96-288

 No. 96-288

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

STATE OF MONTANA,

 

 Plaintiff and Respondent, 

 v.

 

 DAVID NATHAN NYE, 

 Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

 In and for the County of Park,

 The Honorable William Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Dan Yardley, Livingston, Montana

 For Respondent:

 Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant

 Attorney General, Helena, Montana; Tara Depuy, Park County Attorney,

Livingston, Montana

 Submitted on Briefs: January 9, 1997

 Decided: July 23, 1997

Filed:

 __________________________________________

 Clerk

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Justice James C. Nelson delivered the Opinion of the Court.

 David Nathan Nye (Nye) was charged by information with the offense of malicious

intimidation or harassment relating to civil or human rights, a felony, in violation 

of 

45-5-221, MCA. Nye pleaded guilty in the District Court for the Sixth Judicial 

District,

Park County, pursuant to a plea agreement wherein he reserved his right to appeal the

constitutionality of the statute. He now appeals his conviction. We Affirm.

 We address the following issues on appeal:

 1. Does 45-5-221, MCA, violate Nye's right to freedom of speech under the

First Amendment to the United States Constitution and Article II, Section 7 of the

Montana Constitution?

 2. Did the District Court err in determining that 45-5-221, MCA, is not

unconstitutionally vague?

 3. Did the District Court err in determining that 45-5-221, MCA, is not

unconstitutionally over broad?

 4. Does 45-5-221, MCA, set penalties grossly disproportionate to the offense

in violation of Nye's rights under the Eighth Amendment to the United States 

Constitution

and Article II, Sections 22 and 28 of the Montana Constitution?

 Factual and Procedural Background

 On April 14, 1995, Nye and four other individuals affixed bumper stickers that

read "NO I do not belong to CUT" on state and county road signs near Gardiner,

Montana. They also placed the stickers in several mailboxes in the area and affixed 

them

to property belonging to the Church Universal and Triumphant (CUT). 

 On April 26, 1995, Nye was charged by information with violating 45-5-

221(1)(c), MCA, the "hate crimes" statute. He entered a plea of not guilty to the 

charge

and was released on his own recognizance subject to certain conditions. On October 

12,

1995, Nye filed a motion to dismiss the case on the grounds that 45-5-221(1)(c), 

MCA,

is void for vagueness, over broad as applied to Nye, and in violation of Nye's

constitutional rights. This motion was subsequently denied by the District Court.

 The State filed an Amended Information on December 6, 1995, adding an

alternative charge of accountability for malicious intimidation or harassment 

relating to

civil or human rights. Nye pleaded not guilty to the charges in the Amended 

Information

and was again released on his own recognizance subject to the conditions previously

imposed.

 On March 15, 1996, pursuant to a plea agreement, Nye withdrew his not guilty

plea and pleaded guilty to the charge of malicious intimidation or harassment 

relating to

civil or human rights, a felony. Pursuant to 46-12-204(3), MCA, Nye reserved his

right to appeal the District Court's order denying his motion to dismiss. 

 On April 8, 1996, a sentencing hearing was held wherein the District Court

ordered that sentencing be deferred for 18 months and that Nye be placed on probation

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with the Department of Corrections. Nye's sentence was ordered stayed pending appeal

to this Court.

 Standard of Review

 A district court's denial of a motion to dismiss involves a legal question 

that we

review de novo to determine whether the district court's interpretation of the law is

correct. State v. Romero (Mont. 1996), 926 P.2d 717, 722, 53 St.Rep. 1050, 1052

(citing State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66).

 Section 45-5-221, MCA, the statute under which Nye was charged, provides:

 Malicious intimidation or harassment relating to civil or human

 rights -- penalty. (1) A person commits the offense of malicious

 intimidation or harassment when, because of another person's race, creed,

 religion, color, national origin, or involvement in civil rights or human

 rights activities, he purposely or knowingly, with the intent to terrify,

 intimidate, threaten, harass, annoy, or offend:

 (a) causes bodily injury to another;

 (b) causes reasonable apprehension of bodily injury in another; or

 (c) damages, destroys, or defaces any property of another or any

 public property.

 (2) For purposes of this section, "deface" includes but is not limited

 to cross burning or the placing of any word or symbol commonly associated

 with racial, religious, or ethnic identity or activities on the property of

 another person without his or her permission.

 (3) A person convicted of the offense of malicious intimidation or

 harassment shall be imprisoned in the state prison for a term not to exceed

 5 years or be fined an amount not to exceed $5,000, or both.

 All statutes carry with them a presumption of constitutionality and it is the 

duty

of the courts to construe statutes narrowly to avoid an unconstitutional 

interpretation if

possible. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041 cert 

denied

(1995), 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630 (citing Montana Auto. Assn.

v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303; State v. Ytterdahl (1986),

222 Mont. 258, 261, 721 P.2d 757, 759). This Court has made clear that, when

construing a statute, it must be read as a whole, and terms used in the statute 

should not

be isolated from the context in which they were used by the Legislature. Lilburn, 

875

P.2d at 1041 (citing McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507,

510). Statutes should be construed according to the plain meaning of the language 

used

therein. Lilburn, 875 P.2d at 1041 (citing Norfolk Holdings v. Dept. of Revenue 

(1991),

249 Mont. 40, 43, 813 P.2d 460, 461. 

 When the constitutionality of a statute is challenged, the party making the 

challenge

bears the burden of proving the statute unconstitutional beyond a reasonable doubt. 

State

v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17 (citing Monroe v. State (1994),

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265 Mont. 1, 3, 873 P.2d 230, 231; GBN, Inc. v. Montana Dept. of Revenue (1991),

249 Mont. 261, 265, 815 P.2d 595, 597). Any doubt is to be resolved in favor of the

statute. Martel, 902 P.2d at 18. 

 Issue 1.

 Does 45-5-221, MCA, violate Nye's right to freedom of speech under

 the First Amendment to the United States Constitution and Article II,

 Section 7 of the Montana Constitution?

 Nye argues on appeal that his acts of distributing the bumper stickers were 

meant

to convey his beliefs and ideas, thus his conduct invokes his right to freedom of 

speech

under the First Amendment to the United States Constitution and Article II, Section 

7 of

the Montana Constitution. He compares his conduct to that of the defendant in Texas 

v.

Johnson (1989), 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, whose conviction for

burning the American flag in violation of a Texas statute prohibiting the 

desecration of 

a venerated object was overturned by the United States Supreme Court as infringing on

his First Amendment rights.

 Johnson was one of more than 100 political demonstrators who marched through

the streets of Dallas, Texas, during the 1984 Republican National Convention. When 

the

demonstrators reached Dallas City Hall, Johnson unfurled an American flag, doused it

with kerosene, and set it on fire. He was the only demonstrator charged with a 

crime. 

In overturning Johnson's conviction, the Supreme Court held that the restrictions on

Johnson's political expression were impermissibly content based. Johnson, 491 U.S. 

at

412, 109 S.Ct. at 2544, 105 L.Ed.2d 342. The Supreme Court also held that Johnson's

actions were expressive conduct permitting him to invoke the First Amendment. 

Johnson, 491 U.S. at 406, 109 S.Ct. at 2540, 105 L.Ed.2d 342.

 The Supreme Court has made it clear that to be protected as "expressive 

conduct,"

the activity must be "sufficiently imbued with elements of communication to fall 

within

the scope of the First and Fourteenth Amendments." Spence v. State of Washington

(1974), 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842. Nye has not shown

that his conduct meets this test.

 In Wisconsin v. Mitchell (1993), 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436,

the United States Supreme Court held that bias-motivated speech, coupled with 

assaultive

or other nonverbal proscribed conduct, is not protected by the First Amendment. In 

that

case, defendant's sentence for aggravated battery was enhanced because he 

intentionally

selected his victim because of the victim's race. The Supreme Court concluded that

þviolence or other types of potentially expressive activities that produce special 

harms

distinct from their communicative impact . . . are entitled to no constitutional 

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protection.þ 

Mitchell, 508 U.S. at 484, 113 S.Ct. at 2199, 124 L.Ed.2d 436 (quoting Roberts v.

United States Jaycees (1984), 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d

462). 

 In Lilburn we noted that the Supreme Court has provided clear guidelines for

distinguishing a content-neutral regulation from one which is impermissibly contentbased:

 The principal inquiry in determining content neutrality . . . is

 whether the government has adopted a regulation of speech because of

 disagreement with the message it conveys. The government's purpose is

 the controlling consideration. A regulation that serves purposes unrelated

 to the content of expression is deemed neutral, even if it has an incidental

 effect on some speakers or messages but not others.

Lilburn, 875 P.2d at 1042 (quoting Ward v. Rock Against Racism (1989), 491 U.S. 781,

791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661). 

 "The determination of whether a regulation is content-based turns not on 

whether

its incidental effects fall more heavily on expression of a certain viewpoint, but 

rather on

whether the governmental purpose to be served by the regulation is not motivated by a

desire to suppress the content of the communication." Lilburn, 875 P.2d at 1042 

(citing

City of Renton v. Playtime Theaters, Inc. (1986), 475 U.S. 41, 106 S.Ct. 925, 89

L.Ed.2d 29). In the case before us, the governmental purpose to be served by 45-5-

221, MCA, is not to suppress the content of the communication, rather, it is to 

prohibit

conduct that violates other criminal laws, such as assault, criminal mischief, and 

trespass,

and that are committed against another person because of that person's race, 

religion or 

national origin with the intent to intimidate, harass or annoy that person.

 Nye points out that many others in the Gardiner community have similar stickers

affixed to their vehicles or in their windows as a protest against what they 

perceive to be

objectionable practices of CUT. However, Nye fails to recognize that the difference

between his conduct and that of others in the Gardiner community is that the others 

he

refers to placed the stickers on their own property while Nye placed the stickers on 

other

people's property without their permission. As the State asserts in its brief, if 

Nye had

limited his attack on CUT to the display of a bumper sticker on his car or living 

room

window, the First Amendment would have protected his right to do so. Nye lost his 

First

Amendment protection when he coupled the message on the bumper sticker with

defacement of the property of others. 

 Nye has not argued that Article II, Section 7 of the Montana Constitution 

provides

any different or greater protection for free expression than does the First 

Amendment of

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the United States Constitution. Along those lines this Court has recognized that 

neither

the First Amendment nor the Montana Constitution protect all speech:

 There are certain well-defined and narrowly limited classes of speech, the

 prevention and punishment of which have never been thought to raise any

 Constitutional problems. These include the lewd and obscene, the profane,

 the libelous, and the insulting or "fighting" words--those which by their

 very utterance inflict injury or tend to incite an immediate breach of the

 peace. It has been well observed that such utterances are no essential part

 of any exposition of ideas. . . . 

State v. Cooney (1995), 271 Mont. 42, 48, 894 P.2d 303, 307 (quoting State v. Lance

(1986), 222 Mont. 92, 102, 721 P.2d 1258, 1265; Chaplinsky v. State of New Hampshire

(1942), 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed.1031). 

 Furthermore, "free speech does not include the right to cause substantial 

emotional

distress by harassment or intimidation." Cooney, 894 P.2d at 307. Activities which 

are

intended to embarrass, annoy or harass, as was the case here, are not protected by 

the

First Amendment. State v. Helfrich (1996), 277 Mont. 452, 460, 922 P.2d 1159, 1164

(citing People v. Holt (Ill.App. 1995), 649 N.E.2d 571, 581). 

 Accordingly, we hold that 45-5-221, MCA, does not violate Nye's right to

freedom of speech under the First Amendment to the United States Constitution or 

Article

II, Section 7 of the Montana Constitution.

 Issue 2. 

 Did the District Court err in determining that 45-5-221, MCA, is not 

 unconstitutionally vague?

 The issue of vagueness, with regard to a statute or ordinance, can be raised 

in two

different connotations: (1) whether it is so vague that the law is rendered void on 

its face;

or (2) whether it is vague as applied in a particular situation. Martel, 902 P.2d 

at 18

(citing City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668). 

Nye

claims that 45-5-221, MCA, is unconstitutionally vague on its face because the 

terms

"annoy" and "offend" are not defined within the statute. 

 We have previously stated that a statute is void on its face "if it fails to 

give a

person of ordinary intelligence fair notice that his contemplated conduct is 

forbidden."

State v. Brogan (1995), 272 Mont. 156, 168, 900 P.2d 284, 291 (citing State v. Crisp

(1991), 249 Mont. 199, 202, 814 P.2d 981, 983). "No person should be required to

speculate as to whether his contemplated course of action may be subject to criminal

penalties." Brogan, 900 P.2d at 291. 

 The Legislature need not define every term it employs when constructing a 

statute. 

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If a term is one of common usage and is readily understood, it is presumed that a

reasonable person of average intelligence can comprehend it. Martel, 902 P.2d at 18-

19

(citing Contway v. Camp (1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379). The

failure to include exhaustive definitions will not automatically render a statute 

overly

vague, so long as the meaning of the statute is clear and provides a defendant with

adequate notice of what conduct is proscribed. Martel, 902 P.2d at 19. The terms

"annoy" and "offend" have commonly understood meanings. "Annoy" means to bother,

irritate or harass, particularly by repeated acts. The American Heritage Dictionary 

112

(2d college ed. 1985). "Offend" means to create or excite anger, resentment or

annoyance or to cause displeasure. The American Heritage Dictionary 862 (2d college

ed. 1985). These are terms of common usage and are readily understood, thus we can

presume that a reasonable person of average intelligence would comprehend their

meaning.

 Nye contends that it is possible to find a person guilty under 45-5-221, MCA,

if the victim were annoyed or offended by an action related to the victim's 

religion. Nye

maintains that if the victim is sensitive about his or her religious beliefs, then 

almost any

action would be likely to annoy or offend them. The United States Supreme Court has

long recognized that the constitutionality of a "vague" statutory standard is 

closely related

to whether that standard incorporates a requirement of mens rea. Martel, 902 P.2d 

at 19

(citing Colautti v. Franklin (1979), 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d

596). Thus the requirement of a mental state to do a prohibited act may avoid those

consequences to the accused which may otherwise render a vague or indefinite statute

invalid. Martel, 902 P.2d at 19-20 (citing Screws v. United States (1945), 325 U.S. 

91,

101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495). Indeed, contrary to Nye's assertions, 

45-5-

221, MCA, does not punish a defendant for offending or annoying another individual

because of that individual's race, religion or national origin. The statute 

punishes a

defendant for assaults and damage to property when that conduct is done with the 

intent

to annoy or offend another individual because of that individual's race, religion or

national origin.

 The Supreme Court has made clear that if the challenged statute is reasonably 

clear

in its application to the conduct of the person bringing the challenge, it cannot be 

stricken

on its face for vagueness. Lilburn, 875 P.2d at 1044 (citing Village of Hoffman 

Estates

v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495 n.7, 102 S.Ct. 1186, 

1191

n.7, 71 L.Ed.2d 362). "One to whose conduct a statute clearly applies may not

successfully challenge it for vagueness." Lilburn, 875 P.2d at 1044 (quoting 

Hoffman,

455 U.S. at 495 n.7, 102 S.Ct. at 1191 n.7, 71 L.Ed.2d 362). Section 45-5-221, MCA,

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prohibits damaging, destroying or defacing the property of another with the intent to

harass, annoy or offend because of another's race, religion or national origin. By

affixing stickers to public and private property, Nye defaced that property. His 

actions

were committed with the intent to harass, annoy or offend CUT members. Nye's actions

clearly fall within the prohibitions of 45-5-221, MCA.

 Accordingly, we hold that the District Court did not err in determining that 

45-5-

221, MCA, is not unconstitutionally vague on its face. Moreover, there is nothing 

in the

record of this case which would support a conclusion that the statute is vague as 

applied

to Nye's conduct.

 Issue 3.

 Did the District Court err in determining that 45-5-221, MCA, is not

 unconstitutionally over broad?

 "An over-broad statute is one that is designed to burden or punish activities 

which

are not constitutionally protected, but the statute includes within its scope 

activities which

are protected by the First Amendment." Martel, 902 P.2d at 20 (quoting Hill v. City

of Houston, Tex. (5th Cir. 1985), 764 F.2d 1156, 1161, cert. denied (1987), 483 U.S.

1001, 107 S.Ct. 3222, 97 L.Ed.2d 729). A facial overbreadth challenge is an 

exception

to the general rule that statutes are evaluated in light of the situation and facts 

before the

court. Lilburn, 875 P.2d at 1040 (citing R.A.V. v. City of St. Paul, Minn. (1992), 

505

U.S. 377, 411, 112 S.Ct. 2538, 2558, 120 L.Ed.2d 305; Broadrick v. Oklahoma (1973),

413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830).

 Nye contends that 45-5-221, MCA, is unconstitutionally over broad because

under the definition of "deface" in subsection (2) of the statute, a defendant 

could be

found guilty if he merely placed the stickers in mailboxes if that act annoyed or 

offended

a person's religious beliefs. However, the claimed overbreadth of a statute, must 

not

only be real, but substantial as well, judged in relation to the statute's plainly 

legitimate

sweep, particularly where conduct and not merely speech is involved. State v. Ross

(1995), 269 Mont. 347, 353, 889 P.2d 161, 164 (citing Broadrick, 413 U.S. at 615, 

93 

S.Ct. at 2918, 37 L.Ed.2d 830). In the instant case, Nye has failed to demonstrate 

how

the statute might infringe on another's constitutionally protected rights in a real 

or

substantial way, especially when compared to the statute's wide variety of 

constitutional

applications. 

 This Court has determined that when the claimed overbreadth of a statute is not

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substantial and real, the statute is not unconstitutional on its face, but rather an

unconstitutional application of the statute should be dealt with on a case-by-case 

basis. 

Ross, 889 P.2d at 164 (citing New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct.

3348, 73 L.Ed.2d 1113). In that regard, Nye's conduct of affixing the stickers to 

state

and county road signs, mailboxes, as well as property belonging to CUT, was clearly a

violation of 45-5-221(1)(c), MCA. Even assuming that the damage to the mailboxes

and road signs was, as argued by Nye, "nominal," nevertheless there was damage. 

Moreover, the mailboxes and road signs were defaced within the definition of "deface"

in 45-5-221(2), MCA. Nye placed the anti-CUT stickers on the mailboxes and road

signs. Whether the word "deface" would have properly applied to his placing the 

stickers

in the mailboxes is irrelevant. That was not the conduct for which he was 

convicted,

and we do not find it necessary to address that argument. Section 45-5-221(1)(c), 

MCA,

clearly applied to and criminalized Nye's actual conduct at issue here.

 Accordingly, we hold that the District Court did not err in determining that 

45-5-

221, MCA, is not unconstitutionally over broad on its face or as applied to Nye's

conduct.

 Issue 4.

 Does 45-5-221, MCA, set penalties grossly disproportionate to the

 offense in violation of Nye's rights under the Eighth Amendment to the

 United States Constitution and Article II, Sections 22 and 28 of the

 Montana Constitution?

 The penalty for violating 45-5-221, MCA, is imprisonment in the state prison

for a term not to exceed 5 years or a fine in an amount not to exceed $5,000, or 

both. 

Section 45-5-221(3), MCA. Nye contends on appeal that this penalty is so grossly

disproportionate to the crime he committed that it violates the Eighth Amendment of 

the

United States Constitution and Article II, Sections 22 and 28 of the Montana 

Constitution. 

 The State contends that Nye is precluded from raising this issue on appeal 

because

he failed to raise it in the court below. As a result, when Nye pleaded guilty 

under 46-

12-204(3), MCA, this issue was not preserved for appeal. Section 46-12-204(3), MCA,

provides:

 With the approval of the court and the consent of the prosecutor, a

 defendant may enter a plea of guilty, reserving the right, on appeal from

 the judgment, to review the adverse determination of any specified pretrial

 motion. If the defendant prevails on appeal, the defendant must be allowed

 to withdraw the plea.

 In his motion to dismiss, Nye argued that 45-5-221(1)(c), MCA, violated his

right to free speech, and was unconstitutionally over broad and vague. He did not 

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argue

that the penalty provided for in the statute was grossly disproportionate to the 

crime with

which he was charged, as he now contends. Since Nye did not raise this issue below, 

it

was not decided either adversely or favorably to him by the District Court. 

Therefore,

there is no "adverse determination" to review on appeal regarding this issue. 

Section 46-

12-204(3), MCA. Accordingly, we decline to address the merits of this issue.

 Affirmed. 

 /S/ JAMES C. NELSON

 

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

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