No. 94-372

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

STEVE COONEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Terry G. Sehestedt, Attorney at Law,

Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Elizabeth L. Griffing, Assistant Attorney

General, Helena, Montana

Christopher G. Miller, Powell County Attorney,

Deer Lodge, Montana

Submitted on Briefs: January 26, 1995

Filed:

Decided: April 25, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

On July 14, 1993, defendant Steve Cooney was charged by

complaint filed in the Justice Court for Cottonwood Township in

Powell County with misdemeanor stalking in violation of f3 45-5-220,

MCA. After trial, he was found guilty of the crime with which he

was charged. He appealed his conviction to the District Court for

the Third Judicial District in Powell County and waived his right

to a jury trial. On June 16, 1994, the District Court also found

Cooney guilty as charged. Cooney appeals the judgment of the

District Court.

We restate the issues on appeal as follows:

1 . Was Powell County a proper venue for the stalking charges

filed against Cooney?

2 . Did the District Court unconstitutionally relieve the

State of its burden of proof based on an impermissible presumption?

3 . Is Cooney's conviction supported by sufficient evidence?

4 . Does the stalking statute, as applied to Cooney in this

case, violate his constitutional right to free speech?

FACTUAL BACKGROUND

In 1989, Cooney met Linnea Busby after he became her landlord

in Missoula, Montana. At that time, Linnea was a college student,

but lived in Helmville with her parents when not attending school.

She still lists Helmville as her regular address.

Shortly after they met, Cooney asked Linnea for a date.

However, she declined. In June 1991, Linnea returned to Helmville,

2
where Cooney sent her flowers and letters, and repeatedly phoned in

an attempt to reach her. Linnea returned to Missoula in early

1992, but left in June 1992 and moved to Colorado where she

continued to attend school at the time of trial.

Linnea's mother, Joyce, testified that she received as many as

50 letters from Cooney which were addressed to her daughter at

their Helmville address. She also testified that sometimes she

received as many as six letters in one day, and that she received

approximately 35 letters from April 1993 until July of that year

when charges were filed. During June 1993, Cooney sent a diamond

ring to Linnea at her Helmville address.

In the letters, Cooney expressed his love for Linnea with

unusual forms of expression, such as "I wuv U, I wuv U." He often

referred to himself as Boris and Linnea as Natasha. Cooney also

expressed his desire to marry her and stated that he would be

coming to Colorado.

Cooney made numerous telephone calls to Linnea in Colorado and

to her Helmville residence. From June 5 through June 17, 1993, he

left several messages on her answering machine in Colorado. On

those answering machine tapes, Cooney related his desire to marry

her, and stated "I wuv you, wuv you, wuv you . . .' He added

that he would be going to Helmville. In another message, he urged

Linnea to return his telephone call because it was about her

deposit. On the recorded messages, Cooney variously spoke in a

happy tone, hushed tone, angry tone, or whispers.

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On June 22, 1993, Cooney left the following message on the

answering machine at Linnea's residence in Helmville: "Say, I got

a big hard on and wondered if you'd like to bite on it. You know

who this is." The same day Cooney left several messages on her

answering machine in Colorado:

Hi Linnea. I'd like to get some sex. You know what I

mean. Give me a call.

Linnea, I was kinda wondering. How would you like to

have some great sex.

Yeah Linnea. You've really upset me. I don't know if I

ever want to see you again or if I ever want to speak to

you again. Not until you apologize. Bye.

The last message was expressed in an angry tone of voice.

At trial, Linnea testified about how she felt as a result of

Cooney's actions. She stated that she was always looking around

because she knew he was trying to find her. She changed her

telephone number and screened calls through her answering machine.

Linnea stated that she was nervous, and if she could help it, never

went anywhere alone for fear that he might find her. She also

testified that she was apprehensive that Cooney might physically

injure her because Cooney gets mad when she does not respond.

Cooney was convicted of stalking in Justice Court. He

appealed his conviction to the District Court, where he received a

trial de nmx~. Before trial in the District Court, Cooney moved to

dismiss the charge on the basis that venue was improper in Powell

County. The court reserved ruling on his motion until after trial.

Following a nonjury trial, the District Court denied Cooney's

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motion. The court held that there were sufficient contacts with

Powell County to sustain venue in Powell County, and found Cooney

guilty of stalking, in violation of § 45-5-220, MCA. Judgment was

entered on June 16, 1994. The following day, the court sentenced

Cooney to one year in the Powell County Jail with all but 30 days

suspended, based on certain conditions.

ISSUE 1

Was Powell County a proper venue for the stalking charges

filed against Cooney?

A district court's determination of venue is a legal

conclusion and our standard of review is plenary. Emery v,. Federated

Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.

Montana enacted § 45-5-220, MCA, on April 9, 1993. It

provides, in relevant part:

(I) A person commits the offense of stalking if the

person purposely or knowingly causes another person

substantialemotionaldistress or reasonable apprehension

of bodily injury or death by repeatedly:

. . .

(b) harassing, threatening, or intimidating the

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

other action, device, or method.

Cooney argues that neither the alleged conduct nor the

necessary result occurred in Powell County. He claims that the

alleged conduct occurred in Missoula and the result, if any,

occurred in Colorado where Linnea was living. Therefore, he

contends that there was no basis for venue in Powell County.

5
The State responds that when several acts form the basis for

a single offense, a defendant can be charged in any county in which

any of the acts have occurred. The State's position, which we

conclude is correct, is based on 5 46-3-112(2), MCA, which

provides:

When an act requisite to the commission of an

offense occurs or continues in more than one county, the

charge may be filed in any county in which the act

occurred or continued.

The State introduced numerous letters sent to Linnea at her

Helmville residence to prove the acts necessary to establish

stalking. Likewise, the State introduced an offensive telephone

message that Cooney left on an answering machine at Linnea's

Helmville address.

Thus, the result of many acts which formed the bases of the

charge against Cooney occurred in Powell County. Based on prior

authority of this Court, Statev. Cassill (19241, 70 Mont. 433, 227 P.

49, and the plain language of 5 46-3-112, MCA, that is all that was

required.

Commission Comments to 5 46-3-112, MCA, also support our

conclusion:

This provision allows the trial to take place in the

most convenient county where an element of the offense

occurred. It does not matter if the final consummation

of the offense occurred in another county. The only

elements of the crime which are of interest are those

acts constituting or requisite to the consummation of the

offense; the trial of the case may be held in any county

in which such acts occur.

6
We conclude that the District Court did not err when it

determined venue was proper in Powell County.

ISSUE 2

Did the District Court unconstitutionally relieve the State of

its burden of proof based on an impermissible presumption?

Cooney argues that 5 45-5-220(6), MCA, improperly relieved the

State of its burden to prove an element of the crime, and denied

him his right to due process. Section 45-5-220(6), MCA, provides

as follows:

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 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.

However, nothing in the record indicates that the District

Court based its decision on this statute. Nor did Cooney challenge

or object to the applicability or constitutionality of the statute

at trial. Section 46-20-104(2), MCA, provides:

Upon appeal from a judgment, the court may review

the verdict or decision and any alleged error objected to

which involves the merits or necessarily affects the

judgment. Failure to make a timely objection during

trial constitutes a waiver of the objection except as

provided in 46-20-701(2).

The exceptions to 5 46-20-104(2), MCA, found in § 46-20-701(2),

MCA, do not apply. Therefore, because Cooney failed to object at

trial, and for the further reason that the statute complained of

does not appear to have formed any basis for the District Court's

decision, it would be inappropriate to consider the merits of this
argument on appeal. We hold that Cooney was not denied his

constitutional right to due process.

ISSUE 3

Is Cooney's conviction supported by sufficient evidence?

Our standard of review for sufficiency of the evidence is:

[WI hether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.

Statev. Arlington (1994) , 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting

statev. cyu (19871, 229 Mont. 337, 339, 746 P.Zd 120, 122). Cooney

argues that the evidence does not support the District Court's

decision. He claims that while his repeated expressions of

affection may have been in poor taste, there was no evidence that

he caused anyone "substantial emotional distress or reasonable

apprehension of bodily injury."

We conclude, however, based on our review of the testimony,

that sufficient proof of such an effect was offered.

At trial, the prosecutor asked Linnea if she was apprehensive

of physical injury or harm from Cooney. She responded, "Yea, I'm

afraid it could get to that." She was then asked why she felt that

way and responded, "Because he seems to get mad when I don't

respond. . . . I have told him for so long to leave me alone, and

then like the message where he's mad. . . . I think that he has

that tendency if he can get mad without me doing anything."

Linnea's mother also testified that she talked to her 'daughter

8
every day on the telephone to determine if she was alright and

stated that Linnea had expressed fear to her

Linnea testified she was always afraid Cooney would find her,

and evidence established that Cooney repeatedly stated that he

would be going to Helmville or Colorado. She changed her telephone

number and screened her calls. She was afraid to go places by

herself and was always looking to see if Cooney was near. She

testified that she feared what Cooney might do if he found her, and

stated that she feels terrible and nervous.

The court found that Cooney's persistence, despite rejection,

caused Linnea substantial emotional distress. We conclude that

that finding, and the District Court's judgment, is supported by

substantial evidence.

ISSUE 4

Does the stalking statute, as applied to Cooney in this case,

violate his constitutional right to free speech?

Cooney contends that the stalking statute, as applied to him

in this case, deprives him of freedom of speech, in violation of

the United States and Montana Constitutions.

H e contends that he did not threaten Linnea, but only

expressed his love for her, and therefore, that his expressions

were protected speech.

We have previously held that threats are not protected speech

under the First Amendment. SIatev. Lance (1986), 222 Mont. 92, 103,

721 P.2d 1258, 1266. The State's contention, with which we agree,

9
is that Cooney's actions which caused substantial emotional

distress are, likewise, not protected by the First Amendment.

The First Amendment does not protect all speech. In Lance, we

quoted Chaplin&y v. New Hampshire (1942), 315 U.S. 568, 571-72, 62

S. Ct. 766, 768-69, 86 L. Ed. 1031, 1035, which contains language

applicable to this case.

There are certain well-defined and narrowly limited

classes of speech, the prevention and punishment of which

have never been thought to raise any Constitutional

problems. These include the lewd and obscene, the

profane, the libelous, and the insulting or "fighting"

words--those which by their very utterance inflict injury

or tend to incite an immediate breach of the peace. It

has been well observed that such utterances are no

essential part of any exposition of ideas, and are of

such slight social value . .

Lance, 721 P.2d at 1265. The District Court concluded, based on

substantial evidence, that Cooney's calls and letters caused his

victim substantial emotional distress, and that " [tlhe harassment

and resultant emotional distress are substantial and beyond that

which anyone must tolerate."

Cooney's conduct inflicted injury on his victim and lacked any

social value. We agree with the State's assertion that free speech

does not include the right to cause substantial emotional distress

by harassment or intimidation. The language quoted from Chaplinsky

indicates that actual threats are not the only category of spoken

words that do not receive First Amendment protection

10
We conclude that § 45-5-220, MCA, was not unconstitutionally

applied in violation of the United States or Montana Constitutions.

We affirm the judgment of the District Court.

Juse(ice

We concur:

1 1
Justice W. William Leaphart, dissenting.

As much as the evidence supports the conviction of Cooney for

his puerile but, nonetheless, threatening behavior, the law

requires the State, in addition to proving the elements of

stalking, to prove proper venue. I dissent from the majority's

determination that Powell County was a proper venue for the

stalking charges filed against Cooney. Because neither Cooney's

criminal acts nor the effects of these criminal acts occurred in

Powell County, I conclude that Powell County was not a proper venue

for the charges against Cooney.

Section 46-3-110, MCA, establishes that in all criminal

prosecutions, the charge must be filed in the county where the

offense occurred unless the law provides otherwise. Section 46-3-

111, MCA, establishes that trial generally must be held in the

county where the charge is filed. This Court has held that

"[allthough venue is not an element of the crime, it is a

jurisdictional fact that must be proven at trial just as any other

material element. 'I State v. Johnson (1993), 257 Mont. 157, 161,

848 P.2d 496, 498 (citation omitted). I note that this statement

is contrary to the commission comments to § 46-3-111, MCA, which

state that venue need only be proved by a preponderance of the

evidence rather than beyond a reasonable doubt. However, I believe

that in this case, the State failed to demonstrate by a

preponderance of the evidence that Powell County was a proper

venue.
Cooney was charged with stalking Ms. Busby between April 16,

1993 and June 13, 1993. The record indicates that Cooney sent

several letters to Ms. Busby at her parent's home in Helmville,

Montana, which is in Powell County. Cooney also left several

messages on Ms. Busby's parent's answering machine in Helmville.

However, there is no testimony or other indication from the record

that Ms. Busby received any of these letters or phone messages in

Helmville between April 16, 1993 and June 13, 1993. The majority

states that Ms. Busby returned to Helmville in June of 1991 where

she received letters, flowers and phone calls from Cooney. I do

not believe that the record clearly reflects this fact. However,

even if true, June of 1991 is not the relevant time period charged

in the complaint. There is nothing in the record to indicate that

Ms. Busby was in Helmville during the April through June 1993 time

period for which Cooney was convicted of stalking.

The majority states that the plain language of § 46-3-112(2),

MCA, supports the conclusion that venue was proper in Powell

County. Section 46-3-112(2), MCA, reads:

When an act requisite to the commission of an offense

occurs or continues in more than one county, the charge

may be filed in any county in which the act occurred or

continued.

I would agree with the majority's analysis if Ms. Busby had

received the letters or phone messages in Powell County. Based on

the record before us, that is not the case. The majority goes on

to state that "the result of many acts which formed the bases of

the charge against Cooney occurred in Powell County." (Emphasis

added.) Cooney was charged as follows:

13
That on or about April 16, 1993 to July 13, 1993 at

Powell County Montana, [Cooney] committed the offense of

Stalking as specified in Chapter 292, Laws of Montana

1993 [now § 45-5-220, MCA].

The facts constituting the offense and the facts

giving probable cause to believe the Defendant committed

it are:

That the defendant purposely or knowingly caused

Linnea Busby substantial emotional distress by repeatedly

harassing, threatening or intimidating Linnea Busby in

person, by phone, and by mail.

The only result of Cooney's acts which is material for the

purpose of establishing an element of the charge against him is Ms.

Busby's resulting substantial emotional distress. The record does

not establish that Ms. Busby was in Powell County when she received

any of the letters or messages or that she experienced resulting

substantial emotional distress in Powell County.

The majority also states that State v. Cassill (19241, 70

Mont. 433, 227 P. 49, supports its conclusion that venue was proper

in Powell County. However, Cassill is clearly distinguishable. In

Cassill, the defendants, two bankers, were charged with having made

false statements to the superintendent of banks. The defendants

falsely filled out a form in Powell County and mailed it to the

superintendent in Lewis and Clark County. This Court held that the

defendants could be properly tried in Powell County as the acts

constituting the consummation of the offense occurred in two

counties, either of which was a proper venue. Cassill, 227 P. at

51. Here, the State failed to establish either that Cooney sent

the letters and messages from Powell County, or that Ms. Busby

received them in Powell County. There is no evidence that the acts

constituting the offense were consummated in Powell County.

14
The charges against Cooney should have been dismissed for

failure to prove that Powell County was a proper venue. For the

foregoing reasons, I dissent.

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