NO. 94-295

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

SHAWN MARTEL,

APPEAL FROM: District Court of the Twenty-First Judicial

District, In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David E. Stenerson, Attorney at Law (argued),

and Kirk Krutilla, Legal Intern,

Hamilton, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Carol Schmidt, Assistant Attorney General

(argued), Helena, Montana

James A. Haynes, Hamilton City Attorney,

T. Geoffrey Mahar, Deputy City Attorney,

Hamilton, Montana

Filed:

Submitted: May 4, 1995

Decided: August 24, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Shawn Martel was found guilty of misdemeanor

stalking in Hamilton by a City Court jury. He appealed that

conviction to the Twenty-First Judicial District Court, Ravalli

county, where he was again found guilty following a bench trial.

He appeals that conviction, claiming that Montana's anti-stalking

law, as set forth at § 45-5-220, MCA, is unconstitutionally vague

and unconstitutionally over-broad. We affirm.

The following issues are raised on appeal:

1 . Is § 45-5-220, MCA, unconstitutionally vague?

2 . Is 5 45-5-220, MCA, unconstitutionally over-broad?

3 . Did the District Court abuse its discretion when it

denied defendant's motion for a directed verdict?

In October 1992, C.K., a teller at a local bank, first became

aware of appellant, a customer of the bank. When C.K. worked at

the drive-through window, she noticed that appellant would drive

by, wave, and smile. When she was at the grocery store or buying

gas, appellant would greet her and initiate conversation.

Appellant frequently asked C.K. if she would meet him at a motel.

At one point, appellant informed C.K. that he would commit suicide

if they could not be friends. From October 1992 through November

1992, appellant followed C.K. daily, including sitting next to C.K.

and her husband, R.K., in a movie theater. After the couple moved

their seats, appellant moved and sat next to them.

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Following the movie theater incident, C.K. informed R.K. for

the first time of appellant's conduct. Thereafter, R.K. confronted

appellant and asked him to leave his family alone. Several times

on Christmas morning and once on New Year's Eve, appellant called

C.K.'s home. During Christmas week, appellant pulled his vehicle

behind and blocked off C.K.'s vehicle while she was filling up at

a gas station. Appellant displayed a handgun and informed C.K.

that he had friends who would "take care of" any efforts by C.K. to

involve the police.

During January and February 1993, appellant followed C.K. less

frequently than he had in the previous three months. However, in

March 1993, after appellant increased his activity toward C.K., she

filed a complaint against appellant. On March 25, 1993, the police

warned appellant to stay away from C.K. and another woman.

Appellant responded to the warning by following C.K. and circling

her bank with increased frequency.

On April 9, 1993, Montana's stalking statute, § 45-5-220, MCA,

came into effect. Appellant's conduct continued unchanged. In

May 1993, C.K. and R.K. pulled into the parking lot of the Super 1

to rent a movie. Appellant and friends, who were in the adjacent

Town Pump parking lot, began shouting profanities at C.K., made

lewd gestures, and suggested that he and R.K. fight. C.K. and R.K.

rented their movie without further incident and proceeded to drive

down Route 93. Appellant, accompanied by a friend, followed R.K.

and cut him off. R.K. decided to drive to the police station.

3
Appellant followed their car to the police station. Once there,

appellant and R.K. began shouting and scuffling at the front door

of the police station. An officer came out of the station and

restored order.

In May 1993, C.K. and R.K. applied for a temporary restraining

order against appellant. Following a hearing in city court, the

temporary restraining order was issued. Despite the temporary

restraining order, appellant continued the pattern of his conduct

toward C.K. and R.K.

On May 14, 1993, the Hamilton Deputy City Attorney charged

appellant with assault under 5 45-5-201(a), MCA, disorderly conduct

under § 45-5-101(b), (c), and (f), MCA, and stalking under

5 45-5-220, MCA. A jury found appellant guilty of assault and

stalking, but found him not guilty of disorderly conduct.

Appellant appealed his conviction to the Twenty-First Judicial

District Court. Appellant waived his right to a jury trial, and a

trial was held de nova. Appellant filed a motion to dismiss the

stalking charge arguing, that § 45-5-220, MCA, is void for

vagueness and that it violates the due process provisions of the

Montana and United States Constitutions. The District Court denied

appellant's motion, concluding that 5 45-5-220, MCA, is not

unconstitutionally vague. The District Court found appellant

guilty of stalking and sentenced appellant to serve one year in the

Ravalli County jail with all but 14 days suspended upon certain

conditions. Appellant appeals his conviction.

4
STANDARD OF REVIEW

In an appeal of a criminal case, the evidence will be viewed

in the light most favorable to the State. Whitefish v.

O'Shaughnessy (1985), 216 Mont. 433, 437, 704 P.Zd 1021, 1024.

Further,

the standard of review for a trial court's refusal to

grant a defendant's motion for a directed verdict is

whether, after reviewing the evidence in a 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. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.

Regarding the questions of constitutionality, statutes are

presumed to be constitutional. Monroe v. State (1994), 265 Mont

1, 3, 873 P.Zd 230, 233; United States v. National Dairy Products

Corp. (19631, 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561,

565. Whenever possible, the court will adopt statutory

construction which renders challenged statutes constitutional

rather than a construction which renders them invalid. State v

Ross (Mont. 1995), 889 P.2d 161, 164, 52 St. Rep. 22, 24. When

construing a challenged statute, the Court will read and interpret

the statute as a whole, without isolating specific terms from the

context in which they are used by the Legislature. Furthermore, a

statute must be construed according to the plain meaning of the

language in the statute. State v. Lilburn (19941, 265 Mont. 258,

266, 875 P.2d 1036, 1041, cert. denied (1995), 115 S. Ct. 726.

When the constitutionality of a statute is challenged, the party

making the challenge bears the burden of proving the statute

5
unconstitutional. Monroe, 873 P.Zd at 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. _,GBN 815 P.2d

at 597.

Section 45-5-220, MCA, provides as follows:

45-5-220. Stalking -- exemption -- penalty. (1) A

person commits the offense of stalking if the person

purposely or knowingly causes another person substantial

emotional distress or reasonable apprehension of bodily

injury or death by repeatedly:

(a) following the stalked person; or

(b) harassing, threatening, or intimidating the

stalked person, in person or by phone, by mail, or by

other action, device, or method.

(2) This section does not apply to a

constitutionally protected activity.

(3) For the first offense, a person convicted of

stalking shall be imprisoned in the county jail for a

term not to exceed 1 year or fined an amount not to

exceed $1,000, or both. For a second or subsequent

offense or for a first offense against a victim who was

under the protection of a restraining order directed at

the offender, the offender shall be imprisoned in the

state prison for a term not to exceed 5 years or fined an

amount not to exceed $10,000, or both. A person convicted

of stalking may be sentenced to pay all medical,

counseling, and other costs incurred by or on behalf of

the victim as a result of the offense.

(4) Upon presentation of credible evidence of

violation of this section, an order may be granted, as

set forth in 40-4-121, restraining a person from engaging

in the activity described in subsection (1).

(5) For the purpose of determining the number of

convictions under this section, "conviction" means:

(a) a conviction, as defined in 45-2-101, in this

state;

(b) a conviction for a violation of a statute

similar to this section in another state; or

(c) a forfeiture of bail or collateral deposited to

secure the defendant;s appearance in court in this state

or another state for a violation of a statute similar to

this section, which forfeiture has not been vacated.

(6) Attempts by the accused person to contact or

follow the stalked person after the accused person has

been given actual notice that the stalked person does not

6
want to be contacted or followed constitutes prima facie

evidence that the accused person purposely or knowingly

followed, harassed, threatened, or intimidated the

stalked person.

ISSUE 1

Is 5 45-s-220, MCA, unconstitutionally vague?

Appellant alleges that 5 45-5-220, MCA, is so vague that it

is unconstitutional. However, the issue of vagueness, with regard

to a statute or ordinance, can be raised in two different

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

on its face; or (2) whether it is vague as applied in a particular

circumstance. Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678

P.2d 665, 668. It is unclear which of these two specific

challenges appellant is raising, so we will address each in turn.

A. Is the statute so vague it must be void on its face?

~1 [A] statute . is void [for vagueness] on its face if it

fails to give a person of ordinary intelligence fair notice that

his contemplated conduct is forbidden by statute.'" Monroe, 873

P.2d at 231 (quoting Choteau, 678 P.2d at 668). - - See also State v.

Crisp (19911, 249 Mont. 199, 814 P.2d 981; State v. Woods (1986),

221 Mont. 17, 716 P.2d 624.

Appellant alleges that the statute is vague on its face

because certain terms contained in it are not defined. Specifically, the statute does not define "repeatedly,fl "harassing,"

"intimidating," "reasonable apprehension," or "substantial

emotional distress." Without recourse to definitions, appellant

7
argues, a person of ordinary intelligence would not be able to

understand the statute.

The Legislature is not required to define every term it

employs when constructing a statute. If a term is one of common

usage, readily understood, it will be presumed that a reasonable

person of average intelligence comprehends it. Contway v. Camp

(1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379. Words such as

"repeatedly," "harassing," and "intimidating" have commonly

understood meanings. "Repeatedly" means "more than once. I'

"Intimidate" means "to make timid; to frighten." "Harass" means

"to annoy repeatedly." Webster's Collegiate Dictionary, (10th Ed.

1993). A person of average intelligence would recognize and

understand these terms without recourse to legislative definitions.

Appellant argues that the terms "reasonable apprehension" and

"substantial emotional distress" are too vague because they employ

a subjective standard, placing upon the defendant the burden of

guessing how much distress is substantial or how much apprehension

reasonable. We disagree. The standard to be employed when

construing the statute is that of the "reasonable person." When

faced with the conduct complained of, would a reasonable person

feel apprehension or substantial emotional distress? A reasonable

person standard is an objective one.

Further, the term "substantial emotional distress" has been

examined by this Court within the context of the tort of

intentional infliction of emotional distress. First Bank-Billings

8
v. Clark (1989), 236 Mont. 195, 771 P.2d 84. We found that the

reasonable person standard was the most appropriate way of

quantifying an abstract concept such as emotional distress. Such

a standard is equally applicable here, and may be inferred from the

language of the stalking statute.

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.

The complainant attacking a statute's validity must prove

that the statute is vague "not in the sense that it

requires a person to conform his conduct to an imprecise

but comprehensible normative standard, but rather in the

sense that no standard of conduct is specified at all."

Monroe, 873 P.2d at 231 (citing Village of Hoffman Estates v.

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

102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, 369) (citation omitted).

"The fact that a statute is difficult to apply to some situations

does not render it unconstitutionally vague." Monroe, 873 P.2d at

231.

B . Is the statute void for vagueness as applied to this

defendant?

Appellant also argues that the statute is too vague as it

applies to him, because it punished him for conduct which is

constitutionally protected. However, appellant makes no showing

that conduct such as repeatedly following and calling a person or

pretending to shoot her is constitutionally protected. Indeed, the

9
District Court asked appellant to explain why he believes such

conduct to be constitutionally protected. Appellant now argues

that such a question unfairly shifts the burden of proof to him.

In fact, it does not. As noted above, the person challenging the

constitutionality of a statute has the burden of proving it is

unconstitutional. Appellant cannot prove the statute unconstitutional merely by alleging that it infringes on constitutionally

protected rights, without any factual showing of which rights are

infringed, or how.

Further, the criminality of this particular offense rests not

on the fact that a defendant has followed a particular course of

conduct, which, if embarked upon once, might not be objectionable.

The criminality of the offense arises when a defendant engages in

such conduct repeatedly, purposely or knowingly causing another

person substantial emotional distress or reasonable apprehension of

bodily injury. Without such mental state, a charge under the

statute must fail.

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.

Colautti v. Franklin (19791, 439 U.S. 379, 395, 99 S. Ct. 675, 685,

58 L. Ed. 2d 596, 609. The Court has recognized that 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. Screws v. United States

10
(1945), 325 U.S. 91, 101, 65 S. Ct. 1031, 1035, 89 L. Ed. 1495,

1502-03.

In the case at bar, both the Hamilton City Court and the

District Court found that appellant followed and harassed his

victim repeatedly, and by so doing, intentionally caused her to

suffer substantial emotional distress. Moreover, and contrary to

appellant's argument, the law does not require that a victim

manifest specific physical symptoms, such as sleeplessness or

nausea, in order for the State to prove substantial emotional

distress. The victim testified that she became frustrated, upset,

angry, and scared because of appellant's repeated actions, and the

District Court found that she had, in fact, suffered substantial

emotional distress.

When read in the light most favorable to the State, the record

more than justifies such a finding. Each element of the offense,

including the required mental state, is set out with adequate

specificity. We hold that the statute is not unconstitutionally

vague either on its face or as applied in this case.

ISSUE 2

Is § 45-5-220, MCA, unconstitutionally over-broad?

Appellant next argues that the stalking statute is 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.

11
Hill v. City of Houston (5th Cir. 1985), 764 F.2d 1156, 1161, cert.

denied (1987), 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729.

Because an unconstitutionally over-broad statute could

potentially adversely affect many citizens, a defendant who raises

such a challenge need not meet the usual standing requirements.

Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S. Ct. 2908, 37

L. Ed. 2d 830. I" [Tlhere 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, 875 P.2d at

1041 (quoting Members of the City Council v. Taxpayers for Vincent

(19841, 466 U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d

772, 783-84).

An overbreadth challenge is "an exception to the general rule

that statutes are evaluated in light of the situation and facts

before the court." State v. Lilburn, 875 P.2d at 1036. Further,

The Court in Broadrick adopted limitations on the

overbreadth doctrine "particularly where conduct and not

merely speech is involved," and held that a statute which

has constitutional applications may be facially

invalidated for overbreadth only if its overbreadth is

"real, but substantial as well, judged in relation to the

statute's plainly legitimate sweep."

Lilburn, 875 P.2d at 1040 (quoting Broadrick, 413 U.S at 615, 93

S. Ct. at 2918)

In this case, it is conduct, and not merely speech, which is

proscribed by the statute. In addition, the statute serves a

plainly legitimate purpose--to discourage the repeated,

12
intentional, harmful conduct which constitutes stalking.

Therefore, in order to prove that the statute is unconstitutional,

appellant must show that the alleged overbreadth is both "real" and

"substantial," not just to himself, but to others as well. But

appellant makes no specific argument of how any constitutionally

protected First Amendment activities have been infringed upon by

this statute, or how the statute might adversely affect the rights

of others in a way that is both real and substantial. Appellant

has not shown that any of his--or anyone's--constitutional rights

have been violated at all, let alone violated so grievously as to

justify voiding the statute. Therefore, his overbreadth argument

must fail.

ISSUE 3

Did the District Court err when it denied appellant's motion

for a directed verdict?

The standard of review for determining whether a district

court erred in denying a defendant's motion for directed verdict is

whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact would have found the

essential elements of the crime beyond a reasonable doubt. Mummev,

871 P.2d at 870.

Section 45-5-220(2), MCA, reads "[tlhis section does not apply

to a constitutionally protected activity." Appellant argues that,

because the State did not prove that his conduct was not

13
constitutionally protected, it has failed to prove an essential

element of the crime.

Appellant misreads the statute. The elements of the crime are

set out in 5 45-5-220(l), MCA. Subsection (2) of the statute

represents an attempt by the Legislature to avoid potential

constitutional problems, such as attempts to enforce the statute

against investigative reporters or people walking a picket line.

However, the Legislature recognized that they could not create a

"laundry list" of all activities that are constitutionally

protected. Instead, they inserted this section to reflect their

intention that any constitutionally protected activity be exempted.

It is not an element of the crime of stalking. The District Court

found that the State proved, beyond a reasonable doubt, that

appellant violated all the elements of the offense. This

determination is supported by the record and will not be disturbed.

Affirmed.

Justice

We concur: /