State v. Spottedbear

• Decision Date: 04 October 2016
• Docket Number: DA 15-0127
• Citation: 385 Mont. 68,2016 MT 243,380 P.3d 810
• Parties: State of Montana, Plaintiff and Appellee, v. Gale Spottedbear, Defendant and Appellant.
• Court: Montana Supreme Court

385 Mont. 68

380 P.3d 810

2016 MT 243

State of Montana, Plaintiff and Appellee,

v.Gale Spottedbear, Defendant and Appellant.

DA 15-0127

Supreme Court of Montana.

Submitted on Briefs: August 3, 2016

Decided: October 4, 2016

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

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, John W. Parker, Cascade County Attorney, Amanda L. Lofink, Deputy County Attorney, Great Falls, Montana.

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 Great Falls Police Officer Mike Walker arrested Gale Spottedbear for disorderly conduct following a disturbance at Wal–Mart. Spottedbear threatened to kill Officer Walker and his family after Officer Walker told him that he was also being charged with criminal trespass—a more serious offense. The State charged Spottedbear with threats and other improper influence in official matters, criminal trespass, and disorderly conduct, and a jury convicted him on all three counts. Spottedbear challenges his conviction on the following grounds: (1) the improper influence statute is unconstitutionally overbroad—a claim Spottedbear raises for the first time on appeal; (2) the evidence was insufficient to convict him on either the improper influence or criminal trespass charge; (3) the court should not have admitted evidence regarding a prior incident with Officer Walker; and (4) his trial counsel was ineffective for failing to raise the constitutional challenge and for failing to object to the jury instructions on mental state.

¶ 2 We affirm the improper influence conviction and reverse the conviction for criminal trespass.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In late February 2014, Officer Walker responded to a disturbance between Spottedbear and another customer at a Wal–Mart store in Great Falls, Montana. After speaking to Janet Sherod, a Wal–Mart staff member, about the situation, Officer Walker told Spottedbear to leave the store. On his way out, Spottedbear yelled at Sherod, and Officer Walker arrested him for disorderly conduct.

¶ 4 On the way to the detention center, Officer Walker informed Spottedbear that he was going to charge him with criminal trespass in addition to disorderly conduct. Spottedbear —who was intoxicated—became more agitated and brought up a previous incident in which he threatened and assaulted Officer Walker. Spottedbear grew increasingly belligerent and yelled that he had seen Officer Walker and his wife out in public since that incident. Spottedbear then repeatedly threatened to kill Officer Walker, his pregnant wife, and his family.

¶ 5 Based on Spottedbear's threats, the State added a charge of improper influence to the disorderly conduct and criminal trespass charges. Prior to trial, Spottedbear moved to limit the State's introduction of evidence regarding the previous incident he had with Officer Walker. The District Court ruled that the State could elicit testimony about the prior incident but that it could not bring up that Spottedbear had been convicted of any crime.

¶ 6 Officer Walker was the only witness at trial. The jury found Spottedbear guilty on all three charges. The District Court sentenced Spottedbear as a persistent felony offender to ten years for the improper influence conviction, six months for the criminal trespass conviction, and ten days for the disorderly conduct conviction, to run concurrently. Spottedbear appeals.

STANDARDS OF REVIEW

¶ 7 This Court exercises plenary review over constitutional questions. State v. Dugan , 2013 MT 38, ¶ 14, 369 Mont. 39, 303 P.3d 755. A statute may be deemed constitutionally overbroad if it includes within its scope conduct that is protected by the First Amendment. Dugan , ¶ 52.

¶ 8 We review questions on the sufficiency of the evidence in a criminal matter to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Weigand , 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74. We review a jury's verdict to determine whether sufficient evidence exists to support the verdict, not whether the evidence could have supported a different result. Weigand , ¶ 7. It is within the province of the jury to weigh the evidence based on the credibility of the witnesses and determine which version of events should prevail. Weigand , ¶ 7.

¶ 9 A trial court has broad discretion in determining the relevance and admissibility of evidence. State v. Derbyshire , 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. Thus, we review a trial court's evidentiary rulings for an abuse of discretion. Derbyshire , ¶ 19. A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Derbyshire , ¶ 19. In exercising its discretion, however, the trial court is bound by the Rules of Evidence. Derbyshire , ¶ 19. Consequently, to the extent that the court's ruling is based on an interpretation of an evidentiary rule, our review is de novo. Derbyshire , ¶ 19.

¶ 10 Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. State v. Johnston , 2010 MT 152, ¶ 7, 357 Mont. 46, 237 P.3d 70.

DISCUSSION

¶ 11 1. Whether the improper influence statute is unconstitutionally overbroad.

¶ 12 A person commits the offense of threats and other improper influence in official matters “if the person purposely or knowingly ... threatens harm to any person, the person's spouse, child, parent, or sibling, or the person's property with the purpose to influence the person's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter.” Section 45–7–102(1)(a)(i), MCA.

¶ 13 For the first time on appeal, Spottedbear argues that § 45–7–102(1)(a)(i), MCA, is unconstitutionally overbroad. He asserts that we should review the statute because his trial counsel rendered ineffective assistance by failing to raise the constitutional issue below, because this Court may exercise plenary review of constitutional rights violations even where no objection has been made, and because this Court may review an unconstitutional statute under the plain error doctrine.

¶ 14 Spottedbear does not challenge the improper influence statute's constitutionality as applied to him; he contends instead that the statute is facially overbroad because it prohibits a substantial amount of protected speech. Spottedbear asserts that the statute's language is unconstitutionally overbroad under the First Amendment for three reasons: (1) the Legislature defines “harm” expansively; (2) the statute is not limited to threats of unlawful harm; and (3) by focusing on threats of harm aimed at influencing a public official's discretion, the statute targets “the type of message that lies at the First Amendment's heart.” Thus, Spottedbear asserts that the “statute's plain language makes clear that it reaches far beyond proscribing unprotected speech and into proscribing speech that is essential to our democracy.” Because the statute's reach is not limited to unprotected speech, Spottedbear contends that the statute is distinguishable from statutes that we have upheld against overbreadth challenges. Spottedbear therefore argues that we should hold that the statute is unconstitutional and void his improper influence conviction in the process.

¶ 15 The overbreadth doctrine “is an exception to the general rule that statutes are evaluated in light of the situation and facts before the court.” State v. Lilburn , 265 Mont. 258, 264, 875 P.2d 1036, 1040 (1994). Under the doctrine, a statute that “can be applied to constitutionally protected speech and expression may be found to be invalid in its entirety, even if it could validly apply to the situation before the court.” Lilburn , 265 Mont. at 264, 875 P.2d at 1040. We have made clear, however, that a statute is unconstitutionally overbroad only if its overbreadth is not only “ ‘real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.’ ” Lilburn , 265 Mont. at 264–65, 875 P.2d at 1040 (quoting Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973) ).

¶ 16 The test for overbreadth therefore “is not whether hypothetical remote situations exist, but whether there is a significant possibility that the law will be unconstitutionally applied.” Lilburn , 265 Mont. at 269, 875 P.2d at 1043 (citing Broadrick , 413 U.S. at 615, 93 S.Ct. at 2917–18 ). “In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Lilburn , 265 Mont. at 269, 875 P.2d at 1041 (quoting Members of the City Council v. Taxpayers for Vincent , 466 U.S. 789, 800–01, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984) (hereafter Vincent )). When there is no realistic danger or significant possibility that First Amendment protections will be meaningfully compromised, we have held consistently that any unconstitutional application of a statute should be addressed on a “case-by-case” basis. E.g. , Mont. Supreme Court Comm'n on the Unauthorized Practice of Law v. O'Neil , 2006 MT 284, ¶ 78, 334 Mont. 311, 147 P.3d 200 ; State v. Nye , 283 Mont. 505, 515, 943 P.2d 96, 103 (1997) ; State v. Ross , 269 Mont. 347, 356, 889 P.2d 161, 166 (1995) ; Lilburn , 265 Mont. at 270, 875 P.2d at 1044.

¶ 17 We are unpersuaded by Spottedbear's claim that his trial counsel rendered ineffective assistance by failing to raise the statute's alleged overbreadth below. In assessing whether counsel's performance was deficient, we look to “whether counsel's conduct fell below an objective...