. That concession is correct.
¶20 Deliberate homicide is a result-based offense. Section 45-5-102(1)(a), MCA1; State
v. Ilk, 2018 MT 186, ¶ 19, 392 Mont. 201, 422 P.3d 1219; State v. Rosling, 2008 MT 62,
¶ 37, 342 Mont. 1, 180 P.3d 1102. Accountability under § 45-2-302(3), MCA, required
the State to prove that, before or during commission of the offense, Hubber acted “with the
purpose to promote or facilitate” Nicholas’s commission of deliberate homicide. The
pertinent result was “some act designed to promote or facilitate causing the death of another
human being.” State v. Lantis, 1998 MT 172, ¶ 36, 289 Mont. 480, 962 P.2d 1169. The
jury therefore had to determine whether Hubber’s conscious object extended to promoting
1
All statutory references are to the 2021 Montana Code Annotated unless otherwise noted.
7
or facilitating an act designed to cause death, not merely whether he intended to enter the
house, apprehend Sandoval, or engage in the struggle.
¶21 The conduct-based definition was not the definition the court should have given. Its
effect, however, must be assessed in the context of the elemental instructions to which the
jury applied it. Hubber did not preserve the challenge. Defense counsel objected to other
portions of the instruction package but accepted the mental-state definitions. The claim
therefore comes to us only through plain-error review.
¶22 Plain-error review is reserved for exceptional circumstances. It applies sparingly
when an unpreserved error implicates a fundamental right and failing to review it may
result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of the
proceeding, or compromise the integrity of the judicial process. Taylor, ¶¶ 12-13; State v.
Williams, 2015 MT 247, ¶ 16, 380 Mont. 445, 358 P.3d 127. The incorrect definition
implicated Hubber’s fundamental right to require the State to prove each element, including
purpose, beyond a reasonable doubt. The existence of error, however, does not itself
require us to exercise plain-error review.
¶23 The accountability claim presents a serious question because purpose was the
principal disputed element and the prosecutor sometimes described accountability in terms
of participation and causation. The State responds, however, that the instructions, read as
a whole, did not permit the jury to convict merely because Hubber intended his own
conduct. We agree. Instruction 36 required the jury to find that deliberate homicide, as
defined in Instruction 31, had been committed and that Hubber acted “with the purpose to
promote or facilitate such commission.” Instruction 31 defined deliberate homicide as
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causing the death of another human being. Thus, although Instruction 18 incorrectly
defined “purposely” in conduct-based terms, the conduct identified by the elemental
instructions necessarily incorporated the pertinent result—an act designed to promote or
facilitate causing death. See Lantis, ¶ 36. The jury heard evidence directed specifically to
homicidal purpose: Nicholas’s initial statement that Hubber threatened to shoot Harris
“between the eyes,” Sandoval’s statements to police that Hubber handed Nicholas the
pistol, Nicholas’s testimony that the pistol was in Hubber’s hand before Nicholas took it,
and Hubber’s recent threatening statements. The defense squarely disputed whether
Hubber intended to facilitate any shooting. Considering the instructions, arguments, and
evidence, Hubber has not firmly convinced us that declining plain-error review would
result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of the
proceeding, or compromise the integrity of the judicial process. We therefore decline to
exercise plain-error review.
¶24 Hubber’s related challenge to the aggravated-burglary instructions does not warrant
plain-error review. The final elements instruction required the jury to find that Hubber
knowingly entered or remained unlawfully, knowingly or purposely committed assault, and
“purposely or knowingly attempted to inflict bodily injury.” It did not submit negligence
as an alternative route to conviction. The omitted negligence definition therefore did not
create an alternative route to conviction under the final elements instruction. The jury
received the result-based definition of “knowingly,” and Hubber did not dispute that he
intentionally deployed the taser and physically struggled with Sandoval. As in State v.
Kirn, 2023 MT 98, ¶ 49, 412 Mont. 309, 530 P.3d 1, the challenged purpose definition did
9
not materially affect the attempted-injury determination. Hubber separately argues that the
result-based definition of “knowingly” failed to require awareness that his entry or
continued presence was unlawful. The appropriate definition must correspond to the
particular statutory element. State v. Rowe, 2024 MT 37, ¶ 32, 415 Mont. 280, 543 P.3d
614. Even assuming the definition was inadequate for the unlawful-entry-or-remaining
element, this claim does not warrant plain-error review on this record. Instruction 26
explained that unlawful entry or remaining meant the absence of license, invitation, or
privilege and that the landowner could revoke permission through personal communication
of notice. Hubber relies on the disputed initial permission to enter and contends that he did
not hear anyone withdraw permission during the struggle. The jury also heard testimony,
however, that Harris yelled that Hubber could not arrest Sandoval in his house and
demanded that the men leave, followed by Hubber’s insistence that Sandoval was going to
jail. That exchange supplied evidence that Hubber perceived Harris’s objection, not merely
that he intentionally entered the house or used force. Instruction 26 did not supply a
missing mental-state definition, but it directed the jury’s attention to permission and its
personal revocation. Considering those instructions and the competing evidence, including
Hubber’s asserted understanding of his arrest authority, he has not firmly convinced us that
declining review would result in a manifest miscarriage of justice, leave unsettled the
fundamental fairness of the proceeding, or compromise the integrity of the judicial process.
Taylor, ¶ 17.
¶25 The District Court erred by giving the conduct-based definition of “purposely” for
deliberate homicide by accountability, and it should not have used that definition for
10
aggravated burglary. Hubber did not preserve the claims, however, and he has not
established reversible plain error.
¶26 2. Whether trial counsel rendered ineffective assistance by accepting the
challenged mental-state instructions.
¶27 Hubber alternatively argues that counsel rendered ineffective assistance by
accepting the conduct-based purpose definition. The claim is record based. When the
District Court asked whether he objected, counsel answered that he did not because the
definition appeared in a pattern instruction. We therefore know counsel’s reason and need
not speculate about an off-record strategy. Secrease, ¶ 14.
¶28 Counsel performed deficiently. Reliance on a pattern instruction did not justify
failing to request the result-based definition applicable to the charged offense. Because the
law required the result-based definition, counsel had no plausible strategic reason to accept
the conduct-based definition merely because it appeared in a pattern instruction. Secrease,
¶¶ 14-15.
¶29 Strickland asks whether counsel’s error creates a reasonable probability of a
different result sufficient to undermine confidence in the verdict after we consider the
totality of the evidence. Strickland, 466 U.S. at 694-96, 104 S. Ct. at 2068-69. This
prejudice inquiry requires more than a sufficiency determination, which only asks whether
any rational juror could convict after we view the evidence and resolve conflicts in the
State’s favor. Looking at the totality of the evidence here, the elemental instructions did
not leave the jury free to find accountability merely because Hubber intended to enter the
house, apprehend Sandoval, or engage in the ensuing struggle; the elemental instructions
11
required the purpose to promote or facilitate the commission of deliberate homicide. We
therefore do not rely on the sufficiency conclusion to dispose of prejudice. At the same
time, the likelihood of a different result must be substantial, not merely conceivable.
Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011).
¶30 Several considerations nevertheless support Hubber’s prejudice argument. Purpose
was the central disputed element. Instruction 18 gave the jury an incorrect definition of
that central disputed mental state, and the elemental instructions did not independently
define “purpose.” The prosecutor magnified the risk by saying that accountability
“sound[ed] a lot similar to the felony murder rule,” that Hubber “set the wheels in motion,”
that “[w]ithout Mr. Hubber, this does not happen,” and that “Nick Jaeger pulled the trigger
and Jay Hubber pulled the strings.” Those statements emphasized participation and but-for
causation, neither of which alone satisfies § 45-2-302(3), MCA. The prosecutor’s
argument that Hubber was accountable whether he handed over the pistol or made it
available through a defective holster presented the same concern. The defense also
presented evidence that Hubber intended only to apprehend Sandoval, did not transfer the
pistol or direct a shooting, and criticized the shooting during his police interview.
¶31 Other considerations weigh more heavily against prejudice. The State did not rely
only on Hubber’s participation in an unlawful entry or on the foreseeability of violence. It
presented evidence in Nicholas’s initial statement that, during the struggle, Hubber
threatened to shoot Harris “between the eyes.” Sandoval told police that Hubber handed
Nicholas the pistol. At trial, however, Sandoval testified that he did not know how
Nicholas obtained it. Nicholas initially said that he took the pistol from Hubber’s holster,
12
and he testified at trial that the pistol was in Hubber’s hand before he took it. The State
also presented Hubber’s statement the previous day that he would “start capping” people
if matters became chaotic and his same-day statement that he wanted to “smoke” people
who were taking advantage of bondsmen, although the defense supplied a nonviolent
occupational meaning for “smoke.” If credited, the threat and pistol evidence did not show
only reckless conduct or but-for causation. It directly supported an inference that Hubber
consciously facilitated Nicholas’s use of lethal force.
¶32 Hubber’s advance calls to law enforcement, his evident objective to apprehend
Sandoval, and his conduct after the shooting weigh against an advance plan to kill. They
do not foreclose a purpose that arose during the confrontation. Section 45-2-302(3), MCA,
expressly reaches assistance rendered “before or during” the offense, and State v. Wood,
2024 MT 318, ¶ 40, 419 Mont. 503, 561 P.3d 945, recognizes that the common purpose
may exist before or during the homicide. The Concurrence and Dissent’s description of
Hubber as focused on “safely subduing and extricating” Sandoval understates the
State-favorable evidence. The jury could consider that Hubber organized the entry while
carrying a pistol and taser, immediately deployed a taser, threatened lethal force, and,
according to Sandoval’s statement to police, placed the pistol in Nicholas’s hands. It did
not have to characterize the encounter as a safety-oriented arrest effort.
¶33 The elemental instructions did not make the definition provided in Instruction 18
correct, and we do not treat counsel’s arguments as a legal substitute for a correct
instruction. The elemental instructions and the parties’ arguments remain relevant to the
totality of the proceeding, however. The court repeatedly identified deliberate homicide,
13
not the entry or arrest, as the offense Hubber had to purposefully promote or facilitate. The
defense squarely argued that Hubber neither intended nor facilitated a killing. The State’s
causation rhetoric was imprecise, but the State also asked the jury to credit the specific
threat and pistol-transfer evidence. The jury thus confronted the factual question that
separated purposeful facilitation of homicide from an arrest effort that ended disastrously.
¶34 Hubber points to the felony-murder acquittal as support for prejudice. That verdict
adds little to the Strickland inquiry. Instruction 37 prohibited the jury from convicting
Hubber of both felony murder and deliberate homicide by accountability. Once the jury
convicted Hubber of deliberate homicide by accountability, Instruction 37 required it not
to convict him of felony murder. The resulting not-guilty verdict on felony murder
therefore does not provide an independent basis from which we can infer how the jury
resolved the distinct purpose question.
¶35 Secrease supports our conclusion that counsel performed deficiently, but it does not
resolve Strickland prejudice on this record. There, the incorrect conduct-based definition
reduced the State’s burden, and the jury sent a question that focused directly on whether
the defendant’s refusal after issuance of a warrant constituted obstruction. The court
referred the jury back to the same erroneous instruction. Secrease, ¶¶ 15-16. The question
showed that the jury focused during deliberations on the very issue governed by the
erroneous instruction. Here, the record contains no comparable indication and, as
explained above, the elemental instructions directed the purpose inquiry to deliberate
homicide while the State presented contemporaneous evidence from which the jury could
find a purpose directed to lethal force. The cases therefore involve the same type of
14
deficient performance but materially different prejudice records. State v. Rowe and State
v. Hamernick establish the significance of an instruction that lowers the State’s burden, but
both involved preserved instructional claims reviewed directly for prejudicial effect rather
than Strickland prejudice. Rowe, ¶¶ 13, 17; State v. Hamernick, 2023 MT 249, ¶¶ 12-13,
414 Mont. 307, 545 P.3d 666.
¶36 The evidence of homicidal purpose was disputed or conflicting. But Strickland
requires more than a conceivable possibility of a different verdict. Considering the
instructions, arguments, and evidence as a whole, Hubber has not shown a reasonable
probability of a different result sufficient to undermine confidence in the accountability
verdict. Richter, 562 U.S. at 112, 131 S. Ct. at 792; Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068.
¶37 Hubber likewise cannot establish prejudice as to aggravated burglary. The final
elements instruction did not permit a negligence-based conviction, the jury received a
correct result-based definition of “knowingly” for the attempted-injury element, and
Hubber admitted intentionally deploying the taser during his effort to subdue Sandoval. A
different purpose definition or an unused negligence definition does not create a reasonable
probability of a different aggravated-burglary verdict. We also assume, without deciding,
that counsel performed deficiently by failing to request a definition of “knowingly” tailored
to unlawful entry or remaining. The evidence supporting initial permission, Hubber’s
claimed arrest authority, and his asserted failure to hear a demand to leave support his
prejudice argument. We weigh those considerations against the testimony that Harris
expressly objected to the arrest and demanded that the men leave, followed by Hubber’s
15
insistence that Sandoval was going to jail. That testimony weighs against his assertion that
he did not perceive the withdrawal of permission. Initial permission, even if granted, did
not resolve whether he knowingly remained after Harris objected. Considering the
competing evidence and Instruction 26’s express treatment of personal revocation, Hubber
has not shown a reasonable probability that a definition requiring awareness of unlawful
entry or remaining would have produced a different aggravated-burglary verdict.
Strickland, 466 U.S. at 694-96, 104 S. Ct. at 2068-69.
¶38 Counsel performed deficiently by accepting the conduct-based purpose definition,
but Hubber has not established prejudice under Strickland from the challenged mental-state
instructions. His ineffective-assistance claim therefore fails.
¶39 3. Whether sufficient evidence supported Hubber’s conviction for deliberate
homicide by accountability.
¶40 Viewing the evidence in the light most favorable to the State, we ask whether any
rational juror could have found the elements beyond a reasonable doubt. Hubber correctly
begins with the distinction between accountability and felony murder. The State could not
rely on the fact that Harris died during an aggravated burglary and import felony-murder
culpability into the accountability theory. It had to prove that, before or during Nicholas’s
commission of deliberate homicide, Hubber acted with the purpose to promote or facilitate
that homicide and solicited, aided, abetted, agreed, or attempted to aid its planning or
commission. Sections 45-2-302(3), 45-5-102(1)(a), MCA; Doyle, ¶ 55; Lantis, ¶ 33;
Wood, ¶¶ 36-40.
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¶41 The State did not have to prove an express advance agreement to kill Harris. A
common purpose may be inferred from circumstantial evidence and need not be established
by words of agreement or direct evidence. Lantis, ¶ 46. The requisite purpose may exist
before or arise during commission of the homicide. Section 45-2-302(3), MCA; Wood,
¶ 40. The jury therefore could infer purposeful facilitation from what Hubber said and did
during the active confrontation, even if his initial objective was only to apprehend
Sandoval.
¶42 The evidence was sufficient when viewed in the State’s favor. Hubber recruited
Nicholas, approached the front of the house while others watched the rear, carried a taser
and pistol, and immediately used force against Sandoval. The jury heard Hubber’s recent
statements about “capping” and “smoking” people.2 Sandoval told police that Hubber
handed Nicholas the pistol. Nicholas initially reported that Hubber threatened to shoot
Harris “between the eyes” and that he took the pistol from Hubber’s holster; at trial,
Nicholas testified that the pistol was in Hubber’s hand before he took it. A rational juror
could infer from that evidence that Hubber purposefully facilitated Nicholas’s commission
of deliberate homicide.
¶43 Hubber and Nicholas offered substantial contrary evidence. Hubber denied
transferring the pistol, directing a shooting, or expecting Nicholas to shoot. Nicholas
2
The jury heard evidence that, on December 19, 2021, Hubber texted a fellow bondsman, “I just wanna smoke a few of these mother fuckers that are trying to pull shit over on us,” and that, during the failed effort to apprehend Sandoval the day before, Hubber stated that if things got crazy he would “start capping motherfuckers” with his pistol. Hubber testified, however, that he used “smoke” to mean arrest.
17
testified that he took the pistol to prevent others from obtaining it and fired only because
he perceived an imminent threat. Hubber sought police assistance before the entry,
condemned the shooting, tried to assist Harris, called 911, and remained at the scene. That
evidence could support a different inference. Sufficiency review, however, does not permit
us to reweigh competing testimony or revisit credibility determinations. Michelotti, ¶ 9;
State v. Spottedbear, 2016 MT 243, ¶ 8, 385 Mont. 68, 380 P.3d 810.
¶44 The District Court correctly treated the competing accounts as a jury question. A
rational juror could find that Hubber purposely promoted or facilitated Nicholas’s
commission of deliberate homicide. The evidence therefore was sufficient to support the
accountability conviction.
¶45 4. Whether the District Court’s rulings concerning Hubber’s asserted authority as
a bondsman require reversal.
¶46 Hubber argues that § 46-9-510, MCA, the bond contract, common-law bondsman
principles, arrest-warrant doctrine, and out-of-state cases authorized him to enter or remain
in Harris’s home to arrest Sandoval. He also relies on evidence that Sandoval used
815 South Main as an address, that occupants commonly entered without invitation, and
that someone opened the door for Hubber and Nicholas. He contends that the District Court
therefore erred by excluding his asserted legal privilege and refusing Proposed Instructions
10, 11, 12, 17, 27, and 28.
¶47 We confine our decision to the arguments and authorities Hubber developed on
appeal. M. R. App. P. 12(1)(g) requires an appellant to present a reasoned argument,
supported by authority, explaining why the district court erred. We therefore decide
18
whether Hubber’s statutory, contractual, common-law, warrant, residence, and
instructional theories establish reversible error. We do not decide broader questions that
the parties did not develop.
¶48 Section 46-9-510(1)(b), MCA, provides that, before forfeiture or within 90 days
afterward, “the surety company may arrest the defendant and surrender the defendant” to
a court, peace officer, or detention facility. That provision confirms the surety company’s
arrest-and-surrender authority. Standing alone, it does not address whether, or under what
circumstances, a surety or its agent may enter a nonparty’s home. Rupnow v. Mont. State
Auditor & Comm’r of Ins., 2024 MT 14, ¶¶ 13-14, 415 Mont. 81, 542 P.3d 384, likewise
addresses when statutory arrest authority arises; it does not decide entry into a dwelling.
Section 46-9-510, MCA, therefore, does not, by itself, establish the legal entry privilege
Hubber asked the jury to apply.
¶49 The bond contract does not independently supply that privilege. It stated that the
company could apprehend and surrender Sandoval “as provided by law” and, in a provision
addressing capture outside the state, that Sandoval consented to reasonable force necessary
to effectuate his return. The agreement governed Sandoval and the surety. Harris did not
sign it, and he owned and occupied 815 South Main. Whatever authority Sandoval granted
against himself, he could not by contract grant Hubber a legal right against Harris to enter
or remain in Harris’s home. The District Court correctly rejected the contract as an
independent source of authority against Harris.
¶50 The District Court framed parts of its rulings more broadly than necessary, declaring
that Montana recognizes no bondsman privilege and that all force after the entry was
19
unlawful. We need not endorse those categorical propositions to affirm. We review the
rulings challenged on appeal and ask whether the theories and instructions Hubber actually
presents required the court to tell the jury that his bondsman status legally privileged his
entry into or continued presence in Harris’s home. They did not.
¶51 Hubber’s common-law and historical authorities do not establish the claimed scope.
Taylor v. Taintor, 83 U.S. 366, 371 (1872), stated that a surety could, if necessary, break
and enter “his house”—the principal’s own house. The unpublished order in State v. Baker,
No. DC-17-588 (Mont. Fourth Judicial Dist. May 9, 2018), likewise involved the
principal’s home and a contract expressly granting access to property the principal owned
and occupied. Mitchell v. First Call Bail & Sur., Inc., 412 F. Supp. 3d 1208, 1217-18
(D. Mont. 2019), concluded that Montana appeared to recognize some common-law
bondsman authority but recognized that the existence of a privilege does not determine
whether particular conduct falls within it. No Montana authority Hubber cites establishes
a blanket Montana rule allowing unconsented entry into a nonprincipal homeowner’s
dwelling.
¶52 Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388 (1980), and Steagald
v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 1648 n.7 (1981), do not establish
Hubber’s claimed authority. Those cases regulate governmental entry. Payton recognizes
limited authority for officers with an arrest warrant to enter a dwelling in which the suspect
lives when they have reason to believe the suspect is inside. Payton, 445 U.S. at 603,
100 S. Ct. at 1388. Steagald explains that this rationale does not authorize officers to use
an arrest warrant to enter a third party’s home to search for the subject. Steagald, 451 U.S.
20
at 214 n.7, 101 S. Ct. at 1648 n.7. Because Hubber acted as a private bondsman, those
decisions neither grant him an entry privilege nor resolve the scope of any Montana
authority the parties did not brief.
¶53 Hubber’s supplemental authorities likewise do not establish his requested rule.
United States v. Span, 75 F.3d 1383 (9th Cir. 1996), concerns resistance to excessive force
by officers; State v. Kao, 215 Mont. 277, 697 P.2d 903 (1985), concerns law-enforcement
exigency; § 46-6-210, MCA, governs peace-officer arrest authority; and State v.
O’Connell, No. DC-09-166, 2010 Mont. Dist. LEXIS 158 (Mont. Twenty-First Judicial
Dist. May 18, 2010), did not involve entry into a third party’s dwelling. The out-of-state
cases on which Hubber relies apply other jurisdictions’ law and reach differing results
depending on whether the principal resided in the home and what local law authorized.
See, e.g., Livingston v. Browder, 285 So. 2d 923 (Ala. Civ. App. 1973); State v. Mathis,
509 S.E.2d 155 (N.C. 1998); Mease v. State, 302 S.E.2d 429 (Ga. Ct. App. 1983). They
do not establish that Montana adopted the broad privilege Hubber asserted.
¶54 Hubber’s address, open-door, and harboring arguments do not alter that conclusion.
Sandoval’s listing of 815 South Main as an address did not itself make Harris a party to the
bond or give Sandoval authority to confer legal entry rights against Harris. Evidence that
occupants commonly came and went, that the door was damaged or unlocked, and that
someone may have opened it for Hubber and Nicholas bore on ordinary consent and
Hubber’s knowledge. The District Court did not exclude that evidence, and the jury heard
conflicting accounts of the entry. The jury also heard evidence that Harris ordered the men
to leave. Because aggravated burglary covered knowingly entering or remaining
21
unlawfully, the jury could assess both the disputed initial consent and Hubber’s continued
presence. Characterizing the residence as a “trap house” or accusing Harris of harboring
Sandoval did not itself create a bondsman privilege.
¶55 A defendant is entitled to an instruction on a theory having support in both the
evidence and the applicable law. State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340,
987 P.2d 371. Proposed Instructions 10 and 11 recited portions of the bond-forfeiture
process that did not define an element or defense. Proposed Instruction 12 accurately
quoted the surety company’s arrest-and-surrender authority under § 46-9-510(1)(b), MCA,
but it did not address entry, explain its application to Hubber as the producer, or connect
the arrest authority to the unlawful-entry-or-remaining element. Even assuming the court
should have given the substance of Proposed Instruction 12, its refusal did not prejudice
Hubber. Instruction 15 told the jury that a private person may arrest another upon probable
cause when the existing circumstances require immediate arrest and may use reasonable
force to detain the arrested person. The jury also heard the bonds, warrants, and Hubber’s
arrest purpose. Proposed Instruction 12 added only the surety company’s general
arrest-and-surrender authority; it did not answer whether Hubber’s entry into or continued
presence in Harris’s home was lawful.
¶56 Proposed Instruction 17 concerned resistance to arrest by a peace officer or by a
private person summoned and directed by a peace officer. No evidence showed that an
officer summoned and directed Hubber to arrest Sandoval; dispatch told him that officers
were unavailable. Proposed Instruction 27 asserted a broad right to enter land possessed
by another, and Proposed Instruction 28 imported Payton’s governmental arrest-warrant
22
rule. Neither accurately stated an established Montana rule that required the jury to treat
Hubber’s bondsman status as authority to enter or remain in Harris’s home.
¶57 The court gave a private-arrest instruction and admitted the evidence bearing on
Hubber’s asserted understanding and purpose: his license, the bonds and warrants, his
communications with Sandoval, the address information, his efforts to obtain police
assistance, and the manner of entry. The ruling prevented Hubber from telling the jury that
the law categorically privileged the entry. Because the arguments and authorities he
developed on appeal did not establish that proposition, he has not shown reversible error
in the limitation on argument or the refused instructions.
¶58 We do not decide whether Montana recognizes any broader bondsman privilege in
other circumstances. We hold only that the statutory, contractual, common-law, warrant,
residence, and instructional theories Hubber actually presented did not require the District
Court to instruct the jury that his bondsman status legally privileged his entry into or
continued presence in Harris’s home. We therefore affirm the challenged rulings.
CONCLUSION
¶59 Sufficient evidence supported Hubber’s conviction for deliberate homicide by
accountability. The District Court gave an incorrect conduct-based definition of
“purposely,” and counsel performed deficiently by accepting it solely because it was a
pattern instruction. Considering the totality of the trial, however, Hubber has not
established reversible plain error or a reasonable probability of a different result under
Strickland. His remaining mental-state claims likewise do not warrant reversal. On the
23
arguments and authorities Hubber developed, the District Court’s bondsman rulings and
refused instructions do not establish reversible error. We affirm both convictions.
¶60 Affirmed.
/S/ KATHERINE M. BIDEGARAY
We Concur:
/S/ CORY J. SWANSON
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ JIM RICE
District Court Judge Christopher D. Abbott, concurring and dissenting.
¶61 I concur in the Court’s resolution of Issues 3, 4, and 5. As to the first two issues,
however, I respectfully lodge my disagreement that Hubber’s failure to preserve
instructional error dooms his appeal as to the deliberate homicide conviction. There are
cases where mens rea matters little because if the person committed the act, then the mental
state almost inevitably follows. See, e.g., State v. Andress, 2013 MT 12, ¶¶ 29–30, 368
Mont. 248, 299 P.3d 316. This is not one of those cases. To the contrary, this case was
always all about the mental state.
¶62 Hubber argues both plain error and ineffective assistance of counsel. I focus on the
latter, as that path more straightforwardly and mandatorily resolves the case.1 Both the
1
Unlike plain error, which is a common law discretionary doctrine, see State v. Hatfield, 2018 MT 229, ¶ 52, 392 Mont. 509, 426 P.3d 569, the right to effective assistance of counsel is a mandatory right derived from both the state and federal constitutions. If counsel was ineffective and that ineffective assistance substantially prejudiced the defendant, this Court has no alternative to reversal.
24
Sixth Amendment to the United States Constitution and Article II, Section 24, of the
Montana Constitution guarantee that persons facing trial for alleged crimes not only have
counsel, but that they have “effective assistance of counsel.” State v. Secrease, 2021 MT
212, ¶ 13, 405 Mont. 229, 493 P.3d 335. To obtain a reversal for violation of this right, the
defendant must establish: (1) that “counsel’s performance was deficient or fell below an
objective standard of reasonableness”; and (2) that “there was a reasonable probability that,
but for counsel’s errors, the result of the proceedings would have been different.” Secrease,
¶ 13 (quoting State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095);
see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) (same).
¶63 This Court has on occasion found counsel ineffective for failure to request
appropriate instructions or object to inappropriate instructions, including mental state
instructions, and reversed as a result. Most notably, in Secrease, this Court deemed
deficient trial counsel’s failure to offer the “results-based” instruction for “knowingly” in
a case charging obstructing a peace officer. Secrease, ¶ 12. Because acquiescing in the
conduct-based instruction effectively reduced the State’s burden to prove the offense, this
Court found there was no plausible justification not to object. Secrease, ¶ 15. The Court
found a reasonable probability that the outcome would have been different had the proper
instruction been given.
¶64 Significantly, the Court in Secrease arrived at reversal even though the State
correctly articulated the mental state in closing argument. Secrease, ¶ 16. Indeed, the
Court reversed even though the evidence of guilt on the obstruction charge was quite strong
under either definition of “knowingly”: the allegation was that after an officer expressly
25
told an arrested Secrease at the hospital that he had a warrant to draw Secrease’s blood,
Secrease refused to allow it to be drawn, prompting hospital personnel to refuse to conduct
the blood draw. See Secrease, ¶ 5. What tipped the Court towards reversal was the
following jury question: “if the blood test & breath test are refused after a warrant is issued,
is that obstructing, hindering or impairing the law[?],” to which the District Court
responded by referring the jury back to the instructions, including the incorrect statement
of the mental state. See Secrease, ¶¶ 7, 16. Secrease is far from the only case where this
Court has reversed a conviction for unpreserved instructional error on ineffective assistance
of counsel grounds. See State v. Johnston, 2010 MT 152, ¶¶ 10–16, 357 Mont. 46, 237
P.3d 70 (counsel ineffective for acquiescing in conduct-based instruction for obstructing a
peace officer);2 State v. Resh, 2019 MT 220, ¶ 17, 397 Mont. 254, 448 P.3d 1100 (failure
to object to an instruction incorrectly stating the age-based consent requirements for sexual
assault); State v. Chaffee, 2014 MT 226, ¶ 18, 376 Mont. 267, 332 P.3d 240 (failure to offer
an instruction that “mere presence” at a crime scene is insufficient to establish legal
accountability); Kougl, ¶¶ 20–21 (failure to offer an instruction on accomplice testimony);
State v. Rogers, 2001 MT 165, ¶ 13, 306 Mont. 130, 32 P.3d 724, overruled in part by
Whitlow v. State, 2008 MT 140, ¶ 13 n.2, 343 Mont. 90, 183 P.3d 861 (failure to offer a
jury instruction that the jury could consider a lesser included offense if they failed to agree
2
Johnston, like Secrease, involved use of the wrong mental state instruction in an obstructing case, but there the State compounded the error by arguing the incorrect mental state in closing argument. Johnston, ¶ 13. As in Secrease, the resulting diminution in the State’s burden supported a finding of prejudice. See Johnston, ¶ 16.
26
on the greater charge); State v. Rose, 1998 MT 342, ¶ 18, 292 Mont. 350, 972 P.2d 321
(accomplice testimony instruction).
¶65 The District Court indisputably gave the jury the wrong definition of “purposely.”
The Court and I agree this was deficient performance. To instruct the jury in such a manner
that they could find the defendant had the “purpose to promote or facilitate” the offense
merely upon finding the Defendant intended his own acts is to take most of the force and
effect out of the mental state element. Apart from having an unpreserved error to challenge
on appeal—hardly the stuff of winning gambits—Hubber derived no plausible advantage
from allowing the wrong instruction to be read unchallenged. Where I part company with
the Court is the second requirement for reversal, prejudice. To establish prejudice, Hubber
must convince us that “but for counsel’s errors, a reasonable probability exists that the
result of the proceeding would have been different.” Stock v. State, 2014 MT 46, ¶ 19, 374
Mont. 80, 318 P.3d 1053 (quoting St. Germain v. State, 2012 MT 86, ¶ 11, 364 Mont. 494,
276 P.3d 886). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the proceeding.” Stock, ¶ 19. Hubber must show that his
“counsel’s deficient performance renders the result unreliable or the proceedings
fundamentally unfair.” Stock, ¶ 19.
¶66 In my view, Hubber has met this high burden. The evidence in this case is not
overwhelming. To convict a defendant of deliberate homicide by accountability, the
defendant must have the purpose to promote or facilitate the commission of the offense of
deliberate homicide, meaning the defendant must have the conscious object that “an act
designed to promote or facilitate causing the death of another human being” be committed.
27
Lantis, ¶ 36. In other words, Hubber’s objective had to be that Jaeger would engage in an
act promoting or facilitating someone’s death, here, by shooting Hubber’s firearm. There
is substantial reason to question whether Hubber actually wanted his quarry or anyone else
dead or shot, or whether Hubber instead was simply so intent on catching a fugitive who
had eluded him that he threw caution to the wind with predictable result. Both are
wrongful; only one is murder. In my view, when the evidence is close and the line between
guilt and innocence in the case turns not on what Hubber did—which is mostly not in
dispute—but instead on what Hubber thought and intended—which is very much in
dispute—even seemingly small errors matter.
¶67 The record contains substantial evidence from which a juror could rationally
question whether Hubber had the requisite mental state. For one, the State was left
charging Hubber via a felony murder or accountability theory because Hubber was not the
shooter; Nick Jaeger was. Hubber was not at the home to get Bill Harris; he was there to
get David Sandoval. Hubber’s interest in Sandoval was not personal, it was business:
because Sandoval did not show up to court, Hubber’s bail bonds business was out some
money unless he apprehended Sandoval within 90 days. See § 46-9-510(1)(b), MCA. And
after Hubber learned that Sandoval was at Harris’s house, Hubber attempted,
unsuccessfully, to enlist law enforcement in his efforts to apprehend Sandoval there, an act
inconsistent with any preexisting desire to shoot anyone.
¶68 Additionally, the evidence of the entry itself arguably supports the notion that
Hubber never intended that anyone shoot or kill anyone. Although Sandoval, Hubber, and
28
Jaeger have differing accounts about who first used physical force,3 nobody contends that
Hubber or Jaeger immediately resorted to lethal force or had a firearm drawn when they
entered. All witnesses agree that Hubber’s first use of force was his taser, followed by a
physical struggle with Sandoval. Mark Hockaday, who was present in the home, testified
that Sandoval, whom he described elsewhere as “pretty strong,” had “kind of fought
back . . . he fought pretty hard.” Sandoval and Hubber both testified that Harris, who was
agitated and loudly screaming at Hubber and Jaeger to leave his house, attempted to
intervene in the struggle and repeatedly kicked Hubber in the forehead, although the force
of those kicks was disputed. Multiple other individuals in the house converged on this
scene during the struggle. Some may or may not have been armed with improvised objects
that could be used as weapons. This was a chaotic, confused, and fast-moving event. The
foregoing could all be used to rebut the idea that Hubber’s subjective purpose ever
extended beyond Sandoval’s apprehension and his own personal protection.
¶69 There is no dispute that during the fray, Jaeger acquired Hubber’s gun, which was
holstered when they entered the home, and shot Harris, killing him. The testimony about
how Jaeger obtained the firearm is disputed, ranging from evidence that Hubber pulled the
gun from the holster and handed it to Jaeger to claims that Jaeger pulled the gun from
Hubber’s holster entirely on his own. Regardless, Jaeger shot Harris, and after the fact,
3
Sandoval testified that he was almost immediately tased after being told he was going to jail. Hubber testified that after he told Sandoval he was under arrest, Sandoval punched him and then Hubber tased him. Jaeger testified that when they entered the bedroom, Dave jumped off the bed and went to run before being tased. And Michael “Bergie” Berg, who was initially present, testified that Jaeger was the one who first tased Sandoval.
29
Hubber did not flee the scene immediately but instead called 911. As the Court
acknowledges, there was testimony that Hubber condemned Jaeger’s actions and attempted
to render aid.
¶70 To be sure, there is also plenty of evidence that supports the State’s theory, which
is why the evidence is legally sufficient to support a conviction. To say evidence is legally
sufficient to go to a jury, however, is not to say that the evidence is overwhelming, or even
strong. If Hubber had himself shot Harris, the State would need merely to prove Hubber
knowingly caused Harris’s death. The State here, however, relies on a legal accountability
theory, which requires evidence of purpose. In other words, the State must do more than
prove Hubber was aware his conduct would likely result in someone’s death; the State must
prove it was Hubber’s conscious object that Jaeger engage in an act designed to promote
or facilitate death. There is a case to be made that by the climax of this struggle, he did
have that intent. But there is another theory that has support in the evidence: that Hubber’s
conscious object was focused on safely subduing and extricating Sandoval, whether his
actions were otherwise legally justifiable or not.
¶71 Because this case is not clear-cut and turns in large measure on Hubber’s state of
mind, it matters a great deal what the jury is told about what divides guilt from innocence.
And here, the jury was told, wrongly, that Hubber acted purposely if it was his “conscious
object to engage in conduct of that nature.” A juror following this instruction could
rationally find Hubber guilty upon finding that he intended to engage in the specific actions
he took even if he did not intend those actions to promote or facilitate Jaeger’s subsequent
shooting of Harris. The instruction thus lessened the State’s burden to prove Hubber acted
30
with the purpose to promote or facilitate the commission of the offense of deliberate
homicide. The State then compounded this error, just as it did in Johnston, analogizing in
closing the more stringent mental state standard for accountability to the less stringent
requirements for felony murder and “emphasiz[ing] participation and but-for causation.”
Opinion, ¶ 30.
¶72 Jury instructions that “relieve the State of its burden to prove each element of an
offense violate a defendant’s right to due process.” State v. Rowe, 2024 MT 37, ¶ 17, 415
Mont. 280, 543 P.3d 614. The risk of unfair prejudice to the accused flowing from such
an error is at its zenith where it concerns “a critical and often contested fundamental
element of the crime.” State v. Hamernick, 2023 MT 249, ¶ 25, 414 Mont. 307, 545 P.3d
666.4 That is precisely the case here: in a closely contested trial of a defendant who did
not pull the trigger, the jury was given a shortcut to conviction. There is a reasonable
probability that at least some jurors, even if doubtful about Hubber’s intent to promote or
facilitate a death, took the out they were offered, finding that regardless of what his intent
was with respect to the outcome, his intent with respect to his specific actions was clear.
¶73 The Court downplays the analogy to Secrease. I do not agree that Secrease can be
so readily distinguished. Secrease involved a strong case of guilt under any definition of
“knowingly”: the defendant refused a blood test after being told by the officer that they had
a warrant. The case for proving the mental state here is comparatively much weaker, and
it involves the more stringent mental state of purpose. In Secrease, the State argued the
4
Although Rowe and Hamernick involved preserved error, that does not undermine their explanation of the importance of correctly instructing the jury on a material element of the offense.
31
correct instruction in closing; here, the State did not. In both, the effect of reading the
incorrect instruction was to lower the State’s burden of proof.
¶74 The only difference between Secrease and this case is that here there were no jury
questions during deliberations that arguably suggested questions about the mental state.
But neither the question nor answer actually exchanged in Secrease were tied closely to
mental state: the jury asked, “if the blood test & breath test are refused after a warrant is
issued, is that obstructing, hindering, or impairing the law[?],” and the response merely
referred the jury to the instructions as a whole. Secrease, ¶ 7. Moreover, reliance on
conjecture about jury behavior is an inherently fraught enterprise because it necessitates
speculation: some juries ask lots of questions, but some juries have many questions but
pose none of them to the Court. The better measure of prejudice is the overall state of the
evidence in the case and how that interacts with the nature of the deficient performance at
issue.
¶75 Finally, it does not suffice to argue that the instructions as a whole fairly instructed
the jury because they were given accurate instructions on the elements of deliberate
homicide and legal accountability. To be sure, the jury did receive accurate instructions
on the elements. But both of these instructions still required the jury to understand what it
means to “purposely . . . cause[] the death of another human being” and to have the
“purpose to promote or facilitate” the commission of the offense of deliberate homicide.
Courts presume that jurors follow the law as given to them. State v. Labbe, 2012 MT 76,
¶ 28, 364 Mont. 415, 276 P.3d 848. If jurors did that and plugged into these instructions
the definition of “purposely” given by the District Court, jurors could very well have
32
understood the instructions as requiring only that they find that Hubber’s own acts were
intended by him, regardless of the contemplated objective of those acts.
¶76 Notably, I do not reach the same conclusion with respect to the aggravated burglary
charge. The evidence in the record is overwhelming that: (1) Hubber entered Harris’s
house without permission and remained there after being told unequivocally to leave;
(2) Hubber caused bodily injury to Sandoval by tasing him and through his physical
struggle with him; and (3) Hubber knew he was entering the home, knew he was not
welcome, knew he was using his taser and wrestling with Sandoval, and knew that from
using his taser and wrestling with Sandoval, it was highly probable that Sandoval would
experience pain, i.e., bodily injury. To the extent the evidence could have supported a
defense, it would be found in either the bondsman’s privilege argument this Court has now
rejected, or in the justifiable use of force defense that Hubber argued and the jury rejected.
No matter what definitions of “knowingly” and “purposely” were offered, the outcome
would be the same.
¶77 Here, the record demonstrates that Hubber’s counsel rendered deficient
representation by failing to object to a critical jury instruction, and that the evidence was
such that the failure to object undermines confidence in the jury’s verdict. Because I think
Hubber was prejudiced by the denial of his right to effective assistance of counsel, I would
reverse his conviction for deliberate homicide by accountability and remand for a new trial.
Because the Court has decided differently, I respectfully dissent.
/S/ CHRISTOPHER D. ABBOTT
District Court Judge Christopher D. Abbott
sitting for Justice James Jeremiah Shea
33