 96-437




                                                                                   No. 96-437

                                                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                   1997



                                                                     STATE OF MONTANA,

                                                                            Plaintiff and Respondent,

                                                                                          v.

                                                               STEPHEN GARY ASMUNDSON,

                                                                             Defendant and Appellant.



APPEAL FROM:                 District Court of the Fourth Judicial District, In and for the County
                                                       of
                                  Missoula, the Honorable Douglas G. Harkin, Judge Presiding.


                                                                    COUNSEL OF RECORD:

                                                                                   For Appellant:

                                                 Richard R. Buley, Tipp and Buley, Missoula, Montana

                                                                                 For Respondent:

                                   Honorable Joseph P. Mazurek, Attorney General; Christina Lechner
                                           Goe, Assistant Attorney General, Helena, Montana

                                         Robert L. Deschamps III, County Attorney, Missoula, Montana




                                                                                Submitted on Briefs: April 24, 1997

                                                                                Decided: June l2, 1997
                                                                                Filed:


                                                          __________________________________________
                                                                         Clerk

                     Chief Justice J. A. Turnage delivered the Opinion of the Court.

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            Stephen Asmundson appeals from a Fourth Judicial District Court, Missoula
   County, jury verdict finding him guilty of two counts of violating a protective
                                            order. We
                                              reverse.
                 Asmundson raises six issues on appeal, which we restate as follows:
                1.    Did the District Court err when it refused to dismiss Count II?
               2.    Did the District Court err when it refused to dismiss Count III?
         3.     Did the District Court err when it relied on documents from the Asmundson
                    dissolution in ruling on Asmundsonþs motions to dismiss?
        4.    Was there sufficient evidence to support a jury finding that Asmundson had
                               knowledge of the restraining orders?
         5.     Is violation of a protective order a lesser included offense of stalking?
            6.     Did the District Court err when it allowed testimony concerning the
                                              contents
                       of an audiotape which was not offered into evidence?
                                            BACKGROUND
         Patricia Asmundson, Stephen Asmundson's wife, applied ex parte for a temporary
restraining order in Missoula County Justice Court on August 4, 1995, pursuant to
                                                 40-
      4-121(3), MCA. The Justice Court issued a temporary restraining order which
                                            prohibited
 Asmundson from contacting or attempting to contact Patricia. The August 4 temporary
   restraining order (TRO) expired on August 21, 1995, unless continued at a hearing
                                  scheduled for August 18, 1995.
               Asmundson was served with the TRO on August 9, 1995. The next day he
      informed the Justice Court that he had petitioned, pro se, for dissolution of
                                             marriage.
On August 14, 1995, the Justice Court sua sponte filed a notice of transmittal based
                                                  on
     40-4-123(2), MCA, informing the parties that the TRO was transmitted to District
   Court based on Asmundson's filing a separate request for a temporary restraining
                                                order
  and petition for dissolution. The Justice Court vacated the August 18 hearing and
                                               ordered
     the TRO to remain in effect pending review by the District Court. The parties
                                               dispute
  whether Asmundson received a copy of the notice of transmittal, although a "cc" and
                  check mark appear next to his name and address on the notice.
                On September 18, 1995, the District Court held a hearing on the TRO.
     Asmundson did not appear. The District Court issued a restraining order which
                                              extended
    the TRO for one year. The parties dispute whether Asmundson was served with the
                 restraining order and whether he had agreed not to contest it.
             Asmundson was charged by information with three counts of violation of a
 protective order and one count of stalking. Count I alleged that on August 10 and
                                                 16,
1995, Asmundson violated the August 4, 1995, protective order by calling Patricia and
      having other persons contact her. Count II alleged that on August 27, 1995,
                                             Asmundson
 violated the August 4 protective order by calling Patricia and leaving messages on
                                                 her

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 answering machine.    Count III alleged that on October 10, 1995, Asmundson violated
                                            the
August 4 protective order by sending Patricia a greeting card. Count IV alleged that
between August 4, 1995, and January 24, 1996, while Patricia was under the protection
    of a restraining order, Asmundson caused her substantial emotional distress by
                                        harassing
or intimidating her by telephone, mail, and other actions. Asmundson pled not guilty
                                   to all four counts.
           A jury trial was held. The State introduced the TRO referred to in the
                                       information
as a protective order. Patricia testified that on August 27, 1995, Asmundson called
                                            and
    spoke with her. She hung up, but Asmundson called back and left messages on her
   answering machine. Patricia called 911 and gave the answering machine tape to the
     responding sheriffþs deputy. The tape was lost while in the possession of the
                                        Sheriffþs
   Department and was not introduced at trial. Over Asmundsonþs objection, Patricia
  testified as to her recollection of the tapeþs contents. The State also sought to
                                        introduce
 the September 18 restraining order. Asmundson objected, claiming that the order was
  irrelevant, but the court admitted it as "the type of protection order that could
                                         apply to
                                       Count IV."
        At the close of the Stateþs case, Asmundson moved to dismiss Count IV for lack
 of sufficient evidence. The motion was denied. He also moved to dismiss Counts II
                                            and
  III, arguing that as a matter of law he could not be found guilty because the TRO
                                          expired
     twenty days after it was issued, and no hearing was held. The District Court
                                        requested
     the clerk to obtain the Asmundson dissolution file. Asmundson objected to the
 consideration of any document not admitted into evidence during the State's case-in-
                                          chief.
       The District Court reviewed the notice of transmittal contained in the Asmundson
   dissolution file and denied Asmundson's motion to dismiss Counts II and III. It
                                       ruled that
    the TRO remained in effect because the Justice Court, pursuant to the notice of
 transmittal, had continued the TRO, and that Asmundson waived his right to a hearing
on the TRO at the end of twenty days by filing for dissolution. The State then moved
to reopen its case. Asmundson objected, arguing that the District Court had already
                                           ruled
  based on evidence outside of the record. The State's motion was granted, and the
                                           State
reopened its case-in-chief wherein it introduced, and the court received, the notice
                                             of
                                      transmittal.
       During the State's closing, the county attorney admitted there was insufficient
      evidence to convict Asmundson on Count I, which was dismissed. The case was
submitted to the jury with Count IV to be considered first. If Asmundson was found
                                            not
     guilty on Count IV, then the jury was to consider Counts II and III as lesser
                                         included

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 offenses.     The jury found Asmundson not guilty on Count IV but guilty on Counts II
                                               and
                                              III.
       The District Court sentenced Asmundson to six months in jail and a $500 fine on
         each count, with the sentences to run consecutively. Asmundson appeals.
                                         DISCUSSION
              1.   Did the District Court err when it refused to dismiss Count II?
       As a preliminary matter, this Court must decide whether to take judicial notice
                                                of
  the record of the Asmundson dissolution which contains the Justice Court notice of
 transmittal and the District Court September 18 restraining order. Except for the
                                           notice
 of transmittal and the September 18 restraining order set forth by Asmundson in his
                                           brief,
 we conclude that the remaining record of the Asmundson dissolution is unnecessary to
    resolve the issues presently before the Court. Therefore, pursuant to Rule 201,
  M.R.Evid., we take judicial notice only of the Justice Court notice of transmittal
                                           and the
                       District Court September 18 restraining order.
        The grant or denial of a motion to dismiss in a criminal case is a question of
                                              law.
State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. We review conclusions
 of law to determine whether the district court's conclusions were correct. Carbon
                                            County
     v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
         Asmundson argues that by its own terms the TRO issued by the Justice Court on
  August 4, 1995, expired on August 21, 1995, and by operation of      40-4-121(4), MCA,
 the TRO expired twenty days after it was issued because no hearing was held prior to
 August 24, 1995. Since the acts alleged in Count II did not occur until August 27,
                                             1995,
  Asmundson maintains the District Court erred when it refused to dismiss Count II.
                                               The
  State responds that Asmundson incorrectly interprets      40-4-121(4), MCA, which does
   not require a hearing to be held within twenty days for a TRO to remain in effect.
                        Section 40-4-121, MCA, provides, in relevant part:
        (4) The court may issue a temporary restraining order for a period not to
       exceed 20 days without requiring notice to the other party only if it finds
     on the basis of the moving affidavit or other evidence that irreparable injury
         will result to the moving party if no order is issued until the time for
                                   responding has elapsed.

          (5) A response may be filed within 20 days after service of notice of motion
                  or at the time specified in the temporary restraining order.

          (6) At the time of the hearing, the court shall determine whether good cause
                        exists for the injunction to continue for 1 year.

     When interpreting a statute, we look first to the plain meaning of its words.
                                        State
   v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540. When the language of a
 statute is plain, unambiguous, direct, and certain, the statute speaks for itself
                                      and there

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is no need to resort to extrinsic means of interpretation. Gould, 902 P.2d at 540.
                                         The
 plain, unambiguous language of   40-4-121, MCA, clearly provides that a TRO is only
    valid for twenty days, absent a hearing and extension by the issuing court.
                                     Therefore,
we hold that the District Court erred when it refused to dismiss Count II because the
   alleged August 27 violation of the protective order occurred after the TRO had
                                      expired.

       The Justice Court also lacked jurisdiction under   40-4-123, MCA, to sua sponte
     continue the TRO pending review by the District Court. Section 40-4-123, MCA,
                                       provides:
      (1) District courts, municipal courts, justices' courts and city courts have
            concurrent jurisdiction to hear and issue orders under 40-4-121.

        (2) A municipal judge, justice of the peace, or city court judge shall on
      motion suspend all further proceedings in the action and certify the pleading
        and any orders to the clerk of the district court of the county where the
         action was begun if an action for . . . dissolution of marriage . . . is
                               pending between the parties.

           The record does not indicate that any party moved to "suspend all further
  proceedings." Rather, the Justice Court on its own initiative issued the notice of
    transmittal and continued the TRO pending review by the District Court. Absent
                                          either
    a motion required by    40-4-121(2), MCA, or a hearing required by   40-4-121(4),
  MCA, the Justice Court lacked jurisdiction to issue the notice of transmittal and
                                         continue
                                         the TRO.
        When ruling on Asmundsonþs motion to dismiss Count II, the District Court held
     that, by notifying the Justice Court of his filing a petition for dissolution,
                                        Asmundson
    waived his right to a hearing on the TRO because the notification amounted to a
                                          motion
    to transfer. No language in     40-4-121 or -123, MCA, states that a petition for
   dissolution of marriage is equivalent to a motion to transfer a TRO from justice
                                         court to
 district court. We conclude that the District Court erred when it determined that a
  petition for dissolution of marriage is a motion to transfer. Therefore, we hold
                                         that the
District Court erred when it determined that Asmundson waived his right to a hearing
                                            on
                 the TRO when he petitioned for dissolution of marriage.
       We conclude that the TRO issued by the Justice Court on August 4, 1995, expired
  by its own terms on August 21, 1995, and in any event expired by operation of law
                                           under
    40-4-121, MCA, by August 24, 1995. The basis of the alleged violation in Count II
   did not occur until August 27, 1995. We hold that the District Court erred as a
                                          matter
                       of law when it refused to dismiss Count II.
             2.   Did the District Court err when it refused to dismiss Count III?
        Asmundson contends that when the District Court allowed the State to argue in

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                                             its
closing that he violated the September 18 restraining order, the State amended Count
                                             III
     of the information. We agree and conclude that our decision in State v. Later
                                           (1993),
                       260 Mont. 363, 860 P.2d 135, is controlling.
           In Later, the defendant was charged with misdemeanor official misconduct.
   During settlement of jury instructions, the State conceded that the defendant had
                                            been
   charged under the incorrect statute. The State offered an alternate instruction
                                          charging
    the defendant with violation of another statute. We reversed, reasoning that a
                                          function
of the information is to notify the defendant of the offense charged, thereby giving
                                             the
  defendant the opportunity to defend. Later, 860 P.2d at 137 (citing State v. Tropf
                     (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163).
        In this case, the "amendment" to the State's information was one of substance.
     After the State presented its case and the September 18 restraining order was
                                          admitted
for purposes of proving Count IV, the State placed the September 18 restraining order
    at issue to prove Count III. It was the August 4 TRO contained in the State's
                                        information
  against which Asmundson believed he would have to defend. When the District Court
 allowed the State to argue that Asmundson had violated the September 18 restraining
 order instead of the August 4 TRO, Asmundson did not have the opportunity to defend
      because the "amendment" occurred after the defense had rested. Fundamental
                                         principles
 of due process dictate that Asmundson should have been given the opportunity to know
 against which TRO he had to defend. The State's use of the September 18 restraining
      order to prove Count III amounted to a substantive amendment to the State's
                                       information,
and Count III should have been dismissed. We hold that the District Court erred when
                             it refused to dismiss Count III.
         Because Issues 1 and 2 are dispositive, we decline to address the remaining
                                           issues
                                   presented on appeal.
                                            Reversed.

                                                                                                       /S/          J. A.   TURNAGE



                                                                            We concur:

                                                                /S/ JAMES C. NELSON
                                                              /S/ W. WILLIAM LEAPHART
                                                              /S/ TERRY N. TRIEWEILER
                                                                 /S/ KARLA M. GRAY




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