No. 02-740
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 284
STATE OF MONTANA,
Plaintiff and Respondent,
v.
REGINALD BERNARD ADGERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. ADC 2001-195,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon G. Moog, Assistant Public Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: June 12, 2003
Decided: October 9, 2003
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 A jury convicted Reginald Bernard Adgerson for violating Montana’s stalking statute,
§ 45-5-220(1)(b) and (3), MCA, relating to numerous occurrences directed towards
Adgerson’s former wife during the months of March through July, 2001. He appeals his
conviction. We affirm.
BACKGROUND
¶2 Reginald Adgerson (Adgerson) and Catherine Gordon (Gordon) married in 1995 and
later had two children. Gordon separated from Adgerson in the Spring of 2000. She filed
her initial dissolution papers with the assistance of Pamela Bucy, an attorney employed by
Lewis and Clark County Attorney’s Office, and completed the balance of the dissolution
with the assistance of a different attorney.
¶3 Gordon worked as a probation and parole officer for the state of Montana, in Helena.
As part of her job, Gordon interacted with the Lewis and Clark County Attorney’s Office and
the Lewis and Clark County Court. As such, Gordon was familiar with the prosecuting
attorneys in this case, Michael Menahan and Leo Gallagher. Additionally, she was familiar
with all the First Judicial District Court Judges through her work as a probation and parole
officer in Helena. Adgerson worked as a car salesman.
¶4 During their separation period, both Adgerson and Gordon were subject to a mutual
restraining order. Further, the divorce decree included a parenting plan outlining specific
protocol to allow contact solely concerning custody, decision-making, and emergencies
regarding the children. However, Adgerson did not comply with the restraining order and
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was convicted of misdemeanor stalking and contempt, entered by Helena City Court
December 18, 2000, and March 15, 2001, respectively.
¶5 Between March and July 2001, Adgerson continuously contacted Gordon via the
telephone and while Gordon dropped the children off for visitation regarding issues outside
the scope of the parenting plan. He did this in such a manner that frightened Gordon to the
point where she feared for her physical safety. Phone records indicate that Adgerson called
Gordon many times during the day on numerous occasions. During children exchanges, the
two sometimes had heated altercations. The record indicates that some of these encounters
contemplated matters within the scope of the parenting plan and other encounters did not
concern their children.
¶6 Ultimately, the State charged Adgerson by Information with felony stalking on August
1, 2001. Judge Dorothy McCarter of the First Judicial District heard the case. Adgerson
moved to dismiss the Information claiming that § 45-5-220, MCA, was overbroad and vague.
The District Court denied his motion. A jury convicted Adgerson of felony stalking on May
30, 2002, and the District Court sentenced him to the Montana Department of Corrections
for five years, with two years suspended. From this, Adgerson appeals. We address the
following issues on appeal:
¶7 1. Did the trial judge err in failing to recuse herself due to impartiality and did the
prosecutor commit misconduct when he failed to remove his office as prosecutor due to
impartiality?
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¶8 2. Was Adgerson denied effective assistance of counsel by trial counsel’s failure to
move for disqualification of all the judges within the First Judicial District and for failure to
move for removal of the prosecutor?
¶9 3. Did the trial court err in failing to grant Adgerson’s motion to dismiss because
Montana’s stalking statute, § 45-5-220, MCA, is unconstitutional both on its face and as
applied?
DISCUSSION
ISSUE ONE
¶10 Did the trial judge err in failing to recuse herself due to impartiality and did the
prosecutor commit misconduct when he failed to remove his office as prosecutor due to
impartiality?
¶11 On appeal, Adgerson claims that Gordon’s interaction with the judges of the First
Judicial District and the Lewis and Clark County Attorney’s Office through her work created
an irreparable bias against him which resulted in their having an interest in the outcome of
the case. First, Adgerson contends an appearance of impropriety exists because Gordon, as
a probation and parole officer, appeared before the First Judicial District Court Judges,
including Dorothy McCarter, frequently for work related issues, thus Judge McCarter had
an interest in the outcome, and therefore, should have recused herself. Second, he contends
that Gordon’s interaction with the Lewis and Clark County Attorney’s Office and Pam
Bucy’s work on Gordon’s initial filing of dissolution of marriage created an interest such that
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the office should have disqualified itself from prosecuting Adgerson, and therefore, should
have removed itself.
¶12 The State argues that Adgerson did not raise this issue before the District Court, and
as such he waived his right to raise it on appeal. We agree with the State. The rule is well
established that this Court will not address an issue raised for the first time on appeal. State
v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, ¶ 24, 44 P.3d 499, ¶ 24 (citing State v.
Weaselboy, 1999 MT 274, ¶ 16, 296 Mont. 503, ¶ 16, 989 P.2d 836, ¶ 16). A party may not
raise new arguments or change its legal theory on appeal, because it is fundamentally unfair
to fault the trial court for failing to rule on an issue it was never given the opportunity to
consider. State v. Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The
District Court record does not reflect Adgerson’s claim, therefore we must limit our review
only to issues raised before the District Court.
¶13 In his reply brief, Adgerson urges this Court to address his complaints by invoking
the plain error doctrine. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215,
overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817.
The plain error doctrine only applies to limited situations as prescribed in Finley. Finley,
276 Mont. at 137, 915 P.2d at 215. It applies only “where failing to review the claimed error
at issue may result in a manifest miscarriage of justice, may leave unsettled the question of
the fundamental fairness of the trial or proceedings, or may compromise the integrity of the
judicial process.” Finley, 276 Mont. at 137, 915 P.2d at 215. We conclude that the plain
error doctrine does not apply in the present case.
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¶14 Therefore, we cannot address this issue on direct appeal because it has not been
properly preserved for our consideration.
ISSUE TWO
¶15 Was Adgerson denied effective assistance of counsel by trial counsel’s failure to move
for disqualification of all the judges within the First Judicial District and for failure to move
for removal of the prosecutor?
¶16 When contemplating ineffective assistance claims, this Court has adopted the two-
pronged test set forth by the United States Supreme Court in Strickland v. Washington
(1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The appellant must illustrate that
counsel’s performance was deficient and that the deficient performance prejudiced the
defense. Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. First,
to demonstrate deficient performance by counsel, the appellant must show, considering all
the circumstances, that counsel’s performance fell below an objective standard of
reasonableness. Kills On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379. The
appellant must overcome the strong presumption that counsel provides a wide range of
reasonable professional assistance through defense strategies and trial tactics. Kills On Top,
273 Mont. at 49, 901 P.2d at 1379. Second, the appellant must demonstrate that there was
a reasonable probability of a different result had counsel not made unprofessional errors.
State v. Harris, 2001 MT 231, ¶ 19, 306 Mont. 525, ¶ 19, 36 P.3d 372, ¶ 19. Upon such a
challenge, the appellant must prove that the fact finder’s reasonable doubt respecting guilt
could have been directed by counsel’s errors, and the court considers the totality of the
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evidence before the court and jury to determine if there could have been a different outcome.
Harris, ¶ 19 (citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69).
¶17 However, before we can consider the ineffective assistance claim on its merits, it is
necessary to consider whether the claim is properly before this Court. Such claims must be
based upon facts within the district court record, not on “mere conclusory allegations,” in
order for an appellant to raise an ineffective assistance claim on direct appeal. State v.
Hulbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113 (quoting State v. Tome (1987),
227 Mont. 398, 403, 742 P.2d 479, 482). Conversely, ineffective assistance claims that
cannot be construed from the record in the underlying case must be raised through a petition
for postconviction relief. Hagen, ¶ 12.
¶18 When it is not clear whether a claim for ineffective assistance is record based, we
stated in Soraich v. State, 2002 MT 187, 311 Mont. 90, 53 P.3d 878:
Though not easily distilled into a formula, the definitive question that
distinguishes and decides which actions are record and which are nonrecord,
is why? In other words, if counsel fails to object to the admission of evidence,
or fails to offer an opening statement, does the record fully explain why
counsel took the particular course of action? If not, then the matter is best-
suited for post-conviction proceedings which permit a further inquiry into
whether the particular representation was ineffective. Only when the record
will fully explain why counsel took, or failed to take, action in providing a
defense for the accused may this Court review the matter on direct appeal.
Soraich, ¶ 22 (citations omitted).
¶19 Adgerson argues that his trial counsel fell below average competence of any Montana
attorney when she failed to note the potential relationship conflicts and motion the District
Court for recusal or disqualification. Further, he alleges that these omissions deprived him
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of a trial free from the appearances of impropriety, thus meeting both prongs of the
Strickland test. Adgerson points out that the record reveals that Gordon, as a probation
officer, frequented Judge McCarter’s courtroom, worked with the Lewis and Clark County
Attorney on a regular basis, and had an attorney/client privilege between herself and Deputy
County Attorney, Pam Bucy. He contends that the void in the record–his trial counsel’s
failure to object to documented alleged improper relationships–should serve as evidence
within the record substantiating his claim.
¶20 The State counters that the record does not conclusively reflect an obvious
impropriety merely because it documents that a probation officer regularly appeared in front
of a certain judge or that a probation officer worked along side a county attorney’s office on
some cases, thus Adgerson’s ineffective assistance claim cannot be ascertained from the facts
within the record. Therefore, Adgerson should pursue his claims in a postconviction relief
proceeding because his allegations are not record based. We agree with the State.
¶21 According to Soraich, this Court must ask if why trial counsel did not object to
Gordon’s relationships with the District Court and Attorney’s Office is apparent from the
record. The record indicates that trial counsel was aware of these alleged improper
relationships. However, there is no evidence of any objection to those relationships or
evidence as to why defense counsel chose not to object to those relationships. There is
simply insufficient information in the record for us to conclusively determine if defense
counsel’s failure to object to these relationships was due to reasonable defense strategies or
trial tactics, or if it was due to ineffective assistance. In turn, this Court refuses to take such
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leaps to speculate as to why counsel went down a certain defense strategy path without facts
to support such determinations. To permit inquiry into the alleged errors of Adgerson’s trial
counsel, his ineffective assistance claim would be properly asserted through a petition for
postconviction relief in compliance with §§ 46-21-101 through -105, MCA.
¶22 Accordingly, we find that Adgerson’s ineffective assistance of counsel claim is not
properly before this Court and we choose not to address it on its merits.
ISSUE THREE
¶23 Did the trial court err in failing to grant Adgerson’s motion to dismiss because
Montana’s stalking statute, § 45-5-220, MCA, is unconstitutional both on its face and as
applied?
¶24 The grant or denial of a motion to dismiss in a criminal case is a question of law
which is reviewed de novo on appeal. State v. Beanblossom, 2002 MT 351, ¶ 9, 313 Mont.
394, ¶ 9, 61 P.3d 165, ¶ 9. This Court's standard of review is plenary, and we determine
whether a district court's conclusion is correct. Beanblossom, ¶ 9. When resolution of an
issue on appeal involves a question of constitutional law, we review to determine whether
the court's interpretation of the law is correct. Matter of S.L.M. (1997), 287 Mont. 23, 32,
951 P.2d 1365, 1370.
¶25 First, Adgerson challenges the constitutionality of § 45-5-220, MCA. Specifically,
he asserts that the statute unconstitutionally deprives him of the right to parent his children,
rights to family privacy, and rights to happiness and individual dignity, claiming the statute
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is vague and overbroad because the terms “harassing,” “repeatedly,” and “intimidating” are
capable of numerous meanings. Section 45-5-220, MCA, states in pertinent part:
(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.
¶26 This Court has already considered the constitutionality of this statute in State v.
Martel (1995), 273 Mont. 143, 902 P.2d 14. In Martel, the appellant argued that the statute
was vague because the legislature failed to define the exact words that Adgerson now
challenges. In finding that the statute was not vague in relation to these designated words,
we stated:
Words such as “repeatedly,” “harassing,” and “intimidating” have commonly
understood meanings. “Repeatedly” means “more than once.” “Intimidate”
means “to make timid; to frighten.” “Harass” means “to annoy repeatedly.”
A person of average intelligence would recognize and understand these terms
without recourse to legislative definitions.
Martel, 273 Mont. at 150, 902 P.2d at 19 (citations omitted). Adgerson urges us to consider
the Kansas Supreme Court’s decision in State v. Bryan, in which that court expressed
concern regarding statutes that used words such as “alarms” or “annoys” because they are
subject to a variety of interpretations, and without an objective standard, interpretation of
such words are entirely dependent upon a victim’s subjective feelings. State v. Bryan (Kan.
1996), 910 P.2d 212, 217. However, this Court found in Martel, that the terms Adgerson
now challenges, were commonly understood and not subject to a variety of interpretations,
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thus we are not persuaded by Bryan and see no reason to change our interpretation of the
terms set out in Martel.
¶27 In response to Adgerson’s overbroad claim, we again look to our decision in Martel.
An overbroad statute is one that forbids or burdens constitutionally unprotected activity, but
by construction, also prohibits constitutionally protected activity. Martel, 273 Mont. at 152-
53, 902 P.2d at 20. In Martel, while considering whether this statute was overbroad, we
stated, “the statute serves a plainly legitimate purpose–to discourage the repeated,
intentional, harmful conduct which constitutes stalking.” Martel, 273 Mont. at 153, 902 P.2d
at 20. When claiming that a statute is unconstitutional, the appellant must also illustrate how
the alleged overbreadth is both “real” and “substantial,” not only as applied to him, but how
it is overbroad as applied to others. Martel, 273 Mont. at 153, 902 P.2d at 20. This Court
found that Martel did not assert any specific arguments alleging infringement of the
appellant’s or other’s constitutionally protected First Amendment activities. Adgerson has
failed to do so as well, merely asserting that he should have been granted an evidentiary
hearing to provide such facts. Absent specific examples of such infringement, we find that
Adgerson’s overbreadth argument must fail.
¶28 Next, Adgerson argues that the statute is not constitutional as applied to him because
it denies him the right to parent his children, rights to family privacy, and rights to happiness
and individual dignity. To address this argument, we review the constitutional activity
exception, under subsection (2) of the stalking statute. Adgerson argues that his
constitutional rights to parent his children, to family privacy, and to happiness and individual
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dignity fit within this exception of the stalking statute, therefore the District Court erred by
not granting his motion to dismiss. The legislature inserted the subsection (2) constitutional
activity exception to protect “potential constitutional problems such as attempts to enforce
the statute against investigative reporters or people walking a picket line.” Martel, 273
Mont. at 153-54, 902 P.2d at 21. However, we stated in State v. Helfrich, “[d]epending
upon the nature, timing, context and frequency of the [constitutionally protected activity,
such activity] . . . may or may not be a constitutionally protected activity under § 45-5-
220(2), MCA.” State v. Helfrich (1996), 277 Mont. 452, 459, 922 P.2d 1159, 1163.
¶29 The exception directs us to evaluate the nature, timing, context and frequency of
Adgerson’s alleged constitutionally protected activity. This Court has held that threats are
not protected speech. State v. Cooney (1995), 271 Mont. 42, 49, 894 P.2d 303, 307.
Additionally, we have said that activity intended to embarrass, annoy or harass is not
protected speech. Helfrich, 277 Mont. at 460, 922 P.2d at 1164. While complying with the
parenting plan, Adgerson contacted Gordon concerning decision-making for their children.
However, he also contacted her repeatedly about issues not related to their children in ways
that frightened Gordon to a point where she feared for her safety. When we consider the
facts of this case in conjunction with our holding in Helfrich, we find that some but not all
of Adgerson’s communications with Gordon are constitutionally protected. In denying his
motion to dismiss, the District Court properly found that “the conduct for which Adgerson
is being prosecuted, as alleged by the State, has nothing to do with his own personal
happiness and dignity; it was intended to harass and intimidate his former wife.” Therefore,
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this Court concludes that Adgerson’s contacts with Gordon were not constitutionally
protected and thereby did not meet the § 45-5-220(2), MCA, exception. As such, we find
the trial court properly denied Adgerson’s motion to dismiss, and we affirm the District
Court.
/S/ JIM REGNIER
We Concur:
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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