## Facts

- Alicia Jo Hocter cared for her boyfriend’s six-month-old daughter, S.B., and her own one-month-old infant at the apartment she shared with her boyfriend.
- While the boyfriend was away, S.B. cried and Hocter could not comfort her.
- The State alleged Hocter forcefully handled S.B., struck S.B.’s head against the crib rail at least twice, and then left S.B. in the crib.
- S.B. suffered catastrophic injuries, including permanent blindness and long-term cognitive and motor impairments.
- Hocter did not promptly obtain medical assistance; she claimed she could not find her phone to call 911 and did not seek help from neighbors because she did not want to leave her infant.
- The State initially charged attempted deliberate homicide (and, alternatively, attempted mitigated deliberate homicide).
- Under a plea agreement, Hocter pleaded guilty to aggravated assault and criminal endangerment, but later withdrew the plea after the district court rejected the sentencing recommendation.
- The State filed an amended information charging aggravated assault and criminal endangerment; a jury convicted Hocter of both.
- On appeal, Hocter challenged only the criminal endangerment conviction.

## Issues

1. Whether the district court erred in denying Hocter’s motion to dismiss the criminal endangerment charge for lack of notice that the State would proceed on an omission theory (failure to obtain medical care).
2. Whether the district court erred by instructing the jury that criminal endangerment may be predicated on an omission when a legal duty to act exists.

## Decision

- The Montana Supreme Court affirmed the judgment, including the criminal endangerment conviction.
- The court held the information and supporting affidavit provided constitutionally sufficient notice of the omission-based theory and facts.
- The court held the criminal endangerment statute permits omission liability when the defendant has a legal duty to act.
- The court held the jury instructions properly required findings of a legal duty, a knowing failure to act, and creation of a substantial risk of death or serious bodily injury.

## Legal Principles

- A charging information is sufficient if it provides reasonable notice of the accusations so the defendant can prepare a defense; an attached affidavit may be considered in evaluating notice.
- Under Montana criminal law, an omission can constitute actionable “conduct” for a substantive offense when a legal duty to act exists.
- Criminal endangerment (knowingly engaging in conduct creating a substantial risk of death or serious bodily injury) may be proved by a knowing failure to act where the defendant had a duty to take reasonable protective steps.
- A legal duty to protect a child may arise from assuming custodial responsibility for the child’s care, even without formal parental status.
- Jury instructions on omission-based liability are proper when they require the jury to determine (1) the existence of a legal duty, (2) a knowing breach by failing to act, and (3) a resulting substantial risk of death or serious bodily injury.

## Conclusion

The court upheld Hocter’s criminal endangerment conviction, concluding that the charging documents adequately notified her of the omission theory and that criminal endangerment may be based on a knowing failure to obtain medical care when the defendant has assumed a duty to protect the victim from serious harm.


State v. Hocter, 262 P.3d 1089 (Mont. 2011)