State v. Ashmore

• Decision Date: 22 January 2008
• Docket Number: No. DA 06-0587.,DA 06-0587.
• Citation: 176 P.3d 1022,2008 MT 14,341 Mont. 131
• Parties: STATE of Montana, Plaintiff and Appellee, v. Tara ASHMORE, Respondent and Appellant.
• Court: Montana Supreme Court

176 P.3d 1022

2008 MT 14

341 Mont. 131

STATE of Montana, Plaintiff and Appellee, v. Tara ASHMORE, Respondent and Appellant.

No. DA 06-0587.

Supreme Court of Montana.

Submitted on Briefs June 26, 2007.

Decided January 22, 2008.

For Appellant: Jason Marks, Office of the Public Defender, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Kirsten LaCroix, Deputy County Attorney, Missoula, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellant Tara Ashmore appeals the denial of her motion to dismiss in the Fourth Judicial District, Missoula County. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On July 16, 2005, Missoula County Sheriffs Reserve Deputies Jarret Hoke and Audrey Kramer were on a special patrol of the Johnsrud Recreational Area of the Blackfoot River in Missoula County. As Hoke was completing a routine traffic stop on Highway 200, Ashmore drove by at a high rate of speed honking her horn continually. Hoke subsequently stopped her for Unnecessary Use of a Horn or Other Warping Device, a misdemeanor under § 61-9-401(1), MCA.

¶ 3 During the traffic stop Ashmore was angry and belligerent towards Hoke. Initially, she threw her driver's license and registration towards Hoke, but then handed it to him when he requested she do so. After Hoke had completed the standard driver's license and warrant checks, he returned her identification information to her. As Hoke was explaining to Ashmore why she should not honk her horn excessively while passing an emergency vehicle, Ashmore put her vehicle in drive, acted as though she was about to drive off, and then told Hoke that she "did not want to hear it." Hoke instructed her to take the vehicle out of gear, and informed her that if she did not listen to him, he would give Ashmore a ticket. Ashmore did so, and then proceeded to shower Hoke with obscene expletives, throwing her driver's license, proof of insurance, and registration at Hoke again.

¶ 4 As Hoke was writing Ashmore a citation, she exited her vehicle and started taking pictures of him. Reserve Deputy Scott King, who pulled up and was assisting Hoke, told her to get back in her vehicle. She resisted at first and tried to take more pictures, but soon complied. Hoke then issued her a citation for Unnecessary Use of a Horn or Other Warning Device, and also for Disorderly Conduct, a misdemeanor in violation of § 45-8-101, MCA. Ashmore threw the citation on the passenger seat of the vehicle, directed another obscene expletive towards Hoke, and then, according to the police report, "squealed her tires and held her horn down as she accelerated away from the traffic stop."

¶ 5 Following a bench trial in Justice Court, Ashmore was convicted of one count of Disorderly Conduct and one count of Unnecessary Use of a Horn or Other Warning Device. She appealed her conviction to the District Court. On appeal she filed a motion to dismiss the Disorderly Conduct charge. Ashmore maintained that her conduct did not violate the statute as a matter of law because only a few people, the police officers, were disturbed by it. The District Court denied her motion to dismiss. After this denial, Ashmore pled guilty and was sentenced pursuant to a plea agreement which preserved her right to appeal. She now timely appeals the denial of her motion to dismiss.

ISSUE

¶ 6 We state the issue on appeal as follows: Did the District Court err in denying Ashmore's motion to dismiss?

STANDARD OF REVIEW

¶ 7 "The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo on appeal. Our standard of review is plenary, and we determine whether a district court's conclusion is correct." State v. Pyette, 2007 MT 119, ¶ 11, 337 Mont. 265, ¶ 11, 159 P.3d 232, ¶ 11.

DISCUSSION

¶ 8 Did the District Court err in denying Ashmore's motion to dismiss?

¶ 9 Ashmore maintains the District Court erred in denying her motion to dismiss. She asserts that the Disorderly Conduct statute "requires at a minimum that a defendant engage in behavior that disturbs a number of people." Ashmore asserts there were no witnesses who observed her behavior, and that of the three reserve deputies who were involved in the traffic stop—Hoke, Kramer, and King—only Hoke and Kramer actually witnessed the conduct allegedly giving rise to the Disorderly Conduct violation. Accordingly, Ashmore maintains the State failed to "present any evidence establishing probable cause that Ms. Ashmore disturbed the peace by disturbing more than a few people with her conduct." Ashmore claims that her interpretation of § 45-8-101(1), MCA, is supported by the Criminal Law Commission Comments to the Disorderly Conduct statute and our decision in Kleinsasser v. State, 2002 MT 36, 308 Mont. 325, 42 P.3d 801.

¶ 10 The State urges us to affirm the District Court's decision. The State asserts that "rnlo Montana decision has held specifically that a certain minimum number of people must be affected in order for behavior to `disturb the peace' within the meaning of the disorderly conduct statute." The State argues that the plain language of the statute makes disturbance of the peace an element of the disorderly conduct, but does not otherwise contain any numerical requirement of how many "others" must; be affected by the defendant's conduct in order to give rise to a violation of the statute. The State maintains that "the number of people affected is not, on its own, determinative of whether the peace' is disturbed. Rather, it is only one factor among several that should be considered." The State asserts that this position is supported by our prior decisions, including City of Billings v. Batten, 218 Mont. 64, 705 P.2d 1120 (1985), State v. Turley, 164 Mont. 231, 521 P.2d 690 (1974), and State v. Lowery, 233 Mont. 96, 759 P.2d 158 (1988). Additionally, the State asserts that Kleinsasser is distinguishable. Accordingly, the State, maintains that the allegations in the affidavit demonstrated probable cause sufficient to support a finding that Ashmore violated the Disorderly Conduct statute, and that the District Court's denial of her motion to dismiss should be affirmed.

¶ 11 In analyzing these arguments, we first turn to the relevant portions of the Disorderly Conduct statute tinder which .Ashmore was charged. They read as follows:

(1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by:

(a) quarreling, challenging to fight, or fighting;

(b) making loud or unusual noises;

(c) using threatening, profane, or abusive language . . .

Sections 45-8-101(1)(a) through (c), MCA.

¶ 12 As the State correctly notes, our task in interpreting statutes is "simply to ascertain and declare what is in terms or in substance contained [in the statute], not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA. Here, however, there is a disparity between the plain language of the statute and the Criminal Law Commission Comments which provide guidance on how this statute is to be applied. The relevant portions of the. Comments read as follows:

The intent of the provision is to use somewhat broad, general terms to establish a foundation for the offense and leave the application to the facts of a particular case. Two important qualifications are specified in making the application, however. First, the offender must knowingly make a disturbance of the enumerated kind, and second, the behavior must disturb "others." It is not sufficient that a single person or a very few persons have grounds for complaint.

¶ 13 The statute, on the other hand, does not specify that conduct must disturb "others," or otherwise indicate that conduct affecting "a single person or a very few persons" is insufficient to give rise to a violation of the statute. In fact, the statute only requires that a defendant "knowingly disturb the peace" by committing one of the acts enumerated in subsections (a) through (j) of the statute, none of which contains a numerical requirement.

¶ 14 The disparity between the Comments and the plain language of the statute itself raises the question of whether it is possible to "disturb the peace" by specific acts that affect only one, or a few persons, or whether greater numbers of persons must be affected by the enumerated acts before a violation of the statute can take place. The State urges us to ameliorate this disparity by giving little if any weight to the Commission Comments, given that this phraseology, i.e., a reference to "others," does not appear anywhere in the statute itself. Ashmore, however, asserts that this course is foreclosed to us, given our holding in Kleinsasser where we cited approvingly to these portions of the Commission Comments.

¶ 15 A review of our prior decisions under this statute shows that, in spite of the language in the Comments, we have never adopted a strict numerical requirement respecting how many people need be affected by conduct before it "disturbs the peace." As we noted in Lowery,

The criminal law commission comments to § 45-8-101, MCA, state that, for a charge of breach of the peace, "[i]t is not sufficient that a single person or a very few persons have grounds for complaint." However, in City of Billings v. Batten, 705 P.2d 1120, 42 St.Rep. 1398, defendant was convicted of using "fighting words" toward his neighbor in the presence of the neighbor's family and several passers-by and within the hearing of other neighbors. The total number of persons present was about ten. In City of Whitefish v. O'Skaughnessy (Mont.1985), 704 P2d 1021, 42 St.Rep. 928, defendant was convicted of using "fighting words" in the presence of two friends and a police officer.

Lowery, 233 Mont. at 100, 759 P.2d at 160.

¶ 16 Similarly, in Batten, we noted the following:

Although we have never decided...