                                                                                             July 13 2010


                                         DA 09-0352

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2010 MT 152



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KALEM JOHNSTON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Tenth Judicial District,
                      In and For the County of Fergus, Cause No. DC 08-48
                      Honorable E. Wayne Phillips, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                      Attorney General; Helena, Montana

                      Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana



                                                   Submitted on Briefs: June 2, 2010

                                                              Decided: July 13, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Kalem Johnston (Johnston) was convicted after a jury trial in the Tenth Judicial

District Court, Fergus County, of obstructing a peace officer in violation of § 45-7-302,

MCA. He appeals, and we reverse and remand for a new trial.

¶2     We state the issue as follows:

¶3     Did Johnston’s trial counsel render ineffective assistance by failing to object to
the jury instruction defining the mens rea element of the offense of obstructing a peace
officer?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶4     On the evening of April 22, 2008, Fergus County Sheriff’s Office Deputies Randy

Poser and Tracey Lewellen responded to the report of gunshots and a vehicle driving in

the vicinity of Maiden Canyon in the Judith Mountains near Hilger, Montana, during

winter weather conditions. After stopping their vehicle because of the road condition,

Deputies Poser and Lewellen observed Johnston walking toward them. They asked him

what he was doing and whether he was having any problems on the snowy mountain

road. Johnston informed Poser and Lewellen that the vehicle he was in had become stuck

but that everything was fine and the vehicle was “almost unstuck.” The deputies asked

Johnston whether other people were stuck further up the mountain. Although he would

not tell the deputies the names of the individuals, Johnston indicated that there were “four

or five” other individuals further up the road.

¶5     Concerned for the safety of the other persons, Poser and Lewellen accompanied

Johnston to a vehicle stuck in the snow about 200 yards further up the road. As the

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deputies arrived, two occupants, Mike Challans (Challans) and Jesse Meader (Meader),

exited the vehicle. Seeing that there were only two people in the vehicle, Poser inquired

about the whereabouts of the other people Johnston had referenced. Johnston replied that

he was including the two deputies in the count of “four or five” people he had referenced

but that, additionally, there was another vehicle further up the road which was also stuck.

Johnston gave another iteration of his story by later telling the officers that there was one

more person further up the road with the other vehicle.           After 30-40 minutes of

attempting to assess the matter, the deputies decided that, given the conditions, it was

prudent to bring Challans, Meader, and Johnston back to the sheriff’s station in

Lewistown and make other arrangements to look for the additional person, rather than

proceeding further up the mountain. Back at the station, Johnston informed Lewellen

that the name of the person with the other vehicle was Steve Smith (Smith), and that he

was indeed still on the mountain. As a result of this information, a search and rescue

team was sent back up to Maiden Canyon to look for Smith, who was not located there.

¶6     As a result of Johnston’s various statements to police, he was charged with

obstructing a peace officer, a misdemeanor, in violation of § 45-7-302, MCA.             On

June 23, 2008, Johnston was convicted in Fergus County Justice Court. He appealed, and

after a March 10, 2009 jury trial, Johnston was again found guilty. He was sentenced to

six month in the Fergus County Jail, with all but ten days suspended, and was ordered to

pay a $500 fine and $75 in surcharges. Johnston appeals.




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                              STANDARD OF REVIEW

¶7    We review jury instructions for abuse of discretion to determine whether the jury

instructions, as a whole, fully and fairly instructed the jury on the law applicable to the

particular case.   State v. Hall, 2003 MT 253, ¶ 24, 317 Mont. 356, 77 P.3d 239.

Ineffective assistance of counsel claims are mixed questions of law and fact which we

review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095.

                                     DISCUSSION

¶8     Did Johnston’s trial counsel render ineffective assistance by failing to object to
the jury instruction defining the mens rea element of the offense of obstructing a peace
officer?

¶9    Under § 45-7-302(1), MCA (2007), the offense of obstructing a peace officer as

charged in this case is committed by a person who “knowingly obstructs, impairs or

hinders . . . the performance of a governmental function . . . .” Under § 45-2-101(35),

MCA, “knowingly” is defined as follows:

      a person acts knowingly with respect to conduct or to a circumstance
      described by a statute defining an offense when the person is aware of the
      person’s own conduct or that the circumstance exists. A person acts
      knowingly with respect to the result of conduct described by a statute
      defining an offense when the person is aware that it is highly probable that
      the result will be caused by the person’s conduct . . . .

As we have explained, “[w]hen a criminal offense requires that a defendant act

‘knowingly,’ the District Court must instruct the jury on what the term ‘knowingly’

means in the context of the particular crime.” State v. Azure, 2005 MT 328, ¶ 20, 329

Mont. 536, 125 P.3d 1116.


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¶10    The District Court instructed the jury that “[a] person acts knowingly when the

person is aware of his or her conduct,” which Johnston asserts was error. Johnston

argues that the obstruction statute “seeks to avoid the singular result of obstruction of a

peace officer, not any particular conduct” (emphasis added) and, accordingly, the proper

definition of “knowingly” under § 45-2-101(35), MCA, for this crime is awareness that it

is highly probable that his conduct will obstruct, impair or hinder the officers’

performance of their governmental function. Johnston argues that we acknowledged this

principle in City of Kalispell v. Cameron, 2002 MT 78, 309 Mont. 248, 46 P.3d 46.

¶11    The State acknowledges that it had to “prove Johnston was aware that his conduct

would hinder the execution of the deputies’ duties,” but nonetheless argues that the

mental state element must still go to conduct because the result of the conduct—

obstruction—has “little to do with what the defendant is thinking.”        It reasons that

Johnston is attempting to add an additional causality requirement into the statute that

does not exist.

¶12    Though not directly addressing this issue in Cameron, we did state for purposes of

reviewing a denial of the defendant’s motion for directed verdict that the obstruction

statute “require[s] that an individual obstructing a peace officer must engage in conduct

under the circumstances that make him or her aware that it is highly probable that such

conduct will impede the performance of a peace officer’s lawful duty. In other words,

the City had to prove that Cameron was aware that his conduct would hinder the

execution of the Officers’ duties.” Cameron, ¶ 11.

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¶13    Here, the prosecutor’s closing argument emphasized that Johnston had to simply

be aware of his conduct in order to satisfy the mens rea element of the offense:

       You will also note that the instruction requires a person to act knowingly,
       and there is an instruction on knowingly also. And, if you have a question
       about what it means to act knowingly, go ahead and dig it out. But
       essentially, knowingly is just a very short instruction. It says a person acts
       knowingly when they are aware of their conduct. And really all that means
       is that the criminal law, the law is to impose criminal responsibility not for
       people who are not knowing what they are doing, perhaps in a psychotic
       state, something they have done accidentally, things like that. Well there is
       certainly no doubt that Mr. Johnston was acting knowingly. You know he
       was able to recall here for you today that he wasn’t being straight forward
       and honest with the officers. It is really not an issue, but I guess the
       definition of the crime includes that element if you will, the fact that a
       person acts knowingly.

The prosecutor added “[Johnston] admitted it I think when he told you that he was not

being honest and straight forward with the officers. He admitted commission of the

offense.”

¶14    Although the State acknowledges that it had to prove Johnston was aware that his

conduct could hinder the officers’ execution of their duties, its argument in favor of the

instruction given here negates that requirement. Rather than Johnston attempting to add a

causal element to the offense, it is the State which seeks to subtract an element. If we

were to approve the instruction and the prosecutor’s argument, an obstruction charge

could be established by merely proving that a person gave a dishonest answer in response

to an officer’s question. As we noted in Cameron, the statute clearly requires more, and

the instruction was therefore erroneous.




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¶15    Johnston acknowledges that his trial counsel did not object to the instruction

during trial and thus asks that we take up the issue under plain error review or pursuant to

his claim that trial counsel rendered ineffective assistance.       The right to effective

assistance of “counsel in criminal prosecutions is guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and by Article II, Section 24 of the

Montana Constitution.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d

861. When confronted with an ineffective assistance of counsel claim we apply the

two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed.2d 674 (1984); Whitlow, ¶ 10. Under this test, the defendant must demonstrate

(1) that counsel’s representation was deficient and (2) that counsel’s deficiency was

prejudicial by establishing that there was a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Kougl, ¶ 11.

¶16    In Kougl, we considered the defendant’s counsel’s failure to seek instructions to

view the testimony of the defendant’s accomplices with distrust and to require that such

testimony be corroborated. Kougl, ¶¶ 20-21. We concluded that we could review this

ineffectiveness claim on direct appeal because there was no plausible justification for

failure to seek the instructions. Kougl, ¶ 21. We reasoned that trial counsel “had nothing

to lose” by seeking the instructions and had “failed to use the law to strike at the heart of

the State’s case.” Kougl, ¶ 20. We reach the same conclusion here. Trial counsel had

nothing to lose in seeking a correct instruction, and the failure to do so allowed the

prosecutor to argue that Johnston had essentially confessed to the crime by his

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testimonial admission that he had been dishonest with the officers, thus reducing the

State’s burden in proving the crime.         Counsel’s representation was deficient and

prejudiced Johnston’s case “such that there is a reasonable probability [the jury] would

have arrived at a different outcome.” Kougl, ¶ 26. The error thus requires reversal.

¶17   Reversed and remanded for a new trial in accordance with this opinion.



                                                 /S/ JIM RICE


We concur:


/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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