State v. Asmundson

96-437
No. 96-437
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
STEPHEN GARY ASMUNDSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County
of
Missoula, the Honorable Douglas G. Harkin, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Richard R. Buley, Tipp and Buley, Missoula, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Christina Lechner
Goe, Assistant Attorney General, Helena, Montana
Robert L. Deschamps III, County Attorney, Missoula, Montana
Submitted on Briefs: April 24, 1997
Decided: June l2, 1997
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
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Stephen Asmundson appeals from a Fourth Judicial District Court, Missoula
County, jury verdict finding him guilty of two counts of violating a protective
order. We
reverse.
Asmundson raises six issues on appeal, which we restate as follows:
1. Did the District Court err when it refused to dismiss Count II?
2. Did the District Court err when it refused to dismiss Count III?
3. Did the District Court err when it relied on documents from the Asmundson
dissolution in ruling on Asmundsonþs motions to dismiss?
4. Was there sufficient evidence to support a jury finding that Asmundson had
knowledge of the restraining orders?
5. Is violation of a protective order a lesser included offense of stalking?
6. Did the District Court err when it allowed testimony concerning the
contents
of an audiotape which was not offered into evidence?
BACKGROUND
Patricia Asmundson, Stephen Asmundson's wife, applied ex parte for a temporary
restraining order in Missoula County Justice Court on August 4, 1995, pursuant to
40-
4-121(3), MCA. The Justice Court issued a temporary restraining order which
prohibited
Asmundson from contacting or attempting to contact Patricia. The August 4 temporary
restraining order (TRO) expired on August 21, 1995, unless continued at a hearing
scheduled for August 18, 1995.
Asmundson was served with the TRO on August 9, 1995. The next day he
informed the Justice Court that he had petitioned, pro se, for dissolution of
marriage.
On August 14, 1995, the Justice Court sua sponte filed a notice of transmittal based
on
40-4-123(2), MCA, informing the parties that the TRO was transmitted to District
Court based on Asmundson's filing a separate request for a temporary restraining
order
and petition for dissolution. The Justice Court vacated the August 18 hearing and
ordered
the TRO to remain in effect pending review by the District Court. The parties
dispute
whether Asmundson received a copy of the notice of transmittal, although a "cc" and
check mark appear next to his name and address on the notice.
On September 18, 1995, the District Court held a hearing on the TRO.
Asmundson did not appear. The District Court issued a restraining order which
extended
the TRO for one year. The parties dispute whether Asmundson was served with the
restraining order and whether he had agreed not to contest it.
Asmundson was charged by information with three counts of violation of a
protective order and one count of stalking. Count I alleged that on August 10 and
16,
1995, Asmundson violated the August 4, 1995, protective order by calling Patricia and
having other persons contact her. Count II alleged that on August 27, 1995,
Asmundson
violated the August 4 protective order by calling Patricia and leaving messages on
her
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answering machine. Count III alleged that on October 10, 1995, Asmundson violated
the
August 4 protective order by sending Patricia a greeting card. Count IV alleged that
between August 4, 1995, and January 24, 1996, while Patricia was under the protection
of a restraining order, Asmundson caused her substantial emotional distress by
harassing
or intimidating her by telephone, mail, and other actions. Asmundson pled not guilty
to all four counts.
A jury trial was held. The State introduced the TRO referred to in the
information
as a protective order. Patricia testified that on August 27, 1995, Asmundson called
and
spoke with her. She hung up, but Asmundson called back and left messages on her
answering machine. Patricia called 911 and gave the answering machine tape to the
responding sheriffþs deputy. The tape was lost while in the possession of the
Sheriffþs
Department and was not introduced at trial. Over Asmundsonþs objection, Patricia
testified as to her recollection of the tapeþs contents. The State also sought to
introduce
the September 18 restraining order. Asmundson objected, claiming that the order was
irrelevant, but the court admitted it as "the type of protection order that could
apply to
Count IV."
At the close of the Stateþs case, Asmundson moved to dismiss Count IV for lack
of sufficient evidence. The motion was denied. He also moved to dismiss Counts II
and
III, arguing that as a matter of law he could not be found guilty because the TRO
expired
twenty days after it was issued, and no hearing was held. The District Court
requested
the clerk to obtain the Asmundson dissolution file. Asmundson objected to the
consideration of any document not admitted into evidence during the State's case-in-
chief.
The District Court reviewed the notice of transmittal contained in the Asmundson
dissolution file and denied Asmundson's motion to dismiss Counts II and III. It
ruled that
the TRO remained in effect because the Justice Court, pursuant to the notice of
transmittal, had continued the TRO, and that Asmundson waived his right to a hearing
on the TRO at the end of twenty days by filing for dissolution. The State then moved
to reopen its case. Asmundson objected, arguing that the District Court had already
ruled
based on evidence outside of the record. The State's motion was granted, and the
State
reopened its case-in-chief wherein it introduced, and the court received, the notice
of
transmittal.
During the State's closing, the county attorney admitted there was insufficient
evidence to convict Asmundson on Count I, which was dismissed. The case was
submitted to the jury with Count IV to be considered first. If Asmundson was found
not
guilty on Count IV, then the jury was to consider Counts II and III as lesser
included
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offenses. The jury found Asmundson not guilty on Count IV but guilty on Counts II
and
III.
The District Court sentenced Asmundson to six months in jail and a $500 fine on
each count, with the sentences to run consecutively. Asmundson appeals.
DISCUSSION
1. Did the District Court err when it refused to dismiss Count II?
As a preliminary matter, this Court must decide whether to take judicial notice
of
the record of the Asmundson dissolution which contains the Justice Court notice of
transmittal and the District Court September 18 restraining order. Except for the
notice
of transmittal and the September 18 restraining order set forth by Asmundson in his
brief,
we conclude that the remaining record of the Asmundson dissolution is unnecessary to
resolve the issues presently before the Court. Therefore, pursuant to Rule 201,
M.R.Evid., we take judicial notice only of the Justice Court notice of transmittal
and the
District Court September 18 restraining order.
The grant or denial of a motion to dismiss in a criminal case is a question of
law.
State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. We review conclusions
of law to determine whether the district court's conclusions were correct. Carbon
County
v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
Asmundson argues that by its own terms the TRO issued by the Justice Court on
August 4, 1995, expired on August 21, 1995, and by operation of 40-4-121(4), MCA,
the TRO expired twenty days after it was issued because no hearing was held prior to
August 24, 1995. Since the acts alleged in Count II did not occur until August 27,
1995,
Asmundson maintains the District Court erred when it refused to dismiss Count II.
The
State responds that Asmundson incorrectly interprets 40-4-121(4), MCA, which does
not require a hearing to be held within twenty days for a TRO to remain in effect.
Section 40-4-121, MCA, provides, in relevant part:
(4) The court may issue a temporary restraining order for a period not to
exceed 20 days without requiring notice to the other party only if it finds
on the basis of the moving affidavit or other evidence that irreparable injury
will result to the moving party if no order is issued until the time for
responding has elapsed.
(5) A response may be filed within 20 days after service of notice of motion
or at the time specified in the temporary restraining order.
(6) At the time of the hearing, the court shall determine whether good cause
exists for the injunction to continue for 1 year.
When interpreting a statute, we look first to the plain meaning of its words.
State
v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540. When the language of a
statute is plain, unambiguous, direct, and certain, the statute speaks for itself
and there
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is no need to resort to extrinsic means of interpretation. Gould, 902 P.2d at 540.
The
plain, unambiguous language of 40-4-121, MCA, clearly provides that a TRO is only
valid for twenty days, absent a hearing and extension by the issuing court.
Therefore,
we hold that the District Court erred when it refused to dismiss Count II because the
alleged August 27 violation of the protective order occurred after the TRO had
expired.
The Justice Court also lacked jurisdiction under 40-4-123, MCA, to sua sponte
continue the TRO pending review by the District Court. Section 40-4-123, MCA,
provides:
(1) District courts, municipal courts, justices' courts and city courts have
concurrent jurisdiction to hear and issue orders under 40-4-121.
(2) A municipal judge, justice of the peace, or city court judge shall on
motion suspend all further proceedings in the action and certify the pleading
and any orders to the clerk of the district court of the county where the
action was begun if an action for . . . dissolution of marriage . . . is
pending between the parties.
The record does not indicate that any party moved to "suspend all further
proceedings." Rather, the Justice Court on its own initiative issued the notice of
transmittal and continued the TRO pending review by the District Court. Absent
either
a motion required by 40-4-121(2), MCA, or a hearing required by 40-4-121(4),
MCA, the Justice Court lacked jurisdiction to issue the notice of transmittal and
continue
the TRO.
When ruling on Asmundsonþs motion to dismiss Count II, the District Court held
that, by notifying the Justice Court of his filing a petition for dissolution,
Asmundson
waived his right to a hearing on the TRO because the notification amounted to a
motion
to transfer. No language in 40-4-121 or -123, MCA, states that a petition for
dissolution of marriage is equivalent to a motion to transfer a TRO from justice
court to
district court. We conclude that the District Court erred when it determined that a
petition for dissolution of marriage is a motion to transfer. Therefore, we hold
that the
District Court erred when it determined that Asmundson waived his right to a hearing
on
the TRO when he petitioned for dissolution of marriage.
We conclude that the TRO issued by the Justice Court on August 4, 1995, expired
by its own terms on August 21, 1995, and in any event expired by operation of law
under
40-4-121, MCA, by August 24, 1995. The basis of the alleged violation in Count II
did not occur until August 27, 1995. We hold that the District Court erred as a
matter
of law when it refused to dismiss Count II.
2. Did the District Court err when it refused to dismiss Count III?
Asmundson contends that when the District Court allowed the State to argue in
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its
closing that he violated the September 18 restraining order, the State amended Count
III
of the information. We agree and conclude that our decision in State v. Later
(1993),
260 Mont. 363, 860 P.2d 135, is controlling.
In Later, the defendant was charged with misdemeanor official misconduct.
During settlement of jury instructions, the State conceded that the defendant had
been
charged under the incorrect statute. The State offered an alternate instruction
charging
the defendant with violation of another statute. We reversed, reasoning that a
function
of the information is to notify the defendant of the offense charged, thereby giving
the
defendant the opportunity to defend. Later, 860 P.2d at 137 (citing State v. Tropf
(1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163).
In this case, the "amendment" to the State's information was one of substance.
After the State presented its case and the September 18 restraining order was
admitted
for purposes of proving Count IV, the State placed the September 18 restraining order
at issue to prove Count III. It was the August 4 TRO contained in the State's
information
against which Asmundson believed he would have to defend. When the District Court
allowed the State to argue that Asmundson had violated the September 18 restraining
order instead of the August 4 TRO, Asmundson did not have the opportunity to defend
because the "amendment" occurred after the defense had rested. Fundamental
principles
of due process dictate that Asmundson should have been given the opportunity to know
against which TRO he had to defend. The State's use of the September 18 restraining
order to prove Count III amounted to a substantive amendment to the State's
information,
and Count III should have been dismissed. We hold that the District Court erred when
it refused to dismiss Count III.
Because Issues 1 and 2 are dispositive, we decline to address the remaining
issues
presented on appeal.
Reversed.
/S/ J. A. TURNAGE
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
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