State v. Nye

96-288

No. 96-288

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DAVID NATHAN NYE,

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:

Dan Yardley, Livingston, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana; Tara Depuy, Park County Attorney,
Livingston, Montana

Submitted on Briefs: January 9, 1997

Decided: July 23, 1997
Filed:

__________________________________________
Clerk

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Justice James C. Nelson delivered the Opinion of the Court.

David Nathan Nye (Nye) was charged by information with the offense of malicious
intimidation or harassment relating to civil or human rights, a felony, in violation
of
45-5-221, MCA. Nye pleaded guilty in the District Court for the Sixth Judicial
District,
Park County, pursuant to a plea agreement wherein he reserved his right to appeal the
constitutionality of the statute. He now appeals his conviction. We Affirm.
We address the following issues on appeal:
1. Does 45-5-221, MCA, violate Nye's right to freedom of speech under the
First Amendment to the United States Constitution and Article II, Section 7 of the
Montana Constitution?
2. Did the District Court err in determining that 45-5-221, MCA, is not
unconstitutionally vague?
3. Did the District Court err in determining that 45-5-221, MCA, is not
unconstitutionally over broad?
4. Does 45-5-221, MCA, set penalties grossly disproportionate to the offense
in violation of Nye's rights under the Eighth Amendment to the United States
Constitution
and Article II, Sections 22 and 28 of the Montana Constitution?
Factual and Procedural Background
On April 14, 1995, Nye and four other individuals affixed bumper stickers that
read "NO I do not belong to CUT" on state and county road signs near Gardiner,
Montana. They also placed the stickers in several mailboxes in the area and affixed
them
to property belonging to the Church Universal and Triumphant (CUT).
On April 26, 1995, Nye was charged by information with violating 45-5-
221(1)(c), MCA, the "hate crimes" statute. He entered a plea of not guilty to the
charge
and was released on his own recognizance subject to certain conditions. On October
12,
1995, Nye filed a motion to dismiss the case on the grounds that 45-5-221(1)(c),
MCA,
is void for vagueness, over broad as applied to Nye, and in violation of Nye's
constitutional rights. This motion was subsequently denied by the District Court.
The State filed an Amended Information on December 6, 1995, adding an
alternative charge of accountability for malicious intimidation or harassment
relating to
civil or human rights. Nye pleaded not guilty to the charges in the Amended
Information
and was again released on his own recognizance subject to the conditions previously
imposed.
On March 15, 1996, pursuant to a plea agreement, Nye withdrew his not guilty
plea and pleaded guilty to the charge of malicious intimidation or harassment
relating to
civil or human rights, a felony. Pursuant to 46-12-204(3), MCA, Nye reserved his
right to appeal the District Court's order denying his motion to dismiss.
On April 8, 1996, a sentencing hearing was held wherein the District Court
ordered that sentencing be deferred for 18 months and that Nye be placed on probation

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with the Department of Corrections. Nye's sentence was ordered stayed pending appeal
to this Court.

Standard of Review
A district court's denial of a motion to dismiss involves a legal question
that we
review de novo to determine whether the district court's interpretation of the law is
correct. State v. Romero (Mont. 1996), 926 P.2d 717, 722, 53 St.Rep. 1050, 1052
(citing State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66).
Section 45-5-221, MCA, the statute under which Nye was charged, provides:
Malicious intimidation or harassment relating to civil or human
rights -- penalty. (1) A person commits the offense of malicious
intimidation or harassment when, because of another person's race, creed,
religion, color, national origin, or involvement in civil rights or human
rights activities, he purposely or knowingly, with the intent to terrify,
intimidate, threaten, harass, annoy, or offend:
(a) causes bodily injury to another;
(b) causes reasonable apprehension of bodily injury in another; or
(c) damages, destroys, or defaces any property of another or any
public property.
(2) For purposes of this section, "deface" includes but is not limited
to cross burning or the placing of any word or symbol commonly associated
with racial, religious, or ethnic identity or activities on the property of
another person without his or her permission.
(3) A person convicted of the offense of malicious intimidation or
harassment shall be imprisoned in the state prison for a term not to exceed
5 years or be fined an amount not to exceed $5,000, or both.

All statutes carry with them a presumption of constitutionality and it is the
duty
of the courts to construe statutes narrowly to avoid an unconstitutional
interpretation if
possible. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041 cert
denied
(1995), 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630 (citing Montana Auto. Assn.
v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303; State v. Ytterdahl (1986),
222 Mont. 258, 261, 721 P.2d 757, 759). This Court has made clear that, when
construing a statute, it must be read as a whole, and terms used in the statute
should not
be isolated from the context in which they were used by the Legislature. Lilburn,
875
P.2d at 1041 (citing McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507,
510). Statutes should be construed according to the plain meaning of the language
used
therein. Lilburn, 875 P.2d at 1041 (citing Norfolk Holdings v. Dept. of Revenue
(1991),
249 Mont. 40, 43, 813 P.2d 460, 461.
When the constitutionality of a statute is challenged, the party making the
challenge
bears the burden of proving the statute unconstitutional beyond a reasonable doubt.
State
v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17 (citing Monroe v. State (1994),

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265 Mont. 1, 3, 873 P.2d 230, 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. Martel, 902 P.2d at 18.
Issue 1.

Does 45-5-221, MCA, violate Nye's right to freedom of speech under
the First Amendment to the United States Constitution and Article II,
Section 7 of the Montana Constitution?

Nye argues on appeal that his acts of distributing the bumper stickers were
meant
to convey his beliefs and ideas, thus his conduct invokes his right to freedom of
speech
under the First Amendment to the United States Constitution and Article II, Section
7 of
the Montana Constitution. He compares his conduct to that of the defendant in Texas
v.
Johnson (1989), 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, whose conviction for
burning the American flag in violation of a Texas statute prohibiting the
desecration of
a venerated object was overturned by the United States Supreme Court as infringing on
his First Amendment rights.
Johnson was one of more than 100 political demonstrators who marched through
the streets of Dallas, Texas, during the 1984 Republican National Convention. When
the
demonstrators reached Dallas City Hall, Johnson unfurled an American flag, doused it
with kerosene, and set it on fire. He was the only demonstrator charged with a
crime.
In overturning Johnson's conviction, the Supreme Court held that the restrictions on
Johnson's political expression were impermissibly content based. Johnson, 491 U.S.
at
412, 109 S.Ct. at 2544, 105 L.Ed.2d 342. The Supreme Court also held that Johnson's
actions were expressive conduct permitting him to invoke the First Amendment.
Johnson, 491 U.S. at 406, 109 S.Ct. at 2540, 105 L.Ed.2d 342.
The Supreme Court has made it clear that to be protected as "expressive
conduct,"
the activity must be "sufficiently imbued with elements of communication to fall
within
the scope of the First and Fourteenth Amendments." Spence v. State of Washington
(1974), 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842. Nye has not shown
that his conduct meets this test.
In Wisconsin v. Mitchell (1993), 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436,
the United States Supreme Court held that bias-motivated speech, coupled with
assaultive
or other nonverbal proscribed conduct, is not protected by the First Amendment. In
that
case, defendant's sentence for aggravated battery was enhanced because he
intentionally
selected his victim because of the victim's race. The Supreme Court concluded that
þviolence or other types of potentially expressive activities that produce special
harms
distinct from their communicative impact . . . are entitled to no constitutional

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protection.þ
Mitchell, 508 U.S. at 484, 113 S.Ct. at 2199, 124 L.Ed.2d 436 (quoting Roberts v.
United States Jaycees (1984), 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d
462).
In Lilburn we noted that the Supreme Court has provided clear guidelines for
distinguishing a content-neutral regulation from one which is impermissibly content-
based:
The principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech because of
disagreement with the message it conveys. The government's purpose is
the controlling consideration. A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.

Lilburn, 875 P.2d at 1042 (quoting Ward v. Rock Against Racism (1989), 491 U.S. 781,
791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661).
"The determination of whether a regulation is content-based turns not on
whether
its incidental effects fall more heavily on expression of a certain viewpoint, but
rather on
whether the governmental purpose to be served by the regulation is not motivated by a
desire to suppress the content of the communication." Lilburn, 875 P.2d at 1042
(citing
City of Renton v. Playtime Theaters, Inc. (1986), 475 U.S. 41, 106 S.Ct. 925, 89
L.Ed.2d 29). In the case before us, the governmental purpose to be served by 45-5-
221, MCA, is not to suppress the content of the communication, rather, it is to
prohibit
conduct that violates other criminal laws, such as assault, criminal mischief, and
trespass,
and that are committed against another person because of that person's race,
religion or
national origin with the intent to intimidate, harass or annoy that person.
Nye points out that many others in the Gardiner community have similar stickers
affixed to their vehicles or in their windows as a protest against what they
perceive to be
objectionable practices of CUT. However, Nye fails to recognize that the difference
between his conduct and that of others in the Gardiner community is that the others
he
refers to placed the stickers on their own property while Nye placed the stickers on
other
people's property without their permission. As the State asserts in its brief, if
Nye had
limited his attack on CUT to the display of a bumper sticker on his car or living
room
window, the First Amendment would have protected his right to do so. Nye lost his
First
Amendment protection when he coupled the message on the bumper sticker with
defacement of the property of others.
Nye has not argued that Article II, Section 7 of the Montana Constitution
provides
any different or greater protection for free expression than does the First
Amendment of

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the United States Constitution. Along those lines this Court has recognized that
neither
the First Amendment nor the Montana Constitution protect all speech:
There 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. These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words--those which by their
very utterance inflict injury or tend to incite an immediate breach of the
peace. It has been well observed that such utterances are no essential part
of any exposition of ideas. . . .

State v. Cooney (1995), 271 Mont. 42, 48, 894 P.2d 303, 307 (quoting State v. Lance
(1986), 222 Mont. 92, 102, 721 P.2d 1258, 1265; Chaplinsky v. State of New Hampshire
(1942), 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed.1031).
Furthermore, "free speech does not include the right to cause substantial
emotional
distress by harassment or intimidation." Cooney, 894 P.2d at 307. Activities which
are
intended to embarrass, annoy or harass, as was the case here, are not protected by
the
First Amendment. State v. Helfrich (1996), 277 Mont. 452, 460, 922 P.2d 1159, 1164
(citing People v. Holt (Ill.App. 1995), 649 N.E.2d 571, 581).
Accordingly, we hold that 45-5-221, MCA, does not violate Nye's right to
freedom of speech under the First Amendment to the United States Constitution or
Article
II, Section 7 of the Montana Constitution.
Issue 2.

Did the District Court err in determining that 45-5-221, MCA, is not
unconstitutionally vague?

The issue of vagueness, with regard to a statute or ordinance, can be raised
in two
different connotations: (1) whether it is so vague that the law is rendered void on
its face;
or (2) whether it is vague as applied in a particular situation. Martel, 902 P.2d
at 18
(citing City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668).
Nye
claims that 45-5-221, MCA, is unconstitutionally vague on its face because the
terms
"annoy" and "offend" are not defined within the statute.
We have previously stated that a statute is void on its face "if it fails to
give a
person of ordinary intelligence fair notice that his contemplated conduct is
forbidden."
State v. Brogan (1995), 272 Mont. 156, 168, 900 P.2d 284, 291 (citing State v. Crisp
(1991), 249 Mont. 199, 202, 814 P.2d 981, 983). "No person should be required to
speculate as to whether his contemplated course of action may be subject to criminal
penalties." Brogan, 900 P.2d at 291.
The Legislature need not define every term it employs when constructing a
statute.

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If a term is one of common usage and is readily understood, it is presumed that a
reasonable person of average intelligence can comprehend it. Martel, 902 P.2d at 18-
19
(citing Contway v. Camp (1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379). 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. Martel, 902 P.2d at 19. The terms
"annoy" and "offend" have commonly understood meanings. "Annoy" means to bother,
irritate or harass, particularly by repeated acts. The American Heritage Dictionary
112
(2d college ed. 1985). "Offend" means to create or excite anger, resentment or
annoyance or to cause displeasure. The American Heritage Dictionary 862 (2d college
ed. 1985). These are terms of common usage and are readily understood, thus we can
presume that a reasonable person of average intelligence would comprehend their
meaning.
Nye contends that it is possible to find a person guilty under 45-5-221, MCA,
if the victim were annoyed or offended by an action related to the victim's
religion. Nye
maintains that if the victim is sensitive about his or her religious beliefs, then
almost any
action would be likely to annoy or offend them. 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. Martel, 902 P.2d
at 19
(citing Colautti v. Franklin (1979), 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d
596). Thus 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. Martel, 902 P.2d at 19-20 (citing Screws v. United States (1945), 325 U.S.
91,
101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495). Indeed, contrary to Nye's assertions,
45-5-
221, MCA, does not punish a defendant for offending or annoying another individual
because of that individual's race, religion or national origin. The statute
punishes a
defendant for assaults and damage to property when that conduct is done with the
intent
to annoy or offend another individual because of that individual's race, religion or
national origin.
The Supreme Court has made clear that if the challenged statute is reasonably
clear
in its application to the conduct of the person bringing the challenge, it cannot be
stricken
on its face for vagueness. Lilburn, 875 P.2d at 1044 (citing Village of Hoffman
Estates
v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495 n.7, 102 S.Ct. 1186,
1191
n.7, 71 L.Ed.2d 362). "One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness." Lilburn, 875 P.2d at 1044 (quoting
Hoffman,
455 U.S. at 495 n.7, 102 S.Ct. at 1191 n.7, 71 L.Ed.2d 362). Section 45-5-221, MCA,

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prohibits damaging, destroying or defacing the property of another with the intent to
harass, annoy or offend because of another's race, religion or national origin. By
affixing stickers to public and private property, Nye defaced that property. His
actions
were committed with the intent to harass, annoy or offend CUT members. Nye's actions
clearly fall within the prohibitions of 45-5-221, MCA.
Accordingly, we hold that the District Court did not err in determining that
45-5-
221, MCA, is not unconstitutionally vague on its face. Moreover, there is nothing
in the
record of this case which would support a conclusion that the statute is vague as
applied
to Nye's conduct.
Issue 3.

Did the District Court err in determining that 45-5-221, MCA, is not
unconstitutionally 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." Martel, 902 P.2d at 20 (quoting Hill v. City
of Houston, Tex. (5th Cir. 1985), 764 F.2d 1156, 1161, cert. denied (1987), 483 U.S.
1001, 107 S.Ct. 3222, 97 L.Ed.2d 729). A facial overbreadth challenge is an
exception
to the general rule that statutes are evaluated in light of the situation and facts
before the
court. Lilburn, 875 P.2d at 1040 (citing R.A.V. v. City of St. Paul, Minn. (1992),
505
U.S. 377, 411, 112 S.Ct. 2538, 2558, 120 L.Ed.2d 305; Broadrick v. Oklahoma (1973),
413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830).
Nye contends that 45-5-221, MCA, is unconstitutionally over broad because
under the definition of "deface" in subsection (2) of the statute, a defendant
could be
found guilty if he merely placed the stickers in mailboxes if that act annoyed or
offended
a person's religious beliefs. However, the claimed overbreadth of a statute, must
not
only be real, but substantial as well, judged in relation to the statute's plainly
legitimate
sweep, particularly where conduct and not merely speech is involved. State v. Ross
(1995), 269 Mont. 347, 353, 889 P.2d 161, 164 (citing Broadrick, 413 U.S. at 615,
93
S.Ct. at 2918, 37 L.Ed.2d 830). In the instant case, Nye has failed to demonstrate
how
the statute might infringe on another's constitutionally protected rights in a real
or
substantial way, especially when compared to the statute's wide variety of
constitutional
applications.
This Court has determined that when the claimed overbreadth of a statute is not

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substantial and real, the statute is not unconstitutional on its face, but rather an
unconstitutional application of the statute should be dealt with on a case-by-case
basis.
Ross, 889 P.2d at 164 (citing New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct.
3348, 73 L.Ed.2d 1113). In that regard, Nye's conduct of affixing the stickers to
state
and county road signs, mailboxes, as well as property belonging to CUT, was clearly a
violation of 45-5-221(1)(c), MCA. Even assuming that the damage to the mailboxes
and road signs was, as argued by Nye, "nominal," nevertheless there was damage.
Moreover, the mailboxes and road signs were defaced within the definition of "deface"
in 45-5-221(2), MCA. Nye placed the anti-CUT stickers on the mailboxes and road
signs. Whether the word "deface" would have properly applied to his placing the
stickers
in the mailboxes is irrelevant. That was not the conduct for which he was
convicted,
and we do not find it necessary to address that argument. Section 45-5-221(1)(c),
MCA,
clearly applied to and criminalized Nye's actual conduct at issue here.
Accordingly, we hold that the District Court did not err in determining that
45-5-
221, MCA, is not unconstitutionally over broad on its face or as applied to Nye's
conduct.
Issue 4.

Does 45-5-221, MCA, set penalties grossly disproportionate to the
offense in violation of Nye's rights under the Eighth Amendment to the
United States Constitution and Article II, Sections 22 and 28 of the
Montana Constitution?

The penalty for violating 45-5-221, MCA, is imprisonment in the state prison
for a term not to exceed 5 years or a fine in an amount not to exceed $5,000, or
both.
Section 45-5-221(3), MCA. Nye contends on appeal that this penalty is so grossly
disproportionate to the crime he committed that it violates the Eighth Amendment of
the
United States Constitution and Article II, Sections 22 and 28 of the Montana
Constitution.

The State contends that Nye is precluded from raising this issue on appeal
because
he failed to raise it in the court below. As a result, when Nye pleaded guilty
under 46-
12-204(3), MCA, this issue was not preserved for appeal. Section 46-12-204(3), MCA,
provides:
With the approval of the court and the consent of the prosecutor, a
defendant may enter a plea of guilty, reserving the right, on appeal from
the judgment, to review the adverse determination of any specified pretrial
motion. If the defendant prevails on appeal, the defendant must be allowed
to withdraw the plea.

In his motion to dismiss, Nye argued that 45-5-221(1)(c), MCA, violated his
right to free speech, and was unconstitutionally over broad and vague. He did not

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argue
that the penalty provided for in the statute was grossly disproportionate to the
crime with
which he was charged, as he now contends. Since Nye did not raise this issue below,
it
was not decided either adversely or favorably to him by the District Court.
Therefore,
there is no "adverse determination" to review on appeal regarding this issue.
Section 46-
12-204(3), MCA. Accordingly, we decline to address the merits of this issue.
Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.

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