                                                                                      January 22 2008


                                        DA 06-0587

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 14


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TARA ASHMORE,

               Respondent and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC 2006-127
                      Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jason Marks, Office of the Public Defender, Missoula, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,
                      Assistant Attorney General, Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney, Kirsten LaCroix,
                      Deputy County Attorney, Missoula, Montana



                                                Submitted on Briefs: June 26, 2007

                                                           Decided: January 22, 2008


Filed:

                      __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Appellant Tara Ashmore appeals the denial of her motion to dismiss in the Fourth

Judicial District, Missoula County. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     On July 16, 2005, Missoula County Sheriff’s Reserve Deputies Jarret Hoke and

Audrey Kramer were on a special patrol of the Johnsrud Recreational Area of the

Blackfoot River in Missoula County. As Hoke was completing a routine traffic stop on

Highway 200, Ashmore drove by at a high rate of speed honking her horn continually.

Hoke subsequently stopped her for Unnecessary Use of a Horn or Other Warning Device,

a misdemeanor under § 61-9-401(1), MCA.

¶3     During the traffic stop Ashmore was angry and belligerent towards Hoke.

Initially, she threw her driver’s license and registration towards Hoke, but then handed it

to him when he requested she do so. After Hoke had completed the standard driver’s

license and warrant checks, he returned her identification information to her. As Hoke

was explaining to Ashmore why she should not honk her horn excessively while passing

an emergency vehicle, Ashmore put her vehicle in drive, acted as though she was about

to drive off, and then told Hoke that she “did not want to hear it.” Hoke instructed her to

take the vehicle out of gear, and informed her that if she did not listen to him, he would

give Ashmore a ticket. Ashmore did so, and then proceeded to shower Hoke with

obscene expletives, throwing her driver’s license, proof of insurance, and registration at

Hoke again.




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¶4     As Hoke was writing Ashmore a citation, she exited her vehicle and started taking

pictures of him. Reserve Deputy Scott King, who pulled up and was assisting Hoke, told

her to get back in her vehicle. She resisted at first and tried to take more pictures, but

soon complied. Hoke then issued her a citation for Unnecessary Use of a Horn or Other

Warning Device, and also for Disorderly Conduct, a misdemeanor in violation of

§ 45-8-101, MCA. Ashmore threw the citation on the passenger seat of the vehicle,

directed another obscene expletive towards Hoke, and then, according to the police

report, “squealed her tires and held her horn down as she accelerated away from the

traffic stop.”

¶5     Following a bench trial in Justice Court, Ashmore was convicted of one count of

Disorderly Conduct and one count of Unnecessary Use of a Horn or Other Warning

Device. She appealed her conviction to the District Court. On appeal she filed a motion

to dismiss the Disorderly Conduct charge. Ashmore maintained that her conduct did not

violate the statute as a matter of law because only a few people, the police officers, were

disturbed by it. The District Court denied her motion to dismiss. After this denial,

Ashmore pled guilty and was sentenced pursuant to a plea agreement which preserved

her right to appeal. She now timely appeals the denial of her motion to dismiss.

                                         ISSUE

¶6     We state the issue on appeal as follows: Did the District Court err in denying

Ashmore’s motion to dismiss?

                               STANDARD OF REVIEW




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¶7    “The grant or denial of a motion to dismiss in a criminal case is a question of law

which we review de novo on appeal.         Our standard of review is plenary, and we

determine whether a district court’s conclusion is correct.” State v. Pyette, 2007 MT 119,

¶ 11, 337 Mont. 265, ¶ 11, 159 P.3d 232, ¶ 11.

                                     DISCUSSION

¶8    Did the District Court err in denying Ashmore’s motion to dismiss?

¶9    Ashmore maintains the District Court erred in denying her motion to dismiss. She

asserts that the Disorderly Conduct statute “requires at a minimum that a defendant

engage in behavior that disturbs a number of people.” Ashmore asserts there were no

witnesses who observed her behavior, and that of the three reserve deputies who were

involved in the traffic stop—Hoke, Kramer, and King—only Hoke and Kramer actually

witnessed the conduct allegedly giving rise to the Disorderly Conduct violation.

Accordingly, Ashmore maintains the State failed to “present any evidence establishing

probable cause that Ms. Ashmore disturbed the peace by disturbing more than a few

people with her conduct.” Ashmore claims that her interpretation of § 45-8-101(1),

MCA, is supported by the Criminal Law Commission Comments to the Disorderly

Conduct statute and our decision in Kleinsasser v. State, 2002 MT 36, 308 Mont. 325, 42

P.3d 801.

¶10   The State urges us to affirm the District Court’s decision. The State asserts that

“[n]o Montana decision has held specifically that a certain minimum number of people

must be affected in order for behavior to ‘disturb the peace’ within the meaning of the

disorderly conduct statute.” The State argues that the plain language of the statute makes


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disturbance of the peace an element of the disorderly conduct, but does not otherwise

contain any numerical requirement of how many “others” must be affected by the

defendant’s conduct in order to give rise to a violation of the statute. The State maintains

that “the number of people affected is not, on its own, determinative of whether ‘the

peace’ is disturbed.    Rather, i t is only one factor among several that should be

considered.” The State asserts that this position is supported by our prior decisions,

including City of Billings v. Batten, 218 Mont. 64, 705 P.2d 1120 (1985), State v. Turley,

164 Mont. 231, 521 P.2d 690 (1974), and State v. Lowery, 233 Mont. 96, 759 P.2d 158

(1988). Additionally, the State asserts that Kleinsasser is distinguishable. Accordingly,

the State maintains that the allegations in the affidavit demonstrated probable cause

sufficient to support a finding that Ashmore violated the Disorderly Conduct statute, and

that the District Court’s denial of her motion to dismiss should be affirmed.

¶11    In analyzing these arguments, we first turn to the relevant portions of the

Disorderly Conduct statute under which Ashmore was charged. They read as follows:

       (1) A person commits the offense of disorderly conduct if he knowingly disturbs
       the peace by:
       (a) quarreling, challenging to fight, or fighting;
       (b) making loud or unusual noises;
       (c) using threatening, profane, or abusive language . . . .

Sections 45-8-101(1)(a) through (c), MCA.

¶12    As the State correctly notes, our task in interpreting statutes is “simply to ascertain

and declare what is in terms or in substance contained [in the statute], not to insert what

has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Here,

however, there is a disparity between the plain language of the statute and the Criminal


                                              5
Law Commission Comments which provide guidance on how this statute is to be applied.

The relevant portions of the Comments read as follows:

        The intent of the provision is to use somewhat broad, general terms to
        establish a foundation for the offense and leave the application to the facts
        of a particular case. Two important qualifications are specified in making
        the application, however. First, the offender must knowingly make a
        disturbance of the enumerated kind, and second, the behavior must disturb
        “others.” It is not sufficient that a single person or a very few persons
        have grounds for complaint.

¶13    The statute, on the other hand, does not specify that conduct must disturb “others,”

or otherwise indicate that conduct affecting “a single person or a very few persons” is

insufficient to give rise to a violation of the statute. In fact, the statute only requires that

a defendant “knowingly disturb the peace” by committing one of the acts enumerated in

subsections (a) through (j) of the statute, none of which contains a numerical

requirement.

¶14    The disparity between the Comments and the plain language of the statute itself

raises the question of whether it is possible to “disturb the peace” by specific acts that

affect only one, or a few persons, or whether greater numbers of persons must be affected

by the enumerated acts before a violation of the statute can take place. The State urges us

to ameliorate this disparity by giving little if any weight to the Commission Comments,

given that this phraseology, i.e., a reference to “others,” does not appear anywhere in the

statute itself. Ashmore, however, asserts that this course is foreclosed to us, given our

holding in Kleinsasser where we cited approvingly to these portions of the Commission

Comments.




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¶15   A review of our prior decisions under this statute shows that, in spite of the

language in the Comments, we have never adopted a strict numerical requirement

respecting how many people need be affected by conduct before it “disturbs the peace.”

As we noted in Lowery,

      The criminal law commission comments to § 45-8-101, MCA, state that, for
      a charge of breach of the peace, “[i]t is not sufficient that a single person or
      a very few persons have grounds for complaint.” However, in City of
      Billings v. Batten, 705 P.2d 1120, 42 St.Rep. 1398, defendant was
      convicted of using “fighting words” toward his neighbor in the presence of
      the neighbor’s family and several passers-by and within the hearing of other
      neighbors. The total number of persons present was about ten. In City of
      Whitefish v. O’Shaughnessy (Mont. 1985), 704 P.2d 1021, 42 St.Rep. 928,
      defendant was convicted of using “fighting words” in the presence of two
      friends and a police officer.

Lowery, 223 Mont. at 100, 759 P.2d at 160.

¶16   Similarly, in Batten, we noted the following:

      Although we have never decided how many people must be disturbed
      before the peace is disturbed, one Montana case involving the crime of
      breach of the peace, former § 94-3560, R.C.M. 1947, provides guidance. In
      State v. Turley (1974), 164 Mont. 231, 521 P.2d 690, Turley’s conviction
      for disturbing the peace was upheld. Section 94-3560, R.C.M. 1947,
      prohibited disturbances of the peace by “loud or unusual noise or
      tumultuous or offensive conduct or threatening, quarrelling, challenging to
      fight or fighting.” Turley was convicted under this statute when only he,
      his wife, and a third party were present to witness his conduct.

Batten, 218 Mont. at 71, 705 P.2d at 1125.

¶17   As these cases demonstrate, we have focused our analysis not upon numbers of

persons affected, but rather upon whether the defendant knowingly disturbed the peace

by committing one of the acts enumerated in the statute. While the number of individuals

affected by the conduct may play a role in whether the peace has been disturbed, it is not



                                              7
necessarily a dispositive factor. Instead, determination of whether the peace has been

disturbed should turn on “the application [of the statute] to the facts of a particular case.”

¶18    This is, in fact, the approach we applied in Kleinsasser, where we considered

whether officers had particularized suspicion to justify an investigative stop due to an

alleged violation of § 45-8-101, MCA. In that case, an officer observed Kleinsasser’s car

parked off the side of the road around 10 p.m. at night, and saw an individual near the

passenger door of the car urinating off the side of the road. Kleinsasser, ¶ 3. The officer

pulled over and conducted an investigative stop of Kleinsasser, suspected he was under

the influence of alcohol, and when Kleinsasser refused a preliminary breath test, arrested

him for driving under the influence of alcohol. Kleinsasser, ¶ 6. The officer seized

Kleinsasser’s license and it was later suspended.

¶19    Kleinsasser challenged the suspension of his license, but the district court denied

his petition to have his license reinstated.      Kleinsasser appealed the district court’s

decision, and argued that his license had been illegally seized because the officer lacked

particularized suspicion to justify the stop, and that the observed behavior did not violate

the laws of Montana.      Kleinsasser, ¶¶ 14, 15.      The State argued that the observed

behavior of Kleinsasser constituted a violation of the Disorderly Conduct statute, in

particular § 45-8-101(i), MCA, and that the officer did have particularized suspicion

justifying the stop. Kleinsasser, ¶ 15.

¶20    We disagreed with the State, and reversed the District Court, finding that the

observed conduct of Kleinsasser did not constitute a violation of § 45-8-101(i), MCA.

Thus, there was no particularized suspicion justifying the investigative stop. The


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proscribed act described in subsection (i) of the Disorderly Conduct statute reads as

follows: “creating a hazardous or physically offensive condition by any act that serves no

legitimate purpose . . . .” Section 45-8-101(i), MCA. We found that Kleinsasser’s

conduct did not violate this statute for several reasons. On the one hand, we concluded

that Kleinsasser’s conduct did not create a hazardous condition, and further that it served

a legitimate purpose. Moreover, we determined that Kleinsasser’s act of urinating, given

the time, manner, and conditions under which it occurred, was not “offensive.” After

quoting the Commission Comments cited above at ¶ 12, we concluded as follows:

       In the present case, the incident occurred in the dark of the night, in a rural
       location where, as Officer Palmer testified, there were no overhead lights of
       any kind and there was no other traffic around at the time. Moreover, there
       was no evidence that the behavior disturbed anyone other than Officers
       Leasure and Palmer, and neither officer was so disturbed by the behavior
       that they considered giving the individual a citation.

Kleinsasser, ¶ 21.

¶21    Contrary to Ashmore’s assertion, Kleinsasser does not stand for the proposition

“that more than a few people must be disturbed by the alleged conduct” to constitute a

disturbance of the peace in violation of § 45-8-101, MCA.            Rather, the Court in

Kleinsasser continued our prior practice of evaluating whether the commission of one of

the enumerated acts in the statute led to a disturbance of the peace by the defendant,

based upon “the facts of a particular case.” Aside from our quotation of the Commission

Comments, nowhere in Kleinsasser did we imply or intimate that Kleinsasser’s conduct

was not a violation of the statute solely because only two police officers witnessed it.

Instead, we found the conduct was not “offensive” based on the fact that only two police



                                             9
officers witnessed it, and the fact that there “was no evidence that the behavior disturbed

anyone other than Officers Leasure and Palmer, and neither officer was so disturbed by

the behavior that they considered giving the individual a citation.” Kleinsasser, ¶ 21.

(Emphasis added). Thus, our holding in that case was based on the fact that neither the

officers, nor anyone else, was offended by the conduct, given the time, place, and manner

of its occurrence. Thus, the conduct failed to satisfy any of the enumerated acts in the

statute, particularly those in subsection (i).

¶22    This case, however, is distinguishable from Kleinsasser. The complaint filed

against Ashmore alleges that Ashmore violated the Disorderly Conduct statute when she:

       (1) Quarreled, challenged to fight or fought, by calling the police officer a
       “cocksucker” and/or other profanities, by resisting instructions of police
       officers to remain in or return to a vehicle, and by throwing items at
       officers of the law.
       (2) Made loud or unusual noises by honking her horn excessively when
       unnecessary and yelling at officers of the peace.
       (3) Used threatening, profane or abusive language, including but not limited
       to “fucking,” and “cocksucker” on one or more occasions, directed at
       officers of the peace.

¶23    We conclude that Ashmore’s conduct falls under the proscriptions set forth in the

acts enumerated in subsections (a) through (c) of the Disorderly Conduct statute.

Consequently, Ashmore’s conduct does not need to be deemed “offensive,” as was

required under subsection (i) in Kleinsasser, but only needs to meet the requirements

listed in subsections (a) through (c) of the statute—namely that Ashmore “quarrel[l],

challeng[e] to fight, or fight[] . . . mak[e] loud or unusual noises . . . [or] us[e]

threatening, profane, or abusive language . . . .” Sections 45-8-101(1)(a) through (c),

MCA. Ashmore’s conduct more than satisfies these requirements.


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¶24    Accordingly, the only question is whether these proscribed actions, when directed

solely at police officers, could be found by a trier of fact to “disturb the peace,” and thus

give rise to a violation of § 45-8-101, MCA. We hold that they can, and that nothing in

our prior precedent under the Disorderly Conduct statute, including Kleinsasser, is

inconsistent with this conclusion.      Thus, we affirm the District Court’s denial of

Ashmore’s motion to dismiss.

                                     CONCLUSION

¶25    For these reasons, the District Court’s Order is affirmed.


                                                         /S/ PATRICIA COTTER


We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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