DA 11
- 0614 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 209N STATE OF MONTANA, Plaintiff and Appellee,
v. TIMOTHY JON MEYER, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC 11
- 91 Honorable Ed McLean, Presiding Judge COUNSEL OF RECORD:

For Appellant: Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott, Assistant Appellate Defender, Helena, Montana For Appellee : Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan, Deputy County Attorney, Missoula, Montana

Submitted on Briefs: August 15, 2012 Decided: September 18, 2012 Filed:

__________________________________________ Clerk September 18 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d )(v), Montana Supreme CourtI nternal 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 Timothy Jon Meyer (Meyer) appeals his conviction by a jury in the Fourth Judicial District Court, Missoula County, of violating a protective order. This was Meyer’s third
or subsequent conviction of violating a protective order, so it was a felony. H e was sentenced to two years in the Montana State Prison and givencredit for time served. We affirm. ¶3 Meyer arg

ues on appeal that the District Court improperly instructed the jury reg arding the mental state required b y § 45
- 5
- 626, MCA. H e contends that he received ineffective assistance of

counsel because his trial counsel failed to object to the proposed jury instructions and failed to offer alternative s . M eyer also asks us to review the jury instructions for plain error, and he further assertsthat there was insufficient evidence for a jury to convict him under proper instructions
. ¶4 Meyer and Dawn Kellmer (Kellmer) were divorced in August of 2010 after two years of marriage. After their divorce, Kellmer obtained a p rotective order against Meyer that, among other things, prohibited Meyer from coming within 1500 feet of her. On February 27, 2011, while still in possession of so me o f Meyer’s belongings, Kellmer3

mo ved from her residence on Sherwood Streetin Missoulato a home in a trailer park on South 7th Street. ¶5 When Meyer learned that Kellmer was no longer living at the Sherwood residence, he decided to v

isit Tom, one of their mutual acquaintance s , to see if he knew Kellmer’s
new address . Meyer needed Kellmer’s new addresss o that he couldarrange for a civil standby to help him retrieve his possessions from her without violating the protective order, which was still in effect. ¶6 On March 2, 2011, accompanied by his mother and aunt, Meyer went to Tom’s house, which h appened to be in the same trailer park Kellmer had just mo ved to. Although Tom was not home, Meyer spotted Kellmer’s car parkedin an alley in front of a nearby trailer. He toldhis aunt to drive down the alley so that he could see the trailer’s address , which she did. ¶7 According to his testimony, Meyer thought that Kellmer lived in the trailer , but he wanted to make sure her car was not just parkedthere
. After his auntw rote down the address on the trailer, Meyer had her park the ir

van near Kellmer’s trailer in the alley . He got out of the van to go talk with a neig

hbor . Meyer’s mother also got out of the van , walked up to the trailer, and knocked on Kellmer’s door. Kellmer came to the door and called the police shortly after seeing Meyer nearby
. W hen police officers arrived a few minutes later, Meyer showed them a copy of the protective order that he had brought with him. The officers verified that the order was still in effect and placed Meyer under arrest. ¶8 Section 45
- 5
- 626(1), MCA , prov ides th at a person v

iolates an order of protection if the person, with knowledge of the order, purposely or knowingly violates one of the4

order’s provisions. Meyer conceded that he knew of the protective order and that he violated it by com

ing within 1500 feet o f Kellmer. H is defense at trial wasthat he did not do so purposely or knowingly
. The State recommendedthe following jury instructions regarding the requisite mental state: Instruction 10: A

person acts purposely when it is his conscious object to enga ge in conduct of that nature. Instruction 11: A

p erson acts knowingly with respect to a specific fact, when the person is aware of a high probability of that fact’s existence. Meyer’s trial counsel neither object ed to the proposed instructions n or of fere dalternative instructions
. Instructions 10 and 11 were given to the jury, and Meyer was convicted. ¶9 Meyer argues on appeal that the jury was erroneously instructed regarding the requisite mental state , and his trial counsel’s failure to object to the in structions constitutes ineffective assistance of counsel. This Court reviews claims of ineffective assistance of counsel under the two
-part test articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984)
. To prevail o n a claim of ineff ective assistance of counsel, a defendant must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defendant. Mi ller v. State , 2012 MT 131, ¶ 13, 365 Mont. 264, 280 P.3d 2 72 ; State v. Fende

r , 2007 MT 268, ¶ 7, 339 Mont. 395, 170 P.3d 971 ; State v. Whitlow, 2001 MT 208, ¶ 1 7, 306 Mont. 339, 33 P.3d 877. To establish prejudice, a defendant must show there is a reasonable probability that, but for counsel’s deficient performance , the result of the proceedings would have been different. State v. Price , 2007 MT 307 , ¶ 1 2, 340 Mont. 109, 172 P.3d 1236. “[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder5

would have had a reasonable doubt respecting g uilt.” Strickland

, 466 U. S. at 695, 104 S. Ct. at 2068
- 20 69. We do not have to address the two prongs in the order in whichthey
are laid outin Strickland
. If the defendant fails to prov e sufficient prejudice, we do not need to address whether counse l’s performance was deficient. Dawson v. State , 2000 MT 219, ¶ 21, 301 Mont. 135, 10 P.3d 49 (citing Strickland , 466 U.S. at 697, 104 S. Ct. at 2069). ¶10 Accordingly, we do not reach the question of whether Meyer’s trial counsel’s performance was deficient
. M eyer’s claim of ineffective assistance of counsel fails because it is not reasonably probable that the jury would have had a reasonable doubt reg arding his guilt if the jury would have been instructed differently. Meyer contends on appeal that the follo wing instructions should havebeen giv en in place of Instructions 10 and 11: 1) When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence; 2) A person acts “knowingly” when the person is aware that it is highly probable that the result will be caused by the person’s conduct; and 3) A person acts “purposely” if it is the person’s conscious object to cause that result. Theresult contemplated in the seinstruc tions would be Meyer ’s violation of the protective order
. Therefore , under these instructions Meyer would still be guilty if the jury found hewas aware that it was highly probable that his conduct would cause him to be within 1500 feet of Kellmer.6

¶11 Meyer arg

ues that there was no evidence that hewas aware of the high probability that his presence in the trailer park would result in him being within 1500 feet of Kellmer , so the jury could not have found him guilty if properly instructed . This simply is notso. Meyer’s trial counsel made the exact same ar gu ment to the jury in closing. In
ma king his arg

ument, trial counsel usedI nstruction 11, the instruction that defined “knowingly” with respect to thee xistence of a particular fact, and toldt he jury thatt

he specific fact at issue was Meyer being within 1500 feet of Kellmer . He thenarg ued that the State had not proven beyond a reasonable doubt that Meyer knew t here was a high probability thathe was within 1500 feet of Kellmer. ¶12 The jury rejected Meyer’ s arg ument, and with g

ood reaso n. Although the record is full of evidence from which the jury could infer that Meyer had the requisite mental state, his own testimony supports the jury’s findings. Meyer testified that after arriving at the trailer park h e saw a car that he knew wasKellmer ’sparked in an alley in front of a trailer
. Meyer knew with certainty that it was her c ar because of a sticker in the back window. Meyer

admitted that he thought Kellmer lived at the trailer when he saw her car parked in the alley

but that he wanted to make sure, so he got out of the car and started talking to neighbors
. He also admittedo n cross - examination that it was reasonable to think that Kellmer

was somewhere near her car
. ¶13 Based on the fact that Meyer’s trial counsel made the exact same argument to the jury that he now presents on appeal, Meyer’s own testimony, and the rest of the record before us , it is not highly probable that the jury would have had a reasonable doubt reg arding Meyer’sg

uilt if different jury instructions would haveb eengiven. Thus,7

Meyer’s claim that he received ineffective assi stance from his trial counsel f ails
. Moreover, our rev

iew of the record rev

eals more than sufficient ev idence to support the jury’ s finding

that Meyer acted with th e mental state required by § 45
- 5
- 626(1), MCA. ¶14 Additionally, we decline Meyer ’s request that we revie w the jury instructions for plain error . We generally do not review jury instructions unless they are specifically objected to at trial. State v. Earl , 2003 MT 158, ¶ 23, 3 16 Mont. 263, 71 P.3d 1201; § 46
- 16
-410(3), MCA. We have discretion to review an instruction that was not objected to at trial , however, i f the claimed error implicates a defendant’s fundamental constitutional rights and may result inamanifest miscarriage of j ustice, leav

e unsettled the question of fundamental fairness of the trial proceedings, or compromise the integrity of the judicial process. Earl , ¶ 25 (citing State v. Fi nley , 276 Mont. 126, 137, 915 P.2d 208, 215 (1996)). Bec ause Meyer was not prejudiced by the allegedly erroneous instructions, plain error review isclearly not appropriate
. ¶15 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006 , w hich provides for
me morandum opinions. There clearly is su fficient ev idence to support the District Court’s findings of

f act and conclusi ons of law, and it is manifest on the face of the briefs and the record that there was not an abuse of discretion. Wefind no reason in fact or law to disturb the District Court’s order. ¶16 Affirmed. /S/ MIKE McGRATH8

We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS