97-488
No. 97-488
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 140
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LORI K. COMPAS, f/k/a
LORI K. MILLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable William Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen Potenberg, Hesse & Potenberg, Livingston, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Pamela P. Collins,
Assistant Attorney General, Helena, Montana; Catherine L.
Truman, Deputy Park County Attorney, Livingston, Montana
Submitted on Briefs: January 30, 1998
Decided: June 9, 1998
Filed:
__________________________________________
Clerk
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Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Defendant Lori Compas (Compas) appeals from the judgment entered
by the Sixth Judicial District Court, Park County, on its Findings of Fact,
Conclusions of Law and Order convicting her of two counts of disorderly
conduct and from its denial of her motion to dismiss the charges. We affirm.
¶2 We address the following restated issues:
¶3 1. Does sufficient evidence support the convictions?
¶4 2. Does § 45-8-101, MCA, as applied in this case, violate Compas' free
speech rights under the First Amendment to the United States Constitution?
¶5 Chan and Pam Libbey (the Libbeys) developed, own and operate the
Yellowstone Edge RV Park (RV Park) located in the Paradise Valley of
Montana. The RV Park is situated eighteen miles south of Livingston on land
wedged between U.S. Highway 89 and the Yellowstone River. The Libbeys
opened the RV Park in the summer of 1994, after complying with the required
public hearing process and obtaining the necessary state and local permits.
¶6 Once the Libbeys started renting RV and camping spaces on the river,
they began to experience repeated horn honking from vehicles traveling on the
highway past the RV Park. The honking amounted to "someone just laying on
the horn" the length of the RV Park. Several Park County residents described
the RV Park as a scar on the Paradise Valley's landscape and the newspaper
in Livingston reported that the RV Park had become a "persistent source of
controversy" due to its location on the Yellowstone River.
¶7 While in the campground office on the evening of May 6, 1995, the
Libbeys heard a loud, long horn honk consisting of three continuous blasts
from a vehicle traveling north on Highway 89. Due to the ongoing horn
honking problem, Chan left the RV Park in Pam's car and pursued the vehicle
from which the honking emanated. He followed the vehicle, a white Toyota
extended cab pickup, until he was close enough to get the license plate
number. He then passed the pickup and obtained a physical description of the
driver, a male with long straight blond hair, and one passenger, a female with
short hair. Chan then returned to the RV Park. Several RV Park guests asked
Pam why someone was holding down his or her horn while passing the
campground.
¶8 The next morning the Libbeys again heard three long horn honking
"blasts" from a white Toyota pickup as it traveled south on the highway past
the RV Park. Chan again followed the vehicle in Pam's car and confirmed that
it was the same Toyota pickup from the night before, driven by the same male;
this time he was accompanied by two passengers, a male and a female. Chan
identified the female passenger as the woman from the prior night's horn
honking incident. The RV Park guests complained about the horn honking
noise. The Toyota's description, its license plate number and the descriptions
of the driver and passengers were provided to the Park County Sheriff's Office
after each incident.
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¶9 Compas subsequently was charged by complaint in the Park County
Justice Court with two counts of disorderly conduct in violation of § 45-8-101(1)(b),
MCA. The alleged factual basis for the charges was that she
disturbed the peace, making loud or unusual noises, by blowing the Toyota's
horn while her friend drove past the RV Park on May 6 and 7, 1995. Compas
was convicted of both counts of disorderly conduct and appealed to the
District Court.
¶10 At Compas' de novo bench trial on May 5, 1997, she admitted to the
District Court that she frequently honked as she traveled past the RV Park and
that she did, in fact, honk the Toyota's horn on the dates in question. Compas
testified that it was her "personal policy to honk every time [she] drove by the
place" because she wanted to protest the RV Park and its location on the
Yellowstone River. In Compas' view, the RV Park was an eyesore which
destroyed the view from the road and the river.
¶11 The District Court subsequently entered its Findings of Fact,
Conclusions of Law and Order finding Compas guilty of two counts of
disorderly conduct, making loud or unusual noises, in violation of § 45-8-101(1)(b),
MCA. The court found that, while a passenger in a white Toyota
pickup, Compas "reached over and honked the horn for three long, steady
bursts as it traveled the length of the park . . . in protest of the placement and
operation of the park" and that "by honking a horn for several seconds on May
6 and 7, 1995 . . . [Compas] made loud and unusual noises." It concluded that
Compas "disturb[ed] the peace of the owners and guests of Yellowstone's
Edge RV Park." Judgment was entered accordingly and Compas appeals.
¶12 1. Does sufficient evidence support the convictions?
¶13 We review the sufficiency of the evidence to support a criminal
conviction 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 offense beyond a reasonable doubt. State v. Granby
(1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). The
same standard applies to our review of judge-made findings relating to a
criminal conviction as to jury-made findings. Granby, 283 Mont. at 199, 939
P.2d at 1010 (citation omitted).
¶14 Compas was convicted of committing the offense of disorderly conduct
set forth in § 45-8-101(1)(b), MCA, by making loud or unusual noises. She
correctly observes that two elements must be proved beyond a reasonable
doubt to support a conviction under § 45-8-101(1)(b), MCA: (1) that she
knowingly disturbed the peace; and (2) that she did so by making loud or
unusual noises. Relying on State v. Ytterdahl (1986), 222 Mont. 258, 721
P.2d 757, Compas contends that insufficient evidence established the
"disturbing the peace" element. Her reliance is misplaced.
¶15 The defendant in Ytterdahl was convicted of the offense of disorderly
conduct under § 45-8-101(1)(g), MCA, by disturbing or disrupting any lawful
assembly or public meeting. His conviction was based on his behavior at a
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county commissioners' meeting relating to an easement action taken by the
county on his property. Ytterdahl "holler[ed] and scream[ed] at the
commissioners" and, after being informed that he could initiate a lawsuit
regarding his complaint of trespass by the county, he "'mumbled a bad word,'"
got up, stomped out and slammed the door so hard that the glass in the room
rattled." Ytterdahl, 222 Mont. at 259-60, 721 P.2d at 758. We reversed
Ytterdahl's conviction, ultimately holding that the evidence failed to show that
his acts were sufficient to constitute the offense of disorderly conduct under
§ 45-8-101(1)(g), MCA. Ytterdahl, 222 Mont. at 261-62, 721 P.2d at 759-60.
In reaching that result, we held that "disturbing the peace is synonymous with
breaching the peace[,]" which we defined--for purposes of § 45-8-101(1)(g),
MCA--as tending to create public tumult, or to incite others to break the peace
or to cause an immediate disturbance by others. Ytterdahl, 222 Mont. at 261,
721 P.2d at 759. In addition, we weighed Ytterdahl's rights to protest an
allegedly unlawful act of his government and to free speech against the state's
interest in preserving the peace and concluded that Ytterdahl's actual conduct
was not sufficient to constitute the charged offense of disorderly conduct.
Ytterdahl, 222 Mont. at 262, 721 P.2d at 760.
¶16 Here, Compas contends that no evidence of record supports the District
Court's finding that her horn honking resulted in a breach of the peace as we
defined that term in Ytterdahl. Compas fails to recognize, however, that our
definitions of breach of the peace in Ytterdahl were in the context of an
alleged violation of subsection (g) of § 45-8-101(1), MCA, disturbing or
disrupting any lawful assembly or public meeting; indeed, we specifically
stated that the definitions were applicable "[t]o establish a misdemeanor under
Section 45-8-101(1)(g), MCA . . . ." As discussed above, Compas was
charged, and convicted, under § 45-8-101(1)(b), MCA.
¶17 Moreover, we expressly limited application of Ytterdahl to disorderly
conduct charges brought under § 45-8-101(1)(g), MCA, in State v. Lowery
(1988), 233 Mont. 96, 98-99, 759 P.2d 158, 159-60. Like Compas, the
defendant in Lowery was charged with disorderly conduct under a different
subsection of § 45-8-101(1), MCA, than that at issue in Ytterdahl. See
Lowery, 233 Mont. at 99, 759 P.2d at 160.
¶18 In this case, the District Court found that Compas' horn blasts disturbed
the Libbeys and the guests of the RV Park. It further found that the horn
honkings caused an immediate disturbance to the Libbeys and their guests and
thereby disturbed their peace. The record supports the court's findings and,
indeed, Compas does not argue otherwise.
¶19 When viewed in the light most favorable to the prosecution, any
rational trier of fact could have found that Compas knowingly disturbed the
peace by making loud or unusual noises. We hold, therefore, that sufficient
evidence supports the District Court's conviction of Compas of two counts of
disorderly conduct.
¶20 2. Does § 45-8-101, MCA, as applied in this case, violate Compas' free
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speech rights under the First Amendment to the United States Constitution?
¶21 Compas filed a pretrial motion to dismiss the disorderly conduct
charges on the basis, in part, that her horn honking actions were protected
speech under the First Amendment to the United States Constitution which
could not be criminally sanctioned. The District Court orally denied the
motion, concluding that Compas had not established an infringement of her
free speech rights. Compas asserts error, contending that § 45-8-101, MCA,
as applied in this case, violates her right to free speech.
¶22 A trial court's decision to deny a motion to dismiss in a criminal case
is a conclusion of law which we review de novo. State v. Cooney (1997), 284
Mont. 500, 502, 945 P.2d 891, 892 (citation omitted). Our review of a trial
court's determination on a question of constitutional law also is plenary. State
v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503 (citation
omitted).
¶23 Compas contends that her horn honking activities were "expressive
conduct" which has long been recognized as protected speech under the
United States Constitution. She cites to no authorities which support her
position, however. To prevail on her "as applied" challenge to § 45-8-101,
MCA, Compas must prove that her horn honking activities are constitutionally
protected. See State v. Helfrich (1996), 277 Mont. 452, 458, 922 P.2d 1159,
1163. She has not done so with regard to her "expressive conduct" contention.
¶24 Nor is Compas' reliance on Ytterdahl in this regard well placed. There,
we emphasized that the defendant's actions involved protesting to his
government an allegedly unlawful act of his government. Ytterdahl, 222
Mont. at 262, 721 P.2d at 760. Compas' conduct in the present case is of an
entirely different type. She was not exercising her right to protest to her
government and she was not protesting any allegedly unlawful act by her
government or, indeed, by anyone. Thus, Ytterdahl does not support Compas'
position here.
¶25 The right to free speech is not absolute. City of Billings v. Batten
(1985), 218 Mont. 64, 69, 705 P.2d 1120, 1124 (citation omitted). Indeed,
"[t]here are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problems." State v. Lance (1986), 222 Mont. 92, 102, 721 P.2d
1258, 1265 (citation omitted). One of those classes of speech not protected by
the First Amendment is activity intended to embarrass, annoy or harass.
Helfrich, 277 Mont. at 460, 922 P.2d at 1164 (citations omitted).
¶26 Here, Compas' horn honking activities clearly annoyed and harassed
the Libbeys and their guests at the RV Park and, on the face of it, could not
have been intended otherwise. Thus, while Compas asserts that her intent was
"to protest the location of the RV Park," her actions did not constitute a protest
to government of government acts which would be entitled to protection under
the First Amendment. Moreover, under these circumstances, Compas'
"protest"--aimed at the Libbeys--had precisely the effect she intended: it
disturbed their peace and that of their guests.
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¶27 We conclude that the District Court correctly concluded that Compas
did not establish a violation of her free speech rights. Therefore, we hold that
the District Court did not err in denying Compas' motion to dismiss the
disorderly conduct charges.
¶28 Affirmed.
/S/ KARLA M. GRAY
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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