State v. Lamoureux

• Citation: 2021 MT 94,485 P.3d 192
• Decision Date: 20 April 2021
• Docket Number: DA 18-0639
• Parties: STATE of Montana, Plaintiff and Appellee, v. William Frederick LAMOUREUX, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

485 P.3d 192

2021 MT 94

STATE of Montana, Plaintiff and Appellee,

v.William Frederick LAMOUREUX, Defendant and Appellant.

DA 18-0639

Supreme Court of Montana.

Submitted on Briefs: February 3, 2021

Decided: April 20, 2021

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Travis R. Ahner, Flathead County Attorney, Andrew Clegg, Deputy County Attorney, Kalispell, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury found William Frederick Lamoureux guilty of three felony counts of Privacy in Communications, in violation of § 45-8-213(1)(a), MCA (2017).¹ The charges arose out of three threatening phone calls Lamoureux made to the victims: one to Ashley Dunigan (Ashley) and two to Sam McGough (Sam). Because Lamoureux had at least one prior conviction for Privacy in Communications, the instant convictions became felonies. Lamoureux appeals his convictions, which were entered in the Eleventh Judicial District Court, Flathead County. We affirm.

¶2 Lamoureux raises the following four issues on appeal:

1. Is the Privacy in Communications statute, § 45-8-213(1)(a), MCA, facially overbroad or does it constitute a content-based restriction on speech in violation of the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution ?

2. Does a person violate the Privacy in Communications statute when the threatening communication was made about someone other than the recipient of that communication?

3. Was there sufficient evidence to conclude there was jurisdiction when the threatening communication was made to a person located outside of Montana?

4. Did the District Court fully and fairly instruct the jury in accordance with the evidence presented?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Lamoureux's ex-wife, Stacey McGough (Stacey), owns a jewelry store in Whitefish that her parents previously owned. At the time of trial, Stacey's father, Sam, still owned the building in which the jewelry store is located. Both Stacey and Lamoureux were residents of Flathead County—Stacey lived in Whitefish, and Lamoureux lived between Whitefish and Columbia Falls. Stacey and Lamoureux were married for 16 years and had two children together, A. and H.

¶4 On September 20, 2017, Ashley, one of Stacey's employees, was working at the jewelry store when Lamoureux called the store. On the call, Lamoureux was "aggressive, angry, [and] drunk" and he told Ashley he wanted Sam's and H.’s phone numbers. Ashley told him she was not able to give him the numbers and Lamoureux responded, "Fuck you, I'm going to get you fired." He dropped the phone and hung up but called the store again. He reiterated that he wanted the phone numbers, and Ashley responded that she could not give him the phone numbers. He shouted "bullshit" and then told Ashley he "was going to kiss [her] and come down to the store and slap [her] ass." Ashley was afraid and concerned that Lamoureux was going to come to the store, so she and another employee immediately closed and locked the store early, called the police, and let the neighboring store owner know what was happening.

¶5 On October 12, 2017, Sam received a call from Lamoureux. Lamoureux had been drinking and sounded angry. Lamoureux told Sam, referring to Stacey, "I want to kill that fucking cunt. I'm going to stuff her in a culvert for the skunks to eat her. I'm going to kill her now." Sam considered Lamoureux's language profane, offensive, threatening, and harassing. He contacted the Whitefish police and asked them to go to the jewelry store, walk Stacey to her car, and make sure that she was safe.

¶6 On November 7, 2017, Sam received another phone call from Lamoureux. At the time, Sam was in New York. This time, Lamoureux said,

I'm going to go kill her now. I want to go shoot her in the face with my .45 and watch her eyes bulge out. I'm going to kill that fucking cunt and then I'm going to put her in the garbage bin in back and set it on fire.

Lamoureux said he was on his way there: "I'm on my way, I'm going to kill her." He told Sam he was going to destroy the jewelry store building: "I'm going to burn your building down so that she won't have a job." Again, Sam testified that the language was profane, threatening, offensive, and harassing. Sam perceived the threats to be very real. He knew Lamoureux owned a .45, and he assumed Lamoureux was on his way to Stacey's from his home. Accordingly, Sam called Stacey and law enforcement.

¶7 The State charged Lamoureux in an Amended Information, with three counts of felony Privacy in Communications. Lamoureux filed two motions to dismiss before trial: one contending that the State had failed to state an offense in Count II—relating to the October 12, 2017 phone call—because the threatening communication was made about someone other than the recipient of the communication; and another—as to all three counts—contending § 45-8-213(1)(a), MCA, was unconstitutionally overbroad under the "freedom of speech" clauses of the Montana and United States Constitutions. At the close of evidence, Lamoureux also moved to dismiss Count III, regarding his second communication to Sam, arguing there was insufficient evidence for the jury to conclude the offense occurred in Montana. The District Court denied all three motions.

¶8 The District Court instructed the jury that Lamoureux was charged by Amended Information with three counts of Privacy in Communications. The court gave four instructions relevant to the issues presented on appeal: the specific and entire statutory language for the offense of Privacy in Communications, and three separate instructions on the elements for each offense. The District Court instructed the jury that the State must prove Lamoureux knowingly or purposely communicated by electronic communication with the victim, and that Lamoureux acted knowingly or purposely as to each offense. As to Count I, the court instructed that the State must also prove "the Defendant knowingly or purposely used obscene, lewd, or profane language, or suggested lewd and lascivious acts, with the purpose to harass, annoy or offend Ashley Dunigan." As to Count II, the court instructed that the State also must prove: "[t]hat in threatening to kill Stacey McGough, the Defendant knowingly or purposely used obscene, lewd, or profane language with the purpose to harass, annoy or offend Sam McGough." Finally, as to Count III, the court instructed that the State also must prove:

That in threatening to kill Stacey McGough, the Defendant knowingly or purposely used obscene, lewd, or profane language with the purpose to harass, annoy or offend Sam McGough; or the Defendant knowingly or purposely threatened to inflict injury or physical harm to the property of Sam McGough with the purpose to harass, annoy or offend Sam McGough.

¶9 The jury found Lamoureux guilty on all three counts. Lamoureux appeals his convictions.

STANDARDS OF REVIEW

¶10 This Court reviews de novo the denial of a motion to dismiss in a criminal case. State v. Dugan , 2013 MT 38, ¶ 13, 369 Mont. 39, 303 P.3d 755. This Court's review of constitutional questions is plenary and we examine a district court's interpretation of the law for correctness. State v. Sedler , 2020 MT 248, ¶ 5, 401 Mont. 437, 473 P.3d 406. A court's determination of its jurisdiction is a conclusion of law, which this Court reviews de novo to determine whether the court's interpretation of the law is correct. Stanley v. Lemire , 2006 MT 304, ¶ 52, 334 Mont. 489, 148 P.3d 643. A district court has broad discretion in formulating jury instructions, and our standard of review is whether the court abused that discretion. State v. Spotted Eagle , 2010 MT 222, ¶ 6, 358 Mont. 22, 243 P.3d 402.

DISCUSSION

¶11 1. Is the Privacy in Communications statute, § 45-8-213(1)(a), MCA, facially overbroad or does it constitute a content-based restriction on speech in violation of the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution ?

¶12 The statute under which Lamoureux was charged provides that a person commits the offense of violating Privacy in Communications if the person knowingly or purposely:

with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.

Section 45-8-213(1)(a), MCA.

¶13 Lamoureux challenges the constitutionality of the statute, arguing it is overbroad and violates free speech rights guaranteed by the Montana and United States Constitutions. He argues the statute criminalizes substantial constitutionally-protected speech and, therefore, the State's prosecution under the statute is void.

¶14 "In reviewing constitutional challenges to legislative enactments, the constitutionality of a legislative enactment is prima facie presumed, and ‘every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt.’ " State v. Egdorf , 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d 517 (quoting T & W Chevrolet v. Darvial , 196 Mont. 287, 292, 641 P.2d 1368, 1370 (1982) (citations omitted). Thus, the party challenging a statute bears the burden of proving it is unconstitutional beyond a reasonable doubt and, if any doubt exists, it must be resolved in favor of the statute. Egdorf , ¶ 12 (citing State v. Price , 2002 MT 229, ¶ 28, 311 Mont. 439, 57 P.3d 42 (rev'd in part on other grounds )).

¶15 An overbroad statute is one that is designed...