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State v. Brunell

Supreme Court of Montana

April 4, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
TISHA ANN BRUNELL, Defendant and Appellant.

          Submitted on Briefs: March 8, 2017

         APPEAL FROM: District Court of the Third Judicial District, In and For the County of Deer Lodge, Cause No. DC-2013-07 Honorable Ray Dayton, Presiding Judge

          For Appellant: Paul Sullivan, Measure, Sampsel, Sullivan & O'Brien, P.C., Kalispell, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Ben Krakowka, Deer Lodge County Attorney, Anaconda, Montana

          Michael E Wheat Justice

         ¶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 Tisha Ann Brunell (Brunell) appeals from the order of the Third Judicial District Court, Deer Lodge County, denying her motions to dismiss. In 2013, the State filed an information charging Brunell with multiple counts of Sexual Intercourse Without Consent (SIWC), Transfer of Illegal Articles, and Unauthorized Communications with a Detained Person, arising from her conduct with two inmates of the Sanction, Treatment, Assessment, Revocation & Transition (START) program. Tisha was employed as a nurse at the program.

         ¶3 In February 2014, Brunell filed motions to dismiss, arguing that the State charged her under unconstitutionally vague statutes. The District Court denied her motions and, in March 2014, a jury convicted Brunell of two counts of SIWC, three counts of Transfer of Illegal Articles, and forty-two counts of Unauthorized Communications with a Detained Person. On August 6, 2014, the District Court sentenced Brunell to: 1) two concurrent twenty-five year sentences at the Montana Women's Prison, each with ten years suspended for the SIWC charges; 2) three thirteen-month terms at the prison, all concurrent with the SIWC sentences, for the Transfer of Illegal Articles charges; and 3) ten days in the Anaconda-Deer Lodge County Jail on each of the forty-two unlawful communications charges. Brunell now appeals the District Court's denial of her motions to dismiss.

         ¶4 This Court reviews the denial of a motion to dismiss in a criminal case de novo. State v. Dugan, 2013 MT 38, ¶ 13, 369 Mont. 39, 303 P.3d 755. Statutes are presumed to be constitutional. A party challenging a statute's constitutionality must establish, "beyond a reasonable doubt, that the statute is unconstitutional, and any doubt must be resolved in favor of the statute." State v. Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244, 180 P.3d 636. The constitutionality of a statute is a question of law, which we review for correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469.

         ¶5 Brunell first argues that the District Court erred in denying her motion to dismiss the unauthorized communications charges because the underlying statute is unconstitutionally vague, both on its face and as applied. We have previously stated that:

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine "is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement." Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections."

State v. Dixon, 2000 MT 82, ¶ 27, 299 Mont. 165, 998 P.2d 544 (quoting State v. Stanko, 1998 MT 321, ¶ 21, 292 Mont. 192, 974 P.2d 1132) (citations omitted). The unauthorized communications statue provides that "[a] person commits the offense of unauthorized communication if the person knowingly or purposely communicates with a person subject to official detention without the consent of the person in charge of the official detention." Section 45-7-307(2)(a), MCA.

         ¶6 Brunell argues that § 45-7-307(2)(a), MCA, is unconstitutional on its face because it fails to give a person of ordinary intelligence fair notice that her contemplated conduct is forbidden. The District Court found that Brunell did not have standing to raise a facial vagueness challenge because her conduct was clearly proscribed by statute. We agree with the District Court. This Court has held that "if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness." State v. Lilburn, 265 Mont. 258, 270, 875 P.2d 1036, 1044 (1994). In this case, Brunell engaged in several calls with START inmates and did not obtain the express or implied consent of anyone in charge of START to make or receive such calls. Thus, Brunell lacks standing to bring a facial vagueness challenge because, regardless of the content of her communications with the inmates, Brunell's conduct was unquestionably proscribed by § 45-7-307(2)(a), MCA.

         ¶7 Brunell also argues that § 45-7-307(2)(a), MCA is unconstitutionally vague as applied to her. "[A] void for vagueness analysis has two elements: (1) actual notice to citizens; and (2) minimal guidelines to govern law enforcement." Dixon, ¶ 27. Regarding the first element, "we must determine whether the statute gives a person of ordinary intelligence fair notice that their contemplated conduct is forbidden." Dixon, ΒΆ 28. "A statute challenged for vagueness as applied to a particular defendant must be examined in light of the conduct with which the defendant is ...


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