STATE v. HUBBER (2026)

¶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.

¶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 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.

¶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.

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, 80 L.Ed.2d 674 (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 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), MCA ¹ ; 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 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 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 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 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 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, 178 L.Ed.2d 624 (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, 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, 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 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 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.

¶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 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 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 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, 16 Wall. 366, 21 L.Ed. 287 (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, 63 L.Ed.2d 639 (1980), and Steagald v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 1648 n.7, 68 L.Ed.2d 38 (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. 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, 51 Ala.App. 366, 285 So. 2d 923 (1973); State v. Mathis, 349 N.C. 503, 509 S.E.2d 155 (1998); Mease v. State, 165 Ga.App. 746, 302 S.E.2d 429 (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 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 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 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.

¶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 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, 80 L.Ed.2d 674 (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 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. Chafee, 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 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. 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 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, 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 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 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 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.

FOOTNOTES

1.   All statutory references are to the 2021 Montana Code Annotated unless otherwise noted.

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.

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.

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.

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.

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.

Justice Katherine M. Bidegaray delivered the Opinion of the Court.

We Concur: CORY J. SWANSON BETH BAKER LAURIE McKINNON INGRID GUSTAFSON JIM RICE