State v. Bush
1981 Mont. LEXIS 881, 636 P.2d 849, 195 Mont. 475 (1981)
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Rule of Law:
Under Montana law, the crime of solicitation is complete when a person, with the purpose of having an offense committed, facilitates its commission; the person solicited does not need to be aware of the solicitor's criminal purpose or the criminal nature of the act.
Facts:
- In September 1980, Edward G. Bush met Kathleen Kohse, a bartender in Kalispell, Montana.
- Bush offered Kohse a job as a "film courier," telling her he was a filmmaker who photographed animals.
- After several conversations and a letter from a purported secretary, Kohse was hired, resigned from her bartending job, and was given a plane ticket to Los Angeles.
- In Los Angeles, Bush told Kohse her job was now a "photographer," gave her cameras, an aluminum camera case, and $1,200, and sent her to Lima, Peru.
- In Lima, an associate of Bush named Dan took the camera case from Kohse for several hours while she was at a zoo.
- Upon returning to the Los Angeles airport and going through customs, Kohse was arrested.
- Authorities discovered cocaine hidden in a secret compartment within the lining of the camera case.
- Kohse maintained that she had no knowledge of the drugs hidden in the case.
Procedural Posture:
- The State of Montana charged Edward G. Bush with solicitation to possess dangerous drugs in the District Court for Flathead County, the trial court.
- Bush filed a motion to dismiss for lack of jurisdiction, which the trial court denied.
- Following a trial, Bush was convicted by the trial court for the offense of solicitation to possess dangerous drugs.
- Bush, as the appellant, appealed his conviction to the Supreme Court of Montana.
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Issue:
Is a defendant guilty of solicitation under Montana law for using an innocent agent to commit a crime, even if the agent was unaware of the defendant's criminal purpose?
Opinions:
Majority - Mr. Chief Justice Haswell
Yes. A defendant is guilty of solicitation in Montana for using an innocent agent to commit a crime, even if that agent was unaware of the criminal purpose. The court found that Montana's solicitation statute, section 45-4-101, MCA, criminalizes conduct that "facilitates" the commission of an offense when done with the purpose that the offense be committed. The court reasoned that the legislature's use of the word "facilitates," in place of the common law term "requests," expanded the scope of the crime beyond traditional solicitation where the solicitee would be aware of the request. Therefore, the gravamen of the offense is the intent of the solicitor, not the knowledge or criminal intent of the person being solicited. Using an innocent agent to accomplish a crime falls within the meaning of facilitating that crime.
Analysis:
This decision clarifies that Montana's solicitation law is significantly broader than its common law predecessor. By focusing on the solicitor's intent and the act of "facilitating" a crime, the court confirms that defendants cannot escape liability by using an innocent, unknowing person as an instrument to carry out their criminal plans. This precedent lowers the prosecutorial burden in cases involving unwitting accomplices, as the state does not need to prove the person solicited had any criminal knowledge. It solidifies the principle that the core of an inchoate crime like solicitation lies in the defendant's culpable mental state and actions to bring about a crime, regardless of the third party's awareness.
