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

CourtUnited States State Supreme Court of Montana
Citation237 P.3d 70,357 Mont. 46,2010 MT 152
Docket NumberNo. DA 09-0352.,DA 09-0352.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Kalem JOHNSTON, Defendant and Appellant.
Decision Date13 July 2010

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.


237 P.3d 71

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.

357 Mont. 47

¶ 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,

237 P.3d 72

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

357 Mont. 48

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...

To continue reading

Request your trial
17 cases
  • Stevens v. Novartis Pharmaceuticals Corp..
    • United States
    • United States State Supreme Court of Montana
    • December 30, 2010
    ...to determine whether the jury instructions, as a whole, fully and fairly instructed the jury on the applicable law. State v. Johnston, 2010 MT 152, ¶ 7, 357 Mont. 46, 237 P.3d 70. We review evidentiary rulings for an abuse of discretion, and a district court possesses broad discretion to de......
  • State v. Howard
    • United States
    • United States State Supreme Court of Montana
    • November 1, 2011
    ...assistance of counsel claims where “there is no plausible justification” for counsel's conduct. [265 P.3d 613] State v. Johnston, 2010 MT 152, ¶ 16, 357 Mont. 46, 48, 237 P.3d 70; Kougl, ¶ 15, 97 P.3d 1095; State v. Jefferson, 2003 MT 90, ¶ 50, 315 Mont. 146, 69 P.3d 641. We have not, howev......
  • State v. Ilk, DA 16-0580
    • United States
    • United States State Supreme Court of Montana
    • July 31, 2018
    ..., 2005 MT 328, ¶ 20, 329 Mont. 536, 125 P.3d 1116 ; State v. Nick , 2009 MT 174, ¶ 12, 350 Mont. 533, 208 P.3d 864 ; State v. Johnston , 2010 MT 152, ¶ 9, 357 Mont. 46, 237 P.3d 70; see also Mont. Crim. Pattern Jury Instr. 2-104 and -106 (2009) (cautionary instruction).¶ 19 Both Attempted D......
  • State v. Howard, DA 10-0542
    • United States
    • United States State Supreme Court of Montana
    • October 4, 2011
    ...has upheld ineffective assistance of counsel claims where "there is no plausible justification" for counsel's conduct. State v. Johnston, 2010 MT 152, ¶ 16, 357 Mont. 46, 48, 237 P.3d 70; Kougl, ¶ 15; State v. Jefferson, 2003 MT 90, ¶ 50, 315 Mont. 146, 69 P.3d 641. We have not, however, fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT