NO. 95-353

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA, CITY OF BOZEMAN,

Plaintiff and Respondent,

v.

JOHN YANKOWSKI,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John Yankowski, pro se, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Patricia J. Jordan, Assistant Attorney

General, Helena, Montana

Susan Wordal, Bozeman City Prosecutor,

Bozeman, Montana

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Submitted on Briefs: October 24, 1996

Decided: December 17, 1996

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Justice Charles E. Erdmann delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

John Yankowski was convicted of the offense of criminal

trespass to property in violation of 5 45-6-203, MCA, by a

six-person jury. Yankowski appeals the sentence and judgment

entered by the Eighteenth Judicial District Court, Gallatin County.

We affirm the judgment of the District Court. Further, we affirm

the sentence in part, vacating the condition that Yankowski write

a formal letter of apology.

The issues on appeal are as follows:

1 . Did Yankowski's conviction for criminal trespass violate

his right to freedom of speech under the First Amendment?

2 . Did the District Court err in limiting the crossexamination of the witnesses on their views of abortion?

3 . Did the District Court err in denying Yankowski's motion

for directed verdict?

4 . Did the District Court abuse its discretion in denying

Yankowski's motion to dismiss alleging failure of the citation to

comply with the requirements under 5 46-11-401, MCA?

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5 . Did Yankowski properly preserve the issue regarding the

condition of his sentence requiring him to write a letter of

apology?

6 . Did the District Court err in stating that the Bridger

Clinic was conducting a lawful activity and improperly refuse

proposed sentencing exhibits?

7 . Was the issue of justification under § 45-3-102, MCA,

properly raised?

8 . Was Yankowski's sentence excessive?

9 . Was the motion for mistrial improperly denied?

10. Did Yankowski waive his right to counsel on appeal?

FACTS

On September 25, 1993, Shelley Videon, an employee of Bridger

Mountain Family Planning ("Bridger Clinic") was setting up for a

mother-daughter workshop at the Pilgrim Congregational Church in

Bozeman. The church is not open, except on Sunday; however, the

church rents out its facilities as a community service. Videon

rented the church space for $10 and obtained the key to the

building. The workshop was advertised through posters, press

releases in the newspaper, and public service announcements on

radio and television. The participants were required to

preregister and pay a $12 fee.

There were three women outside picketing the workshop by the

church door. Videon informed them that the workshop was not about

birth control, abortion, or sex, and asked them to leave. The

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protesters did not leave, and the workshop facilitators had to

escort the participants into the church. As Videon and another

facilitator of the workshop, Kristi Campbell, were standing at the

registration table, Yankowski approached them. Campbell knew

Yankowski was an abortion protestor and testified at trial that she

was afraid of him because she did not believe he acted rationally.

This testimony was objected to by defense counsel and counsel moved

for a mistrial, which was denied. Campbell testified she opened

the door for Yankowski and requested that he leave. Yankowski

refused and began to "thrash" around, so Campbell backed off.

Both facilitators followed Yankowski into the room where the

participants were waiting. Videon and Campbell repeatedly asked

him to leave. Yankowski, however, addressed the participants,

telling them they should not have their daughters there to be

subjected to the influences of the Bridger Clinic. He then placed

anti-abortion literature on the laps of the participants. He also

tried to leave his literature on the resource table, but was told

by Campbell that their policy was to exclude outside sources.

Campbell attempted to call the police, but Yankowski picked up

another phone and pressed the switch. She dialed again and

informed the police that a man was interrupting their workshop and

requested that he be removed. Yankowski sat down on the couch and

refused to move. When the police arrived, he headed for the

sanctuary. He was then arrested for criminal trespass.
On June 22, 1994, Yankowski was convicted of misdemeanor

criminal trespass by a jury in City Court. He appealed this

determination and was tried de ~OVD in District Court. The State

moved in limine to exclude all information regarding "what an

abortion is, when life begins or religious or moral justification

for action" and "any evidence that would support any of the

affirmative defenses listed in § 46-IS-323(2)." The State argued

that Yankowski's views on abortion were not relevant to the issue

of whether he trespassed on private property. Yankowski stipulated

to the motion, stating he was not attempting to justify his conduct

by reference to a higher cause or moral imperative. Yankowski then

moved to dismiss the charge for failure of the citation to state an

offense. This motion was denied.

The six-person jury returned a verdict of guilty of the

misdemeanor charge of criminal trespass. Yankowski was sentenced

to six months in jail with all but ten days suspended, and a $500

fine. He was also ordered to write a letter of apology to the

Bridger Clinic, and to Reverend Wagner and the Pilgrim

Congregational Church. Yankowski appeals the conviction and

judgment.

ISSUE 1

Did Yankowski's conviction for criminal trespass violate his

right to freedom of speech under the First Amendment?

Yankowski argues that anti-abortion speech is not excluded

from protection under the First Amendment. Yankowski also argues

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that the church, which was being used by a private organization,

was "obviously a public forum," and therefore his activities were

all protected activities.

The United States Supreme Court has held that private property

owners may exclude persons from exercising First Amendment rights

upon private property. Lloyd Corp., Ltd. v. Tanner (1972), 407

U.S. 551. This Court has similarly rejected the assertion that an

individual has an unfettered right to access private property for

the purposes of exercising his freedom of speech. City of Helena

v. Krautter (1993), 258 Mont. 361, 852 P.2d 636.

In Lloyd, the U.S. Supreme Court determined that an owner of

a privately-owned shopping mall could prohibit persons from

distributing anti-war handbills in the mall where the handbills

"had no relation to any purpose for which the center was built and

being used." Lloyd, 407 U.S. at 564-67. The Court concluded that

the shopping mall's invitation to the public was limited to the

business use of the mall, and that the protestors had other

alternatives for distribution of their message in public areas.

Here, it is clear that invitation to the public to attend the

mother-daughter workshop was limited to the subject matter as

presented by the private organization. The testimony at trial was

that the discussion was not to include sex, birth control, or

abortion issues. The testimony at trial also established that the

church was open to the public only on Sundays and was otherwise

locked unless rented to a private organization. Yankowski has made

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no showing that the church was transformed from private property

into quasi-public property by the renting of the facility to

another private organization. He admitted that he knew the church

or a person authorized by the church, or the police, could lawfully

terminate his license or privilege to remain. Furthermore, even if

the church was considered a quasi-public forum during the workshop,

Yankowski had other alternatives for distribution of his message,

including protesting out on the sidewalk and distributing his

literature there.

We therefore determine that Yankowski's rights under the First

Amendment were not violated by his conviction of criminal trespass

upon the private property at issue here.

ISSUE 2

Did the District Court err in limiting the cross-examination

of the witnesses on their views of abortion?

Yankowski argues his right to confrontation, as guaranteed by

the Sixth Amendment to the U.S. Constitution, and Article II,

Section 24, of the Montana Constitution, was denied when the

District Court restricted cross-examination as to the witnesses'

beliefs concerning abortion. These witnesses, which Yankowski

alleges the court precluded him from admitting evidence showing

bias, prejudice or ulterior motives, include Videon, Campbell, and

Connie Foiles. The State contends that the threshold level of

inquiry was allowed.
A defendant's right to demonstrate the bias or motive of

prosecution witnesses is guaranteed by the Sixth Amendment right of

confrontation. Alford v. United States (1931), 282 U.S. 687. This

Court has held that the trial court's discretion in exercising

control pursuant to Rule 611(a), M.R.Evid., becomes operative only

after the constitutionally required threshold level of inquiry

concerning the witness's bias or motive to testify falsely has been

met. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455.

Thus, the State argues that a district court errs only if it cuts

off all inquiry into the possible bias of the witness.

The District Court granted the State's motion in limine to

exclude evidence on abortion or justification of conduct based upon

pro-life views. The court stated that Yankowski would be allowed

to introduce evidence explaining the reason for his behavior and

would also be allowed to cross-examine witnesses on the issue of

whether or not their views on abortion resulted in bias either for

the State or against Yankowski.

Yankowski asserts that the court did not allow him to question

Videon, Campbell, or Foiles on their possible bias. The record,

however, does not support his assertion. The District Court

allowed inquiry by Yankowski of Videon as to her professional views

of abortion. She explained that there were three legal options for

pregnant women--adoption, keeping the child, or abortion. After

further questioning, the State objected to the line of questioning.

The court sustained the objection because the witness had testified

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that the workshop had a purpose, and that that purpose was to delve

into issues of puberty and open communication between mothers and

daughters. The court asked the witness whether abortion was a

topic. Videon replied that it definitely was not a topic for

discussion at the workshop. The court also allowed Campbell, over

Yankowski's objection, to testify that she had had prior dealings

with Yankowski and was afraid of him. Finally, Yankowski attempted

to question Connie Foiles, a mother who attended the workshop,

regarding her statement that she did not want her daughter to see

the literature Yankowski was distributing because it contained

photographs of aborted fetuses. Yankowski's counsel asked, "Well,

why would you not want to see aborted fetuses?" The District Court

sustained the State's objection to this question on the basis of

relevancy.

The court did not abuse its discretion by denying further

questioning of the witnesses once it was determined that abortion

was not the subject of the workshop and once it was established

that the witnesses' opinions on abortion were not relevant to the

issue of interest or bias. The District Court allowed the

constitutionally required threshold level of inquiry concerning the

witnesses' biases or motives to testify falsely and did not abuse

its discretion by limiting further inquiry.

ISSUE 3

Did the District Court err in denying Yankowski's motion for

directed verdict?

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The decision to direct a verdict of acquittal lies within the

sound discretion of the district court and will not be disturbed on

appeal absent an abuse of discretion. State v. Moore (1994), 268

Mont. 20, 64, 884 P.2d 457, 484. The standard of review for a

trial court's motion for directed verdict is whether, after viewing

the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. State v. Mummey (1994), 264

Mont. 272, 871 P.2d 868.

Yankowski argues that at the close of the State's case the

State failed to prove that he had remained after being asked to

leave by the landowner or other authorized person pursuant to

5 45-6-201, MCA. Yankowski asserts that neither facilitator was an

"authorized person" under the statute and therefore they did not

have the authority to ask him to leave. The State asserts that

because a tenant has the exclusive right of possession of the

premises under Montana law, they also have the right to deny

Yankowski the license, invitation, or privilege to enter or remain

on the premises.

The offense of criminal trespass pursuant to 5 45-6-203, MCA,

is defined as when a person knowingly enters or remains unlawfully

in an occupied structure or enters or remains unlawfully in or upon

the premises of another. Section 45-6-201(l), MCA, defines "enters

or remains unlawfully" as follows:

A person enters or remains unlawfully in or upon any

vehicle, occupied structure, or premises when he is not

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licensed, invited, or otherwise privileged to do so.

Privilege to enter or remain upon land is extended either

by the explicit permission of the landowner or other

authorized person or by the failure of the landowner or

other authorized person to post notice denying entry onto

private land. The privilege may be revoked at any time by

personal communication of notice by the landowner or

other authorized person to the entering person.

The church financial secretary testified that the people who

rent the facility pick up the key and are in control of the

facility. The Bridger Clinic rented the facility, had the keys,

and had the right to control the premises during their rental

period. This would include the right to deny Yankowski the

privilege to remain on the premises. Welsh v. Pritchard (1952),

125 Mont. 517, 241 P.2d 816 (concluding that a tenant has the

exclusive right of possession of the premises, including the right

to exclude the landlord). We therefore determine that the District

Court did not abuse its discretion in denying Yankowski's motion

for directed verdict.

ISSUE 4

Did the District Court abuse its discretion in denying

Yankowski's motion to dismiss alleging failure of the citation to

comply with the requirements under 5 46-11-401, MCA?

Yankowski moved to dismiss the charge for failure of the

citation to state an offense under § 45-6-203, MCA, and to comply

with the requirements of 5 46-11-401, MCA. He argues that the

charge which states "failure to leave a building when asked to do

so" is not the equivalent of "enters or remains unlawfully in an

occupied structure.fl He also asserts that the citation is not

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sufficiently specific when it refers to a "building" instead of an

"occupied structure."

The general rule in Montana is that an information is

sufficient if it properly charges an offense in the language of the

statute describing the offense. State v. Matt (1990), 245 Mont.

208, 799 P.2d 1085; State v. Matson 11987), 221 Mont. 36, 736 P.2d

971. The test is simply whether a person of common understanding

would know what is intended to be charged. ~,Matt 799 P.Zd at 1088.

The citation in this case named the jurisdiction, the

defendant, cited the statute, recited the statutory name of the

crime, stated the location of the building as "Pilgrim Cong.

Church," stated the time of the offense, and stated "said defendant

did knowingly or purposely or negligently commit the offense of

criminal trespass to wit: fail to leave a building when asked to do

so. I' This citation clearly complies with § 46-11-401, MCA, and

therefore we hold that the District Court's denial of Yankowski's

motion to dismiss was not an abuse of its discretion.

ISSUE 5

Did Yankowski properly preserve the issue regarding the

condition of his sentence that he write a letter of apology?

Yankowski argues that to force him to apologize for criminal

trespass is ordering words in his mouth and is a violation of his

First Amendment right to free speech, freedom of religion, and

freedom of conscience. He also asserts that his compliance with

the District Court's order to write an apology would entail

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committing two or three counts of criminal contempt, as it would

violate the preliminary injunction ordering him not to communicate

with any petitioner, their families, etc.

The District court ' s authority to impose conditions or

restrictions upon Yankowski in conjuction with his suspended

sentence are limited by the provisions of 5 46-18-201, MCA. The

imposition of the condition requiring Yankowski to write an apology

letter is outside the scope of the District Court's authority under

§ 46-18-201, MCA, to impose reasonable conditions upon sentencing.

Therefore, we hereby vacate the condition of Yankowski's suspended

sentence requiring him to write a formal letter of apology to the

Bridger Clinic, and to Reverend Glover Wagner and the Pilgrim

Congregational Church.

ISSUE 6

Did the District Court err in stating that the Bridger Clinic

was conducting a lawful activity and improperly refuse proposed

sentencing exhibits?

The State filed a motion in limine to exclude all evidence on

the defense of justification, which, in fact, Yankowski stipulated

that he was not going to raise on defense. Yankowski argues now on

appeal that the Bridger Clinic was unlawfully conducting its

workshop. He cites his proposed sentencing exhibits A through M

which were excluded by the District Court from the record on the

basis of relevancy. The State asserts that these exhibits were

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properly excluded under Rules 401 and 402, M.R.Evid., as Yankowski

never advanced any basis for which the evidence was offered.

This Court has previously held that the evidence is relevant

if it naturally and logically tends to establish a fact in issue.

State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301. The trial

court has broad discretion to prohibit the introduction of

irrelevant evidence, and absent a showing that the court abused its

discretion, this Court will not overturn the determination of

relevancy. State v. Hage (1993), 258 Mont. 498, 853 P.2d 1251.

The question in dispute was whether Yankowski engaged in activity

which was in violation of the criminal trespass statute. The

exhibits offered had no relevancy to this question nor to any fact

in issue, and thus were properly excluded by the District Court.

ISSUE 7

Was the issue of justification under § 45-3-102, MCA, properly

raised?

Yankowski argues that he "had a right to use force to stop an

unlawful use of force" pursuant to 5 45-3-102, MCA. He essentially

attempts to raise a defense of justification on appeal. This Court

will not address this issue, as it is being raised for the first

time on appeal. City of Helena v. Lewis (1993), 260 Mont. 421, 860

P.2d 698; 5 46-20-104, MCA.

ISSUE 8

Was Yankowski's sentence excessive?

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Yankowski appeals to this Court to reduce his sentence because

he was thrown out of graduate school and was refused employment due

to the impending sentence in this case.

The District Court sentenced Yankowski to serve only ten days

in jail, which he has not yet done, and to pay a $500 fine. The

sentence was within the statutory maximum for the offense

committed. The review of sentences for inequity or disparity must

be conducted by the Sentence Review Division according to statutes

applicable to those proceedings. Petition of Slice (1995), 271

Mont. 337, 896 P.2d 1125. This Court therefore declines to address

this issue.

ISSUE 9

Was the motion for mistrial improperly denied?

Campbell testified that she was standing at the registration

desk when Yankowski approached, that she knew he was an abortion

protestor, and that she was afraid of him because she did not

believe he acted rationally and she did not know what he would do.

Defense counsel objected on grounds of relevancy, which was

overruled. Defense counsel then requested to make a motion outside

the presence of the jury, and moved for a mistrial on the basis of

other crimes evidence. This motion was likewise denied.

We review the district court's denial of a motion for mistrial

to determine whether there is clear and convincing evidence that

the court's ruling is erroneous. State v. Romero (Mont. 1996), 53

St. Rep. 1050, 1057; State v. Ford (Mont. 1996), 53 St. Rep. 947,

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950. This Court has held that a mistrial is appropriate only when

there is a demonstration of manifest necessity or where the

defendant has been denied a fair and impartial trial. Romero, 53

St. Rep. at 1057. The district court is in the best position to

determine the potential for prejudice and therefore has been

afforded significant latitude when ruling on these matters. State

v. McNatt (1993), 257 Mont. 468, 471, 849 P.2d 1050, 1052.

The State argues that Yankowski failed to properly preserve

his objection on "other crimes evidence," as his objection was on

the ground of relevance. The District Court found the evidence

relevant to the issue of the witnesses' identification of

Yankowski.

Regardless of whether this issue was properly preserved for

appeal, in deferring to the District Court as being in the best

position to determine the potential for prejudice, we affirm its

denial of the motion for mistrial as there was no demonstration of

manifest necessity and no evidence that Yankowski has been denied

a fair and impartial trial.

ISSUE 10

Did Yankowski waive his right to counsel on appeal?

Although Yankowski raises this issue, the record is abundantly

clear that he had several appointed attorneys and has discharged

them all. As an indigent defendant, he has the right to a

court-appointed attorney during his first appeal of right, but he

does not have the right to choose or to demand a different attorney

16
so long as the assistance he was receiving was effective. State v.

Zackuse (1991), 250 Mont. 385, 833 P.2d 142. The burden of proof

is Yankowski's to come forward with facts establishing either a

total lack of communication with counsel, or ineffective assistance

of counsel, and bare unsupported allegations are insufficient.

Zackuse, 833 P.2d 142. We therefore hold that Yankowski

effectively waived his right to counsel on appeal by failing to

accept his court-appointed counsel.

We affirm the judgment of the District Court. Further, we

affirm the sentence in part, vacating the condition that Yankowski

write a formal letter of apology.

Justice

We concur:

j/f44 /

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Chief Justice f

I

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