When Courts Permit Video Appearance, They Must Clarify Limits Upfront: Mid‑Trial Denial of Defendant’s Video Testimony Is Abuse of Discretion; Accountability Proven Across Closely‑Linked Transactions

Introduction

In City of Hardin v. Anthony, 2025 MT 256, the Montana Supreme Court addressed two recurring themes in modern criminal practice: (1) how far accountability can extend across a rapid sequence of related criminal acts; and (2) how trial courts must administer a defendant’s remote participation in misdemeanor trials. The case arose from three fraudulent “cash received” entries at a Family Dollar register, executed within minutes by a trio acting in concert. Although the City misidentified the principal actor initially, it ultimately proceeded against Andre James Anthony on three counts of unlawful use of a computer by accountability.

The Court unanimously agreed the evidence was sufficient to convict Anthony of all three counts on an accountability theory. But a split Court reversed and remanded for a new trial on all counts because the City Court, having allowed Anthony to “appear by video” at trial without qualification, later barred him from testifying by video only after the State rested. The majority held that this mid‑trial reversal—without clear advance notice of limits—was an abuse of discretion that prejudiced Anthony’s ability to present his defense. Justice Rice concurred on sufficiency but dissented on the procedural issue, emphasizing statutory limits on video appearances. Justice McKinnon, joined by Justices Gustafson and Bidegaray, agreed on the procedural error but would find the evidence insufficient on two counts.

Summary of the Opinion

Sufficiency: The Court held that the State presented sufficient evidence to prove unlawful use of a computer by accountability on all three counts. Anthony’s affirmative act of distracting the clerk during the second transaction, together with the parties’ concerted entry, proximity, coordinated movements, and shared travel, provided a circumstantial basis from which a factfinder could infer his knowing participation in the first and third transactions as well (¶¶ 16–19).
Trial management/remote participation: The City Court allowed Anthony to “appear by video” at his misdemeanor bench trial, the State did not object to his video participation, and the court proceeded while acknowledging the arrangement was “unorthodox.” After the State rested, the court sustained the State’s objection to Anthony testifying by video, limiting him to watching only. The Supreme Court held this was an abuse of discretion because the court did not clarify at the outset that the trial would nonetheless be treated as in absentia or that Anthony would not be permitted to testify. That late restriction prevented the defense from seeking a continuance under § 46‑16‑122(1), MCA, and thus caused prejudicial error warranting retrial (¶¶ 20–28).
Disposition: Convictions reversed and remanded for a new trial on all counts (¶ 28).

Factual and Procedural Background

Surveillance video showed Anthony and two other men entering a Hardin Family Dollar. One man in a white t‑shirt repeatedly manipulated the register—ultimately pressing “cash received” from the clerk’s side—causing the register to show completed transactions without payment. The trio left with three gift cards and a bottle of body wash totaling $1,512.35 (¶¶ 2–3). Officers later detained the men together; their vehicle contained the matching receipts and the body wash (¶ 3). The clerk misidentified Anthony as the button‑presser; the other two men were released and not charged (¶ 3).

After bail and amended charges (from shoplifting to unlawful use of a computer by accountability), Anthony returned to Michigan. The City Court set conditions requiring in‑person appearance at omnibus and trial and barring him from leaving Montana without court permission (¶¶ 4–5, 22). Anthony appeared by two‑way video for a motion‑to‑dismiss hearing by party stipulation and acknowledged he “had to be” at the upcoming bench trial (¶ 6). The day before trial, the City Court denied his motion to appear by video for a change‑of‑plea hearing (¶ 7). At trial, Anthony did not appear physically. The State did not object to his video participation in the trial itself, and the court allowed him to appear by Zoom, calling the arrangement “a little unorthodox” (¶¶ 23–24). After the State rested, the court rejected Anthony’s request to testify by video (¶ 25).

Issues on Appeal

Whether sufficient evidence supported each of the three counts of unlawful use of a computer by accountability, §§ 45‑6‑311(1)(b), 45‑2‑302(3), MCA (¶¶ 10–19).
Whether the City Court abused its discretion by allowing Anthony to appear by video at trial but then denying his request to testify by video (¶¶ 20–27).

Detailed Analysis

Precedents and Statutes Cited

Appellate posture: State v. Cole, 2025 MT 18, ¶ 4 (district court acts as intermediate appellate court for justice court appeals; Supreme Court reviews as if filed originally in Supreme Court).
Sufficiency standards: State v. Stillsmoking, 2020 MT 154, ¶ 9 (de novo review); State v. Boyd, 2021 MT 323, ¶ 12 (view evidence in light most favorable to prosecution; rational trier of fact standard).
Circumstantial evidence: State v. Southern, 1999 MT 94, ¶ 92; § 26‑1‑102, MCA (definition and collective consideration).
Accountability basics: § 45‑2‑302(3), MCA; “mere presence” insufficiency: State v. Maetche, 2008 MT 184, ¶ 17; State v. Johnston, 267 Mont. 474 (1994); see also State v. Lantis, 1998 MT 172, ¶ 39 (acts aiding under accountability need not themselves be criminal); State v. Bradford, 210 Mont. 130 (1984).
Underlying offense: Unlawful use of a computer, § 45‑6‑311(1)(b), MCA.
Trial management and discretion: Blanton v. DPHHS, 2011 MT 110, ¶ 38 (abuse of discretion); City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 11 (abuse of discretion review).
Misdemeanor appearances and in absentia trials: § 46‑16‑120, MCA (appearance by counsel); § 46‑16‑122(1), MCA (court shall proceed if defendant fails to appear in person and counsel is authorized, absent good cause for continuance); City of Missoula v. Cox, 2008 MT 364, ¶ 14.
Remote pleas: § 46‑17‑203(3), MCA (guilty/no contest plea by two‑way audio‑video if neither party objects and court agrees).
Reliance/changed‑ruling prejudice: Vancos v. State, 2024 MT 30, ¶ 25 (prejudicial error when court changes its mind after a party has rested).
Dissent’s additional authorities: §§ 46‑12‑201, 46‑16‑105, 46‑17‑203, MCA (electronic arraignments and pleas); § 46‑1‑103, MCA (criminal procedure governed by statute); § 1‑2‑101, MCA (no judicial insertion/omission in statutes); State v. Brummer, 1998 MT 11; City of Missoula v. Duane, 2015 MT 232 (Skype testimony by witness); § 45‑2‑101(8), MCA (common scheme definition); § 45‑2‑202, MCA (voluntary act); State v. Pierre, 2020 MT 160 (mere presence).

Legal Reasoning

1) Accountability Across a Cluster of Transactions

The majority applied standard sufficiency review. The video showed all three men entering together, remaining together, and leaving together. Anthony never left the side of the man pressing the “cash received” button, at one point affirmatively distracting the clerk by pointing behind the counter during the second transaction (¶ 17). The trio later was found traveling together with the fraudulent receipts (¶ 16).

The Court reasoned that, under § 45‑2‑302(3), MCA, a defendant is accountable if, “either before or during the commission of an offense,” he “solicits, aids, abets, agrees or attempts to aid” the other. It emphasized two points:

Accountability does not require an overt criminal act by the accomplice; the act “need only promote or facilitate” the offense (citing Lantis and Bradford) (¶ 18).
Circumstantial evidence may suffice. Participation in one discrete, related offense can be circumstantial evidence of participation in adjacent offenses in a tight temporal sequence (applying Maetche) (¶¶ 15–19).

Importantly, the Court rejected the “mere presence” argument by tying Anthony’s affirmative distracting conduct during the second transaction to the larger ten‑minute sequence. A rational factfinder could infer that the three were acting in concert and that Anthony stood ready to distract when needed, thereby promoting or facilitating the first and third misuses even if he did not distract the clerk at those precise moments (¶¶ 16–18). The Court underscored that the City’s separate charging decisions were a matter of prosecutorial discretion, not a bar to drawing those inferences (n.2).

2) Remote Participation and Mid‑Trial Limits

The statutory framework allows: (a) counsel‑only appearances in misdemeanors, with the court retaining authority to require a defendant’s personal attendance (§ 46‑16‑120, MCA); (b) proceeding with trial when a misdemeanor defendant fails to appear “in person,” unless good cause for continuance exists (§ 46‑16‑122(1), MCA); and (c) video pleas when neither party objects (§ 46‑17‑203(3), MCA). Here, the City Court imposed personal appearance as a bail condition and repeatedly told Anthony he must be present for trial. However, after the plea collapsed, and with the State’s express non‑objection to his video participation at trial, the court permitted Anthony to “appear by video,” acknowledged the arrangement was “unorthodox,” and proceeded (¶¶ 23–24).

The majority held that, once the court granted the request to “appear by video” for trial—without clarifying that the proceeding would still be treated as in absentia or that testimony would not be permitted—the court could not, mid‑trial, reverse course by barring the defendant from testifying by video after the State rested (¶¶ 25–27). That late restriction:

Reasonably misled the defense into believing Anthony could participate, not merely observe (¶ 27); and
Deprived the defense of the opportunity to seek a continuance under § 46‑16‑122(1), MCA, when it became clear he would not be permitted to testify remotely (¶ 27).

Citing Vancos, the Court found this timing to be prejudicial and thus an abuse of the trial court’s broad discretion over trial administration (¶¶ 20, 27).

Concurring and Dissenting Views

Justice Rice (concur in part/dissent in part)

Agrees on sufficiency.
Would affirm on the trial‑management issue. Rice stresses that criminal procedure is governed by statute (§ 46‑1‑103, MCA). In his view, the Legislature authorizes video appearances for arraignments and pleas (e.g., §§ 46‑12‑201, 46‑16‑105, 46‑17‑203, MCA), not for a defendant’s trial participation or testimony in a misdemeanor. Under § 46‑16‑122(1), MCA, the court “shall proceed” with trial when a misdemeanor defendant fails to appear in person; the trial court’s allowance for Anthony to “watch” was generous but could not morph into remote testimony without statutory authorization (¶¶ 34–35).
Rice reads the trial court’s pre‑trial “video appearance” comment as permitting observation, not testimony, and notes the defense did not even request video testimony until after the City rested—at which point the court denied it consistently with prior rulings requiring in‑person attendance (¶¶ 30–33).

Justice McKinnon (dissent, joined by Justices Gustafson and Bidegaray)

Agrees the case should be reversed and remanded because the City Court abused its discretion by allowing video appearance but later preventing testimony and participation.
Would limit retrial to Count II. In her view, the City prosecuted three discrete counts (not a “common scheme”). Accountability requires a contemporaneous voluntary act that promotes or facilitates each offense (§§ 45‑2‑302(3), 45‑2‑202, MCA). For Counts I and III, the State proved only proximity and passive observation—legally insufficient under “mere presence” doctrine (citing Pierre). She distinguishes Maetche as involving contemporaneous affirmative conduct linked to the charged offense (¶¶ 37–41).

Impact and Forward‑Looking Considerations

A. Accountability Doctrine

The decision reinforces that a single affirmative act during a tightly temporally linked series of offenses can support accountability across the cluster, so long as the collective circumstances permit a reasonable inference of concerted action and readiness to assist. Prosecutors may rely on a factfinder’s ability to draw inferences from coordination, proximity, and travel, even where the defendant’s overt assistance is captured only once in a rapid sequence.
However, the McKinnon dissent signals an ongoing fault line: when the State elects to charge discrete counts instead of a “common scheme” or conspiracy, accountability still requires proof that the defendant promoted or facilitated each count. Future litigants will likely use McKinnon’s analysis to challenge sufficiency where the evidence of aiding during some counts is minimal.

B. Remote Participation in Misdemeanor Trials

The majority does not create a right to testify by video or expand statutory authorization. Instead, it sets a management principle: if a court allows a misdemeanor defendant to appear by two‑way video at trial, it must clearly announce—before proceedings begin—whether the case is proceeding in absentia, what participation will be permitted, and whether testimony by video will be allowed.
Trial judges should memorialize these parameters on the record and expressly advise defense counsel that, if testimony will be barred, counsel retains the option to seek a continuance for in‑person testimony under § 46‑16‑122(1), MCA. Failure to do so risks reversal for prejudicial abuse of discretion based on a mid‑stream change.
Justice Rice’s dissent underscores the statutory ceiling on video participation. Trial courts should be cautious not to imply broader participation than the statutes contemplate. The safest practice is a clear, pre‑trial order: either (a) proceed in absentia with counsel and allow observation only; or (b) continue the trial to secure in‑person attendance; or (c) obtain party agreement and court approval for any permitted remote participation and delineate its scope.

Complex Concepts Simplified

Accountability: Under § 45‑2‑302(3), MCA, you can be convicted of an offense someone else commits if, before or during that offense, you act with the purpose to promote or facilitate it—by aiding, abetting, agreeing, or attempting to aid. Your assisting act needn’t be a crime itself; it just has to help the crime happen.
Mere Presence: Simply being at the scene—even knowing what’s happening—is not enough for accountability. There must be some action (or, in rare cases, a legally required action you omitted) that promotes or facilitates the offense.
Circumstantial Evidence: Proof based on inference from related facts (e.g., travel together, coordinated movements, possession of receipts) can be enough if, taken together, it convinces a rational factfinder beyond a reasonable doubt.
In Absentia Trials (Misdemeanors): If a defendant doesn’t appear in person, a court must proceed with the trial if counsel is authorized to act, unless there’s good cause to continue (§ 46‑16‑122(1), MCA).
Abuse of Discretion: A trial court abuses its discretion when it acts arbitrarily or without conscientious judgment in a way that causes substantial injustice—like changing the rules mid‑trial so the defense can’t adapt.
Remote Participation: Montana statutes specifically allow video for certain stages (e.g., pleas with consent). For trials, courts must be crystal‑clear if they depart from in‑person norms, especially about whether a defendant can actively participate or only observe.

Practical Takeaways

Prosecutors: When charging multiple counts arising from a short, continuous episode, be prepared to argue that one overt act of assistance and other circumstantial facts allow an inference of accountability across the episode. Preserve the record with the full context: timing, proximity, coordinated actions, travel, and shared proceeds.
Defense Counsel: If the court allows remote “appearance,” immediately clarify on the record whether testimony and other active participation are allowed. If not, consider seeking a continuance under § 46‑16‑122(1), MCA. On sufficiency, emphasize that accountability is count‑specific when counts are discrete, not a generalized “scheme.”
Trial Judges: Before opening statements, state explicitly whether the proceeding is in absentia, whether the defendant may participate by video beyond observation, and whether the defendant may testify by video. If the answer is “no” to testimony, advise counsel of the right to request a continuance. Avoid mid‑trial changes.

Conclusion

City of Hardin v. Anthony offers two important guideposts. First, on the merits, it confirms that accountability can be proven across several closely linked criminal acts using a combination of one affirmative assisting act and strong circumstantial evidence of coordinated conduct. Second, on procedure, it establishes a clarity mandate for remote participation in misdemeanor trials: when a court opts to allow a defendant to “appear by video,” it must define the boundaries of that participation upfront. Abruptly denying video testimony only after the State rests—without warning—constitutes an abuse of discretion because it forecloses the defense’s statutory opportunity to seek a continuance.

The concurring and dissenting opinions sharpen the contours of these holdings. Justice Rice cautions that statutory authorization for remote appearances is limited and urges strict adherence to the in‑person requirement absent clear legislative permission. Justice McKinnon emphasizes that accountability is count‑specific and warns against importing “common scheme” logic into discrete charging decisions. Together, these opinions map the practical and doctrinal boundaries Montana courts and practitioners must navigate as technology intersects with criminal adjudication and as accountability continues to be proven through circumstantial mosaics rather than isolated acts.