State v. Tara Ashmore , 341 Mont. 131 ( 2008 )


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  •                                                                                       January 22 2008
    DA 06-0587
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2008 MT 14
    STATE OF MONTANA,
    Plaintiff and Appellee,
    v.
    TARA ASHMORE,
    Respondent and Appellant.
    APPEAL FROM:          District Court of the Fourth Judicial District,
    In and For the County of Missoula, Cause No. DC 2006-127
    Honorable Ed McLean, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Jason Marks, Office of the Public Defender, Missoula, Montana
    For Appellee:
    Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,
    Assistant Attorney General, Helena, Montana
    Fred Van Valkenburg, Missoula County Attorney, Kirsten LaCroix,
    Deputy County Attorney, Missoula, Montana
    Submitted on Briefs: June 26, 2007
    Decided: January 22, 2008
    Filed:
    __________________________________________
    Clerk
    Justice Patricia O. Cotter delivered the Opinion of the Court.
    ¶1     Appellant Tara Ashmore appeals the denial of her motion to dismiss in the Fourth
    Judicial District, Missoula County. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶2     On July 16, 2005, Missoula County Sheriff’s Reserve Deputies Jarret Hoke and
    Audrey Kramer were on a special patrol of the Johnsrud Recreational Area of the
    Blackfoot River in Missoula County. As Hoke was completing a routine traffic stop on
    Highway 200, Ashmore drove by at a high rate of speed honking her horn continually.
    Hoke subsequently stopped her for Unnecessary Use of a Horn or Other Warning Device,
    a misdemeanor under § 61-9-401(1), MCA.
    ¶3     During the traffic stop Ashmore was angry and belligerent towards Hoke.
    Initially, she threw her driver’s license and registration towards Hoke, but then handed it
    to him when he requested she do so. After Hoke had completed the standard driver’s
    license and warrant checks, he returned her identification information to her. As Hoke
    was explaining to Ashmore why she should not honk her horn excessively while passing
    an emergency vehicle, Ashmore put her vehicle in drive, acted as though she was about
    to drive off, and then told Hoke that she “did not want to hear it.” Hoke instructed her to
    take the vehicle out of gear, and informed her that if she did not listen to him, he would
    give Ashmore a ticket. Ashmore did so, and then proceeded to shower Hoke with
    obscene expletives, throwing her driver’s license, proof of insurance, and registration at
    Hoke again.
    2
    ¶4     As Hoke was writing Ashmore a citation, she exited her vehicle and started taking
    pictures of him. Reserve Deputy Scott King, who pulled up and was assisting Hoke, told
    her to get back in her vehicle. She resisted at first and tried to take more pictures, but
    soon complied. Hoke then issued her a citation for Unnecessary Use of a Horn or Other
    Warning Device, and also for Disorderly Conduct, a misdemeanor in violation of
    § 45-8-101, MCA. Ashmore threw the citation on the passenger seat of the vehicle,
    directed another obscene expletive towards Hoke, and then, according to the police
    report, “squealed her tires and held her horn down as she accelerated away from the
    traffic stop.”
    ¶5     Following a bench trial in Justice Court, Ashmore was convicted of one count of
    Disorderly Conduct and one count of Unnecessary Use of a Horn or Other Warning
    Device. She appealed her conviction to the District Court. On appeal she filed a motion
    to dismiss the Disorderly Conduct charge. Ashmore maintained that her conduct did not
    violate the statute as a matter of law because only a few people, the police officers, were
    disturbed by it. The District Court denied her motion to dismiss. After this denial,
    Ashmore pled guilty and was sentenced pursuant to a plea agreement which preserved
    her right to appeal. She now timely appeals the denial of her motion to dismiss.
    ISSUE
    ¶6     We state the issue on appeal as follows: Did the District Court err in denying
    Ashmore’s motion to dismiss?
    STANDARD OF REVIEW
    3
    ¶7    “The grant or denial of a motion to dismiss in a criminal case is a question of law
    which we review de novo on appeal.         Our standard of review is plenary, and we
    determine whether a district court’s conclusion is correct.” State v. Pyette, 
    2007 MT 119
    ,
    ¶ 11, 
    337 Mont. 265
    , ¶ 11, 
    159 P.3d 232
    , ¶ 11.
    DISCUSSION
    ¶8    Did the District Court err in denying Ashmore’s motion to dismiss?
    ¶9    Ashmore maintains the District Court erred in denying her motion to dismiss. She
    asserts that the Disorderly Conduct statute “requires at a minimum that a defendant
    engage in behavior that disturbs a number of people.” Ashmore asserts there were no
    witnesses who observed her behavior, and that of the three reserve deputies who were
    involved in the traffic stop—Hoke, Kramer, and King—only Hoke and Kramer actually
    witnessed the conduct allegedly giving rise to the Disorderly Conduct violation.
    Accordingly, Ashmore maintains the State failed to “present any evidence establishing
    probable cause that Ms. Ashmore disturbed the peace by disturbing more than a few
    people with her conduct.” Ashmore claims that her interpretation of § 45-8-101(1),
    MCA, is supported by the Criminal Law Commission Comments to the Disorderly
    Conduct statute and our decision in Kleinsasser v. State, 
    2002 MT 36
    , 
    308 Mont. 325
    , 
    42 P.3d 801
    .
    ¶10   The State urges us to affirm the District Court’s decision. The State asserts that
    “[n]o Montana decision has held specifically that a certain minimum number of people
    must be affected in order for behavior to ‘disturb the peace’ within the meaning of the
    disorderly conduct statute.” The State argues that the plain language of the statute makes
    4
    disturbance of the peace an element of the disorderly conduct, but does not otherwise
    contain any numerical requirement of how many “others” must be affected by the
    defendant’s conduct in order to give rise to a violation of the statute. The State maintains
    that “the number of people affected is not, on its own, determinative of whether ‘the
    peace’ is disturbed.    Rather, i t is only one factor among several that should be
    considered.” The State asserts that this position is supported by our prior decisions,
    including City of Billings v. Batten, 
    218 Mont. 64
    , 
    705 P.2d 1120
     (1985), State v. Turley,
    
    164 Mont. 231
    , 
    521 P.2d 690
     (1974), and State v. Lowery, 
    233 Mont. 96
    , 
    759 P.2d 158
    (1988). Additionally, the State asserts that Kleinsasser is distinguishable. Accordingly,
    the State maintains that the allegations in the affidavit demonstrated probable cause
    sufficient to support a finding that Ashmore violated the Disorderly Conduct statute, and
    that the District Court’s denial of her motion to dismiss should be affirmed.
    ¶11    In analyzing these arguments, we first turn to the relevant portions of the
    Disorderly Conduct statute under which Ashmore was charged. They read as follows:
    (1) A person commits the offense of disorderly conduct if he knowingly disturbs
    the peace by:
    (a) quarreling, challenging to fight, or fighting;
    (b) making loud or unusual noises;
    (c) using threatening, profane, or abusive language . . . .
    Sections 45-8-101(1)(a) through (c), MCA.
    ¶12    As the State correctly notes, our task in interpreting statutes is “simply to ascertain
    and declare what is in terms or in substance contained [in the statute], not to insert what
    has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Here,
    however, there is a disparity between the plain language of the statute and the Criminal
    5
    Law Commission Comments which provide guidance on how this statute is to be applied.
    The relevant portions of the Comments read as follows:
    The intent of the provision is to use somewhat broad, general terms to
    establish a foundation for the offense and leave the application to the facts
    of a particular case. Two important qualifications are specified in making
    the application, however. First, the offender must knowingly make a
    disturbance of the enumerated kind, and second, the behavior must disturb
    “others.” It is not sufficient that a single person or a very few persons
    have grounds for complaint.
    ¶13    The statute, on the other hand, does not specify that conduct must disturb “others,”
    or otherwise indicate that conduct affecting “a single person or a very few persons” is
    insufficient to give rise to a violation of the statute. In fact, the statute only requires that
    a defendant “knowingly disturb the peace” by committing one of the acts enumerated in
    subsections (a) through (j) of the statute, none of which contains a numerical
    requirement.
    ¶14    The disparity between the Comments and the plain language of the statute itself
    raises the question of whether it is possible to “disturb the peace” by specific acts that
    affect only one, or a few persons, or whether greater numbers of persons must be affected
    by the enumerated acts before a violation of the statute can take place. The State urges us
    to ameliorate this disparity by giving little if any weight to the Commission Comments,
    given that this phraseology, i.e., a reference to “others,” does not appear anywhere in the
    statute itself. Ashmore, however, asserts that this course is foreclosed to us, given our
    holding in Kleinsasser where we cited approvingly to these portions of the Commission
    Comments.
    6
    ¶15   A review of our prior decisions under this statute shows that, in spite of the
    language in the Comments, we have never adopted a strict numerical requirement
    respecting how many people need be affected by conduct before it “disturbs the peace.”
    As we noted in Lowery,
    The criminal law commission comments to § 45-8-101, MCA, state that, for
    a charge of breach of the peace, “[i]t is not sufficient that a single person or
    a very few persons have grounds for complaint.” However, in City of
    Billings v. Batten, 
    705 P.2d 1120
    , 
    42 St.Rep. 1398
    , defendant was
    convicted of using “fighting words” toward his neighbor in the presence of
    the neighbor’s family and several passers-by and within the hearing of other
    neighbors. The total number of persons present was about ten. In City of
    Whitefish v. O’Shaughnessy (Mont. 1985), 
    704 P.2d 1021
    , 
    42 St.Rep. 928
    ,
    defendant was convicted of using “fighting words” in the presence of two
    friends and a police officer.
    Lowery, 223 Mont. at 100, 
    759 P.2d at 160
    .
    ¶16   Similarly, in Batten, we noted the following:
    Although we have never decided how many people must be disturbed
    before the peace is disturbed, one Montana case involving the crime of
    breach of the peace, former § 94-3560, R.C.M. 1947, provides guidance. In
    State v. Turley (1974), 
    164 Mont. 231
    , 
    521 P.2d 690
    , Turley’s conviction
    for disturbing the peace was upheld. Section 94-3560, R.C.M. 1947,
    prohibited disturbances of the peace by “loud or unusual noise or
    tumultuous or offensive conduct or threatening, quarrelling, challenging to
    fight or fighting.” Turley was convicted under this statute when only he,
    his wife, and a third party were present to witness his conduct.
    Batten, 218 Mont. at 71, 
    705 P.2d at 1125
    .
    ¶17   As these cases demonstrate, we have focused our analysis not upon numbers of
    persons affected, but rather upon whether the defendant knowingly disturbed the peace
    by committing one of the acts enumerated in the statute. While the number of individuals
    affected by the conduct may play a role in whether the peace has been disturbed, it is not
    7
    necessarily a dispositive factor. Instead, determination of whether the peace has been
    disturbed should turn on “the application [of the statute] to the facts of a particular case.”
    ¶18    This is, in fact, the approach we applied in Kleinsasser, where we considered
    whether officers had particularized suspicion to justify an investigative stop due to an
    alleged violation of § 45-8-101, MCA. In that case, an officer observed Kleinsasser’s car
    parked off the side of the road around 10 p.m. at night, and saw an individual near the
    passenger door of the car urinating off the side of the road. Kleinsasser, ¶ 3. The officer
    pulled over and conducted an investigative stop of Kleinsasser, suspected he was under
    the influence of alcohol, and when Kleinsasser refused a preliminary breath test, arrested
    him for driving under the influence of alcohol. Kleinsasser, ¶ 6. The officer seized
    Kleinsasser’s license and it was later suspended.
    ¶19    Kleinsasser challenged the suspension of his license, but the district court denied
    his petition to have his license reinstated.      Kleinsasser appealed the district court’s
    decision, and argued that his license had been illegally seized because the officer lacked
    particularized suspicion to justify the stop, and that the observed behavior did not violate
    the laws of Montana.      Kleinsasser, ¶¶ 14, 15.      The State argued that the observed
    behavior of Kleinsasser constituted a violation of the Disorderly Conduct statute, in
    particular § 45-8-101(i), MCA, and that the officer did have particularized suspicion
    justifying the stop. Kleinsasser, ¶ 15.
    ¶20    We disagreed with the State, and reversed the District Court, finding that the
    observed conduct of Kleinsasser did not constitute a violation of § 45-8-101(i), MCA.
    Thus, there was no particularized suspicion justifying the investigative stop. The
    8
    proscribed act described in subsection (i) of the Disorderly Conduct statute reads as
    follows: “creating a hazardous or physically offensive condition by any act that serves no
    legitimate purpose . . . .” Section 45-8-101(i), MCA. We found that Kleinsasser’s
    conduct did not violate this statute for several reasons. On the one hand, we concluded
    that Kleinsasser’s conduct did not create a hazardous condition, and further that it served
    a legitimate purpose. Moreover, we determined that Kleinsasser’s act of urinating, given
    the time, manner, and conditions under which it occurred, was not “offensive.” After
    quoting the Commission Comments cited above at ¶ 12, we concluded as follows:
    In the present case, the incident occurred in the dark of the night, in a rural
    location where, as Officer Palmer testified, there were no overhead lights of
    any kind and there was no other traffic around at the time. Moreover, there
    was no evidence that the behavior disturbed anyone other than Officers
    Leasure and Palmer, and neither officer was so disturbed by the behavior
    that they considered giving the individual a citation.
    Kleinsasser, ¶ 21.
    ¶21    Contrary to Ashmore’s assertion, Kleinsasser does not stand for the proposition
    “that more than a few people must be disturbed by the alleged conduct” to constitute a
    disturbance of the peace in violation of § 45-8-101, MCA.            Rather, the Court in
    Kleinsasser continued our prior practice of evaluating whether the commission of one of
    the enumerated acts in the statute led to a disturbance of the peace by the defendant,
    based upon “the facts of a particular case.” Aside from our quotation of the Commission
    Comments, nowhere in Kleinsasser did we imply or intimate that Kleinsasser’s conduct
    was not a violation of the statute solely because only two police officers witnessed it.
    Instead, we found the conduct was not “offensive” based on the fact that only two police
    9
    officers witnessed it, and the fact that there “was no evidence that the behavior disturbed
    anyone other than Officers Leasure and Palmer, and neither officer was so disturbed by
    the behavior that they considered giving the individual a citation.” Kleinsasser, ¶ 21.
    (Emphasis added). Thus, our holding in that case was based on the fact that neither the
    officers, nor anyone else, was offended by the conduct, given the time, place, and manner
    of its occurrence. Thus, the conduct failed to satisfy any of the enumerated acts in the
    statute, particularly those in subsection (i).
    ¶22    This case, however, is distinguishable from Kleinsasser. The complaint filed
    against Ashmore alleges that Ashmore violated the Disorderly Conduct statute when she:
    (1) Quarreled, challenged to fight or fought, by calling the police officer a
    “cocksucker” and/or other profanities, by resisting instructions of police
    officers to remain in or return to a vehicle, and by throwing items at
    officers of the law.
    (2) Made loud or unusual noises by honking her horn excessively when
    unnecessary and yelling at officers of the peace.
    (3) Used threatening, profane or abusive language, including but not limited
    to “fucking,” and “cocksucker” on one or more occasions, directed at
    officers of the peace.
    ¶23    We conclude that Ashmore’s conduct falls under the proscriptions set forth in the
    acts enumerated in subsections (a) through (c) of the Disorderly Conduct statute.
    Consequently, Ashmore’s conduct does not need to be deemed “offensive,” as was
    required under subsection (i) in Kleinsasser, but only needs to meet the requirements
    listed in subsections (a) through (c) of the statute—namely that Ashmore “quarrel[l],
    challeng[e] to fight, or fight[] . . . mak[e] loud or unusual noises . . . [or] us[e]
    threatening, profane, or abusive language . . . .” Sections 45-8-101(1)(a) through (c),
    MCA. Ashmore’s conduct more than satisfies these requirements.
    10
    ¶24    Accordingly, the only question is whether these proscribed actions, when directed
    solely at police officers, could be found by a trier of fact to “disturb the peace,” and thus
    give rise to a violation of § 45-8-101, MCA. We hold that they can, and that nothing in
    our prior precedent under the Disorderly Conduct statute, including Kleinsasser, is
    inconsistent with this conclusion.      Thus, we affirm the District Court’s denial of
    Ashmore’s motion to dismiss.
    CONCLUSION
    ¶25    For these reasons, the District Court’s Order is affirmed.
    /S/ PATRICIA COTTER
    We Concur:
    /S/ KARLA M. GRAY
    /S/ JAMES C. NELSON
    /S/ W. WILLIAM LEAPHART
    /S/ JIM RICE
    11