“Proper Occasion” Limits on Accomplice-Distrust Instructions: No Instruction Where It Conflicts With an Innocence Defense, and Dropped Charges Don’t Create an Accomplice “As a Matter of Law”

1. Introduction

Parties and posture. The State of Montana prosecuted Lila Lynn Lord for (1) conspiracy to commit insurance fraud and (2) tampering with evidence. After a jury trial in the Seventh Judicial District Court, Richland County, Lord was acquitted of the conspiracy charge but convicted of tampering with evidence. She appealed.

Background facts. The prosecution stemmed from a staged burglary orchestrated by homeowner Marie Chris Entzel to obtain insurance proceeds. Entzel recruited David Skaw and others to remove property and create the appearance of a burglary. High-value items went missing, including a boat and trailer and a refrigerator. The State alleged Lord helped disassemble and remove the refrigerator and helped conceal the refrigerator and boat/trailer at her residence in Plentywood.

Key appellate issues. The appeal raised three trial-management and evidentiary-instruction questions:

• whether the jury should have been instructed to view Entzel’s testimony “with distrust” as accomplice testimony;
• whether the defense should have been allowed to present a witness (Pohl) by remote video shortly before trial;
• whether the evidence was insufficient because (allegedly) the State failed to corroborate accomplice testimony.

2. Summary of the Opinion

The Montana Supreme Court affirmed Lord’s tampering-with-evidence conviction. The Court held:

• Although the State conceded Entzel was an accomplice for the conspiracy charge (and thus an accomplice instruction should have been given), any error was harmless because the jury acquitted Lord of conspiracy.
• As to the tampering charge, Entzel was not an accomplice “as a matter of law” because she ultimately was not charged or tried for tampering; and, in any event, giving an accomplice instruction would have conflicted with Lord’s innocence defense, defeating the “proper occasion” requirement.
• The District Court did not abuse its discretion by denying a last-minute request for video testimony where the witness could still testify in person and the request was untimely.
• Even assuming corroboration were required, the record contained sufficient direct and circumstantial evidence supporting the tampering conviction, so the motion to dismiss for insufficient evidence was properly denied.

3. Analysis

3.1 Precedents Cited

A. Accomplice status, accountability, and “proper occasion”

• State v. Rose (1998 MT 342) and State v. Johnson (276 Mont. 447): The Court reiterated Rose’s statement that “the State's prosecution of one person for the same crime for which the defendant is tried constitutes an acknowledgment that the person is an accomplice to the crime.” In Lord, that principle applied only to the conspiracy charge (where the State conceded accomplice status), but not to tampering because Entzel was not ultimately prosecuted for that offense.
• State v. Allen (2010 MT 214) and State v. Hall (2003 MT 253): These cases provide the operative test for when an accomplice-distrust instruction is required under § 26-1-303(4), MCA. The Court quoted Allen’s three-part “proper occasion” formulation: (1) an accomplice gives direct testimony; (2) the defendant requests the instruction; and (3) the instruction is not inconsistent with the defendant’s claim of innocence. Hall supplied the key limitation: an accountability/accomplice instruction is not proper when unsupported by the evidence and inconsistent with an innocence theory.
• State v. Flowers (2018 MT 96), State v. Charlo-Whitworth (2016 MT 157), and State v. Ramirez (2025 MT 232): The Court aligned Lord with these cases, emphasizing the incompatibility between an innocence defense (“I did not do it / did not know”) and asking the jury to treat a witness as someone who aided the defendant in committing the charged acts.
• State v. Johnson (257 Mont. 157) and City of Helena v. Frankforter (2018 MT 193): Allen’s test cited Johnson (257 Mont.) for the accomplice-instruction standard, noting it was “overruled on other grounds” by Frankforter. Lord treats the accomplice-instruction framework as intact despite that partial overruling on unrelated issues.
• State v. Tollie (2022 MT 59): Cited for the statutory bases of accountability under § 45-2-302, MCA (causing, statutory accountability, or aiding/abetting before or during commission). Lord uses Tollie as definitional scaffolding for analyzing whether Entzel could be “legally accountable” for Lord’s tampering.

B. Standards of review and harmless error

• State v. King (2016 MT 323) and State v. Zlahn (2014 MT 224): Used to frame review of jury instructions—whether they fairly and fully instruct the jury, with reversal only if substantial rights were prejudiced.
• State v. Rossbach (2022 MT 2) and State v. Mercier (2021 MT 12): Cited for abuse-of-discretion review of trial administration decisions (including managing witness presentation).
• State v. Marler (2008 MT 13): Provided the de novo standard for denying a “directed verdict” (treated as a motion to dismiss for insufficient evidence) and the “any rational trier of fact” formulation when viewing evidence in the light most favorable to the prosecution.
• State v. Torgerson (2008 MT 303): Cited for reviewing corroboration questions in the light most favorable to the prosecution.
• State v. Ohl (2022 MT 241): Cited in a clarifying footnote that Montana practice treats a “motion for directed verdict” as a motion to dismiss under § 46-16-403, MCA.
• § 46-20-701(2), MCA: The Court applied harmless error, concluding that even if an accomplice instruction should have been given for the conspiracy count, the acquittal eliminated prejudice; similarly, any harm from exclusion of Pohl’s testimony was mooted by the acquittal on conspiracy.

C. Remote testimony and preference for in-person witnesses

• City of Missoula v. Duane (2015 MT 232): Cited for the proposition that the “preferred method” of trial testimony is in-person courtroom appearance, supporting the District Court’s discretion to deny last-minute video testimony.
• M. R. Evid. 611(a): The Court invoked the trial judge’s authority to control the “mode and order” of presenting witnesses.

D. Judicial notice on appeal

• In re K.C.H. (2003 MT 125) and M. R. Evid. 202: The Court took judicial notice of filings in Entzel’s separate district court case to evaluate Lord’s claim about what Entzel had been charged with, underscoring that the Court may consult certain adjudicative facts outside the trial record when appropriate.

3.2 Legal Reasoning

A. The accomplice instruction dispute split by count (conspiracy vs tampering)

The Court’s analysis turned on charge-specific accomplice status and on defense-theory consistency.

Conspiracy count. Because Entzel was charged and pled guilty to insurance fraud-related offenses, the State conceded she was an accomplice with respect to Lord’s conspiracy charge. Under State v. Rose, prosecuting the same crime generally makes the witness an accomplice “as a matter of law.” Yet the Court treated the instructional error as harmless because the jury acquitted Lord on conspiracy, invoking § 46-20-701(2), MCA.

Tampering count. Lord tried to extend Rose by arguing Entzel had been charged with tampering “by accountability” in an original Information. The Court rejected this for two reasons:

• No “acknowledgment” via prosecution. Entzel’s tampering-related charge was dropped in the Amended Information; Entzel was not tried for tampering. Therefore, the State’s final posture did not “acknowledge” accomplice status for tampering under Rose.
• No “proper occasion” due to innocence theory. Applying State v. Allen and State v. Hall, the Court held that Lord’s trial theory was categorical innocence—she claimed she did not know about the scheme, did not knowingly conceal property, and did not knowingly possess the boat or refrigerator as evidence. An accomplice instruction premised on Entzel being legally accountable for “acts of the accused” would be inconsistent with that theory. Thus, even if Entzel arguably participated in the broader episode, the instruction was not required.

A subtle feature of the Court’s reasoning is that it framed “proper occasion” not only as a rule about evidence (whether the witness is an accomplice) but also as a rule about coherence in adversarial presentation: a defendant cannot simultaneously tell the jury “I did not do this” and ask the court to caution the jury about someone who “aided me in doing this,” absent a more nuanced defense like Allen’s (“I did it, but without the weapon”).

B. Remote testimony: discretion plus timeliness

The Court upheld denial of video testimony for Lawrence Pohl based on trial administration discretion and statutory disclosure expectations. It emphasized:

• Untimeliness. The request was made two days before trial.
• Availability of in-person testimony. The court did not exclude Pohl; it required personal appearance.
• Structural preference for in-court testimony. Relying on City of Missoula v. Duane and M. R. Evid. 611(a), the Court treated in-person testimony as the baseline and remote testimony as discretionary.
• No prejudice given acquittal on conspiracy. Pohl’s proffered testimony went primarily to whether Lord was helping stage the burglary/insurance fraud—an issue mooted by the not-guilty verdict on conspiracy.

C. Sufficiency and corroboration: the Court’s two-step alternative holding

Lord argued the State failed to corroborate Entzel as an accomplice under § 46-16-213, MCA. The Court responded in two steps:

1. No corroboration burden triggered. Because the Court had already concluded Entzel and Lord were not accomplices “for purposes of an accomplice instruction” (given the innocence-theory inconsistency), the Court stated corroboration was not required.
2. Even if required, corroboration existed. The Court then independently pointed to other evidence—Skaw’s testimony placing Lord at the scene, his account of the boat being placed in Lord’s garage and later moved, and Lord’s recorded interview admitting she arrived with Skaw and implying awareness that “the boat got moved because…”—as sufficient direct and circumstantial evidence from which a rational jury could find tampering beyond a reasonable doubt under the Marler standard.

This “belt-and-suspenders” approach insulated the judgment: even if a later court disagreed about whether Entzel should have been treated as an accomplice, the conviction would still stand on the sufficiency of corroborative evidence.

3.3 Impact

A. Clarifying the practical reach of Rose in amended-charging contexts

Lord narrows the practical force of the “accomplice as a matter of law” concept from State v. Rose by linking it to the State’s actual prosecution through trial, not merely to earlier charging decisions later abandoned. This matters in multi-defendant fact patterns where informations are amended: defendants may be unable to rely on dropped counts against third parties as automatic proof of accomplice status for instruction purposes.

B. Reinforcing the “defense-theory consistency” gatekeeping function

The Court reaffirmed—and functionally strengthened—the Allen/Hall rule that an accomplice instruction is not required where it conflicts with an innocence defense. As a practical litigation consequence, defendants face a strategic tradeoff:

• maintain categorical innocence and risk losing the “view with distrust” instruction; or
• present a partial-admission / alternative-mental-state defense (Allen-style) that may preserve the instruction but concedes more factual ground.

C. Remote testimony requests: timeliness and the in-person default

Although the opinion does not announce a new categorical rule about Zoom testimony, it signals that last-minute remote-testimony motions—especially for defense witnesses disclosed late—will be difficult to win absent a clear necessity showing and minimal prejudice to the opposing party’s ability to verify identity and prepare cross-examination.

D. Corroboration disputes may be resolved via alternative sufficiency analysis

The Court’s alternative holding suggests that even when accomplice/corroboration status is contested, appellate courts may bypass the classification fight by identifying independent evidence (including a defendant’s own recorded statements) sufficient to support the verdict.

4. Complex Concepts Simplified

Accomplice testimony “viewed with distrust” (§ 26-1-303(4), MCA)

Montana law sometimes requires a cautionary instruction telling jurors to treat testimony from a legally accountable participant with skepticism, because such witnesses may shift blame, curry favor, or minimize their own role. But it is not automatic: under State v. Allen and State v. Hall, the instruction is required only on a “proper occasion,” including that it must not conflict with the defendant’s trial theory.

“Accomplice as a matter of law” (Rose principle)

If the State prosecutes someone for the same crime being tried against the defendant, that prosecution can function as an “acknowledgment” of accomplice status. In Lord, the Court held that abandoned charges (dropped in an amended filing and not tried) do not carry the same effect.

Accountability (§ 45-2-302, MCA)

“Accountability” is Montana’s legal mechanism for treating a person as responsible for another’s crime—e.g., if they solicit, aid, or abet before or during the offense. The concept is central to whether a witness is “legally accountable” and thus whether distrust instructions or corroboration requirements may apply.

Corroboration of accomplice testimony (§ 46-16-213, MCA)

This rule prevents conviction based solely on an accomplice’s testimony; there must be additional evidence tending to connect the defendant to the crime. In Lord, the Court held corroboration was not required on its accomplice-instruction analysis, but also held that corroborating evidence existed anyway (Skaw’s testimony and Lord’s own statements).

“Directed verdict” vs. motion to dismiss for insufficient evidence

As noted via State v. Ohl, Montana practice treats a “directed verdict” motion in criminal cases as a statutory motion to dismiss under § 46-16-403, MCA. The reviewing question remains: could any rational juror find guilt beyond a reasonable doubt when evidence is viewed most favorably to the State?

Judicial notice (M. R. Evid. 202)

The Court may recognize certain facts as true without formal proof. Here, it judicially noticed filings in Entzel’s separate case (see In re K.C.H.) to evaluate the claim that Entzel had been charged with tampering—then emphasized that the charge was dropped and not tried.

5. Conclusion

State v. L. Lord affirms a tampering-with-evidence conviction while clarifying two recurring trial themes in multi-participant criminal cases: (1) accomplice-distrust instructions are conditioned not only on whether the witness could be deemed an accomplice, but also on whether the instruction coheres with the defendant’s chosen innocence theory under State v. Allen and State v. Hall; and (2) earlier, abandoned charges against a witness do not necessarily render that witness an accomplice “as a matter of law” under State v. Rose.

The opinion’s broader significance lies in its practical guidance: defendants seeking accomplice instructions and corroboration protections must align those requests with both the State’s actual prosecuted charges and the defense theory presented to the jury, while recognizing that appellate courts may uphold convictions based on alternative sufficiency findings even amid doctrinal disputes.