State v. Dixon, No. 98-602.

Docket NºNo. 98-602.
Citation2000 MT 82, 998 P.2d 544, 299 Mont. 165
Case DateApril 04, 2000
CourtUnited States State Supreme Court of Montana

998 P.2d 544
2000 MT 82
299 Mont. 165

STATE of Montana, Plaintiff and Respondent,
v.
Eric Adam DIXON, Defendant and Appellant

No. 98-602.

Supreme Court of Montana.

Submitted on Briefs November 4, 1999.

Decided April 4, 2000.


998 P.2d 545
Anne H. Watson, Watson Law Office, Bozeman, Montana, For Appellant

Honorable Joseph P. Mazurek, Attorney General; Mark Mattioli, Assistant Attorney General, Helena, Montana, Marty Lambert, County Attorney; Robert Brown, Deputy County Attorney, Bozeman, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Eric Adam Dixon appeals from an order of the Eighteenth Judicial District Court, Gallatin County, denying his Motion to Dismiss. We affirm.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Whether the District Court erred in concluding that § 45-8-335, MCA, which defines the offense of "Possession of explosives," does not violate Due Process?

¶ 4 2. Whether the District Court erred in concluding that the Amended Information did not place Dixon in double jeopardy?

998 P.2d 546
FACTUAL BACKGROUND

¶ 5 The State's Affidavit of Probable Cause filed on May 29, 1997, contained the following allegations. On May 18, 1997, two motorists informed the police by cell phone that they had witnessed three males blow up a road sign and described the vehicle in which the three men were traveling. The motorists stated that they had almost been hit with shrapnel caused by the explosion. Gallatin County Sheriff's Deputies subsequently stopped a vehicle matching the description given by the witnesses. The driver of the car was identified as Eric Dixon. Dixon later admitted to the police that he had made the pipe bomb using blasting powder, a cannon fuse, and pipe caps.

¶ 6 On June 4, 1997, the State of Montana charged Dixon with the following crimes: (1) Criminal Endangerment, a felony, in violation of § 45-5-207, MCA; (2) Possession of a Destructive Device, a felony, in violation of § 45-8-334, MCA; and (3) Criminal Mischief, a misdemeanor, in violation of § 45-6-101, MCA. Dixon entered a plea of not guilty to all charges on June 6, 1997.

¶ 7 On July 7, 1997, the State filed a Motion for Leave to File Amended Information which the court subsequently granted. The State filed an Amended Information on August 6, 1997, in which it charged Dixon with the following crimes: (1) the State dropped the Criminal Endangerment charge to Negligent Endangerment, a misdemeanor, in violation of § 45-5-208, MCA; (2) the State changed the Possession of a Destructive Device charge to Possession of Explosives, a felony, in violation of § 45-8-335, MCA; and (3) the State maintained the Criminal Mischief charge, a misdemeanor, in violation of § 45-6-101, MCA. Dixon entered a plea of not guilty to all counts.

¶ 8 On December 1, 1997, Dixon filed a Motion to Dismiss the charges against him as stated in the Amended Information. Dixon contended that the charge of possession of explosives was unconstitutional because it was overbroad and vague. Dixon also contended that the State placed him in double jeopardy by charging him with the three offenses contained in the Amended Information. The motion was briefed by both sides and the court received oral argument on the matter on January 28, 1998. The District Court subsequently denied Dixon's Motion to Dismiss by Order dated April 24, 1998.

¶ 9 On May 11, 1998, pursuant to a plea bargain with the State, Dixon withdrew his previous plea and entered a plea of guilty to the charge of possession of explosives. The court granted the State's motion to dismiss Counts 1 and 3 of the Amended Information and noted that Dixon had preserved his right to appeal. The District Court issued an Order Deferring Imposition of Sentence with Conditions on July 8, 1998. The court deferred Dixon's sentence for Possession of Explosives for two years subject to certain conditions, including the completion of a short jail term and a fine. Dixon appeals the court's denial of his Motion to Dismiss.

STANDARD OF REVIEW

¶ 10 The denial of a motion to dismiss in a criminal case is a conclusion of law which we review to determine whether it was correct. See State v. Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, ¶ 43, 964 P.2d 713, ¶ 43.

ISSUE ONE

¶ 11 Whether the District Court erred in concluding that § 45-8-335, MCA, which defines the offense of "Possession of explosives," does not violate Due Process?

¶ 12 Dixon contends that § 45-8-335, MCA (Possession of Explosives) is facially unconstitutional because it is vague and overbroad. Dixon also contends that the possession of explosives prohibition is unconstitutionally vague as applied.

¶ 13 Section 45-8-335, MCA, provides, in relevant part:

(1) A person commits the offense of possession of explosives if he possesses ... an explosive compound ... and:
(a) has the purpose to use such explosive... to commit an offense....

¶ 14 We presume that all statutes are constitutional. It is the duty of courts, if possible, to construe statutes in a manner

998 P.2d 547
that avoids unconstitutional interpretation. When the constitutionality of a statute is challenged, the party making the challenge bears the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional. Any doubt is to be resolved in favor of the statute. A vagueness challenge to a statute or ordinance may be raised on two different bases: (1) because the statute or ordinance is so vague that it is rendered void on its face; or (2) because it is vague as applied in a particular situation. See State v. Stanko, 1998 MT 321, ¶¶ 15-17, 292 Mont. 192, ¶¶ 15-17, 974 P.2d 1132, ¶¶ 15-17 (citations omitted) [Stanko I]
¶ 15 A. Whether § 45-8-335, MCA, is unconstitutional on its face?

¶ 16 Dixon contends that § 45-8-335, MCA, is so vague as to be void on its face because the definition of "explosives" is not contained in the criminal code. Dixon believes that the lack of a definition of "explosives" in the Montana Code fails to give § 45-8-335, MCA, the requisite constitutional specificity. Dixon also contends that the statute is unconstitutionally overbroad because the phrase with "the purpose ... to commit an offense" sweeps so broadly that it can literally be applied to very minor offenses.

¶ 17 The State asserts that under our decision in State v. Lancione, 1998 MT 84, ¶ 28, 288 Mont. 228, ¶ 28, 956 P.2d 1358, ¶ 28, Dixon does not have standing to challenge the statute as overbroad or facially vague because the statute does not reach constitutionally protected conduct and because Dixon's conduct clearly falls within its scope. According to the State, blowing up public property in a manner which endangers public safety is at the heart of the statute's proscriptions.

¶ 18 Dixon must have standing to raise a facial challenge to a statute for vagueness or overbreadth. See Lancione, ¶ 28. As the Supreme Court has described it:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (cited with approval in State v. Lilburn (1994), 265 Mont. 258, 270, 875 P.2d 1036, 1044).

¶ 19 Accordingly, we must first determine whether the statute is overbroad in that it reaches a substantial amount of constitutionally protected conduct. In this regard, we note that Dixon has not pointed us to any constitutionally protected conduct which a prohibition on the possession of an explosive compound for the purpose of using that explosive to commit an offense might reach: Dixon does not contend that either the United States Constitution or the Montana Constitution guarantees him the right to manufacture and possess pipe bombs. Moreover, we cannot imagine how a prohibition against the possession of explosives for the purpose of committing an offense might reach a substantial amount of constitutionally protected conduct.

¶ 20 A law which does not reach constitutionally protected conduct and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague in violation of due process. We have previously stated that a statute is void on its face if it ails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. See State v. Nye (1997), 283 Mont. 505, 513, 943 P.2d 96, 101. If the challenged statute...

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22 practice notes
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...notice to citizens, and (2) and whether the statute provides minimal guidelines to govern law enforcement. 401 Mont. 298 State v. Dixon , 2000 MT 82, ¶ 28, 299 Mont. 165, 998 P.2d 544. ¶132 In determining whether a statute provides actual notice to citizens, this Court must determine whethe......
  • State v. Price, No. 01-810.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 10, 2002
    ...its face if it [f]ails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." State v. Dixon, 2000 MT 82, ¶ 20, 299 Mont. 165, ¶ 20, 998 P.2d 544, ¶ 20 (citing Nye, 283 Mont. at 513, 943 P.2d at ¶ 47 Price argues that persons of ordinary intellige......
  • State v. Burkhart, No. 03-108.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 23, 2004
    ...corroborate Staley's testimony. ¶ 23 The denial of a motion to dismiss in a criminal case is a conclusion of law. State v. Dixon, 2000 MT 82, ¶ 10, 299 Mont. 165, ¶ 10, 998 P.2d 544, ¶ 10. The sufficiency of evidence to corroborate the testimony of an accomplice is a question of law which w......
  • State v. Roundstone, No. DA 10–0402.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 14, 2011
    ...is forbidden, or (2) it fails to establish minimal guidelines to govern law enforcement. [261 P.3d 1019] [362 Mont. 86] State v. Dixon, 2000 MT 82, ¶¶ 27–28, 299 Mont. 165, 998 P.2d 544; G'Stohl, ¶ 10.12 ¶ 31 Generally, a constitutional issue is waived if not raised at the earliest opportun......
  • Request a trial to view additional results
22 cases
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...notice to citizens, and (2) and whether the statute provides minimal guidelines to govern law enforcement. 401 Mont. 298 State v. Dixon , 2000 MT 82, ¶ 28, 299 Mont. 165, 998 P.2d 544. ¶132 In determining whether a statute provides actual notice to citizens, this Court must determine whethe......
  • State v. Price, No. 01-810.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 10, 2002
    ...its face if it [f]ails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." State v. Dixon, 2000 MT 82, ¶ 20, 299 Mont. 165, ¶ 20, 998 P.2d 544, ¶ 20 (citing Nye, 283 Mont. at 513, 943 P.2d at ¶ 47 Price argues that persons of ordinary intellige......
  • State v. Burkhart, No. 03-108.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 23, 2004
    ...corroborate Staley's testimony. ¶ 23 The denial of a motion to dismiss in a criminal case is a conclusion of law. State v. Dixon, 2000 MT 82, ¶ 10, 299 Mont. 165, ¶ 10, 998 P.2d 544, ¶ 10. The sufficiency of evidence to corroborate the testimony of an accomplice is a question of law which w......
  • State v. Roundstone, No. DA 10–0402.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 14, 2011
    ...is forbidden, or (2) it fails to establish minimal guidelines to govern law enforcement. [261 P.3d 1019] [362 Mont. 86] State v. Dixon, 2000 MT 82, ¶¶ 27–28, 299 Mont. 165, 998 P.2d 544; G'Stohl, ¶ 10.12 ¶ 31 Generally, a constitutional issue is waived if not raised at the earliest opportun......
  • Request a trial to view additional results

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