No. 94-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
STEVE COONEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Attorney at Law,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana
Christopher G. Miller, Powell County Attorney,
Deer Lodge, Montana
Submitted on Briefs: January 26, 1995
Decided: April 25, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On July 14, 1993, defendant Steve Cooney was charged by
complaint filed in the Justice Court for Cottonwood Township in
Powell County with misdemeanor stalking in violation of f3 45-5-220,
MCA. After trial, he was found guilty of the crime with which he
was charged. He appealed his conviction to the District Court for
the Third Judicial District in Powell County and waived his right
to a jury trial. On June 16, 1994, the District Court also found
Cooney guilty as charged. Cooney appeals the judgment of the
District Court.
We restate the issues on appeal as follows:
1. Was Powell County a proper venue for the stalking charges
filed against Cooney?
2. Did the District Court unconstitutionally relieve the
State of its burden of proof based on an impermissible presumption?
3. Is Cooney's conviction supported by sufficient evidence?
4. Does the stalking statute, as applied to Cooney in this
case, violate his constitutional right to free speech?
FACTUAL BACKGROUND
In 1989, Cooney met Linnea Busby after he became her landlord
in Missoula, Montana. At that time, Linnea was a college student,
but lived in Helmville with her parents when not attending school.
She still lists Helmville as her regular address.
Shortly after they met, Cooney asked Linnea for a date.
However, she declined. In June 1991, Linnea returned to Helmville,
2
where Cooney sent her flowers and letters, and repeatedly phoned in
an attempt to reach her. Linnea returned to Missoula in early
1992, but left in June 1992 and moved to Colorado where she
continued to attend school at the time of trial.
Linnea's mother, Joyce, testified that she received as many as
50 letters from Cooney which were addressed to her daughter at
their Helmville address. She also testified that sometimes she
received as many as six letters in one day, and that she received
approximately 35 letters from April 1993 until July of that year
when charges were filed. During June 1993, Cooney sent a diamond
ring to Linnea at her Helmville address.
In the letters, Cooney expressed his love for Linnea with
unusual forms of expression, such as "I wuv U, I wuv U." He often
referred to himself as Boris and Linnea as Natasha. Cooney also
expressed his desire to marry her and stated that he would be
coming to Colorado.
Cooney made numerous telephone calls to Linnea in Colorado and
to her Helmville residence. From June 5 through June 17, 1993, he
left several messages on her answering machine in Colorado. On
those answering machine tapes, Cooney related his desire to marry
her, and stated "I wuv you, wuv you, wuv you . . .' He added
that he would be going to Helmville. In another message, he urged
Linnea to return his telephone call because it was about her
deposit. On the recorded messages, Cooney variously spoke in a
happy tone, hushed tone, angry tone, or whispers.
3
On June 22, 1993, Cooney left the following message on the
answering machine at Linnea's residence in Helmville: "Say, I got
a big hard on and wondered if you'd like to bite on it. You know
who this is." The same day Cooney left several messages on her
answering machine in Colorado:
Hi Linnea. I'd like to get some sex. You know what I
mean. Give me a call.
Linnea, I was kinda wondering. How would you like to
have some great sex.
Yeah Linnea. You've really upset me. I don't know if I
ever want to see you again or if I ever want to speak to
you again. Not until you apologize. Bye.
The last message was expressed in an angry tone of voice.
At trial, Linnea testified about how she felt as a result of
Cooney's actions. She stated that she was always looking around
because she knew he was trying to find her. She changed her
telephone number and screened calls through her answering machine.
Linnea stated that she was nervous, and if she could help it, never
went anywhere alone for fear that he might find her. She also
testified that she was apprehensive that Cooney might physically
injure her because Cooney gets mad when she does not respond.
Cooney was convicted of stalking in Justice Court. He
appealed his conviction to the District Court, where he received a
trial de nmx~. Before trial in the District Court, Cooney moved to
dismiss the charge on the basis that venue was improper in Powell
County. The court reserved ruling on his motion until after trial.
Following a nonjury trial, the District Court denied Cooney's
4
motion. The court held that there were sufficient contacts with
Powell County to sustain venue in Powell County, and found Cooney
guilty of stalking, in violation of § 45-5-220, MCA. Judgment was
entered on June 16, 1994. The following day, the court sentenced
Cooney to one year in the Powell County Jail with all but 30 days
suspended, based on certain conditions.
ISSUE 1
Was Powell County a proper venue for the stalking charges
filed against Cooney?
A district court's determination of venue is a legal
conclusion and our standard of review is plenary. Emery v,. Federated
Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.
Montana enacted § 45-5-220, MCA, on April 9, 1993. It
provides, in relevant part:
(I) A person commits the offense of stalking if the
person purposely or knowingly causes another person
substantialemotionaldistress or reasonable apprehension
of bodily injury or death by repeatedly:
. . .
(b) harassing, threatening, or intimidating the
stalked person, in person or by phone, by mail, or by
other action, device, or method.
Cooney argues that neither the alleged conduct nor the
necessary result occurred in Powell County. He claims that the
alleged conduct occurred in Missoula and the result, if any,
occurred in Colorado where Linnea was living. Therefore, he
contends that there was no basis for venue in Powell County.
5
The State responds that when several acts form the basis for
a single offense, a defendant can be charged in any county in which
any of the acts have occurred. The State's position, which we
conclude is correct, is based on 5 46-3-112(2), MCA, which
provides:
When an act requisite to the commission of an
offense occurs or continues in more than one county, the
charge may be filed in any county in which the act
occurred or continued.
The State introduced numerous letters sent to Linnea at her
Helmville residence to prove the acts necessary to establish
stalking. Likewise, the State introduced an offensive telephone
message that Cooney left on an answering machine at Linnea's
Helmville address.
Thus, the result of many acts which formed the bases of the
charge against Cooney occurred in Powell County. Based on prior
authority of this Court, Statev. Cassill (19241, 70 Mont. 433, 227 P.
49, and the plain language of 5 46-3-112, MCA, that is all that was
required.
Commission Comments to 5 46-3-112, MCA, also support our
conclusion:
This provision allows the trial to take place in the
most convenient county where an element of the offense
occurred. It does not matter if the final consummation
of the offense occurred in another county. The only
elements of the crime which are of interest are those
acts constituting or requisite to the consummation of the
offense; the trial of the case may be held in any county
in which such acts occur.
6
We conclude that the District Court did not err when it
determined venue was proper in Powell County.
ISSUE 2
Did the District Court unconstitutionally relieve the State of
its burden of proof based on an impermissible presumption?
Cooney argues that 5 45-5-220(6), MCA, improperly relieved the
State of its burden to prove an element of the crime, and denied
him his right to due process. Section 45-5-220(6), MCA, provides
as follows:
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 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.
However, nothing in the record indicates that the District
Court based its decision on this statute. Nor did Cooney challenge
or object to the applicability or constitutionality of the statute
at trial. 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).
The exceptions to 5 46-20-104(2), MCA, found in § 46-20-701(2),
MCA, do not apply. Therefore, because Cooney failed to object at
trial, and for the further reason that the statute complained of
does not appear to have formed any basis for the District Court's
decision, it would be inappropriate to consider the merits of this
argument on appeal. We hold that Cooney was not denied his
constitutional right to due process.
ISSUE 3
Is Cooney's conviction supported by sufficient evidence?
Our standard of review for sufficiency of the evidence is:
[WI hether, 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.
Statev. Arlington (1994) , 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting
statev. cyu (19871, 229 Mont. 337, 339, 746 P.Zd 120, 122). Cooney
argues that the evidence does not support the District Court's
decision. He claims that while his repeated expressions of
affection may have been in poor taste, there was no evidence that
he caused anyone "substantial emotional distress or reasonable
apprehension of bodily injury."
We conclude, however, based on our review of the testimony,
that sufficient proof of such an effect was offered.
At trial, the prosecutor asked Linnea if she was apprehensive
of physical injury or harm from Cooney. She responded, "Yea, I'm
afraid it could get to that." She was then asked why she felt that
way and responded, "Because he seems to get mad when I don't
respond. . . . I have told him for so long to leave me alone, and
then like the message where he's mad. . . . I think that he has
that tendency if he can get mad without me doing anything."
Linnea's mother also testified that she talked to her 'daughter
8
every day on the telephone to determine if she was alright and
stated that Linnea had expressed fear to her
Linnea testified she was always afraid Cooney would find her,
and evidence established that Cooney repeatedly stated that he
would be going to Helmville or Colorado. She changed her telephone
number and screened her calls. She was afraid to go places by
herself and was always looking to see if Cooney was near. She
testified that she feared what Cooney might do if he found her, and
stated that she feels terrible and nervous.
The court found that Cooney's persistence, despite rejection,
caused Linnea substantial emotional distress. We conclude that
that finding, and the District Court's judgment, is supported by
substantial evidence.
ISSUE 4
Does the stalking statute, as applied to Cooney in this case,
violate his constitutional right to free speech?
Cooney contends that the stalking statute, as applied to him
in this case, deprives him of freedom of speech, in violation of
the United States and Montana Constitutions.
He contends that he did not threaten Linnea, but only
expressed his love for her, and therefore, that his expressions
were protected speech.
We have previously held that threats are not protected speech
under the First Amendment. SIatev. Lance (1986), 222 Mont. 92, 103,
721 P.2d 1258, 1266. The State's contention, with which we agree,
9
is that Cooney's actions which caused substantial emotional
distress are, likewise, not protected by the First Amendment.
The First Amendment does not protect all speech. In Lance, we
quoted Chaplin&y v. New Hampshire (1942), 315 U.S. 568, 571-72, 62
S. Ct. 766, 768-69, 86 L. Ed. 1031, 1035, which contains language
applicable to this case.
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, and are of
such slight social value . .
Lance, 721 P.2d at 1265. The District Court concluded, based on
substantial evidence, that Cooney's calls and letters caused his
victim substantial emotional distress, and that " [tlhe harassment
and resultant emotional distress are substantial and beyond that
which anyone must tolerate."
Cooney's conduct inflicted injury on his victim and lacked any
social value. We agree with the State's assertion that free speech
does not include the right to cause substantial emotional distress
by harassment or intimidation. The language quoted from Chaplinsky
indicates that actual threats are not the only category of spoken
words that do not receive First Amendment protection
10
We conclude that § 45-5-220, MCA, was not unconstitutionally
applied in violation of the United States or Montana Constitutions.
We affirm the judgment of the District Court.
Juse(ice
We concur:
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Justice W. William Leaphart, dissenting.
As much as the evidence supports the conviction of Cooney for
his puerile but, nonetheless, threatening behavior, the law
requires the State, in addition to proving the elements of
stalking, to prove proper venue. I dissent from the majority's
determination that Powell County was a proper venue for the
stalking charges filed against Cooney. Because neither Cooney's
criminal acts nor the effects of these criminal acts occurred in
Powell County, I conclude that Powell County was not a proper venue
for the charges against Cooney.
Section 46-3-110, MCA, establishes that in all criminal
prosecutions, the charge must be filed in the county where the
offense occurred unless the law provides otherwise. Section 46-3-
111, MCA, establishes that trial generally must be held in the
county where the charge is filed. This Court has held that
"[allthough venue is not an element of the crime, it is a
jurisdictional fact that must be proven at trial just as any other
material element. 'I State v. Johnson (1993), 257 Mont. 157, 161,
848 P.2d 496, 498 (citation omitted). I note that this statement
is contrary to the commission comments to § 46-3-111, MCA, which
state that venue need only be proved by a preponderance of the
evidence rather than beyond a reasonable doubt. However, I believe
that in this case, the State failed to demonstrate by a
preponderance of the evidence that Powell County was a proper
venue.
Cooney was charged with stalking Ms. Busby between April 16,
1993 and June 13, 1993. The record indicates that Cooney sent
several letters to Ms. Busby at her parent's home in Helmville,
Montana, which is in Powell County. Cooney also left several
messages on Ms. Busby's parent's answering machine in Helmville.
However, there is no testimony or other indication from the record
that Ms. Busby received any of these letters or phone messages in
Helmville between April 16, 1993 and June 13, 1993. The majority
states that Ms. Busby returned to Helmville in June of 1991 where
she received letters, flowers and phone calls from Cooney. I do
not believe that the record clearly reflects this fact. However,
even if true, June of 1991 is not the relevant time period charged
in the complaint. There is nothing in the record to indicate that
Ms. Busby was in Helmville during the April through June 1993 time
period for which Cooney was convicted of stalking.
The majority states that the plain language of § 46-3-112(2),
MCA, supports the conclusion that venue was proper in Powell
County. Section 46-3-112(2), MCA, reads:
When an act requisite to the commission of an offense
occurs or continues in more than one county, the charge
may be filed in any county in which the act occurred or
continued.
I would agree with the majority's analysis if Ms. Busby had
received the letters or phone messages in Powell County. Based on
the record before us, that is not the case. The majority goes on
to state that "the result of many acts which formed the bases of
the charge against Cooney occurred in Powell County." (Emphasis
added.) Cooney was charged as follows:
13
That on or about April 16, 1993 to July 13, 1993 at
Powell County Montana, [Cooney] committed the offense of
Stalking as specified in Chapter 292, Laws of Montana
1993 [now § 45-5-220, MCA].
The facts constituting the offense and the facts
giving probable cause to believe the Defendant committed
it are:
That the defendant purposely or knowingly caused
Linnea Busby substantial emotional distress by repeatedly
harassing, threatening or intimidating Linnea Busby in
person, by phone, and by mail.
The only result of Cooney's acts which is material for the
purpose of establishing an element of the charge against him is Ms.
Busby's resulting substantial emotional distress. The record does
not establish that Ms. Busby was in Powell County when she received
any of the letters or messages or that she experienced resulting
substantial emotional distress in Powell County.
The majority also states that State v. Cassill (19241, 70
Mont. 433, 227 P. 49, supports its conclusion that venue was proper
in Powell County. However, Cassill is clearly distinguishable. In
Cassill, the defendants, two bankers, were charged with having made
false statements to the superintendent of banks. The defendants
falsely filled out a form in Powell County and mailed it to the
superintendent in Lewis and Clark County. This Court held that the
defendants could be properly tried in Powell County as the acts
constituting the consummation of the offense occurred in two
counties, either of which was a proper venue. Cassill, 227 P. at
51. Here, the State failed to establish either that Cooney sent
the letters and messages from Powell County, or that Ms. Busby
received them in Powell County. There is no evidence that the acts
constituting the offense were consummated in Powell County.
14
The charges against Cooney should have been dismissed for
failure to prove that Powell County was a proper venue. For the
foregoing reasons, I dissent.
15