State Of Mont. v. Johnston, DA 09-0352.

• Decision Date: 13 July 2010
• Docket Number: No. DA 09-0352.,DA 09-0352.
• Citation: 237 P.3d 70,357 Mont. 46,2010 MT 152
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kalem JOHNSTON, Defendant and Appellant.
• Court: Montana Supreme Court

357 Mont. 46

237 P.3d 70

2010 MT 152

STATE of Montana, Plaintiff and Appellee,

v.Kalem JOHNSTON, Defendant and Appellant.

No. DA 09-0352.

Supreme Court of Montana.

Submitted on Briefs June 2, 2010.

Decided July 13, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant Appellate Defender; Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Kalem Johnston (Johnston) was convicted after a jury trial in the Tenth Judicial District Court, Fergus County, of obstructing a peace officer in violation of § 45-7-302, MCA. He appeals, and we reverse and remand for a new trial.

¶ 2 We state the issue as follows:

¶ 3 Did Johnston's trial counsel render ineffective assistance by failing to object to the jury instruction defining the mens rea element of the offense of obstructing a peace officer?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 On the evening of April 22, 2008, Fergus County Sheriff's Office Deputies Randy Poser and Tracey Lewellen responded to the report of gunshots and a vehicle driving in the vicinity of Maiden Canyon in the Judith Mountains near Hilger, Montana, during winter weather conditions. After stopping their vehicle because of the road condition, Deputies Poser and Lewellen observed Johnston walking toward them. They asked him what he was doing and whether he was having any problems on the snowy mountain road. Johnston informed Poser and Lewellen that the vehicle he was in had become stuck but that everything was fine and the vehicle was “almost unstuck.” The deputies asked Johnston whether other people were stuck further up the mountain. Although he would not tell the deputies the names of the individuals, Johnston indicated that there were “four or five” other individuals further up the road.

¶ 5 Concerned for the safety of the other persons, Poser and Lewellen accompanied Johnston to a vehicle stuck in the snow about 200 yards further up the road. As the deputies arrived, two occupants, Mike Challans (Challans) and Jesse Meader (Meader), exited the vehicle. Seeing that there were only two people in the vehicle, Poser inquired about the whereabouts of the other people Johnston had referenced. Johnston replied that he was including the two deputies in the count of “four or five” people he had referenced but that, additionally, there was another vehicle further up the road which was also stuck. Johnston gave another iteration of his story by later telling the officers that there was one more person further up the road with the other vehicle. After 30-40 minutes of attempting to assess the matter, the deputies decided that, given the conditions, it was prudent to bring Challans, Meader, and Johnston back to the sheriff's station in Lewistown and make other arrangements to look for the additional person, rather than proceeding further up the mountain. Back at the station, Johnston informed Lewellen that the name of the person with the other vehicle was Steve Smith (Smith), and that he was indeed still on the mountain. As a result of this information, a search and rescue team was sent back up to Maiden Canyon to look for Smith, who was not located there.

¶ 6 As a result of Johnston's various statements to police, he was charged with obstructing a peace officer, a misdemeanor, in violation of § 45-7-302, MCA. On June 23, 2008, Johnston was convicted in Fergus County Justice Court. He appealed, and after a March 10, 2009 jury trial, Johnston was again found guilty. He was sentenced to six month in the Fergus County Jail, with all but ten days suspended, and was ordered to pay a $500 fine and $75 in surcharges. Johnston appeals.

STANDARD OF REVIEW

¶ 7 We review jury instructions for abuse of discretion to determine whether the jury instructions, as a whole, fully and fairly instructed the jury on the law applicable to the particular case. State v. Hall, 2003 MT 253, ¶ 24, 317 Mont. 356, 77 P.3d 239. Ineffective assistance of counsel claims are mixed questions of law and fact which we review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095.

DISCUSSION

¶ 8 Did Johnston's trial counsel render ineffective assistance by failing to object to the jury instruction defining the mens rea element of the offense of obstructing a peace officer?

¶ 9 Under § 45-7-302(1), MCA (2007), the offense of obstructing a peace officer as charged in this case is committed by a person who “knowingly obstructs, impairs, or hinders ... the performance of a governmental function ....” Under § 45-2-101(35), MCA, “knowingly” is defined as follows:

a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person's own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person's conduct....

As we have explained, “[w]hen a criminal offense requires that a defendant act ‘knowingly,’ the District Court must instruct the jury on what the term ‘knowingly’ means in the context of the particular crime.” State v. Azure, 2005 MT 328, ¶ 20, 329 Mont. 536, 125 P.3d 1116.

¶ 10 The District Court instructed the jury that “[a] person acts knowingly when the person is aware of his or her conduct,” which Johnston asserts was error. Johnston argues that the obstruction statute “seeks to avoid the singular result of obstruction of a peace officer, not any particular conduct ” (emphasis added) and, accordingly, the proper definition of “knowingly” under § 45-2-101(35), MCA, for this crime is awareness that it is highly probable that his conduct will obstruct, impair or hinder the officers' performance of their governmental function. Johnston argues that we acknowledged this principle in City of Kalispell v. Cameron, 2002 MT 78, 309 Mont. 248, 46 P.3d 46.

¶ 11 The State acknowledges that it had to “prove Johnston was aware that his conduct would hinder the execution of the deputies' duties,” but nonetheless argues that the mental state element must still go to conduct because the result of the conduct-obstruction-has “little to do with what the defendant is thinking.” It reasons that Johnston is attempting to add an additional causality requirement into the statute that does not exist.

¶ 12 Though not directly addressing this issue in Cameron, we did state for purposes of reviewing a denial of the defendant's motion for directed verdict that the obstruction statute “require[s] that an individual obstructing a peace officer must engage in conduct under the circumstances that make him or her aware that it is highly probable that such conduct will impede the performance of a peace officer's lawful duty. In other words, the City had to prove that Cameron was aware that his conduct would hinder the execution of the Officers' duties.” Cameron, ¶ 11.

¶ 13 Here, the prosecutor's closing argument emphasized that Johnston had to simply be aware of his conduct in order to satisfy the mens rea element of the offense:

You will also note that the instruction requires a person to act knowingly, and there is an instruction on knowingly also. And, if you have a question about what it means to act knowingly, go ahead and dig it out. But...