State v. Wurtz

• Decision Date: 03 December 1981
• Docket Number: No. 81-15,81-15
• Citation: 636 P.2d 246,195 Mont. 226,38 St.Rep. 1808
• Parties: STATE of Montana, Plaintiff and Respondent, v. Larry WURTZ, Defendant and Appellant.
• Court: Montana Supreme Court

Page 246

636 P.2d 246

195 Mont. 226

STATE of Montana, Plaintiff and Respondent, v. Larry WURTZ, Defendant and Appellant.

No. 81-15.

Supreme Court of Montana.

Submitted June 19, 1981.

Decided Nov. 6, 1981.

Rehearing Dec. 3, 1981.

Hash, Jellison, O'Brien & Bartlett, Kalispell, James C. Bartlett argued, Kalispell, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Chris D. Tweeten argued, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, for plaintiff and respondent.

WEBER, Justice.

Larry Wurtz was found guilty of intimidation after being tried by jury in the Eleventh Judicial District, Flathead County, and was sentenced to ten years imprisonment. He appeals his conviction. We affirm.

On April 10, 1980, K.S. was walking home from her job as a legal secretary in Kalispell, Montana. While she was crossing the street, she noticed a blue car that was stopped at a stop sign. K.S. proceeded one half block down the street. As she crossed an alley, the blue car pulled into the alley and stopped behind her. The driver's window was open, and the driver asked K.S., "Do you want to fuck?" K.S. looked at the driver and then walked on. She later identified Larry Wurtz as the driver of the car.

As K.S. walked down the street, the car kept pace and the driver continued to make obscene comments. When K.S. reached the next alley, the car pulled into the alley and blocked her path. The defendant said, "I want to rape you" or words to that effect or "I am going to rape you." He also said, "Do you want to suck my cock?" K.S. walked behind the car and memorized the license number. The driver placed his car in reverse as if to run over K.S. and she ran one-half block to a neighboring house. The door was locked so K.S. hid between two houses. The car proceeded down the street and out of sight. K.S. then ran to her house and called the police. She observed the car driving around the neighborhood while she was speaking to the police over the telephone.

At trial, the State presented the testimony of K.S. and that of two other witnesses, Addison Clark and S.B. Clark was a Kalispell police officer who participated in the investigation of the case against the defendant. He testified, over objection, that a license check had been run on the numbers that K.S. had observed on the blue car, and that the car was registered to the defendant. He also testified that he showed K.S. a photo array containing the defendant's photo together with six others depicting persons meeting the defendant's general description. K.S. identified the defendant's photo as being that of the driver of the car.

S.B., a high school student, testified to a prior incident involving the defendant. She stated that on June 23, 1979, at approximately 4:30 to 5:00 p.m., she was walking toward Flathead High School when Larry Wurtz drove by in the opposite direction and stuck his tongue out at her in a suggestive manner. When S.B. arrived at the high school parking lot, the defendant drove up and asked S.B. to have sexual intercourse with him. He also asked her if she wanted to see his penis. When S.B. rebuffed the defendant's advances, he jumped out of the car and grabbed her. Wurtz unsnapped S.B.'s pants and was beginning to unzip his when S.B. broke away from him and ran to safety in the high school. While Wurtz was restraining S.B., he continued to make obscene comments. S.B. was able to identify Wurtz, and he pleaded guilty to sexual assault on September 7, 1979.

Wurtz was found guilty of intimidation and raises five issues in his appeal:

1. Whether the charge of intimidation under section 45-5-203(1)(c), MCA, is unconstitutional.

2. Whether the charge of intimidation should have been dismissed as a matter of law for the reason that it was not supported by the evidence.

3. Whether the court properly instructed the jury.

4. Whether the court properly admitted other crime evidence through the testimony of S.B.

5. Whether the court properly admitted the testimony of policeman Addison Clark.

Issue No. 1: The appellant was convicted under section 45-5-203(1)(c), MCA, which states that:

"A person commits the offense of intimidation when, with the purpose to cause another to perform or omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts: ...

"(c) commit any criminal offense; ..."

Appellant contends that the above section is overbroad on its face and therefore an infringement of various rights guaranteed by the First Amendment to the United States Constitution. The allegation of overbreadth rests upon the restriction that the section places upon communication of threats to commit "insubstantial evil."

Appellant relies solely upon Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, rev'd on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696. That case involved section 12-6(a)(3), Illinois Criminal Code (1961), which is virtually identical to section 45-5-203(1)(c), MCA.

Landry v. Daley was a declaratory judgment action brought by black citizens and ACT, a civil rights group. ACT engaged in picketing, demonstrations, rallies and other activities to accomplish its goals. The plaintiffs sought injunctions against the enforcement of Illinois statutes and Chicago ordinances. They alleged that the laws were being used to deprive them of the free exercise of their First Amendment rights. The three-judge federal court declared the "any criminal offense" section of the Illinois statute to be unconstitutional.

"The provision is not vague. It is, however, overbroad since it prohibits threats of insubstantial evil. The commission of criminal offenses against persons or property is a substantial evil, and the state may legitimately proscribe the making of threats to commit such offenses. The commission of offenses against public order only, however, is not such a substantial evil that the state may prohibit the threat of it. Sub-paragraph (a)(3) proscribes threats to violate any penal statute. It therefore makes criminal threats such as the following: (1) (sic) threats by dissentient grounds to engage in disorderly conduct, threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection, and threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. Indeed, the phrase 'commit any criminal offense' is so broad as to include threats to commit misdemeanors punishable by fine only. These evils are not so substantial that the state's interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide berth." Landry v. Daley, 280 F.Supp. at 964.

The decision in Landry v. Daley was reversed in Boyle v. Landry (1971), 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696. The Supreme Court found that the injunction was issued prematurely because:

"It is obvious that the allegations of the complaint in this case fall far short of showing any irreparable injury from threats or actual prosecutions under the intimidation statute or from any other conduct by state or city officials. Not a single one of the citizens who brought this action had ever been prosecuted, charged, or even arrested under the particular intimidation statute which the court below held unconstitutional ... (t)he normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future." Boyle v. Landry, 401 U.S. at 80-81, 91 S.Ct. at 760, 27 L.Ed.2d at 699-700.

Appellant argues that the reversal of Landry v. Daley by Boyle v. Landry does not weaken the reasoning of the three-judge federal court. We find, however, that statements of the United States Supreme Court subsequent to the Landry v. Daley decision lead us to conclude that section 45-5-203(1)(c), MCA, is not overbroad.

Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, involved an Oklahoma statute which limited the political participation of certain state employees. Three state employees who had been charged under the statute challenged it as vague and overbroad. The Supreme Court affirmed the federal district court holding that the statute was constitutional, and said:

"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.... (An) exception has been carved out in the area of the First Amendment.

"It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society ... Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression..." Broadrick, 413 U.S. at 610, 611-612, 93 S.Ct. at 2915-2916, 37 L.Ed.2d at 839-840.

"It remains a 'matter of no little difficulty' to determine when a law may properly be held void on its face and when 'such summary action' is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the...