City of Billings v. Nelson

• Decision Date: 15 April 2014
• Docket Number: No. DA 13–0525.,DA 13–0525.
• Citation: 322 P.3d 1039,374 Mont. 444
• Court: Montana Supreme Court
• Parties: CITY OF BILLINGS, Plaintiff and Appellee, v. Lorena Fatouros NELSON, Defendant and Appellant.

374 Mont. 444

322 P.3d 1039

CITY OF BILLINGS, Plaintiff and Appellee,

v.Lorena Fatouros NELSON, Defendant and Appellant.

No. DA 13–0525.

Supreme Court of Montana.

Submitted on Briefs March 19, 2014.

Decided April 15, 2014.

For Appellant: Lorena Fatouros Nelson, self-represented, Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Brent Brooks, Billings City Attorney, Stacy Tenney, Deputy Billings City Attorney, Billings, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Lorena Fatouros Nelson appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, affirming her conviction of disorderly conduct in the Municipal Court of the City of Billings.

¶ 2 Nelson presents the following issues for review:

¶ 3 Issue One: Whether the disorderly conduct statute, § 45–8–101, MCA, requires proof that the peace of more than one person was disturbed.

¶ 4 Issue Two: Whether Nelson's speech constituted “fighting words.”

¶ 5 Issue Three: Whether Nelson's constitutional rights were violated when the responding officer reported Nelson had refused to speak to him.

¶ 6 Issue Four: Whether the Municipal Court erred by not allowing Nelson to replay audio recordings that had already been admitted into evidence and requiring authentication of the McDonald's receipt.

¶ 7 Issue Five: Whether the Municipal Court erred by considering the victim's age during sentencing.

¶ 8 Issue Six: Whether Nelson's right to a fair trial was violated because the Municipal Court Judge Pro Tempore is a criminal defense attorney.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 9 On the afternoon of October 29, 2012, Nelson was the passenger in a vehicle driven by her daughter, Joey Jean Oltrogge. Nelson and Oltrogge were returning to Nelson's home near the intersection of Hallowell Avenue and Bruce Lane in Billings after visiting the McDonald's on Southgate Drive. They passed Nelson's 13–year–old neighbor, M.C., walking home from a nearby school. Oltrogge slowed the vehicle next to M.C. Oltrogge raised her middle finger and said, “Fuck you.” Nelson said, “Spic bastard.” The women then drove away. M.C. continued his short walk home and told his mother what had happened. At 3:51 p.m., M.C.'s mother called 911 to report the incident. Officer Brett Becker responded to the call. M.C. told Officer Becker he was scared by the incident. Officer Becker reported that both M.C. and his mother appeared upset and worried. Officer Becker went to Nelson's home to inquire about the incident. Nelson's husband, Kevin Nelson, opened the door and told Officer Becker, “We're not going to answer any questions.” Officer Becker informed the city attorney that Nelson and Oltrogge did not want to talk to him.

¶ 10 Nelson and Oltrogge were charged with disorderly conduct. They consented to a combined trial and waived their rights to counsel and a jury trial. Nelson and Oltrogge represented themselves in a bench trial before Judge Pro Tempore Lance Lundvall, who also practices as a criminal defense attorney. Officer Becker testified during the prosecution's case in chief that he had not spoken with either Nelson or Oltrogge. On cross-examination, he explained his earlier report by saying, “I wrote that they stated they wouldn't answer any questions, and I guess I should have just wrote that the person that answered the door said that they don't want to answer any questions.” At the close of the prosecution's evidence, Nelson moved to dismiss the charges, arguing “you can't disturb the peace of one person.” The Municipal Court took the motion under advisement.

¶ 11 Nelson and Oltrogge presented their defense. Nelson claimed she and Oltrogge had not seen M.C. that day, because they were at McDonald's on Southgate Drive, approximately two miles from the intersection of Hallowell Avenue and Bruce Lane, when the incident allegedly occurred. After testifying to its authenticity, Nelson offered as evidence a receipt from McDonald's, time-stamped 3:41 p.m.¹ Nelson claims the charges were fabricated because she kept the “bark log” in an ongoing neighborhood dispute over a barking dog belonging to M.C.'s family.

¶ 12 After Nelson and Oltrogge concluded their presentation of evidence, they presented additional arguments on the motion to dismiss. Nelson claimed her speech was constitutionally protected and did not constitute “fighting words,” because she remained in the vehicle and therefore was not face-to-face with M.C. The City also presented additional legal authorities. The Municipal Court denied the motion to dismiss.

¶ 13 The Municipal Court found Nelson and Oltrogge guilty of disorderly conduct and proceeded to sentencing. Nelson and Oltrogge were each ordered to pay a $100 fine and serve 10 days in jail. The jail time was suspended for a period of six months. The Municipal Court explained the sentence as follows:

I do have to say I might feel differently if all the parties here and all the folks involved were adults, but they're not. We've got a 13–year–old boy who stood on this witness stand and was obviously very nervous.... [I]f, as adults, we are directing that kind of language towards children, I don't know what kind of example and what we are showing to our children. That's problematic for me in this case.

¶ 14 Nelson appealed to the District Court. She argued the Municipal Court erred when it denied the motion to dismiss, repeating her arguments that her speech was constitutionally protected and that one cannot be convicted of disorderly conduct for disturbing the peace of only one person. She also claimed her Sixth Amendment rights were violated when Officer Becker told the city attorney she had refused to speak with him, when in fact Officer Becker had only spoken to her husband. She argued the Municipal Court improperly considered the victim's age. She also objected to the manner in which the Municipal Court allowed her to present evidence. In a 15–page Order, the District Court affirmed the Municipal Court conviction. This appeal followed.

STANDARD OF REVIEW

¶ 15 On appeal from a municipal court, the district court functions as an intermediate appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. Cantu, ¶ 10.

¶ 16 The interpretation and construction of a statute is a question of law, which we review de novo. State v. Brown, 2009 MT 452, ¶ 6, 354 Mont. 329, 223 P.3d 874. The denial of a motion to dismiss is also reviewed de novo. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d 1278. We exercise plenary review of constitutional issues. State v. Dugan, 2013 MT 38, ¶ 14, 369 Mont. 39, 303 P.3d 755. We review evidentiary rulings for abuse of discretion. State v. Daniels, 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. We generally will not address issues raised for the first time on appeal. Weaver v. State, 2013 MT 247, ¶ 38, 371 Mont. 476, 310 P.3d 495.

DISCUSSION

¶ 17 Issue One: Whether the disorderly conduct statute, § 45–8–101, MCA, requires proof that the peace of more than one person was disturbed.

¶ 18 The disorderly conduct statute provides, in relevant part: “A person commits the offense of disorderly conduct if the person knowingly disturbs the peace by ... using threatening, profane, or abusive language....” Section 45–8–101(1)(c), MCA. The Criminal Law Commission Comments to this section state:

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.

Nelson relies on the Comments to argue she cannot be convicted of disturbing the peace, because she disturbed only M.C. She says M.C. produced no evidence that anyone else heard the remarks or witnessed the incident, and cites M.C.'s testimony that Nelson and Oltrogge did not “holler” their remarks.

¶ 19 We have previously noted that the Comments conflict with the plain language of the statute, which “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.” State v. Ashmore, 2008 MT 14, ¶ 13, 341 Mont. 131, 176 P.3d 1022. In Ashmore, the defendant moved to dismiss charges of disorderly conduct on the grounds that her conduct had disturbed only two police officers. Ashmore, ¶ 5. We concluded our precedent did not reflect adoption of a “strict numerical requirement.” Ashmore, ¶ 15. Accordingly, we affirmed the district court's denial of the defendant's motion to dismiss. Ashmore, ¶ 24.

¶ 20 As we noted in Ashmore, it is the role of this Court when interpreting a statute “simply to ascertain and declare what is in terms or substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1–2–101, MCA; Ashmore, ¶ 12. The disorderly conduct statute does not require evidence that more than one person was disturbed. Section 45–8–101, MCA; Ashmore, ¶ 13. The statute requires only that the defendant knowingly disturbed the peace by committing one of the enumerated acts, including “using threatening, profane, or abusive language.” Section 45–8–101(1)(c), MCA; Ashmore, ¶ 13. There was sufficient evidence to support the conclusion that Nelson and Oltrogge disturbed the peace by directing profane and abusive language toward M.C. from their vehicle on a public street. Section...