# OFENAI

DA 21-0059 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 254N

STATE OF MONTANA,

Plaintiffand Appellee,
v. THOMAS RICHARD FERRIS,

Defendant and Appellant. 

# FILED DEC 2 7 2022 Elcvv, -n G - , -rivvood Ct t • loe Court

of k.,,ntana

APPEAL FROM: District Court ofthe Fifth Judicial District,

In and For the County ofBeaverhead, CauseNo. DC-19-3876 Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jack H. Morris, MorrisLawFirm, PLLC, Missoula, Montana For Appellee:

Filed: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant

Attorney General, Helena, Montana Jed C. Fitch, Beaverhead County Attorney, Dillon, Montana

Submitted on Briefs: August 10,2022

Decided: December 27, 2022

Clerk 12/27/2022

Case Number: DA 21-0059Justice James Jeremiah Shea delivered the Opinion ofthe Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, 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 ofnoncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Thomas Richard Ferris appeals from the Order Denying his Motion to Dismiss the Amended Information issued by the Fifth Judicial District Court, Beaverhead County. Ferris seeks reversal of his conviction of disorderly conduct in violation of § 45-8-101, MCA. We consider whether the District Court abused its discretion by denying Ferris's Motion to Dismiss the Amended Information, and whether this Court should exercise plain error review ofFerris's contention that the District Court erred by failing to sua sponte provide a specific' unanimity jury instruction as to the disorderly conduct charge. ¶3 In April of 2019, the State filed an Information charging Ferris with four counts, including disorderly conduct.' The State alleged that Ferris directed profane language at the Chief ofthe Dillon City Police Department, Don Guiberson, when Chief Guiberson attempted to intervene in a quarrel between Ferris and another man during a basketball game. Afterthe game,Ferris approached ChiefGuiberson inthe gymnasiurn and,referring to Chief Guiberson's intervention in the earlier incident, stated: "I didn't do anything illegal." Ferris then stated that ChiefGuiberson was "just a fuckingbadge and a gun."

1 The other charges are notthe subject ofthis appeal. 2¶4 The State charged Ferris with knowingly disturbing the peace by means of using

threatening, profane, or abusive language in violation of § 45-8-101(1)(a)(iii), MCA. In June of 2020, the District Court entered a Scheduling Order. The Scheduling Order set deadlines for filing pretrial motions and noted that the State had indicated at two previous omnibus hearings that it would not be filing any pretrial motions. ¶5 Ferris filed a Motion to Dismiss the disorderly conduct charge, arguing that it violated his constitutional right to free speech. On July 17, 2020, after Ferris filed his rnotion, but still three months before trial, the State movedto amend the Information. The Amended Information was based on the same facts as alleged in the original Information, and included the same charges, but expanded the alleged bases upon which Ferris knowingly disturbed the peace to include quarreling, challenging to fight, or fighting. The State's motion sought to insert the following emphasized language into the allegations of Count IV: Count IV: Disorderly Conduct, a misdemeanor committed in violation of Section 45-8-101, MCA. That the Defendant, Thomas Richard Ferris, on or about March 4, 2019, at the University ofMontana Western, Dillon, Beaverhead County, Montana, knowingly disturbed the peace by using threatening, profane, or abusive language; and by quarrelling, challenging to fight, or fighting. Specifically, the Defendant used profane language directed at Chief Guiberson when he initially intervened in an argurnent between Ferris and another man, with whom Ferris had been quarrelling, in the bleacher section ofthe gymnasium. Ferris then yelled at Chief Guiberson to "sit the fuck down, people behind you want to see the game." ChiefGuiberson told Ferris he was being disorderly and that he needed to stop. Minutes after the game ended, Ferris angrily approached ChiefGuiberson in an aggressive and belligerent rnanner andwithfightingwordschallengedChiefGuiberson by stating, "youjust came tofuck with me,I didn't do anythingillegal, you're just a badge and a fucking gun." (Emphasis added.)
3¶6 The District Court granted the State's Motion to Amend, scheduled another

arraignment based on the State's Amended Information, and allowed Ferris to file a supplemental briefin support ofhis Motion to Dismiss the disorderly conduct charge. In August, the District Court arraigned Ferris on the State's Amended Information. The District Court denied Ferris's Motion to Dismiss. ¶7 The case proceeded to a jury trial. The District Court provided the jury with a generalunanimityjury instructionregardingeach count againstFerris. Ferris didnot object to the instructions or offer a specific unanimityjury instruction. Relevant to this appeal, thejury found Fenis guilty ofdisorderly conduct. ¶8 "We review a district court's decision to permit an amendrnent to a crirninal complaint or information for an abuse ofdiscretion." State v. Hardground, 2019 MT 14, ¶7, 394 Mont. 104, 433 P.3d 711 (internal citations omitted). "A district court abuses its discretion when it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds ofreason resulting in substantial injustice." Hardground,¶7 (internal citation omitted). "This Court generally does not address issues raised for the first time on appeal." State v. Hatfield, 2018 MT 229, ¶ 15, 392 Mont. 509, 426 P.3d 569 (internal citation omitted). "We discretionally may review unpreserved clairns alleging errors irnplicating a criminal defendant's fundamental rights under the common law plain error doctrine." State v. George, 2020MT 56,114, 399Mont. 173,459P.3d 854 (internal citation omitted).

4Section 46-11-205(1)-(2), MCA, provides, in relevant part:

(1) The court may allow an information to be amended in matters of substance at any time, but not less than [five] days before trial, providedthat a rnotion is filed in a timely manner, states the nature of the proposed amendrnent, and is accornpanied by an affidavit stating facts that show the existence ofprobable cause to support the charge as amended. A copy ofthe proposed amended information must be included with the motion to amend the information. (2) Ifthe court grants leaveto amendthe information, the defendant must be arraigned on the amended information without unreasonable delay and mustbe given a reasonableperiod oftirneto prepare fortrial onthe amended information. "An amendment is one ofsubstance where it alters the nature ofthe offense, the essential elements ofthe crime, or the proofs and the defenses required." Hardground, ¶ 10. ¶10 While acknowledging that § 46-11-205, MCA, allows for an arnendment in rnatters of substance at any time rnore than five days before trial, Ferris nevertheless argues that the District Court "violated his due process rights by allowing the State to arnend the information after it affirmatively waived its right to file any pre-trial motions." Ferris argues the District Court abused its discretion by "fail[ing]to weigh any prejudice against [him] or apply[ing] the doctrines ofwaiver and estoppel before granting the State leave to amend the Information." 111 Ferris asserts he was prejudiced because the passage oftime between the original Information and the Amended Information deprived him of the opportunity to lOcate witnesses to the incident, including the individual with whom he was quarreling. But as the State argued, and the District Court observed in its order, all ofthe facts alleged in the Arnended Information have existed and been alleged from the very inception ofthe case. 5The Amended Information did not raise new facts unknown to Ferris, nor allege new

charges. The amendment merely expanded the bases upon which the disorderly conduct charge was premised. ¶12 As for Ferris's allegations that the State was somehow precluded by waiver or estoppel frorn arnending the Information, the District Court found Ferris's argument to be without merit, observing: "Ferris asserts that he relied on the State's actions when developing a defense theory and litigations strategy. Ferris does not cite any authority to support his suggested proposition that the Omnibus Hearing Orders would supersede the State's ability to arnend an information no later than five days before trial under § 46-11-205, MCA." ¶13 On appeal, Ferris again fails to cite any authority to support his argument that the Omnibus Hearing Orders would supersede the State's right, with leave of the court, to amend the Information in accordance with § 46-11-205, MCA. Ferris cites several civil

casesand cases from otherjurisdictions forthe generalpropositions and elements ofwaiver and estoppel. But as to either doctrine's ostensible application to the amendment of a criminal inforrnation pursuant to § 46-11-205, MCA, Ferris's argurnent boils down to ernphasizing that while the statute "may" allow a substantive arnendment more than five days before trial, leave to arnend is not automatic. That is precisely what happened in this case—the State moved to amend the Information pursuant to § 46-11-205, MCA, and the District Court exercised its discretion in granting leave in compliance with the statute. ¶14 Ferris next contends that the District Court abused its discretion by denying his Motion to Dismiss because the State's Motion to Amend the Information amounted to 6

### vindictiveprosecution. Ferris asserts as evidence ofthe State'svindictiveness,the factthat

the Motion to Amend was made after Ferris's Motion to Dismiss and "solely in response to Ferris exercising a constitutional right in his Motion to Disrniss [the disorderly conduct charge] on constitutional protectedpolitical speech grounds." Ferris contends that whathe construes to be "[t]he appearance of prosecutorial vindictiveness raises the reasonable likelihood that the State was simply utilizing additional acts of disorderly conduct in an effortto deterorpunishFerris from exercisinghisrights." Ferrisrelies onStatev. Knowles, 2010 MT 186, 357 Mont. 272, 239 P.3d 12, in support ofhis argument. In Knowles, we heldthat there was an appearance ofprosecutorialvindictivenesswhen, afterthe defendant had exercised his right to ajurytrial that resulted in a mistrial, "the State sought quadruple therange ofpunishment to beirnposed onKnowles, after he declinedtopleatothe original charges." Knowles,¶35 (emphasisinoriginal). Notingthatthe Statewasunabletoprovide any factual rationale for the increased charges and increased punishment, "the threat ofa four-fold increase in punishment has the appearance ofprosecutorial vindictiveness, and raises the reasonable likelihood thatthe State was simplyutilizingthe increased charges in
an effort to deter Knowles from exercisinghis rightto a secondjury trial." Knowles, ¶35. Ferris's reliance on Knowles is misplaced. ¶15 Unlike Knowles, the State in this case did not seek to increase a charge or a punishmentby amendingthe Information. By amending the Information,the State merely sought to expand the bases upon which the already charged disorderly conduct could be proven. Ferris makes much ofthe fact that the State sought to amend only after he had rnoved to dismiss the disorderly conduct charge on free speech grounds, and that the State 7did not base the amendment on any newly discovered information. But atthepretrial stage

of the proceedings, such as in this case, it is not necessarily suggestive of prosecutorial vindictiveness for the prosecutor to "realize that information possessed by the State has a broader significance [since] [a]t this stage ofthe proceedings, the prosecutor's assessment of the proper extent of prosecution inay not have crystallized." Knowles, ¶ 34 (citing UnitedStates v. Goodwin, 457 U.S. 368, 373-74, 102 S. Ct. 2485, 2489 (1982)). Ferris's MotiontoDismiss rnay well have precipitatedthe State's realization that his actions might provide more than one basis for a disorderly conduct charge. But this does not in itself render the amendment vindictive. ¶16 Finally, Ferris claims that the District Court committed plain error when it did not
suasponteprovide aspecificunanimityjuryinstructionastothe disorderly conduct charge. Ferris argues that the District Court was required to provide a specific unanimity jury instruction because the State alleged that Ferris committed multiple unlawful acts constituting disorderly conduct. ¶17 "We review an unpreserved claim, under the common law plain error doctrine, at
our discretion." State v. Favel, 2015 MT 336,

## ¶23, 381Mont.472, 362 P.3d 1126 (internal citations omitted). Beforethis Courtwill exercise its discretionto findplain error,theparty requesting reversal must, among other requirements, "firmly convince this Court that failure to review the claimed error would result in a manifest miscarriage ofjustice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process." Favel, 

## ¶ 23 (internal quotation and citation omitted). When the party requesting reversal fails to rneet this burden, the 8circumstances ofa case do not warrant application ofthe plain error doctrine, and we need

not address the merits of the alleged error. State v. Stutzman, 2017 MT 169, ¶ 23, 388 Mont. 133, 398 P.3d 265. ¶18 Specifictothe disorderly conduct charge, thejury was instructedthat the offense of disorderly conduct occurs when an individual "knowingly disturbs the peace by[:] quarrelling, challenging to fight, or fighting; or by using threatening, profane, or abusive language." The District Court also instructedthejury: Each count charges a distinct offense. You must decide each count separately. The Defendant may be found guilty or not guilty ofany or all of the offenses charged. Your finding as to each count must be stated in a separate verdict. As to each count, the law requires thejury verdict to be unanimous. Thus, all 12 ofyou must agree in order to reach a verdict on each count whether the verdict be guilty or not guilty. ¶19 Section 45-8-101(1)(a), MCA, sets forth alternative means by which the "disturb[ing] the peace" element ofdisorderly conduct may be satisfied. In this case, the State alleged two ofthose alternatives: (1) quarreling, challenging to fight, or fighting, or (2) using threatening, profane, or abusive language. Both alternatives in this case are alleged to have occurred during Ferris's encounters with Chief Guiberson. Alternative

means ofsatisfyingthe same element ofan offense do notrequire a specificunanirnityjury instruction. Ferrishasnot firmly convincedthis Courtthatthe failuretoreviewhis claimed

error would result in a manifest miscarriage ofjustice, leave unsettled the question ofthe fundamental fairness of Ferris's trial or proceedings, or compromise the integrity of the judicialprocess. See State v. Wells, 2021MT 103,1120-22,404Mont. 105,485P.3d 1220
9

### (explainingthat when the State allegesmultipleunlawful actsunder a singlecount, ajudge

is not required to provide a specific unanimityjury instruction if "the acts are so closely related in time, location, and nature that they form part ofthe same transaction or course ofconduct, rather than completely independent occurrences") (internal citations omitted). Therefore,we need not addressthe merits ofthealleged error and decline to exercise plain

error review. ¶20 Wehave determined to decidethis casepursuantto Section I, Paragraph 3(c)ofour Internal OperatingRules,whichprovides for memorandum opinions. Inthe opinionofthe Court, the case presents a question controlled by settled law or by the clear application of applicable standards ofreview. TheDistrict Court'srulingwas not an abuse ofdiscretion. Additionally,havingreviewed thebriefs and the record on appeal,we conclude that Ferris has not met hisburden ofpersuasion. Affirmed.

We Concur:

ChiefJustice

Justice 10