NO. 94-295
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SHAWN MARTEL,
APPEAL FROM: District Court of the Twenty-First Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Stenerson, Attorney at Law (argued),
and Kirk Krutilla, Legal Intern,
Hamilton, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Assistant Attorney General
(argued), Helena, Montana
James A. Haynes, Hamilton City Attorney,
T. Geoffrey Mahar, Deputy City Attorney,
Hamilton, Montana
Submitted: May 4, 1995
Decided: August 24, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Shawn Martel was found guilty of misdemeanor
stalking in Hamilton by a City Court jury. He appealed that
conviction to the Twenty-First Judicial District Court, Ravalli
county, where he was again found guilty following a bench trial.
He appeals that conviction, claiming that Montana's anti-stalking
law, as set forth at § 45-5-220, MCA, is unconstitutionally vague
and unconstitutionally over-broad. We affirm.
The following issues are raised on appeal:
1. Is § 45-5-220, MCA, unconstitutionally vague?
2. Is 5 45-5-220, MCA, unconstitutionally over-broad?
3. Did the District Court abuse its discretion when it
denied defendant's motion for a directed verdict?
In October 1992, C.K., a teller at a local bank, first became
aware of appellant, a customer of the bank. When C.K. worked at
the drive-through window, she noticed that appellant would drive
by, wave, and smile. When she was at the grocery store or buying
gas, appellant would greet her and initiate conversation.
Appellant frequently asked C.K. if she would meet him at a motel.
At one point, appellant informed C.K. that he would commit suicide
if they could not be friends. From October 1992 through November
1992, appellant followed C.K. daily, including sitting next to C.K.
and her husband, R.K., in a movie theater. After the couple moved
their seats, appellant moved and sat next to them.
2
Following the movie theater incident, C.K. informed R.K. for
the first time of appellant's conduct. Thereafter, R.K. confronted
appellant and asked him to leave his family alone. Several times
on Christmas morning and once on New Year's Eve, appellant called
C.K.'s home. During Christmas week, appellant pulled his vehicle
behind and blocked off C.K.'s vehicle while she was filling up at
a gas station. Appellant displayed a handgun and informed C.K.
that he had friends who would "take care of" any efforts by C.K. to
involve the police.
During January and February 1993, appellant followed C.K. less
frequently than he had in the previous three months. However, in
March 1993, after appellant increased his activity toward C.K., she
filed a complaint against appellant. On March 25, 1993, the police
warned appellant to stay away from C.K. and another woman.
Appellant responded to the warning by following C.K. and circling
her bank with increased frequency.
On April 9, 1993, Montana's stalking statute, § 45-5-220, MCA,
came into effect. Appellant's conduct continued unchanged. In
May 1993, C.K. and R.K. pulled into the parking lot of the Super 1
to rent a movie. Appellant and friends, who were in the adjacent
Town Pump parking lot, began shouting profanities at C.K., made
lewd gestures, and suggested that he and R.K. fight. C.K. and R.K.
rented their movie without further incident and proceeded to drive
down Route 93. Appellant, accompanied by a friend, followed R.K.
and cut him off. R.K. decided to drive to the police station.
3
Appellant followed their car to the police station. Once there,
appellant and R.K. began shouting and scuffling at the front door
of the police station. An officer came out of the station and
restored order.
In May 1993, C.K. and R.K. applied for a temporary restraining
order against appellant. Following a hearing in city court, the
temporary restraining order was issued. Despite the temporary
restraining order, appellant continued the pattern of his conduct
toward C.K. and R.K.
On May 14, 1993, the Hamilton Deputy City Attorney charged
appellant with assault under 5 45-5-201(a), MCA, disorderly conduct
under § 45-5-101(b), (c), and (f), MCA, and stalking under
5 45-5-220, MCA. A jury found appellant guilty of assault and
stalking, but found him not guilty of disorderly conduct.
Appellant appealed his conviction to the Twenty-First Judicial
District Court. Appellant waived his right to a jury trial, and a
trial was held de nova. Appellant filed a motion to dismiss the
stalking charge arguing, that § 45-5-220, MCA, is void for
vagueness and that it violates the due process provisions of the
Montana and United States Constitutions. The District Court denied
appellant's motion, concluding that 5 45-5-220, MCA, is not
unconstitutionally vague. The District Court found appellant
guilty of stalking and sentenced appellant to serve one year in the
Ravalli County jail with all but 14 days suspended upon certain
conditions. Appellant appeals his conviction.
4
STANDARD OF REVIEW
In an appeal of a criminal case, the evidence will be viewed
in the light most favorable to the State. Whitefish v.
O'Shaughnessy (1985), 216 Mont. 433, 437, 704 P.Zd 1021, 1024.
Further,
the standard of review for a trial court's refusal to
grant a defendant's motion for a directed verdict is
whether, after reviewing the evidence in a light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.
State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.
Regarding the questions of constitutionality, statutes are
presumed to be constitutional. Monroe v. State (1994), 265 Mont
1, 3, 873 P.Zd 230, 233; United States v. National Dairy Products
Corp. (19631, 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561,
565. Whenever possible, the court will adopt statutory
construction which renders challenged statutes constitutional
rather than a construction which renders them invalid. State v
Ross (Mont. 1995), 889 P.2d 161, 164, 52 St. Rep. 22, 24. When
construing a challenged statute, the Court will read and interpret
the statute as a whole, without isolating specific terms from the
context in which they are used by the Legislature. Furthermore, a
statute must be construed according to the plain meaning of the
language in the statute. State v. Lilburn (19941, 265 Mont. 258,
266, 875 P.2d 1036, 1041, cert. denied (1995), 115 S. Ct. 726.
When the constitutionality of a statute is challenged, the party
making the challenge bears the burden of proving the statute
5
unconstitutional. Monroe, 873 P.Zd at 231; GBN, Inc. v. Montana
Dept. of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597
Any doubt is to be resolved in favor of the statute. _, 815 P.2d
GBN
at 597.
Section 45-5-220, MCA, provides as follows:
45-5-220. Stalking -- exemption -- penalty. (1) A
person commits the offense of stalking if the person
purposely or knowingly causes another person substantial
emotional distress or reasonable apprehension of bodily
injury or death by repeatedly:
(a) following the stalked person; or
(b) harassing, threatening, or intimidating the
stalked person, in person or by phone, by mail, or by
other action, device, or method.
(2) This section does not apply to a
constitutionally protected activity.
(3) For the first offense, a person convicted of
stalking shall be imprisoned in the county jail for a
term not to exceed 1 year or fined an amount not to
exceed $1,000, or both. For a second or subsequent
offense or for a first offense against a victim who was
under the protection of a restraining order directed at
the offender, the offender shall be imprisoned in the
state prison for a term not to exceed 5 years or fined an
amount not to exceed $10,000, or both. A person convicted
of stalking may be sentenced to pay all medical,
counseling, and other costs incurred by or on behalf of
the victim as a result of the offense.
(4) Upon presentation of credible evidence of
violation of this section, an order may be granted, as
set forth in 40-4-121, restraining a person from engaging
in the activity described in subsection (1).
(5) For the purpose of determining the number of
convictions under this section, "conviction" means:
(a) a conviction, as defined in 45-2-101, in this
state;
(b) a conviction for a violation of a statute
similar to this section in another state; or
(c) a forfeiture of bail or collateral deposited to
secure the defendant;s appearance in court in this state
or another state for a violation of a statute similar to
this section, which forfeiture has not been vacated.
(6) Attempts by the accused person to contact or
follow the stalked person after the accused person has
been given actual notice that the stalked person does not
6
want to be contacted or followed constitutes prima facie
evidence that the accused person purposely or knowingly
followed, harassed, threatened, or intimidated the
stalked person.
ISSUE 1
Is 5 45-s-220, MCA, unconstitutionally vague?
Appellant alleges that 5 45-5-220, MCA, is so vague that it
is unconstitutional. However, the issue of vagueness, with regard
to a statute or ordinance, can be raised in two different
connotations: (1) whether it is so vague the law is rendered void
on its face; or (2) whether it is vague as applied in a particular
circumstance. Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678
P.2d 665, 668. It is unclear which of these two specific
challenges appellant is raising, so we will address each in turn.
A. Is the statute so vague it must be void on its face?
~1 [A] statute . is void [for vagueness] on its face if it
fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by statute.'" Monroe, 873
P.2d at 231 (quoting Choteau, 678 P.2d at 668). See also State v.
- -
Crisp (19911, 249 Mont. 199, 814 P.2d 981; State v. Woods (1986),
221 Mont. 17, 716 P.2d 624.
Appellant alleges that the statute is vague on its face
because certain terms contained in it are not defined. Specifi-
cally, the statute does not define "repeatedly,fl "harassing,"
"intimidating," "reasonable apprehension," or "substantial
emotional distress." Without recourse to definitions, appellant
7
argues, a person of ordinary intelligence would not be able to
understand the statute.
The Legislature is not required to define every term it
employs when constructing a statute. If a term is one of common
usage, readily understood, it will be presumed that a reasonable
person of average intelligence comprehends it. Contway v. Camp
(1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379. Words such as
"repeatedly," "harassing," and "intimidating" have commonly
understood meanings. "Repeatedly" means "more than once. I'
"Intimidate" means "to make timid; to frighten." "Harass" means
"to annoy repeatedly." Webster's Collegiate Dictionary, (10th Ed.
1993). A person of average intelligence would recognize and
understand these terms without recourse to legislative definitions.
Appellant argues that the terms "reasonable apprehension" and
"substantial emotional distress" are too vague because they employ
a subjective standard, placing upon the defendant the burden of
guessing how much distress is substantial or how much apprehension
reasonable. We disagree. The standard to be employed when
construing the statute is that of the "reasonable person." When
faced with the conduct complained of, would a reasonable person
feel apprehension or substantial emotional distress? A reasonable
person standard is an objective one.
Further, the term "substantial emotional distress" has been
examined by this Court within the context of the tort of
intentional infliction of emotional distress. First Bank-Billings
8
v. Clark (1989), 236 Mont. 195, 771 P.2d 84. We found that the
reasonable person standard was the most appropriate way of
quantifying an abstract concept such as emotional distress. Such
a standard is equally applicable here, and may be inferred from the
language of the stalking statute.
The failure to include exhaustive definitions will not
automatically render a statute overly vague, so long as the meaning
of the statute is clear and provides a defendant with adequate
notice of what conduct is proscribed.
The complainant attacking a statute's validity must prove
that the statute is vague "not in the sense that it
requires a person to conform his conduct to an imprecise
but comprehensible normative standard, but rather in the
sense that no standard of conduct is specified at all."
Monroe, 873 P.2d at 231 (citing Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, n. 7,
102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, 369) (citation omitted).
"The fact that a statute is difficult to apply to some situations
does not render it unconstitutionally vague." Monroe, 873 P.2d at
231.
B. Is the statute void for vagueness as applied to this
defendant?
Appellant also argues that the statute is too vague as it
applies to him, because it punished him for conduct which is
constitutionally protected. However, appellant makes no showing
that conduct such as repeatedly following and calling a person or
pretending to shoot her is constitutionally protected. Indeed, the
9
District Court asked appellant to explain why he believes such
conduct to be constitutionally protected. Appellant now argues
that such a question unfairly shifts the burden of proof to him.
In fact, it does not. As noted above, the person challenging the
constitutionality of a statute has the burden of proving it is
unconstitutional. Appellant cannot prove the statute unconstitu-
tional merely by alleging that it infringes on constitutionally
protected rights, without any factual showing of which rights are
infringed, or how.
Further, the criminality of this particular offense rests not
on the fact that a defendant has followed a particular course of
conduct, which, if embarked upon once, might not be objectionable.
The criminality of the offense arises when a defendant engages in
such conduct repeatedly, purposely or knowingly causing another
person substantial emotional distress or reasonable apprehension of
bodily injury. Without such mental state, a charge under the
statute must fail.
The United States Supreme Court has long recognized that the
constitutionality of a vague statutory standard is closely related
to whether that standard incorporates a requirement of mens rea.
Colautti v. Franklin (19791, 439 U.S. 379, 395, 99 S. Ct. 675, 685,
58 L. Ed. 2d 596, 609. The Court has recognized that the
requirement of a mental state to do a prohibited act may avoid
those consequences to the accused which may otherwise render a
vague or indefinite statute invalid. Screws v. United States
10
(1945), 325 U.S. 91, 101, 65 S. Ct. 1031, 1035, 89 L. Ed. 1495,
1502-03.
In the case at bar, both the Hamilton City Court and the
District Court found that appellant followed and harassed his
victim repeatedly, and by so doing, intentionally caused her to
suffer substantial emotional distress. Moreover, and contrary to
appellant's argument, the law does not require that a victim
manifest specific physical symptoms, such as sleeplessness or
nausea, in order for the State to prove substantial emotional
distress. The victim testified that she became frustrated, upset,
angry, and scared because of appellant's repeated actions, and the
District Court found that she had, in fact, suffered substantial
emotional distress.
When read in the light most favorable to the State, the record
more than justifies such a finding. Each element of the offense,
including the required mental state, is set out with adequate
specificity. We hold that the statute is not unconstitutionally
vague either on its face or as applied in this case.
ISSUE 2
Is § 45-5-220, MCA, unconstitutionally over-broad?
Appellant next argues that the stalking statute is unconstitu-
tionally over-broad.
An over-broad statute is one that is designed to burden
or punish activities which are not constitutionally
protected, but the statute includes within its scope
activities which are protected by the First Amendment.
11
Hill v. City of Houston (5th Cir. 1985), 764 F.2d 1156, 1161, cert.
denied (1987), 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729.
Because an unconstitutionally over-broad statute could
potentially adversely affect many citizens, a defendant who raises
such a challenge need not meet the usual standing requirements.
Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S. Ct. 2908, 37
L. Ed. 2d 830. I" [Tlhere must be a realistic danger that the
statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court for it to be
facially challenged on overbreadth grounds."' Lilburn, 875 P.2d at
1041 (quoting Members of the City Council v. Taxpayers for Vincent
(19841, 466 U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d
772, 783-84).
An overbreadth challenge is "an exception to the general rule
that statutes are evaluated in light of the situation and facts
before the court." State v. Lilburn, 875 P.2d at 1036. Further,
The Court in Broadrick adopted limitations on the
overbreadth doctrine "particularly where conduct and not
merely speech is involved," and held that a statute which
has constitutional applications may be facially
invalidated for overbreadth only if its overbreadth is
"real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep."
Lilburn, 875 P.2d at 1040 (quoting Broadrick, 413 U.S at 615, 93
S. Ct. at 2918)
In this case, it is conduct, and not merely speech, which is
proscribed by the statute. In addition, the statute serves a
plainly legitimate purpose--to discourage the repeated,
12
intentional, harmful conduct which constitutes stalking.
Therefore, in order to prove that the statute is unconstitutional,
appellant must show that the alleged overbreadth is both "real" and
"substantial," not just to himself, but to others as well. But
appellant makes no specific argument of how any constitutionally
protected First Amendment activities have been infringed upon by
this statute, or how the statute might adversely affect the rights
of others in a way that is both real and substantial. Appellant
has not shown that any of his--or anyone's--constitutional rights
have been violated at all, let alone violated so grievously as to
justify voiding the statute. Therefore, his overbreadth argument
must fail.
ISSUE 3
Did the District Court err when it denied appellant's motion
for a directed verdict?
The standard of review for determining whether a district
court erred in denying a defendant's motion for directed verdict is
whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact would have found the
essential elements of the crime beyond a reasonable doubt. Mummev,
871 P.2d at 870.
Section 45-5-220(2), MCA, reads "[tlhis section does not apply
to a constitutionally protected activity." Appellant argues that,
because the State did not prove that his conduct was not
13
constitutionally protected, it has failed to prove an essential
element of the crime.
Appellant misreads the statute. The elements of the crime are
set out in 5 45-5-220(l), MCA. Subsection (2) of the statute
represents an attempt by the Legislature to avoid potential
constitutional problems, such as attempts to enforce the statute
against investigative reporters or people walking a picket line.
However, the Legislature recognized that they could not create a
"laundry list" of all activities that are constitutionally
protected. Instead, they inserted this section to reflect their
intention that any constitutionally protected activity be exempted.
It is not an element of the crime of stalking. The District Court
found that the State proved, beyond a reasonable doubt, that
appellant violated all the elements of the offense. This
determination is supported by the record and will not be disturbed.
Affirmed.
Justice
We concur: /