OFENAI 

DA 21-0059 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2022 MT 254N 

STATE OF MONTANA, 

Plaintiff and 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 of the Fifth Judicial District, 

In and For the County of Beaverhead, Cause No. DC-19-3876 

Honorable Mike Salvagni, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Jack H. Morris, Morris Law Firm, 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 21-0059
Justice James Jeremiah Shea 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, 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 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 of Ferris'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 of the Dillon City Police Department, Don Guiberson, when Chief Guiberson 

attempted to intervene in a quarrel between Ferris and another man during a basketball 

game. After the game, Ferris approached Chief Guiberson in the gymnasiurn and, referring 

to Chief Guiberson's intervention in the earlier incident, stated: "I didn't do anything 

illegal." Ferris then stated that Chief Guiberson was "just a fucking badge and a gun." 

1 The other charges are not the subject of this 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 moved to 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 of Montana 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 of the gymnasium. Ferris then yelled at Chief Guiberson to "sit the 

fuck down, people behind you want to see the game." Chief Guiberson told 

Ferris he was being disorderly and that he needed to stop. Minutes after the 

game ended, Ferris angrily approached Chief Guiberson in an aggressive and 

belligerent rnanner and with fighting words challenged Chief Guiberson by 

stating, "you just came to fuck with me, I didn't do anything illegal, you're 

just a badge and a fucking gun." (Emphasis added.) 

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¶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 brief in support of his 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 

general unanimity jury instruction regarding each count against Ferris. Ferris did not object 

to the instructions or offer a specific unanimity jury instruction. Relevant to this appeal, 

the jury found Fenis guilty of disorderly conduct. 

¶8 "We review a district court's decision to permit an amendrnent to a crirninal 

complaint or information for an abuse of discretion." 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 of reason 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, 2020 MT 56,114, 399 Mont. 173, 459 P.3d 854 (internal citation 

omitted). 

4 
Section 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, provided that 

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 of probable cause to support the charge as amended. A copy of the 

proposed amended information must be included with the motion to amend 

the information. 

(2) If the court grants leave to amend the information, the defendant must 

be arraigned on the amended information without unreasonable delay and 

must be given a reasonable period of tirne to prepare for trial on the amended 

information. 

"An amendment is one of substance where it alters the nature of the offense, the essential 

elements of the 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 of waiver and estoppel before granting the State leave to 

amend the Information." 

111 Ferris asserts he was prejudiced because the passage of time 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 of the facts alleged in the 

Arnended Information have existed and been alleged from the very inception of the case. 

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The 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 

cases and cases from other jurisdictions for the general propositions and elements of waiver 

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 

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vindictive prosecution. Ferris asserts as evidence of the State's vindictiveness, the fact that 

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 protected political speech grounds." Ferris contends that what he 

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 

effort to deter or punish Ferris from exercising his rights." Ferris relies on State v. Knowles, 

2010 MT 186, 357 Mont. 272, 239 P.3d 12, in support of his argument. In Knowles, we 

held that there was an appearance of prosecutorial vindictiveness when, after the defendant 

had exercised his right to a jury trial that resulted in a mistrial, "the State sought quadruple 

the range of punishment to be irnposed on Knowles, after he declined to plea to the original 

charges." Knowles, ¶ 35 (emphasis in original). Noting that the State was unable to provide 

any factual rationale for the increased charges and increased punishment, "the threat of a 

four-fold increase in punishment has the appearance of prosecutorial vindictiveness, and 

raises the reasonable likelihood that the State was simply utilizing the increased charges in 

an effort to deter Knowles from exercising his right to a second jury 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 

punishment by amending the 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 of the 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 

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did not base the amendment on any newly discovered information. But at the pretrial 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 of the proceedings, the prosecutor's assessment 

of the proper extent of prosecution inay not have crystallized." Knowles, ¶ 34 (citing 

United States v. Goodwin, 457 U.S. 368, 373-74, 102 S. Ct. 2485, 2489 (1982)). Ferris's 

Motion to Dismiss rnay well have precipitated the 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 

sua sponte provide a specific unanimity jury instruction as to the 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, 381 Mont. 472, 362 P.3d 1126 (internal 

citations omitted). Before this Court will exercise its discretion to find plain error, the party 

requesting reversal must, among other requirements, "firmly convince this Court that 

failure to review the claimed error would result in a manifest miscarriage of justice, 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 

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circumstances of a case do not warrant application of the 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 Specific to the disorderly conduct charge, the jury was instructed that 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 instructed the jury: 

Each count charges a distinct offense. You must decide each count 

separately. The Defendant may be found guilty or not guilty of any 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 the jury verdict to be unanimous. Thus, 

all 12 of you 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 of disorderly conduct may be satisfied. In this case, the 

State alleged two of those 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 of satisfying the same element of an offense do not require a specific unanirnity jury 

instruction. Ferris has not firmly convinced this Court that the failure to review his claimed 

error would result in a manifest miscarriage of justice, leave unsettled the question of the 

fundamental fairness of Ferris's trial or proceedings, or compromise the integrity of the 

judicial process. See State v. Wells, 2021 MT 103,11 20-22, 404 Mont. 105, 485 P.3d 1220 

9 
(explaining that when the State alleges multiple unlawful acts under a single count, a judge 

is not required to provide a specific unanimity jury instruction if "the acts are so closely 

related in time, location, and nature that they form part of the same transaction or course 

of conduct, rather than completely independent occurrences") (internal citations omitted). 

Therefore, we need not address the merits of the alleged error and decline to exercise plain 

error review. 

¶20 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. The District Court's ruling was not an abuse of discretion. 

Additionally, having reviewed the briefs and the record on appeal, we conclude that Ferris 

has not met his burden of persuasion. Affirmed. 

We Concur: 

Chief Justice 

Justice 

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