State v. T. Ferris ( 2022 )

OFENAI 12/27/2022
DA 21-0059 Case Number: DA 21-0059
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 254NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
FILED
THOMAS RICHARD FERRIS, DEC 2 7 2022
Elcvv, -n G - , -rivvood
Ct t • loe Court
Defendant and Appellant. 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:
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
Filed:
Clerk
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 12209
(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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