State v. Holbach

• Decision Date: 02 April 2009
• Docket Number: No. 20080002.,No. 20080003.,20080002.,20080003.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Mitchell HOLBACH, Defendant and Appellant.
• Court: North Dakota Supreme Court

763 N.W.2d 761

2009 ND 37

STATE of North Dakota, Plaintiff and Appellee v. Mitchell HOLBACH, Defendant and Appellant.

No. 20080002.

No. 20080003.

Supreme Court of North Dakota.

April 2, 2009.

Rozanna Christine Larson, Assistant State's Attorney, Minot, for plaintiff and appellee.

Jay Ryan Greenwood, North Dakota Public Defenders' Office, Dickinson, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Mitchell Holbach appeals from criminal judgments entered after a jury found him guilty of stalking and two charges of disobeying a judicial order. We affirm, concluding the district court did not err in denying Holbach's motion to exclude evidence because he was not engaged in constitutionally protected activities and because Holbach does not have standing to argue that N.D.C.C. § 12.1-17-07.1 is unconstitutionally vague.

I

[¶ 2] In July 2006, Holbach entered a guilty plea to a charge of stalking Joy Dixon. Holbach was sentenced to serve time in jail and placed on supervised probation for two years. As a condition of Holbach's probation, the court ordered that Holbach was not to have any contact with Dixon and was prohibited from being within 500 feet of Dixon, her residence and the schools her children attend. Both Holbach and Dixon live in Minot.

[¶ 3] In August 2006, Dixon reported to law enforcement that she often saw Holbach as she was driving around town. Over the next couple of months Dixon reported each time she saw Holbach, including when Holbach followed or passed her in his vehicle or when she saw him stopped at stop signs or other locations as she traveled around the city. She claimed that on one occasion he parked along the road on the route to her son's school, pulling out in front of her as she approached his location, that he took a picture as she passed him in her vehicle during one incident, and another time that he held up a sign but she did not see what it said. A couple of times she reported seeing him more than once in a day.

[¶ 4] In September 2006, Holbach petitioned for a disorderly conduct restraining order against Dixon. A temporary restraining order was issued, but after a hearing the order was dismissed. Holbach appealed, and this Court affirmed the order dismissing the temporary restraining order. Holbach v. Dixon, 2007 ND 60, 730 N.W.2d 613.

[¶ 5] In October 2006, the court revoked Holbach's probation and ordered Holbach to serve 167 days in jail, after finding Holbach had been within 500 feet of Dixon on several occasions violating the conditions of his probation. Holbach appealed the district court order revoking his probation, and this Court affirmed. State v. Holbach, 2007 ND 114, 735 N.W.2d 862. Holbach was released from jail on the probation revocation in March 2007.

[¶ 6] After his release Dixon reported Holbach continued to follow and contact her. She claimed that she continued seeing him as she drove around town, that he occasionally followed her and that she often saw him sitting parked in a parking lot of a gas station or shopping center as she drove by. Dixon reported she was driving through town on March 30, 2007 when she passed Holbach who was traveling in the opposite direction. She reported that he turned his vehicle around and began following her, eventually turning off but shortly thereafter that he crossed in front of her. Dixon reported that she was passing a gas station on April 7, 2007 when she noticed Holbach was in the gas station parking lot and that he left the parking lot and began following her. Dixon reported she was driving home on May 2, 2007 when Holbach began following her at a high rate of speed. She became frightened, called 911 and was advised to go to the police station, but when she arrived at the police station, Holbach was already there. Dixon also reported receiving at least one letter from Holbach between July 2006 and May 2007. Approximately forty alleged contacts occurred between July 18, 2006 and May 16, 2007.

[¶ 7] On May 24, 2007, Holbach was charged with one count of stalking and one count of disobeying a judicial order. Holbach was later charged with a second charge of disobeying a judicial order.

[¶ 8] Holbach moved to determine whether some instances of the alleged stalking conduct were constitutionally protected and whether evidence of those instances should be excluded. Holbach argued he was engaged in the normal course of daily constitutionally protected activities and any contact between himself and Dixon was coincidental. Holbach also moved to determine the constitutionality of N.D.C.C. § 12.1-17-07.1, the criminal offense of stalking. He argued N.D.C.C. § 12.1-17-07.1 is unconstitutionally vague because it does not provide adequate warning of prohibited conduct and fails to prevent arbitrary and discriminatory enforcement. He also argued the statute was unconstitutionally overbroad because it criminalizes constitutionally protected activity. The district court denied his motions.

[¶ 9] A jury trial was held, and Holbach was found guilty of all three charges.

II

[¶ 10] Holbach argues the alleged stalking conduct occurred while he was engaged in constitutionally protected activities and the district court erred in denying his motion to exclude evidence of this conduct. Holbach claims he was engaged in legitimate activities and the parties were likely to run into each other frequently while conducting everyday business since they both reside and commute in the same general area of town. He contends he was engaged in legitimate, constitutionally protected activities and, therefore, evidence of those activities should have been excluded.

[¶ 11] It is a criminal offense to stalk another person. N.D.C.C. § 12.1-17-07.1. Stalking is "an intentional course of conduct directed at a specific person which frightens, intimidates, or harasses that person, and that serves no legitimate purpose." N.D.C.C. § 12.1-17-07.1(1)(c). The course of conduct is a "pattern of conduct consisting of two or more acts evidencing a continuity of purpose." N.D.C.C. § 12.1-17-07.1(1)(a). "The course of conduct may be directed [at a specific] person or a member of that person's immediate family and must cause a reasonable person to experience fear, intimidation, or harassment." N.D.C.C. § 12.1-17-07.1(1)(c). The course of conduct "does not include constitutionally protected activity." N.D.C.C. § 12.1-17-07.1(1)(a). If a defendant claims he was engaged in constitutionally protected activity, "the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity." N.D.C.C. § 12.1-17-07.1(5). Whether an activity is constitutionally protected is a question of law, which is fully reviewable on appeal. See State v. Curtis, 2008 ND 93, ¶ 10, 748 N.W.2d 709 (whether speech is constitutionally protected is fully reviewable on appeal).

[¶ 12] Holbach claims his alleged stalking conduct occurred while he was engaged in constitutionally protected activities and any evidence of this conduct must be excluded under N.D.C.C. § 12.1-17-07.1(5). He contends he has a constitutional right to travel around the city and to engage in normal, daily activities, including shopping, getting gas and going to restaurants.

[¶ 13] An individual has a constitutional right to intrastate travel, however, that right is not absolute and may be restricted. See Lutz v. City of York, 899 F.2d 255, 256 (3rd Cir.1990). Cf. Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426, 431 (N.D.1994) ("[T]he federal constitution does not guarantee the right to communicate one's views at all times and [in all] places," and "the government may regulate the time, place, and manner of that expressive activity.").

[¶ 14] Here, the district court recognized there is a constitutional right to travel and Holbach's conduct is generally constitutionally protected, but further concluded Holbach's travel had been restricted through proper process by the conditions of his probation. Holbach had previously pled guilty to stalking Dixon, and as part of his probation the court prohibited Holbach from going within 500 feet of Dixon, her residence and her children's schools; and he previously had violated those conditions and had served time in jail as a result. Holbach had notice to stay away from Dixon and not to contact her. Holbach's right to travel had been restricted by the judicial order, he had notice of the restrictions on his right to travel and an opportunity to be heard, and he is not claiming his probation conditions are unconstitutional. There was testimony from his probation officer that she had discussed the terms of the probation with Holbach and specifically had talked about where he could and could not go and which routes he could take to avoid violating the terms of his probation. The activities Holbach engaged in were not constitutionally protected because his right to travel had been restricted by the judicial order, and the district court did not err in denying Holbach's request to exclude evidence of this conduct.

[¶ 15] Other courts considering similar arguments also have concluded similar conduct was not constitutionally protected. See Snowden v. State, 677 A.2d 33 (Del.1996) (defendant's conduct, including following victim in her car, was not constitutionally protected activity and was not excluded from the stalking statute); VanHorn v. State, 889 N.E.2d 908 (Ind. Ct.App.2008) (defendant's conduct, including sitting in vehicle near victim's house and looking at victim's house through binoculars, was constitutionally protected conduct and could not constitute harassment for stalking purposes because the defendant did not have notice that the conduct was impermissible, such as a protective order would provide); Delgado v. Souders, 146 Or.App. 580, 934 P.2d 1132, 1137 (1997) (statute for stalking protection order does not violate constitutional right to travel).

[¶ 16] Furthermore, violence or other activities...