State v. Sullivan

• Decision Date: 28 March 2023
• Docket Number: DA 20-0589
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. RYAN PATRICK SULLIVAN, Defendant and Appellant.
• Court: Montana Supreme Court

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2023 MT 53N

STATE OF MONTANA, Plaintiff and Appellee, v. RYAN PATRICK SULLIVAN, Defendant and Appellant.

No. DA 20-0589

Supreme Court of Montana

March 28, 2023

Submitted on Briefs: October 26, 2022

APPEAL FROM District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 19-0829 Honorable Michael G. Moses, Presiding Judge

For Appellant Chad Wright, Appellate Defender, Deborah S. Smith Assistant Appellate Defender, Helena, Montana

For Appellee Austin Knudsen, Montana Attorney General, Roy Brown Assistant Attorney General, Helena, Montana Scott D. Twito Yellowstone County Attorney, Benjamin J. Halverson, Deputy County Attorney, Billings, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Ryan Patrick Sullivan (Sullivan) appeals from Thirteenth Judicial District Court convictions for tampering with witnesses and informants and privacy in communications (PIC) violations. We affirm.

¶3 On November 14, 2018, Sullivan received a deferred five-year sentence for assault of his girlfriend, M.A., in Cause No. DC 18-321. In March 2020, on the basis of numerous objectionable communications Sullivan had subsequently made to M.A., the State brought new charges (Cause No. DC 19-829) of one count of felony tampering, four counts of PIC, and two counts of misdemeanor PIC. The District Court denied Sullivan's motion in limine to exclude from trial any reference to Sullivan's prior conviction in DC 18-321 under M. R Evid. 403 and 404(b), as well as his motion to dismiss the PIC counts as unconstitutionally overbroad. The District Court dismissed two counts of PIC for lack of jurisdiction. At the end of the State's case, Sullivan moved to dismiss the remaining charges for insufficient evidence. He further argued that his communications were protected speech under the First Amendment. The District Court denied these motions. The jury found Sullivan guilty of tampering with a witness or informant and guilty of three counts of PIC and not guilty of one count of PIC.

¶4 For the tampering count, the District Court sentenced Sullivan to ten years at Montana State Prison, all suspended, to run concurrently with the sentence in DC 18-321. For the PIC counts, the court imposed shorter, suspended sentences, running concurrently with the tampering sentence.

¶5 On appeal, Sullivan argues that (1) the tampering charge should have been dismissed as there was no pending proceeding at the time of Sullivan's message requesting that M.A. delete his texts, (2) the PIC convictions must be overturned as the 2017 version of the PIC statute is unconstitutionally overbroad on its face and as applied to Sullivan, and (3) the District Court erroneously allowed the State to present evidence relating to Sullivan's underlying aggravated assault conviction in DC 18-321.^[1]

¶6 This Court reviews de novo whether sufficient evidence supports a conviction. State v. Lamoureux, 2021 MT 94, ¶ 10, 404 Mont. 61, 485 P.3d 192; State v. Polak, 2018 MT 174, ¶ 14, 392 Mont. 90, 422 P.3d 112. Constitutional questions receive plenary review and we examine a district court's interpretation of law for correctness. Lamoureux, ¶ 10. We review a district court's decision to admit evidence of prior bad acts under M. R. Evid. 404(b) and 403 for abuse of discretion, though interpretation of an evidentiary rule or statute is reviewed de novo. State v. Lake, 2022 MT 28, ¶ 23, 407 Mont. 350, 503 P.3d 274.

Insufficiency of Evidence

¶7 Sullivan contends that the District Court erroneously denied his motions to dismiss the tampering and PIC charges for insufficiency of the evidence. A charge must be dismissed for insufficiency of evidence if, after reviewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Yuhas 2010 MT 223, ¶ 7, 358 Mont. 27, 243 P.3d 409. See also § 46-16-403, MCA. We conclude after reviewing the evidence that the state presented sufficient evidence to support Sullivan's conviction.

¶8 Section 45-7-206(1), MCA, provides in relevant part that:

A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, the person purposely or knowingly attempts to induce or otherwise cause a witness or informant to:

... (b) withhold any testimony, information, document, or thing[.]

¶9 At trial, the State admitted a June 14, 2019 letter from Sullivan to M.A. containing the following sentence: "In August I am going to see if I can get of[f] probation so if you could delete all our calls texts emails etc. that might be helpful." Sullivan argues that the State failed to provide evidence identifying an "official proceeding" under § 45-7-206(1), MCA, contending that he was not eligible to petition for early discharge and that the State had not prosecuted him for violating a no-contact order at the time of the letter. However, the plain language of § 45-7-206(1), MCA, did not require the State to prove that an official proceeding was actually pending against Sullivan, only that Sullivan "believe[d]" that an official proceeding or investigation was pending or about to be instituted.^[2] His June 2019 letter clearly indicated that he believed that he would have an opportunity "[i]n August" to petition to "get of[f] probation" for which the destruction of the information contained in his "calls texts emails etc." evidencing his illicit contacts with M.A. "might be helpful." A rational trier of fact could have concluded that Sullivan believed that "an official proceeding or investigation [wa]s pending or about to be instituted" when he made the request. The District Court correctly denied Sullivan's motion to dismiss the tampering charge for insufficient evidence.

¶10 Next, Sullivan argues that the PIC statute under which he was charged, § 45-8-213(1), MCA (2017), is facially unconstitutional and unconstitutional as applied to Sullivan. Section 45-8-213(1), MCA (2017), provides in relevant part that:

[a] person commits the offense of violating privacy in communications if the person knowingly or purposely:

(a) 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.

Sullivan takes issue with the words, "harass, annoy, or offend," which he argues renders the statute unconstitutionally overbroad as it sweeps up significant amounts of speech protected by the First Amendment of the United States Constitution and Article II, Section 7, of the Montana Constitution.^[3]

¶11 The State responds that the statute's facial constitutionality has already been decided in Lamoureux, ¶¶ 20-23, where we held that the purpose element of § 45-8-213(1), MCA (2017), did not unconstitutionally criminalize free speech. Sullivan asks us to reconsider Lamoureux and hold that the statute's reference to speech made with the purpose to "harass, annoy, or offend" a victim is unconstitutionally overbroad. The doctrine of stare decisis provides a strong preference for maintaining a precedent despite viable alternatives, but does not require us to follow a "manifestly wrong" decision. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, ¶20, 299 Mont. 389, 1 P.3d 348; McDonald v. Jacobsen, 2022 MT 160, ¶ 30, 409 Mont. 405, 515 P.3d 777. Legislative enactments are presumed constitutional, and the challenger must show its unconstitutionality beyond a reasonable doubt. State v. Egdorf, 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d 517.

¶12 The State also points to our earlier case, State v. Dugan, 2013 MT 38, 369 Mont. 39, 303 P.3d 755-where we struck down the statutory section's prima facie provision as violative of the First Amendment-pointing to our statement that, "[w]ith the prima facie provision invalidated," the PIC statute "legitimately encompasses only . . . communications . . . [that] can be proscribed without violating" constitutional free speech. Dugan, ¶¶ 63-64. However, the contested point in Dugan was only the prima facie clause-not at issue here- rather than the purpose element challenged in Lamoureaux and this case.

¶13 Sullivan argues that harassing, annoying, or offensive speech does not fall within any recognized exception to free speech protections. Sullivan misses, however, the key distinction the United States Supreme Court has drawn between (1) speech directed to a public audience, which is generally protected even if some members of the public find the speech highly objectionable, and (2) speech directed to a single unwilling, recipient, which is generally unprotected. Compare Rowan v. United States Post Office Dep't, 397 U.S. 728, 738, 90 S.Ct. 1484, 1491 (1970) (upholding ban on certain mailings sent to people who demanded that the mailer stop sending them mail, holding that "[n]o one has a right to press even 'good' ideas on an unwilling recipient") with Organization for a Better Austin v. Keefe, 402 U.S. 415, 420, 91 S.Ct. 1575, 1578 (1971) (holding that plaintiff could not seek to enjoin defendants from distributing leaflets critical of plaintiff in the neighborhood, concluding that an "important...