Vir-6A.-if 

DA 21-0626

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 23N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JESSICA ELAINE HURT,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause Nos. DC-2020-700 and

DC-2021-92

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Rachel G. Inabnit, Law Office of Rachel Inabnit, PLLC, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Roy Brown, Assistant 

Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana

Submitted on Briefs: December 6, 2023

 Decided: February 6, 2024

Filed:

__________________________________________

Clerk

02/06/2024
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Justice Ingrid Gustafson 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 Jessica Elaine Hurt (Hurt) appeals from the October 12, 2021, Judgment of the 

Fourth Judicial District Court, Missoula County, sentencing her for Criminal Possession of 

Dangerous Drugs, a felony in violation of § 45-9-102, MCA, and Obstructing a Peace 

Officer in violation of § 45-7-302, MCA. The District Court imposed a no-contact 

probation condition between Hurt and her husband, Jeremiah Jones (Jones), which she 

appeals. Hurt claims the condition is not sufficiently related to her offenses and it violates 

her constitutional right to marriage. We affirm.

¶3 This case is a consolidation of two appeals before this Court. The first case arose 

in October 2020 when police found Hurt sleeping in her car and asked her to exit the 

vehicle. Hurt refused and fled in her vehicle at a high rate of speed. Ultimately, she 

stopped in a cul-de-sac, reversed her vehicle, and struck the officer’s vehicle. Based on 

this incident, Hurt was charged with obstructing a peace officer, criminal mischief, and 

fleeing from or eluding a peace officer.

¶4 The second case arose in December 2020 when Hurt, Jones, and a few other people 

were at a hotel in Missoula. A complaint was made to police about the group. The police 

arrived and knocked on their hotel door. Hurt hid under the bathroom sink counter, and 
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Jones left through the backdoor. When police entered, they found drug paraphernalia in 

the room as well as heroin under the sink with Hurt. For this incident, Hurt was charged 

with criminal possession of dangerous drugs and obstructing a peace officer. 

¶5 Hurt signed a global plea agreement that governed both cases described above. In 

the plea agreement, Hurt pled no contest to the criminal possession of dangerous drug 

charge and pled guilty to both the obstructing a peace officer charge and the fleeing from 

or eluding a peace officer charge. At the combined sentencing hearing, Hurt was given a 

three-year deferred imposition of sentence for the criminal possession of dangerous drugs 

charge, and sentenced to 6 months, all suspended, for the obstructing a peace officer charge, 

and one year, all suspended, for the fleeing or eluding a peace officer charge. The other 

charges were dismissed. The District Court also imposed a probation condition that 

prohibited Hurt from associating with any other probationers or parolees, which included 

her husband Jones. At the sentencing hearing, the court discussed this condition to ensure 

Hurt understood it:

THE COURT: And with regard to any conditions, [] does Ms. Hurt 

understand those conditions, agree to them, and waive their reading? And 

I’m specifically underlining, of course, the no contact or no reciprocity with 

Mr. Jones. 

[DEFENSE COUNSEL]: Your Honor, that was the one condition that I had 

intended to address with Your Honor. I understand the Court’s concern about 

that, but Ms. Hurt would like to have contact with her husband. So I would 

ask the Court respectively to consider not imposing that. And that would be, 

I guess, condition number 20 or make an exception to allow her to have 

contact with Mr. Jones.

[HURT]: Probation said they would make it so we couldn’t live together 

though, which is fine.
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THE COURT: Well, my answer is no right now. I might change my mind 

based upon her ability to perform other conditions, but she has not had a good 

record in following other conditions. So if she can demonstrate change and 

begin to follow conditions, then I might consider relaxing or amending or 

adjusting that condition, but not at this time. . . . And if there’s any kind of 

contact where there’s not a clear record back to her probation officer that 

there was this contact, she will be in front of me on a 72-hold hearing without 

bond.

[DEFENSE COUNSEL]: Okay. That is the only condition I intend to 

address.

THE COURT: And you understand that Ms. Hurt?

[HURT]: I do, Your Honor.

THE COURT: And you agree with it?

[HURT]: I do.

¶6 On appeal, Hurt challenges the condition prohibiting her from associating with her

husband. Hurt argues the District Court abused its discretion by imposing the condition, 

and by doing so, violated her fundamental right to marriage. The State argues Hurt did not 

object to the condition at sentencing and failed to raise any constitutional issue in regard to 

it, and therefore cannot raise it on appeal. According to the State, even if Hurt preserved

the issue by counsel’s request for an exception for contact with Jones, the court did not 

abuse its discretion because the condition serves the objective of rehabilitating Hurt by 

reducing the likelihood of her reoffending or relapsing. 

¶7 “We review challenges to probationary conditions for both legality and abuse of 

discretion.” In re D.A.S., 2008 MT 168, ¶ 8, 343 Mont. 360, 184 P.3d 349. Section 46-18-

202(1)(g), MCA, provides a sentencing judge may impose any “limitation reasonably 

related to the objectives of rehabilitation and the protection of the victim and society.” 
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“The sentencing statutes allow a district court to impose conditions of probation that are 

‘reasonable restrictions’ necessary to rehabilitate the offender or protect the victim and 

society. Accordingly, we first review a condition of probation for legality and then review 

the condition for an abuse of discretion.” In re D.A.S., ¶ 8 (internal citations omitted). An 

abuse of discretion occurs when the trial court acted arbitrarily without employment of 

conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. 

Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont. 293, 239 P.3d 

904. “We will reverse a sentencing condition if it is overly broad or unduly punitive, or if 

the required nexus is absent or exceedingly tenuous.” State v. Parkhill, 2018 MT 69, ¶ 12, 

391 Mont. 114, 414 P.3d 1244 (internal quotations omitted).

¶8 To preserve an issue for appeal, “it is necessary that the issue or claim be timely 

raised in the first instance in the trial court.” State v. Norman, 2010 MT 253, ¶ 16, 358

Mont. 252, 244 P.3d 737. Hurt claims she preserved the issue of the probation condition

that prohibits her from associating with her husband when defense counsel asked the court 

not to impose that condition. The State argues Hurt failed to preserve the issue because 

defense counsel did not specifically object to the condition, rather counsel made a request 

for leniency, and further failed to raise any constitutional issue related to the condition.

¶9 We find Hurt preserved any claim that the condition did not have a nexus to her 

offenses by her request for an exception to the condition to permit association with her 

husband. When the District Court asked whether Hurt understood the conditions, defense 

counsel asked the court to consider not imposing the condition that prohibited Hurt from 

seeing her husband. The court understood and considered the request but denied it based 
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on Hurt’s rehabilitative needs. In considering Hurt’s request, the court provided that until 

she could demonstrate some rehabilitation by following other conditions, the court would 

maintain the condition prohibiting her from associating with her husband. Essentially, 

defense counsel brought the nexus issue to the court’s attention in a timely manner, the 

court considered it, and then denied it, preserving the issue for appeal.

¶10 Turning to the merits, we must determine whether the probation condition has a 

sufficient nexus to the crime and is necessary to the rehabilitation of the defendant. The 

District Court considered multiple factors before imposing the condition. At sentencing, 

the court explained “I think the prospects of rehabilitating you are not good until you 

successfully address your chemical dependency and any anger and mental health issues 

and complete this judgment.” Hurt herself admitted that Jones was problematic for her 

rehabilitation from drug use because of his own mental health issues and substance use,

and she previously reported to a mental health evaluator that her substance use and mental 

health conditions were connected to her relationship with her husband. According to 

Hurt’s presentence investigation report, “both parties in the marriage have made claims 

about the other party being mentally unstable, physically and verbally abusive, and 

threatening suicide. The extent of their dysfunction was great enough that the Court has 

repeatedly ordered no contact between them.” Further, at the time of sentencing, Jones had 

an order of protection (OOP) against Hurt, precluding Hurt from having any contact with 

him.

1

1 Reportedly, she tried to drive her car into him. 
7

¶11 In light of the foregoing, the decision to prohibit Hurt from associating with other 

probationers and parolees—including her husband who also has drug abuse and mental 

health issues and an OOP requiring she not have contact with him—while she is on 

probation is reasonably related to her rehabilitation. The correlation between the crime 

and condition is clear: Hurt was convicted of criminal possession of dangerous drugs, and 

the condition prohibits her from associating with her husband who she admits is connected 

to her substance use and mental health issues. The District Court found Hurt would be 

more likely to succeed in her rehabilitation and her recovery from substance use if she was 

not in association with her husband, at least until she demonstrated some rehabilitative 

success. Therefore, the District Court’s decision was not arbitrary and it did not abuse its 

discretion.

¶12 Next, Hurt claims the condition violates her fundamental right to marriage because 

it prohibits her from associating with her husband. Because Hurt did not present this 

argument to the District Court, we address whether she can raise this constitutional 

challenge for the first time on appeal. 

¶13 This Court differentiates between the types of constitutional challenges it will hear 

for the first time on appeal. Parkhill, ¶ 16. “[A] claim that a statute authorizing a sentence 

is unconstitutional on its face may be raised for the first time on appeal, but the exception 

does not apply to as-applied constitutional challenges.” Parkhill, ¶ 16. “A defendant’s 

facial constitutional challenge is based on the defendant’s allegation that the statute upon

which his sentence was based is unconstitutional—i.e., his sentence is illegal.” State v. 

Coleman, 2018 MT 290, ¶ 9, 393 Mont. 375, 431 P.3d 26 (emphasis in original).
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Therefore, we address facial challenges even when raised for the first time on appeal. 

Coleman, ¶ 9. However, “a defendant’s as-applied constitutional challenge is based on the 

defendant’s allegation that his sentence is unconstitutional—i.e., his sentence is 

objectionable.” Coleman, ¶ 9 (emphasis in original). As such, this Court “will not address 

as-applied constitutional challenges to sentencing conditions raised for the first time on 

appeal.” Coleman, ¶ 9.

¶14 Here, Hurt raises an as-applied challenge to a specific sentencing condition for the 

first time on appeal. She alleges that, as applied to her, the probation condition prohibiting

her from associating with other probationers and parolees, including her husband, violates 

her fundamental right to marriage. This as-applied constitutional challenge cannot be 

raised for the first time on appeal. 

¶15 This Court does, however, have the discretion to review alleged errors that implicate 

a defendant’s fundamental rights when no contemporaneous objection was made in the trial 

court under plain error review. State v. Palafox, 2023 MT 26, ¶ 17, 411 Mont. 233, 524

P.3d 461. This Court will only exercise plain error review when “failing to review the 

claimed error may result in a manifest miscarriage of justice, may leave unsettled the 

question of the fundamental fairness of the trial or proceedings, or may compromise the 

integrity of the judicial process.” Palafox, ¶ 17. Plain error review is used sparingly on a 

case-by-case basis. Palafox, ¶ 17.

¶16 Given the District Court’s reasoning, Hurt’s prior drug use and mental health issues, 

her admission that her substance use and mental health problems are connected to her 

relationship with Jones, Jones’s prior drug use and mental health issues, Jones’s OOP 
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against Hurt, Hurt’s previous failure to successfully follow probation conditions, and the 

rehabilitative purposes the condition serves, plain error review is not warranted. We do 

not conclude that a manifest miscarriage of justice will result by declining to review the 

issue, especially considering it was designed to facilitate rehabilitative care. The District 

Court thoughtfully imposed the condition with the above facts in mind for the purpose of 

separating Hurt and Jones during her probationary period so that she can focus on her own 

rehabilitation, rather than mire in the dysfunction of the relationship. The District Court 

did not limit Hurt’s ability to petition to remove or modify the probation condition at a later 

date under § 46-23-1011(5)(a), MCA. Thus, we decline to consider the issue under plain 

error review.

¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. 

¶18 Affirmed. 

/S/ INGRID GUSTAFSON

We concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ BETH BAKER

/S/ JIM RICE