96-278
No. 96-278
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PHILIP L. GRANBY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eric Rasmusson, Attorney at Law, Boulder, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Christina Lechner Goe,
Assistant
Attorney General, Helena, Montana
Valerie D. Wilson, Jefferson County Attorney, Boulder, Montana
Submitted on Briefs: April 24, 1997
Decided: June 17, 1997
Filed:
__________________________________________
Clerk
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Justice W. William Leaphart delivered the Opinion of the Court.
Appellant, Philip L. Granby appeals from the February 20, 1996 Judgment of the
Fifth Judicial Court, Jefferson County, convicting him of the offenses of disorderly
conduct, in violation of 45-8-101, MCA, and violating privacy in communications, in
violation of 45-8-213, MCA. We affirm in part and reverse in part.
We restate the issues on appeal as follows:
1) Did Granby waive his claim of insufficiency of the evidence as to both
offenses
by failing to raise the issue in the District Court?
2) Was there sufficient evidence for the District Court to convict Granby of
the
offense of disorderly conduct?
3) Was there sufficient evidence for the District Court to convict Granby of
the
offense of violating privacy in communications?
Factual and Procedural Background
The following facts are taken from the parties' testimony at trial. On June 10,
1994, Granby went to the home of his ex-wife, Delores Aaberg, in order to remove a
non-running vehicle from her premises that he had been awarded in their decree of
dissolution. Granby's brother and friend accompanied him to help him tow the
vehicle.
Upon their arrival, Aaberg came outside and told Granby that he would have to leave,
as his presence on the premises was in violation of the restraining order
incorporated in
the decree of dissolution. Granby refused to leave and an argument ensued.
Aaberg testified that during the argument Granby asked her "did you get enough
dick today" and gestured toward her as if he were masturbating. Granby's friend
corroborated this statement and testified further that he had to "break up the
fight,"
grabbing Granby by the arm and pulling him out of the way. Aaberg and Granby's two
young daughters were present for at least part of the argument.
Approximately two weeks later, Aaberg called Granby to discuss visitation with
the children. According to Aaberg, she told Granby that her roommate, Richard
Hayward, had died, and that in response Granby said: "So your dick died, huh, that's
too
bad. How long did you know him? Not very long at all, I'll bet." Aaberg then hung
up the phone. She also testified that Granby had made other annoying or harassing
phone
calls to her on numerous occasions. Granby testified that it was Aaberg who
initiated the
call in question, but he did not deny making the statements.
On July 8, 1994, Aaberg went to the sheriff's office to file a complaint against
Granby because of these incidents. On August 25, 1994, the Justice Court of
Jefferson
County found that there was probable cause and issued a warrant for Granby's arrest
based on five misdemeanor charges: theft, criminal trespass to property, violating
privacy
in communications, violation of a protective order, and disorderly conduct. A bench
trial
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was subsequently held in Justice Court. Granby failed to appear and he was convicted
of all five misdemeanors.
Granby filed a notice of appeal in District Court and a bench trial was held in
February, 1996. The county attorney dismissed the theft charge at the end of the
trial
and the District Court found Granby not guilty of the offenses of criminal trespass
to
property and violation of a protective order. The court found Granby guilty of the
offenses of violating privacy in communications and disorderly conduct. Granby
appeals
both convictions based on the sufficiency of the evidence.
Discussion
1) Did Granby waive his claim of insufficiency of the evidence as
to both offenses by failing to raise the issue in the District Court?
The State argues that Granby has waived the claim of sufficiency of the evidence
as to the disorderly conduct and violation of privacy in communications offenses
because
he never presented these arguments to the District Court. The State claims that if
Granby
believed that the evidence was insufficient to meet the State's burden of proof, he
could
have filed a motion for judgment of acquittal based on insufficiency of the evidence
under
46-16-403, MCA, or made an oral motion to dismiss, either at the close of the
prosecutor's case or at the close of all the evidence. The State cites 46-20-104
(2),
MCA, and State v. Walsh (Mont. 1997), 931 P.2d 42, 45, 54 St.Rep. 64, 65, as support
for its contention that because Granby failed to raise insufficiency of the evidence
at the
District Court level, it is waived for purposes of appeal.
Section 46-20-104(2), MCA, provides:
Upon appeal from a judgment, the court may review the verdict or
decision and any alleged error objected to which involves the merits or
necessarily affects the judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as provided in
46-20-701(2).
Granby argues that the plain language of 46-20-104(2), MCA, provides this
Court with ample authority to review Granby's convictions. He argues that the
statute
distinctly separates review of a verdict or decision from alleged error committed
during
the district court proceedings, and requires a defendant to object to error, but
does not
require a defendant to object to the verdict or decision itself, in order to
preserve the case
for appeal. Granby further argues that the decision in Walsh was based on
inappropriate
authority and that the decision is contrary to the legislature's intent in its
adoption of
46-20-104, MCA. We agree.
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In Walsh, this Court declined to consider Walsh's challenge to charges of
accountability "because Walsh failed to argue at any time prior to filing his brief
on
appeal that the evidence was insufficient to support the verdict on the
accountability
charges . . . . See State v. Johnson (1993), 257 Mont. 157, 162, 848 P.2d 496,
499."
Walsh, 931 P.2d at 45.
Granby argues that the Walsh Court's reliance on Johnson was misplaced. In
Johnson the defendant claimed on appeal that the testimony of an accomplice was
insufficiently corroborated. Johnson, 848 P.2d at 498. The Court in Johnson
declined
to address the issue because nothing in the record "disclosed a challenge to the
sufficiency
of the corroborative evidence, or the evidence as a whole, by way of either a motion
for
an acquittal or a motion for a directed verdict." Johnson, 848 P.2d at 498. The
Court
did not hold that a general claim of insufficiency of the evidence to support the
verdict
was barred on appeal for the failure to either move for a judgment of acquittal or a
dismissal at the end of trial. The Court simply declined to address an allegation of
specific trial error on appeal on the basis of the defendant's failure to object to
the trial
error in the district court. It is clear that the Court in Johnson was concerned
with error
committed during the course of the trial, and not with review of the defendant's
verdict
or final judgment. Therefore, we agree with Granby that Walsh's reliance on Johnson
was misplaced.
Additionally, Granby argues that the result in Walsh is contrary to the intent
of the
Code Commission when it recommended adoption of 46-20-104, MCA, by the
legislature. The Commission Comments provide:
[Subsection (2)] also broadens the scope of appeal in one respect. Under
the present code it is necessary to make a motion for a new trial and then
appeal from an adverse ruling if the grounds of appeal are also the grounds
for a motion for a new trial. No such requirement is intended to be
imposed by this code. All questions heretofore raised on such an appeal
may be raised on appeal from the judgment regardless of whether a motion
for a new trial has been made in the trial court. . . . It is the purpose of
Subsection [(2)] to provide one complete, full and adequate review by
enlarging the power of the reviewing court. This is accomplished by
allowing the court to decide all questions raised by the entire proceeding,
below, including an appeal from a motion for a new trial.
Although the Comments discuss a motion for new trial rather than a motion for a
judgment of acquittal or directed verdict, we believe the reasoning is equally
applicable.
It is clear that the legislature intended that a reviewing court have the power to
provide
a comprehensive review of the district court proceedings for sufficiency of the
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evidence
without the necessity of a motion challenging the sufficiency of the evidence in the
district
court.
Furthermore, allowing a comprehensive review of a verdict or decision without a
motion for acquittal does not deny a district court the opportunity to rule on the
issue of
sufficiency of the evidence. Under 46-16-403, MCA, a district court may, "on its
own
motion . . . dismiss the action . . ." when the evidence is insufficient to support
a finding
or verdict of guilty.
For the foregoing reasons, we conclude that Walsh's holding that an appellant
waives the right to challenge the sufficiency of the evidence to support a verdict
on appeal
by failing to raise the issue in the district court was decided on the basis of
inappropriate
authority and is contrary to the intent of the legislature. Therefore, we overrule
Walsh
insofar as it bars a claim of insufficiency of the evidence to support a verdict on
appeal
for failure to raise the issue in the district court.
Furthermore, we agree with Granby that a plain reading of 46-20-104, MCA,
indicates that an appellant need not challenge the sufficiency of the evidence at
the district
court level in order for this Court to review a "verdict or decision" on the basis of
sufficiency of the evidence. The second sentence in 46-20-104, MCA -- "Failure to
make a timely objection during trial constitutes a waiver of the objection . . ." --
addresses an appeal based on "any alleged error objected to which involves the
merits or
necessarily affects the judgment," and does not prohibit this Court from reviewing a
verdict or decision as a whole. For the foregoing reasons we hold that Granby did
not
waive his claims of insufficiency of the evidence as to either offense.
Standard of Review
This Court reviews the sufficiency of the evidence to determine whether, after
viewing the evidence in the 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. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224. This standard
applies
to judge-made findings of fact, as well as to findings of fact by a jury. State v.
Bower
(1992), 254 Mont. 1, 833 P.2d 1106.
2) Was there sufficient evidence for the District Court to convict Granby
of the offense of disorderly conduct?
The District Court found that Granby "knowingly and intentionally disturbed the
peace . . . by making loud or unusual noises, and/or using threatening, profane or
abusive language, by accusing Delores Aaberg of 'screwing around' and using abusive
language concerning Ms. Aaberg's sexual life and by using his hands in a lewd manner
suggesting masturbation . . . . " Section 45-8-101(1), MCA, provides:
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A person commits the offense of disorderly conduct if he knowingly
disturbs the peace by:
. . .
(b) making loud or unusual noises;
(c) using threatening, profane, or abusive language;
. . . .
Granby presents a constitutional challenge to his disorderly conduct
conviction.
He argues that his conduct during the incident at Aaberg's residence did not rise to
the
level of "fighting words" designed to provoke or incite violence and, therefore, his
conduct constitutes "protected speech" as defined in City of Billings v. Batten
(1985), 218
Mont. 64, 705 P.2d 1120. However, Granby failed to raise this constitutional
challenge
to his conviction in the District Court and it is therefore waived pursuant to 46-
20-
104(2), MCA. In City of Columbia Falls v. Bennett (1991), 247 Mont. 298, 301, 806
P.2d 25, 27, this Court rejected the appellant's constitutional challenge to the
disorderly
conduct statute for failure to raise the issue in his opening appellate brief.
Because the
constitutionality of the statute was not at issue, it was not necessary for the
Court to apply
the constitutional interpretation of the statute set out in Batten, that a person's
conduct or
language must constitute "fighting words" in order for a conviction to stand.
Instead, the
Court simply analyzed whether the appellant's language and conduct constituted
"threatening, profane, or abusive language" in violation of the disorderly conduct
statute
as written. Bennett, 806 P.2d at 26-27. We apply the same analysis here.
Both parties testified that they were heatedly arguing with each other in the
presence of others. Both Aaberg and Granby's friend testified that Granby stated
"did
you get enough dick today" and used abusive and profane gestures. Granby's friend
testified that he had to "break up the fight" and "haul" Granby away. When viewed in
the light most favorable to the prosecution, any rational trier of fact could have
found that
Granby knowingly disturbed the peace by using threatening, profane, or abusive
language
and gestures. Therefore, we hold that there was sufficient evidence to convict
Granby
of the offense of disorderly conduct and affirm his conviction on this charge.
3) Was there sufficient evidence for the District Court to convict Granby of
the
offense of violating privacy in communications?
Granby argues that sufficient evidence in the record does not exist to support
the
conviction of violating privacy in communications. Section 45-8-213(1)(a), MCA,
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provides the following:
[A] person commits the offense of violating privacy in communications if
he knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, annoy,
or offend, communicates with any person by telephone and uses any
obscene, lewd, or profane language, suggests any lewd or lascivious act, or
threatens to inflict injury or physical harm to the person or property of any
person (the use of obscene, lewd, or profane language . . . is prima facie
evidence of an intent to terrify, intimidate, threaten, harass, annoy, or
offend) . . . .
Granby testified that Aaberg called him on June 24, 1994. During this
conversation Aaberg told Granby that her roommate, Richard Hayward, had died.
Granby responded: "So your dick died, huh, that's too bad. How long did you know
him? Not very long at all, I'll bet." Granby argues that this statement does not
contain
obscene, lewd, or profane language and does not reflect an intent to"terrify,
intimidate,
threaten, harass, annoy, or offend." The State argues that, when taken in context,
the
obscene overtone in the comment is apparent. We hold that this statement alone does
not
constitute obscene, lewd, or profane language. Furthermore, considering the
circumstances under which it was made, including the fact that Aaberg initiated the
call,
and that Granby was responding to Aaberg's comment, we hold that it was not made with
the intent to harass or annoy. Therefore, after viewing the evidence in the light
most
favorable to the prosecution, we hold that the evidence presented is not sufficient
to
support the conviction for violating privacy in communications and Granby's
conviction
on this charge is reversed.
In conclusion, we hold that Granby did not waive his claims of insufficiency of
the
evidence; there was sufficient evidence to convict him of the offense of disorderly
conduct; and there was not sufficient evidence to convict him of violating privacy
in
communications. Therefore, Granby's conviction for disorderly conduct is affirmed;
his
conviction for violation of privacy in communications is reversed; and his sentence
for
violation of privacy in communications is vacated.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
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/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
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