State v. B. Bagnell ( 2020 )

09/15/2020
DA 18-0160
Case Number: DA 18-0160
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 234N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRANDON BAGNELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 15-355
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, Joseph P. Howard, P.C., Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana
Steven N. Eschenbacher, Lake County Attorney, Brendan D. McQuillan,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: August 12, 2020
Decided: September 15, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Beth Baker 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 and 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 Brandon Bagnell appeals his conviction by a Lake County jury of felony stalking,
arguing that the court failed adequately to instruct the jury with respect to the required
mental state. Bagnell urges plain-error review, claiming that the instructions relieved the
State of its burden to prove an element of the offense beyond a reasonable doubt. Bagnell
alternatively argues that his attorney rendered ineffective assistance by failing to object to
the instructional error. He seeks a new trial. We conclude on this record that the
District Court’s failure to instruct the jury on the definitions of “purposely” and
“knowingly” does not entitle Bagnell to a new trial or demonstrate prejudice from defense
counsel’s performance. We accordingly affirm.
¶3 Bagnell and L.L. married in 2011 and divorced in 2015. They met “a long time
ago” but hadn’t “really been [together] probably for a good ten years at least” because
“most of the time he’s in prison.” L.L., who testified that she did not want to appear at the
trial because she was “afraid of the outcome, what is going to happen to me” and “afraid for
my child[,]” described their relationship as “[v]ery violent[]”—she “always had a
black eye.” L.L. obtained two orders of protection against Bagnell. The first, which she
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obtained in 2012, expired in 2014. She obtained the second in 2015, after realizing the first
had expired. While in prison on a 2014 conviction for stalking L.L., Bagnell mailed her
hundreds of violent and sexually explicit letters. L.L. reported the letters to her domestic
violence advocate, Jolene Schmitz, who contacted law enforcement.
¶4 On October 2, 2015, the State charged Bagnell by information with one count of
stalking. The State alleged that Bagnell “purposely or knowingly caused serious emotional
distress to L.L. by repeatedly send[ing] her letters.”1 Prior to trial, the parties submitted
proposed jury instructions to the District Court. None from either party contained an
instruction defining “purposely” and “knowingly.” Before trial began, the State submitted
two additional instructions defining “purposely” and “knowingly,” to which Bagnell did
not object. The court informed counsel of its intent to “deal with these at the end . . . when
we settle instructions.” The record reflects, however—and the parties do not dispute—that
everyone apparently overlooked these instructions, and they were not given to the jury with
the other instructions.
¶5 After deliberating just over an hour, the jury found Bagnell guilty. The
District Court sentenced Bagnell as a persistent felony offender to twenty years’
imprisonment, with no time suspended. This appeal followed.
¶6 “We review jury instructions to determine whether the instructions, taken as a
whole, fully and fairly instruct the jury as to the applicable law and whether the
1
The court subsequently allowed the State to amend the Information to include two counts of
violating an order of protection under § 45-5-626, MCA, but the State dismissed these counts
before trial.
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district court abused its discretion in instructing the jury.” State v. Gerstner, 2009 MT 303,
¶ 15, 353 Mont. 86, 219 P.3d 833 (citation omitted). If the instructions are erroneous, we
will reverse only if the mistake prejudicially affects the defendant’s substantial rights.
Gerstner, ¶ 15 (citation omitted). Ineffective assistance of counsel claims are mixed
questions of law and fact, which we review de novo. State v. Flowers, 2018 MT 96, ¶ 13,
391 Mont. 237, 416 P.3d 180 (citation omitted).
¶7 Bagnell did not object to the District Court’s failure to instruct the jury on the
definitions of “purposely” or “knowingly,” thus failing to preserve the issue for appeal.
This Court may discretionarily review unpreserved claims alleging errors implicating a
criminal defendant’s fundamental rights under the common law plain-error doctrine.
State v. George, 2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d 854 (citing State v. Akers,
2017 MT 311, ¶ 13, 389 Mont. 531, 408 P.3d 142). The party requesting reversal because
of plain error bears the burden of firmly convincing this Court that (1) the claimed error
implicates a fundamental right and (2) the failure to review may lead to a manifest
miscarriage of justice, may leave unsettled the question of the fundamental fairness of the
trial, or may compromise the integrity of the judicial process. George, ¶ 5
(citations omitted).
¶8 Bagnell claims that the claimed error implicates his fundamental right to
due process. See, e.g. Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419,
2420 (1989) (jury instructions relieving states of the burden to prove every element of the
offense beyond a reasonable doubt violate a defendant’s due process rights);
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State v. Azure, 2005 MT 328, ¶ 20, 329 Mont. 536, 125 P.3d 1116 (“When a criminal
offense requires that a defendant act ‘knowingly’ [and ‘purposely’], the District Court must
instruct the jury on what the term ‘knowingly’ [and ‘purposely’] means in the context of
the particular crime.”).
¶9 The trial court gave the following instruction defining the offense of stalking as set
forth in § 45-5-220, MCA:
A person commits the offense of stalking when he purposely or knowingly
causes another person substantial emotional distress or reasonable
apprehension of bodily injury or death by repeatedly: harassing, threatening,
or intimidating the stalked person, in person or by mail, electronic
communication, or any other action, device, or method.
It instructed the jury further that for it to find Bagnell guilty, the State must prove beyond
a reasonable doubt each element of the offense, including that he “acted purposely or
knowingly.” The District Court’s instructions properly included the elements of the
charged offense and the State’s obligation to prove each element beyond a reasonable
doubt. But it incorrectly left out an instruction defining the terms “purposely” and
“knowingly” in the context of the offense of stalking. See Azure, ¶ 20.
¶10 Bagnell nonetheless bears the burden to demonstrate that the unchallenged error
requires a new trial. We considered a similar argument in State v. Nuessle, 2016 MT 335,
386 Mont. 18, 385 P.3d 952. The State charged Nuessle with obstructing justice, an offense
requiring proof that he “knew” the person he harbored or concealed was an offender. The
jury instructions did not define “knowing” or “knew,” and Nuessle did not offer an
instruction defining those terms. Nuessle, ¶ 7. Like Bagnell, he claimed on appeal that
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failure to include a definition of the “knowing” element relieved the State of its burden of
proof on an essential element of the offense, amounting to plain error; alternatively, he
argued that his counsel was ineffective for failing to offer the appropriate instruction.
Nuessle, ¶ 11. Because the jury instructions correctly stated all elements of the offense,
“including the requirement that Nuessle knew [the person he concealed] was an offender,”
we declined plain-error review. “Even without an instruction defining ‘knowing,’ the State
was not relieved of its burden to prove the ‘knowing’ element, and the jury was well aware
of the burden.” Nuessle, ¶ 14. We reached a similar conclusion in State v. Williams,
2015 MT 247, ¶ 17, 380 Mont. 445, 358 P.3d 127, declining to exercise plain-error review
of a “clearly defective” jury instruction omitting the element of “purpose to deprive” in a
theft charge where other instructions included all elements of the offense and the evidence
was overwhelming.
¶11 Like Nuessle and Williams, Bagnell has not shown that the District Court’s failure
to instruct the jury on the mental state definitions would “result in a manifest miscarriage
of justice, leave unsettled the question of the fundamental fairness of the trial proceedings,
or compromise the integrity of the judicial process.” Nuessle, ¶ 15 (quoting Williams, ¶ 16).
The instructions correctly recited the statutory definition of stalking and included each
element of the offense the State had to prove beyond a reasonable doubt. And the State
presented compelling evidence—largely taken from Bagnell’s own words—that he was
aware of a high probability that his letters would cause L.L. to fear for her safety or suffer
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emotional distress.2 George Simpson, the officer assigned to investigate the case, testified
that he had reviewed Bagnell’s letters—over 140 pages—and found them to be “very
disturbing emotionally.” Simpson read excerpts from twelve of the letters to the jury. In
one, Bagnell wrote to L.L., “But I promise you this: Divorce is just a piece of paper . . . .
That piece of paper is not going to keep me away and you know it.” In another, he wrote,
“Nothing is stopping me from coming home to see you and you can bank on that.” In yet
another letter, Bagnell told L.L., “No piece of paper is going to stop me from coming by in
the middle of the night and sneaking in your bedroom and burglarize your [body].”
Simpson testified that Bagnell enclosed his own pubic hairs in another letter to L.L.
Simpson testified that Bagnell’s letters made L.L. “very, very disturbed, very upset.”
Jolene Schmitz also testified that Bagnell’s letters made L.L. “cry[,]” “shake[,]” and
“constantly look at the door.” L.L. testified that, when her granddaughter came to live with
her in 2012, she “finally put a restraining order on [Bagnell]” in response to his threatening
letters. L.L. testified that she told Bagnell that his communication upset her—“because he
just makes me snap”—and that when she read his letters, “It’s just like I’m having a PTSD.
He just gets me off the charts. I just get high stress and I just can’t do it.” She described
their relationship as one that was “never [] loving and normal” and was “very violent[]”
because “he was always beating me up.”
2
We assume for the purpose of resolving this appeal that stalking is a result-based offense—as
Bagnell advocates.
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¶12 From this evidence, we conclude that no reasonable juror presented with Bagnell’s
letters could harbor reasonable doubt that he had the conscious object to cause or was aware
of a high probability they would cause L.L. to fear for her safety or suffer emotional
distress. The letters’ plain language shows they were designed to do so. Though the
instructions were defective, the error is not grounds for plain-error reversal.
¶13 Bagnell alternatively contends that trial counsel rendered ineffective assistance by
failing to object to the instructional error, requiring reversal of his conviction. To prevail
on a claim of ineffective assistance of counsel, a defendant must show “(1) that counsel’s
performance was deficient, and (2) that counsel’s deficient performance prejudiced the
defendant.” Nuessle, ¶ 17 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052(1984), and Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861). A defendant
must satisfy both prongs of the Strickland test to prevail on a claim for
ineffective assistance of counsel. Nuessle, ¶ 17 (citation omitted).
¶14 We conclude that Bagnell has not demonstrated prejudice from counsel’s allegedly
deficient performance. “To establish prejudice, the defendant must show that, but for
counsel’s errors, a reasonable probability exists that the result of the proceeding would
have been different.” St. Germain v. State, 2012 MT 86, ¶ 11, 364 Mont. 494, 276 P.3d 886(citation omitted). As we have explained, in light of the evidence presented at trial—
chiefly, Bagnell’s explicit letters to L.L. and the impact they had on her—we are confident
that the jury would not have reached a different outcome had defense counsel objected to
the court’s instructional error. See St. Germain, ¶ 11.
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¶15 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. Bagnell did not suffer an unfair trial as the result of the
District Court’s instructional error or prejudice from his counsel’s failure to object to it.
The judgment is affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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