State v. Ross

Decision Date24 January 1995
Docket NumberNo. 94-192,94-192
Citation269 Mont. 347,889 P.2d 161
PartiesSTATE of Montana, Plaintiff and Respondent, v. Michael Harold ROSS, Defendant and Appellant.
CourtMontana Supreme Court

Craig Shannon, Public Defender's Office, Missoula, for appellant.

Joseph P. Mazurek, Atty. Gen., Patricia Jordan, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Betty Wing, Deputy County Atty., Missoula, for respondent.

TURNAGE, Chief Justice.

Michael Harold Ross (Ross) appeals his conviction of intimidation, in violation of § 45-5-203, MCA, in the Fourth Judicial District Court, Missoula County. We affirm.

The issues are:

1. Is § 45-5-203, MCA, unconstitutionally overbroad on its face?

2. Is § 45-5-203, MCA, unconstitutional as applied to Ross?

3. Did the District Court err in instructing the jury concerning the term "threat" as used in § 45-5-203, MCA?

4. Is there sufficient evidence to support the jury verdict?

5. Did the District Court err in denying Ross's proposed jury instruction on stalking as a lesser included offense?

6. Did the District Court err in denying Ross's motion to bifurcate the trial and deliberate element # 1 and element # 3 of § 45-5-203, MCA, separately?

Ross is a resident of Missoula, Montana. Ross disagrees with abortion and is an outspoken "right to life" advocate. Between February 16 and April 9, 1993, Ross sent a series of letters to Dr. Susan Wicklund. Wicklund owns and operates Mountain Country Women's Clinic, a medical clinic in Bozeman, Montana. Part of Wicklund's medical practice includes performing abortions.

Ross sent Wicklund in excess of sixty letters in 1993. The letters described, in graphic terms, an abortion procedure. Ross referred to Wicklund as "mass murderer," "butcher," and "ethnic cleanser." He continually told Wicklund that he would shut her down or die trying. Ross stated that Wicklund should be torn limb from limb, have her head crushed, and that she should suffer all the pain and torture she had inflicted on defenseless babies.

The day after the 1993 murder of Dr. Gunn, a Florida physician who performed abortions, Ross sent Wicklund a letter stating: "Too bad about Dr. Gunn in Florida. I wonder, could it happen in Bozeman? I wonder...." Then, shortly after the 1993 fire at the Blue Mountain Clinic, a women's health care facility in Missoula, Montana, Ross wrote a letter stating:

Isn't that just horrible how someone torched Blue Mountain Clinic in Missoula? Isn't that awful? Tsk. Tsk. Do you think it could happen in Bozeman? Do you think such a horrible thing could happen in Bozeman? What do you think? One thing is for sure: WE WILL SHUT YOU DOWN.

Wicklund testified that she experienced great fear and anxiety as a result of these letters. She employed a security guard to patrol the clinic and act as her personal escort. She purchased a bullet-proof vest and a handgun. She experienced mood swings and became increasingly upset upon the receipt of each subsequent letter. She changed her daily routine and was afraid to appear in public.

Other clinic employees testified to the change in Wicklund's demeanor. These employees observed Wicklund's behavior before and after receiving the letters from Ross. They testified that the letters upset Wicklund very much. She would often wait until the end of the day to read the letters because they were so disturbing. One clinic employee testified that "[Wicklund] would get red in the face and her eyes would start to water. [The letters] were very clearly upsetting to her. It was almost as if she would stop breathing after she read them." The employees testified that the entire atmosphere at the clinic worsened after Wicklund began receiving the letters from Ross.

Ross did not try to conceal his identity. He signed all the letters and subsequently admitted that he wrote them. Prior to being charged, he voluntarily answered questions for Missoula law enforcement officers. The letters were the sole source of contact between Ross and Wicklund.

On April 16, 1993, the Missoula County Attorney filed an Information charging Ross with intimidation, in violation of § 45-5-203, MCA. Ross pled not guilty. On November 5, 1993, Ross was found guilty of intimidation following a trial by jury. He was given the maximum statutory sentence of ten years in the Montana State Prison and designated a dangerous offender. Ross appeals his conviction.

Issue 1

Is § 45-5-203, MCA, unconstitutionally overbroad on its face?

Ross claims that § 45-5-203, MCA, is overbroad on its face and therefore in violation of the United States Constitution. Ross argues that, regardless of how this statute is applied to him, the statute could be applied to prohibit a variety of protected speech in violation of the First Amendment. He claims that since the statute could potentially prohibit protected speech as well as unprotected speech, it is overbroad on its face.

At the outset, we note that statutes are presumed to be constitutional and we adopt statutory construction which renders them constitutional rather than a construction which renders them invalid. Montana Automobile Association v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303. Statutes should be read as a whole and should be construed by this Court to further, rather than to frustrate, the legislature's intent. McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507, 510.

Generally, an individual cannot challenge the constitutionality of a statute unless he or she claims that his or her rights have been personally violated. This is because one must have standing to bring a case before the court. One exception to the standing requirement is that an individual may challenge a statute's constitutionality on the grounds that it violates the free speech provision of the First Amendment to the United States Constitution. Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830. In Broadrick, the United States Supreme Court stated:

[F]acial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. [Citation omitted.] To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917. Broadrick dealt with expressive conduct which is protected under the First Amendment. The requirement that the overbreadth of a statute must be real and substantial has subsequently been applied to statutes regulating pure speech, as well. New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113.

When the overbreadth of a statute is not substantial and real, the statute is not unconstitutional on it face, but rather unconstitutional application of the statute should be dealt with on a case-by-case basis. Ferber, 458 U.S. at 772, 102 S.Ct. at 3362. A statute which on its face appears to be overbroad may still be held constitutional if it is given a limited construction by the appellate court. Ferber, 458 U.S. at 769, 102 S.Ct. at 3361.

In State v. Lilburn (1994), 265 Mont. 258, 875 P.2d 1036, cert. denied, 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630 (1995), we adopted the United States Supreme Court's overbreadth analysis in determining that Montana's Hunter Harassment statute was constitutional. In Lilburn, we stated:

Lilburn contends that there are a significant number of situations where the law could be applied in an unconstitutional manner and urges the Court to "use our imagination to think of the various ways the statute might be applied against speech or expressive conduct." However, the test is not whether hypothetical remote situations exist, but whether there is a significant possibility that the law will be unconstitutionally applied. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

Lilburn, 875 P.2d at 1043. In finding the Hunter Harassment statute constitutional, we went on to conclude that "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations where the statute is assertedly being applied unconstitutionally." Lilburn, 875 P.2d at 1044.

In 1983 the United States Ninth Circuit Court of Appeals held the 1981 version of § 45-5-203, MCA, unconstitutionally overbroad in Wurtz v. Risley (9th Cir.1983), 719 F.2d 1438. The Ninth Circuit stated that the statute as it existed at that time was overbroad in that, absent a limiting construction by the Montana Supreme Court, it did not require that the threat be made in such a way that the victim would reasonably fear that the threat would be carried out. Wurtz, 719 F.2d at 1441. The Ninth Circuit also found subsection (c), a threat to without lawful authority "commit any criminal offense," to be overbroad in that it could reasonably be applied to many very minor, victimless crimes. Wurtz, 719 F.2d at 1442.

In 1985 the Montana Legislature, in direct response to the Wurtz decision, 1 amended § 45-5-203, MCA, as follows: 2

A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any...

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