                                                                                                06/28/2016


                                           DA 15-0719
                                                                                            Case Number: DA 15-0719

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 158N



SHIRLEY ARLEE LANKFORD,

               Petitioner and Appellee,

         v.

SATPAL SINGH MUHAR,

               Respondent and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. ADR 15-308
                       Honorable Greg Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Craig D. Charlton, Scott H. Clement, Smith Law Firm, P.C., Helena,
                       Montana

                For Appellee:

                       Shirley Arlee Lankford, self-represented, Great Falls, Montana



                                                    Submitted on Briefs: June 8, 2016

                                                                Decided: June 28, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶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     Satpal Muhar appeals the order of the Eighth Judicial District Court, Cascade

County, extending an order of protection sought by Shirley Lankford and entered against

Muhar. We affirm.

¶3     Muhar is seventy-nine years old, speaks very little English, and suffers from

vascular dementia, symptoms of Alzheimer’s disease, and other physical and mental

health issues. Prior to the instant action, he resided with his adult son and daughter-in-

law in Great Falls, Montana, across the street from Lankford.

¶4     On May 21, 2015, Lankford filed a petition for a temporary order of protection

against Muhar, which the District Court entered the next day. Lankford alleged that

Muhar would stand outside her house making offensive gestures, stare into her home,

come into her attached garage, enter her backyard, and attempt to enter her home. She

alleged that Muhar’s behavior began in March 2014 and continued non-stop for eighteen

months. She alleged further that other people had witnessed Muhar’s behavior and that

Muhar had been cited for misdemeanor trespass. Prior to filing for the temporary order




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of protection, Lankford told Muhar’s family about his behavior and they assured her that

they would take care of it. Muhar, however, continued his behavior.

¶5     Due to Muhar’s health problems, the hearing on the temporary order of protection

was delayed until October 19, 2015.         Lankford appeared pro se at the hearing and

testified that Muhar’s behavior made her feel unsafe and like “a prisoner in [her] own

home.” She testified further that she “can’t do anything” because she was constantly

afraid and had altered her daily behavior as a result of Muhar. Lankford’s boyfriend,

Deputy Cascade County Sheriff Scott Van Dyken, testified that Muhar would wait until

Van Dyken had left Lankford’s house before Muhar would approach the house. Van

Dyken testified further that on one occasion, he left Lankford’s house and drove around

behind her house and entered through the back door. Muhar watched him leave and then

came over to the house.         Van Dyken then went outside to speak with Muhar who

responded that he was not doing anything.

¶6     Dr. Donna May Zook, a forensic psychologist, testified as an expert on behalf of

Muhar.    She testified that Muhar has been diagnosed with vascular dementia and

Alzheimer’s disease. She testified further that the hospital records she relied on in

forming her opinions indicated that Muhar displayed confusion, disorientation,

combativeness,     agitation,     erratic   behavior,   obsessive/compulsive     behavior,

hypervigilance, worsening short-term memory, hyper-religious beliefs, hyper-sexuality,

and manic lack of sleep. She testified that in her opinion, it would be desirable for Muhar

to remain with his family. On cross-examination, she testified that “according to the

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literature . . . a reasonable person would probably not be afraid of [Muhar].” Muhar’s

son, Sandeep Muhar, testified that Muhar’s condition had worsened since he left their

home and that if Muhar was allowed to return to their home, they would ensure that

someone was always there to watch Muhar.

¶7     On October 22, 2015, the District Court issued its order extending the temporary

order of protection until October 19, 2016.       The court found based on Dr. Zook’s

testimony that Muhar exhibited the characteristics of a stalker. The court concluded that

Muhar met the statutory requirements for stalking under § 45-5-220(1), MCA. The court

concluded further that because it was a civil proceeding Lankford did not need to prove

the purposely or knowingly mental state for stalking. Furthermore, the court decided:

       Even if [Lankford] was required to prove the mens rea of the crime, she
       meets that burden. [Muhar’s] repeated conduct evidences that he purposely
       crossed the street, stared in [Lankford’s] home, entered her garage, and
       came to her door. This is further supported by the fact that he would
       always wait until Detective Van Dyken left before coming to [Lankford’s]
       home, showing that he cognitively understood his behavior.

Muhar’s behavior, the court determined, caused Lankford substantial emotional distress.

Finally, the court concluded that it would not allow Muhar to reside in his home under

supervision because “there is no statutory authority for such relief,” and “[g]iven the prior

failures to supervise [Muhar’s] behavior, the Court declines to exercise any discretionary

power to grant such relief.” Muhar appeals.

¶8     We will not overturn a district court’s decision to continue, amend, or make

permanent an order of protection absent an abuse of discretion. Boushie v. Windsor,

2014 MT 153, ¶ 8, 375 Mont. 301, 328 P.3d 631. The question under this standard is not
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whether we would have reached the same decision as the trial judge, but whether the trial

judge acted arbitrarily without conscientious judgment or exceeded the bounds of reason.

Boushie, ¶ 8.

¶9     On appeal, Muhar contends that the District Court abused its discretion in

extending the order of protection because a reasonable person in Lankford’s position

would not have suffered substantial emotional distress from Muhar’s behavior. Muhar

contends further that under the stalking statute some showing must be made to satisfy the

mental state element. Muhar argues that the evidence shows that he “lacked the mental

faculties needed to purposely or knowingly cause substantial emotional distress.” Muhar

therefore claims that there was no basis for the entry of the order of protection.

¶10    After reviewing the record, we conclude that the District Court did not abuse its

discretion in extending the order of protection against Muhar.           Muhar emphasizes

Dr. Zook’s testimony regarding whether a reasonable person would suffer emotional

distress from Muhar’s behavior and whether Muhar has the capacity to understand his

conduct or its ramifications. It is, however, “within the province of the finder of fact to

weigh the evidence presented and determine the credibility of witnesses; in the event of

conflicting evidence on factual issues, the trier of fact determines which will prevail.”

Boushie, ¶ 12 (citation and internal quotations omitted). This standard applies equally to

the evaluation of expert testimony. Wyo-Ben, Inc. v. Bixby, 2014 MT 334, ¶ 51, 377

Mont. 318, 339 P.3d 1255. In its order, the District Court acknowledged and considered

Dr. Zook’s testimony but ultimately determined that Lankford’s and Van Dyken’s

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testimony was more convincing. The evidence supports the District Court’s conclusion

that Lankford “met her burden of proving by a preponderance of the evidence she is

entitled to an order for protection.” As such, the District Court did not act arbitrarily or

otherwise exceed the bounds of reason.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s order extending the

order of protection against Muhar is affirmed.



                                                 /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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