                                                                                         September 18 2012


                                         DA 11-0614

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2012 MT 209N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TIMOTHY JON MEYER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC 11-91
                      Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott,
                      Assistant Appellate Defender, Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Katie F. Schulz,
                      Assistant Attorney General, Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan,
                      Deputy County Attorney, Missoula, Montana



                                                  Submitted on Briefs: August 15, 2012

                                                             Decided: September 18, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(d)(v), 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        Timothy Jon Meyer (Meyer) appeals his conviction by a jury in the Fourth Judicial

District Court, Missoula County, of violating a protective order. This was Meyer’s third

or subsequent conviction of violating a protective order, so it was a felony. He was

sentenced to two years in the Montana State Prison and given credit for time served. We

affirm.

¶3        Meyer argues on appeal that the District Court improperly instructed the jury

regarding the mental state required by § 45-5-626, MCA. He contends that he received

ineffective assistance of counsel because his trial counsel failed to object to the proposed

jury instructions and failed to offer alternatives. Meyer also asks us to review the jury

instructions for plain error, and he further asserts that there was insufficient evidence for

a jury to convict him under proper instructions.

¶4        Meyer and Dawn Kellmer (Kellmer) were divorced in August of 2010 after two

years of marriage. After their divorce, Kellmer obtained a protective order against Meyer

that, among other things, prohibited Meyer from coming within 1500 feet of her. On

February 27, 2011, while still in possession of some of Meyer’s belongings, Kellmer



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moved from her residence on Sherwood Street in Missoula to a home in a trailer park on

South 7th Street.

¶5     When Meyer learned that Kellmer was no longer living at the Sherwood residence,

he decided to visit Tom, one of their mutual acquaintances, to see if he knew Kellmer’s

new address. Meyer needed Kellmer’s new address so that he could arrange for a civil

standby to help him retrieve his possessions from her without violating the protective

order, which was still in effect.

¶6     On March 2, 2011, accompanied by his mother and aunt, Meyer went to Tom’s

house, which happened to be in the same trailer park Kellmer had just moved to.

Although Tom was not home, Meyer spotted Kellmer’s car parked in an alley in front of

a nearby trailer. He told his aunt to drive down the alley so that he could see the trailer’s

address, which she did.

¶7     According to his testimony, Meyer thought that Kellmer lived in the trailer, but he

wanted to make sure her car was not just parked there. After his aunt wrote down the

address on the trailer, Meyer had her park their van near Kellmer’s trailer in the alley. He

got out of the van to go talk with a neighbor. Meyer’s mother also got out of the van,

walked up to the trailer, and knocked on Kellmer’s door. Kellmer came to the door and

called the police shortly after seeing Meyer nearby. When police officers arrived a few

minutes later, Meyer showed them a copy of the protective order that he had brought with

him. The officers verified that the order was still in effect and placed Meyer under arrest.

¶8     Section 45-5-626(1), MCA, provides that a person violates an order of protection

if the person, with knowledge of the order, purposely or knowingly violates one of the

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order’s provisions. Meyer conceded that he knew of the protective order and that he

violated it by coming within 1500 feet of Kellmer. His defense at trial was that he did

not do so purposely or knowingly.          The State recommended the following jury

instructions regarding the requisite mental state:

       Instruction 10: A person acts purposely when it is his conscious object to
       engage in conduct of that nature.

       Instruction 11: A person acts knowingly with respect to a specific fact,
       when the person is aware of a high probability of that fact’s existence.

Meyer’s trial counsel neither objected to the proposed instructions nor offered alternative

instructions. Instructions 10 and 11 were given to the jury, and Meyer was convicted.

¶9      Meyer argues on appeal that the jury was erroneously instructed regarding the

requisite mental state, and his trial counsel’s failure to object to the instructions

constitutes ineffective assistance of counsel. This Court reviews claims of ineffective

assistance of counsel under the two-part test articulated in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984). To prevail on a claim of ineffective assistance of

counsel, a defendant must demonstrate (1) that counsel’s performance was deficient, and

(2) that counsel’s deficient performance prejudiced the defendant. Miller v. State, 2012

MT 131, ¶ 13, 365 Mont. 264, 280 P.3d 272; State v. Fender, 2007 MT 268, ¶ 7, 339

Mont. 395, 170 P.3d 971; State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d

877. To establish prejudice, a defendant must show there is a reasonable probability that,

but for counsel’s deficient performance, the result of the proceedings would have been

different. State v. Price, 2007 MT 307, ¶ 12, 340 Mont. 109, 172 P.3d 1236. “[T]he

question is whether there is a reasonable probability that, absent the errors, the factfinder

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would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.

Ct. at 2068-2069. We do not have to address the two prongs in the order in which they

are laid out in Strickland. If the defendant fails to prove sufficient prejudice, we do not

need to address whether counsel’s performance was deficient. Dawson v. State, 2000 MT

219, ¶ 21, 301 Mont. 135, 10 P.3d 49 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at

2069).

¶10      Accordingly, we do not reach the question of whether Meyer’s trial counsel’s

performance was deficient. Meyer’s claim of ineffective assistance of counsel fails

because it is not reasonably probable that the jury would have had a reasonable doubt

regarding his guilt if the jury would have been instructed differently. Meyer contends on

appeal that the following instructions should have been given in place of Instructions 10

and 11:

         1) When knowledge of the existence of a particular fact is an element of an
            offense, knowledge is established if a person is aware of a high
            probability of its existence;

         2) A person acts “knowingly” when the person is aware that it is highly
            probable that the result will be caused by the person’s conduct; and

         3) A person acts “purposely” if it is the person’s conscious object to cause
            that result.

The result contemplated in these instructions would be Meyer’s violation of the

protective order. Therefore, under these instructions Meyer would still be guilty if the

jury found he was aware that it was highly probable that his conduct would cause him to

be within 1500 feet of Kellmer.



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¶11    Meyer argues that there was no evidence that he was aware of the high probability

that his presence in the trailer park would result in him being within 1500 feet of

Kellmer, so the jury could not have found him guilty if properly instructed. This simply

is not so. Meyer’s trial counsel made the exact same argument to the jury in closing. In

making his argument, trial counsel used Instruction 11, the instruction that defined

“knowingly” with respect to the existence of a particular fact, and told the jury that the

specific fact at issue was Meyer being within 1500 feet of Kellmer. He then argued that

the State had not proven beyond a reasonable doubt that Meyer knew there was a high

probability that he was within 1500 feet of Kellmer.

¶12    The jury rejected Meyer’s argument, and with good reason. Although the record

is full of evidence from which the jury could infer that Meyer had the requisite mental

state, his own testimony supports the jury’s findings. Meyer testified that after arriving at

the trailer park he saw a car that he knew was Kellmer’s parked in an alley in front of a

trailer. Meyer knew with certainty that it was her car because of a sticker in the back

window. Meyer admitted that he thought Kellmer lived at the trailer when he saw her car

parked in the alley but that he wanted to make sure, so he got out of the car and started

talking to neighbors. He also admitted on cross-examination that it was reasonable to

think that Kellmer was somewhere near her car.

¶13    Based on the fact that Meyer’s trial counsel made the exact same argument to the

jury that he now presents on appeal, Meyer’s own testimony, and the rest of the record

before us, it is not highly probable that the jury would have had a reasonable doubt

regarding Meyer’s guilt if different jury instructions would have been given. Thus,

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Meyer’s claim that he received ineffective assistance from his trial counsel fails.

Moreover, our review of the record reveals more than sufficient evidence to support the

jury’s finding that Meyer acted with the mental state required by § 45-5-626(1), MCA.

¶14    Additionally, we decline Meyer’s request that we review the jury instructions for

plain error. We generally do not review jury instructions unless they are specifically

objected to at trial. State v. Earl, 2003 MT 158, ¶ 23, 316 Mont. 263, 71 P.3d 1201;

§ 46-16-410(3), MCA. We have discretion to review an instruction that was not objected

to at trial, however, if the claimed error implicates a defendant’s fundamental

constitutional rights and may result in a manifest miscarriage of justice, leave unsettled

the question of fundamental fairness of the trial proceedings, or compromise the integrity

of the judicial process. Earl, ¶ 25 (citing State v. Finley, 276 Mont. 126, 137, 915 P.2d

208, 215 (1996)).      Because Meyer was not prejudiced by the allegedly erroneous

instructions, plain error review is clearly not appropriate.

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

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions.        There clearly is sufficient evidence to support the District

Court’s findings of fact and conclusions of law, and it is manifest on the face of the briefs

and the record that there was not an abuse of discretion. We find no reason in fact or law

to disturb the District Court’s order.

¶16    Affirmed.


                                                  /S/ MIKE McGRATH


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We concur:


/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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