APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-91 Honorable Ed McLean, Presiding Judge
The opinion of the court was delivered by: Chief Justice Mike McGrath
Submitted on Briefs: August 15, 2012
Decided: September 18, 2012
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 Timothy Jon Meyer (Meyer) appeals his conviction by a jury in the Fourth Judicial District Court, Missoula County, of violating a protective order. This was Meyer's third or subsequent conviction of violating a protective order, so it was a felony. He was sentenced to two years in the Montana State Prison and given credit for time served. We affirm.
¶3 Meyer argues on appeal that the District Court improperly instructed the jury regarding the mental state required by § 45-5-626, MCA. He contends that he received ineffective assistance of counsel because his trial counsel failed to object to the proposed jury instructions and failed to offer alternatives. Meyer also asks us to review the jury instructions for plain error, and he further asserts that there was insufficient evidence for a jury to convict him under proper instructions.
¶4 Meyer and Dawn Kellmer (Kellmer) were divorced in August of 2010 after two years of marriage. After their divorce, Kellmer obtained a protective order against Meyer that, among other things, prohibited Meyer from coming within 1500 feet of her. On February 27, 2011, while still in possession of some of Meyer's belongings, Kellmer moved from her residence on Sherwood Street in Missoula to a home in a trailer park on South 7th Street.
¶5 When Meyer learned that Kellmer was no longer living at the Sherwood residence, he decided to visit Tom, one of their mutual acquaintances, to see if he knew Kellmer's new address. Meyer needed Kellmer's new address so that he could arrange for a civil standby to help him retrieve his possessions from her without violating the protective order, which was still in effect.
¶6 On March 2, 2011, accompanied by his mother and aunt, Meyer went to Tom's house, which happened to be in the same trailer park Kellmer had just moved to. Although Tom was not home, Meyer spotted Kellmer's car parked in an alley in front of a nearby trailer. He told his aunt to drive down the alley so that he could see the trailer's address, which she did.
¶7 According to his testimony, Meyer thought that Kellmer lived in the trailer, but he wanted to make sure her car was not just parked there. After his aunt wrote down the address on the trailer, Meyer had her park their van near Kellmer's trailer in the alley. He got out of the van to go talk with a neighbor. Meyer's mother also got out of the van, walked up to the trailer, and knocked on Kellmer's door. Kellmer came to the door and called the police shortly after seeing Meyer nearby. When police officers arrived a few minutes later, Meyer showed them a copy of the protective order that he had brought with him. The officers verified that the order was still in effect and placed Meyer under arrest.
¶8 Section 45-5-626(1), MCA, provides that a person violates an order of protection if the person, with knowledge of the order, purposely or knowingly violates one of the order's provisions. Meyer conceded that he knew of the protective order and that he violated it by coming within 1500 feet of Kellmer. His defense at trial was that he did not do so purposely or knowingly. The State recommended the following jury instructions regarding the requisite ...