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                                                                 No. 99-066

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 270N




STATE OF MONTANA,

Plaintiff and Respondent,

v.

FELICIANO QUIROZ,

Defendant and Appellant.




                                                           APPEAL FROM: District Court of the Sixteenth Judicial
                                                           District,

In and for the County of Powder River,

The Honorable Gary L. Day, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

J. B. Wheatcroft, Attorney at Law, Miles City, Montana

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For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Pamela P. Collins,

Assistant Attorney General; Helena, Montana

Jeffrey A. Noble, Powder River County Attorney; Broadus, Montana




                                                                                            Submitted on Briefs: October 21, 1999

                                                                                                           Decided: November 4, 1999

Filed:




__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.




¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ Feliciano Quiroz (Quiroz) appeals from the Judgment and Sentence entered by the

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Sixteenth Judicial District Court, Powder River County, on a jury verdict finding
him guilty of the misdemeanor offense of violating a protective order set forth in § 45-
5-626(1), MCA, by harassing, annoying or disturbing the peace of Ginger Eustice
(Eustice) and her children, and by coming within 1500 feet of Eustice's residence and
other places where she and her children were to be found. We affirm.

¶ Quiroz raises two issues on appeal:

¶ 1. Is the protective order's prohibition against harassing or annoying Eustice and
her children unconstitutionally vague?

¶ 2. Is the 1500-foot separation requirement contained in the protective order an
unconstitutional infringement on Quiroz's right to travel?

                                                          BACKGROUND

¶ Eustice is the mother of six children. After a brief marriage in 1991 and subsequent
dissolution of that marriage, Quiroz and Eustice attempted to reconcile in 1996; the
reconciliation was not successful. Eustice subsequently sought and obtained a
temporary restraining order against Quiroz in the Powder River Justice Court in
March of 1997, followed on April 9, 1997, by a protective order effective for one year.
Among other things, the protective order prohibited Quiroz from harassing,
annoying or disturbing the peace of Eustice and her children, and from going within
1500 feet of Eustice's residence, her place of employment, and places frequented by
Eustice's children.

¶ After Eustice complained about multiple violations of the protective order by
Quiroz during the time in which the protective order was in effect, he was arrested
and charged in the Justice Court with violating the protective order. He moved to
dismiss the charge on the basis that the 1500-foot separation requirement violated his
right to travel. The Justice Court denied the motion, a bench trial was held, and the
Justice Court convicted Quiroz of violating the protective order.

¶ Quiroz appealed to the District Court, the State of Montana (State) filed a
complaint alleging Quiroz violated a number of the protective order's provisions, and
Quiroz again moved to dismiss on the basis that the protective order infringed on his
constitutional right to travel. The court denied the motion stating, in part, that the


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complaint alleged various violations of the protective order by Quiroz.

¶ The case proceeded to a jury trial. At the close of the State's evidence, counsel and
the District Court held an in-chambers discussion of the verdict form to which the
parties had agreed, which separately stated six violations of the protective order.
Quiroz also moved for a directed verdict and the court denied the motion.

¶ The jury ultimately found Quiroz guilty of harassing, annoying or disturbing the
peace of Eustice and her children, and of going within 1500 feet of Eustice's residence
and places frequented by her children. It found him not guilty of violating other
provisions of the protective order. The District Court sentenced Quiroz on the
misdemeanor charge of violating an order of protection and entered judgment
accordingly. Quiroz appeals.

                                                            DISCUSSION

¶ 1. Is the protective order's prohibition against harassing or annoying Eustice and
her children unconstitutionally vague?

¶ Quiroz contends that the "harass or annoy" language in the protective order is
unconstitutionally vague on its face and, on that basis, that the District Court erred
in denying his motions to dismiss and for a directed verdict. The State responds that
Quiroz waived his right to raise this issue on appeal because he did not present it to
the District Court. We agree.

¶ Quiroz's brief in support of his motion to dismiss in the District Court focused on
his right to travel argument and, indeed, the only legal authorities cited therein
related to that argument. While the brief contained a passing reference to a
vagueness argument relative to the "annoy" language he now wishes to assert on
appeal, no authorities were advanced on that issue in Quiroz's brief in the District
Court. Moreover, his brief stated that "[b]eyond [my] claim that the Protective
Order violates the constitutional rights of [Quiroz] as applied to [me] on the specific
issue of the right to travel, the proof of violation of the terms of the Protective Order
might not otherwise reach constitutional dimensions." In addition, the record of the
hearing on Quiroz's pretrial motion to dismiss is clear that Quiroz requested, and
was granted, "time to brief the harass and annoy language," but no brief on the issue
was ever filed. In fact, near the end of that hearing Quiroz admitted that just because


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the 1500- foot provision was, in his view, void, that "would not make the entire
[protective] order void respecting other provisions." In Quiroz's stated view at that
time, the validity of the annoy or harass violation would depend on whether the State
produced evidence at trial to support it. Furthermore, during the in-chambers
discussion at the close of the State's evidence at trial, the District Court observed that
there was sufficient evidence to go to the jury on the protective order's "harass or
annoy" language. Quiroz did not state, or suggest in any way at that time, that he
was challenging or intended to challenge the constitutionally of that language.
Finally, after the jury had returned its verdict and been dismissed, the District Court
permitted Quiroz to reserve the right to make appropriate posttrial motions; no such
motions were ever filed. On this record, it is clear that Quiroz did not sufficiently
raise the facial vagueness issue vis-a-vis the annoy or harass language in the District
Court.

¶ Quiroz concedes that he did not properly brief the facial vagueness issue. He
contends, however, that the passing reference to the vagueness issue in his District
Court brief was sufficient because "[t]he District Court's decision was going to be
appealed in either case and additional briefing would have served no purpose." This
contention ignores the underlying premise of Montana statutes and case law
requiring a defendant to preserve an issue for appeal, which is to give the trial court
an opportunity to correct any errors. See, e.g., State v. Rodgers (1993), 257 Mont.
413, 418-19, 849 P.2d 1028, 1032 (citations omitted).

¶ We hold that Quiroz waived his right to assert error on appeal based on the alleged
facial vagueness of the "harass or annoy" language contained in the protective order
by failing to properly preserve the issue in the District Court. As a result, his
conviction for violating the protective order by harassing, annoying or disturbing the
peace of Eustice and her children stands.

¶ 2. Is the 1500-foot separation requirement contained in the protective order an
unconstitutional infringement on Quiroz's right to travel?

¶ Quiroz contends that the 1500-foot separation requirement contained in the
protective order unconstitutionally infringes on his right to travel and, as a result,
that his conviction for violating the protective order must be reversed. We have often
stated, however, the well established principle that courts should avoid constitutional
issues whenever possible. See, e.g., State v. Still (1995), 273 Mont. 261, 263, 902 P.2d


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546, 548 (citations omitted). That principle applies here and we decline to address
Quiroz's constitutional challenge to the 1500-foot separation requirement.

¶ Section 45-5-626(1), MCA, provides that a person commits an offense when he or
she violates "a provision" of an order of protection. The sentence for a first
conviction of the offense of violating an order of protection is a fine not to exceed
$500 or imprisonment in the county jail for a term not to exceed 6 months, or both.
Section 45-5-626(3), MCA.

¶ As discussed above, the jury found that Quiroz had violated the protective order in
two ways, the first relating to the protective order's "harass or annoy" provision and
the second relating to the 1500-foot separation requirement provision. The District
Court sentenced Quiroz to pay a $500 fine, with $100 suspended for a period of 6
months, and to serve 180 days in the Powder River County Jail, with all of the time
suspended except for time already served.

¶ We concluded above that Quiroz's conviction for violating the harass or annoy
provision of the protective order is valid. The District Court's sentencing order
clarified that Quiroz had only been found guilty of one offense, the misdemeanor
offense of violation of an order of protection set forth in § 45-5-626(1), MCA, and,
indeed, the court's sentence was well within that provided by law for a first
conviction for the commission of that offense. See § 45-5-626(3), MCA. On these facts
and this record, the District Court's sentence and judgment are affirmable and the
case resolvable without consideration of the purported infringement on Quiroz's
constitutional right to travel. Therefore, we need not address--and expressly decline
to address--that issue here.

¶ Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON
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/S/ W. WILLIAM LEAPHART




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