                                                                                        October 22 2013


                                          DA 13-0037

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 311



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROGER ALAN HANTZ,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Tenth Judicial District,
                        In and For the County of Fergus, Cause No. DC-2011-07
                        Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chuck Watson, Watson Law Office, P.C.; Bozeman, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General; Helena, Montana

                        Thomas P. Meissner, Fergus County Attorney, Jean Adams, Deputy County
                        Attorney; Lewistown, Montana



                                                   Submitted on Briefs: September 18, 2013
                                                              Decided: October 22, 2013

Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Roger Alan Hantz (Hantz) appeals his conviction from the Tenth Judicial District,

Fergus County. We affirm.

¶2     We address the following issues on appeal:

      1.     Whether Montana’s sexual abuse of children statute, § 45-5-625(1)(c), MCA,
sweeps too broadly in violation of the First Amendment and the Commerce Clause?

       2.      Whether the District Court properly authenticated and admitted extensive
internet chat logs into evidence?

                   PROCEDURAL AND FACTUAL BACKGROUND

¶3     Fergus County Deputy Sheriff Troy D. Eades (Eades) conducted an online

investigation of child enticement as part of the Internet Crimes Against Children Task Force

(ICACTF). Eades represented himself as “Lissa,” a 14-year-old female from Montana. The

50-year-old Hantz lived in Fremont, California. Hantz first contacted Lissa on November

10, 2010.

¶4     Hantz found Lissa through the teenage-oriented social networking website

TeenSpot.com. Hantz initially contacted Lissa through TeenSpot.com’s instant messaging

system. Hantz asked Lissa her age, gender, and location. Lissa responded that she was a 14-

year-old female from Montana. Hantz moved his conversation with Lissa from the

TeenSpot.com instant messenger service onto the Yahoo instant messaging service.

¶5     The tone of Hantz’s conversation with Lissa changed quickly on the Yahoo instant

messaging service. Hantz asked Lissa if she had seen a man naked, or if she had been naked

with a man. Hantz told Lissa that he wanted to get naked with her. Hantz wanted to

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masturbate while Lissa watched on a webcam. Hantz asked Lissa for permission to

masturbate while she watched. Lissa briefly and affirmatively responded to each of Hantz’s

statements and questions. Hantz shared his webcam feed with Lissa, and proceeded to

masturbate on the live webcam feed.

¶6     Hantz asked Lissa to confirm that she was “really 14.” Lissa answered yes, and then

asked Hantz if he liked younger girls. Hantz replied with “oh yea.” Hantz continued to ask

Lissa about her sexual experiences. Hantz also made sexual references to Lissa. Shortly

thereafter Hantz invited Lissa to join him in mutual masturbation. Hantz expressed his wish

that Lissa had a webcam so that he could watch her.

¶7     Hantz chatted online with Lissa ten times over the next four months.          Each

conversation proceeded similarly to the November 10, 2010, conversation.             Each

conversation included references to Hantz masturbating. Hantz broadcasted his masturbation

over his webcam several times. Hantz made references to sexual activities with younger

females during this time. Hantz claimed to have had sexual intercourse with a 17-year old

female named “lori.”

¶8     Hantz engaged in five chats with Lissa during February 2011. Hantz requested that

Lissa remove her clothing several times over the course of these chats. Hantz also directed

to Lissa to masturbate in each of these chats. Hantz lastly made several references to his

potential plans to travel to Montana to meet Lissa in person. Hantz apparently intended to

engage in various sexual activities with Lissa.



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¶9     Eades obtained an arrest warrant for Hantz based on Hantz’s potential travel plans. A

Fremont, California detective, who also served as a member of the ICACTF, arrested Hantz

on February 25, 2011. The Fremont police informed Hantz that they had an arrest warrant

for him from Montana. Hantz claimed that there had been a misunderstanding, and that he

“didn’t do anything.”

¶10    The Fremont police confiscated Hantz’s computer. The Fremont police found

evidence of a search for airline tickets on the internet travel site Priceline.com for a flight

from San Jose, California to Great Falls. The Fremont police also found copies of each of

the online chats between Hantz and Lissa.

¶11    The Fremont police further found records of online chats between Hantz and other

online personas who had represented themselves as female minors. These collateral chats

had occurred during the same time period as Hantz’s chats with Lissa. Each of the collateral

chats generally followed the same pattern as Hantz’s online chats with Lissa.

¶12    The State of Montana (State) charged Hantz on February 24, 2011, with two counts of

felony sexual abuse of children, in violation of § 45-5-625(1)(c), MCA. The State

specifically charged Hantz with two counts of knowingly having counseled Lissa, a person

online whom Hantz had believed to be a 14-year-old female, to remove her clothing and

engage in “masturbatory conduct.”

¶13    Hantz sought to dismiss both charges on the basis that § 45-5-625(1)(c), MCA,

unconstitutionally limited his freedom of speech as protected by both federal and state

constitutions due to the statute’s overbreadth, both on its face and as applied to his conduct.
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Hantz further claimed that § 45-5-625(1)(c), MCA, violated the federal Commerce Clause.

The District Court denied Hantz’s motion in a written order.

¶14    Hantz filed a motion in limine to exclude the collateral chats. Hantz apparently never

filed a brief in support of his motion in limine. The District Court denied Hantz’s motion

before trial. Hantz proceeded to trial.

¶15    The State requested permission to introduce the collateral chats between Hantz and

the other online personas on the third day of trial. The District Court reviewed the 2,500

pages of online chat conversations outside the jury’s presence.         The District Court

characterized the 2,500 pages of online chat conversations as “non-testimonial in nature” and

therefore determined the chats “c[ould] be admitted without running afoul of the

confrontation clause.” The District Court then determined that the 2,500 pages could be

offered “to establish motive, intent or absence of mistake.”

¶16    Hantz objected to the admission of any collateral chats that involved persons other

than Lissa on the basis that admission of the chats would be cumulative evidence. The

District Court determined that a cautionary instruction would remedy any potential prejudice.

The District Court delivered the cautionary instruction over Hantz’s objection.

¶17    Hantz claimed at trial that he thought that he had been “role playing” with an adult

woman in the online chat. Hantz claimed that he thought the adult woman with whom he

had been chatting merely pretended to be a 14-year-old. The jury found Hantz guilty of both

counts. Hantz appeals.

                                 STANDARD OF REVIEW
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¶18    This Court exercises plenary review of constitutional issues. DeVoe v. City of

Missoula, 2012 MT 72, ¶ 12, 364 Mont. 375, 274 P.3d 752. We review for correctness a

district court’s decisions on constitutional issues. DeVoe, ¶ 12. Statutes enjoy a presumption

of constitutionality. DeVoe, ¶ 12. The party who challenges the constitutionality of a statute

bears the burden of proof. DeVoe, ¶ 12.

¶19    We review for abuse of discretion a district court’s evidentiary rulings. State v.

Bishop, 2012 MT 259, ¶ 31, 367 Mont. 10, 291 P.3d 538. A district court abuses its

discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of

reason, resulting in a substantial injustice. Bishop, ¶ 31.

                                       DISCUSSION

¶20 Whether Montana’s sexual abuse of children statute, § 45-5-625(1)(c), MCA, sweeps
too broadly in violation of the First Amendment and the Commerce Clause?

¶21    Hantz asserts that Montana’s sexual abuse of children statute, § 45-5-625(1)(c), MCA,

sweeps too broadly when it criminalizes any means of communication that serve to induce a

child under 16 to engage in sexual conduct. Section 45-5-625(1)(c), MCA, provides that a

person commits the offense of sexual abuse of children if the person knowingly “persuades,

entices, counsels, or procures a child under 16 years of age or a person the offender believes

to be a child under 16 years of age to engage in sexual conduct, actual or simulated.”

Section 45-5-625(1)(c), MCA. Section 45-5-625(5)(b)(i)(D), MCA, specifically defines

sexual conduct to include actual or simulated masturbation.




                                              6
¶22    A challenged statute’s overbreadth must be both real and substantial when judged in

relation to a statute’s plainly legitimate sweep. State v. Nye, 283 Mont. 505, 515, 943 P.2d

96, 103 (1997); State v. Ross, 269 Mont. 347, 353, 889 P.2d 161, 164 (1995). Hantz must

show that the alleged overbreadth presents both “real” and “substantial” threats to speech

that adults have a constitutional right to receive and to address, both as applied to himself

and to others. Hantz concedes that Montana’s sexual abuse of children statute serves a

plainly legitimate purpose: to protect children from sexual predators and sexual exploitation.

Hantz must demonstrate, therefore, that § 45-5-625(1)(c), MCA, would have a real and

substantial effect on any speech beyond the statute’s legitimate purpose. Nye, 283 Mont. at

515, 943 P.2d at 103; Ross, 269 Mont. at 353, 889 P.2d at 164.

¶23    Hantz asserts that the term “counsels” in § 45-5-625(1)(c), MCA, serves to

“criminaliz[e] constitutionally protected speech because the law as written, even with the

‘knowingly’ element” fails to distinguish between lawful and unlawful conduct. Hantz

points to various online publications that § 45-5-625(1)(c), MCA, allegedly would cover.

Hantz includes the masturbation section of Columbia University’s Go Ask Alice Health

Services online question and answer database, the Planned Parenthood Info for Teens

website and its guidance regarding masturbation, and others in his list. Hantz suggests that

the detailed information provided by these websites about “sexuality, sex education, and

‘how to’ discussions” for masturbation would fall within the purview of § 45-5-625(1)(c),

MCA.



                                              7
¶24    Hantz’s argument that websites that broadly provide sexual information fall within

the purview of § 45-5-625(1)(c), MCA, fails to account for the “knowingly” element of § 45-

5-625(1)(c), MCA. By its own terms Montana’s sexual abuse of children statute applies only

to those who “knowingly” persuade, entice, counsel, or procure a child to engage in sexual

activity. The statute applies only when a sender transmits a message with the intent that a

minor will view that communication. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 876,

117 S. Ct. 2329, 2347 (1997). As the Supreme Court recognized in Reno, “the sender must

be charged with knowing that one or more minors will likely view [the message]” in light of

the size of the potential audience for most messages and the absence of a viable age

verification process. Reno, 521 U.S. at 876, 117 S. Ct. at 2347.

¶25    The criminal act occurs, therefore, when an offender sends a message with the

knowing intent to cause a minor to engage in sexual activity. Montana’s sexual abuse of

children statute does not reach those who draft, publish, or distribute publications that

discuss human sexuality for a wide audience. Section 45-5-625(1)(c), MCA, likewise does

not apply to those who post information regarding human sexuality for all internet users,

either adults or children, to seek out and read at their discretion. The statute restricts no

particular content. The statute prohibits no particular viewpoints. Section 45-5-625(1)(c),

MCA, prohibits only a knowing communication with a minor that encourages the minor to

engage in sexual activity.

¶26    This knowing communication element of Montana’s sexual abuse of children statute

prohibits application of the statute to broad communications to a general audience that may
                                             8
include minors. Hantz attempts to blur the line between a person who directly and clearly

counsels a minor to engage in sexual conduct, and broad-based communicating about,

regarding, or concerning human sexuality. The knowing communication requirement of

§ 45-5-625(1)(c), MCA, narrowly tailors the statute’s reach to apply only to conduct that

would contravene the State’s interest in protecting children from online sexual predators.

¶27    Hantz next argues that § 45-5-625(1)(c), MCA, sweeps overbroadly as applied to his

conduct. Hantz argues that application of Montana’s sexual abuse of children statute to

situations when an actor “was not present, had no physical contact with the underage

individual, and any self masturbation [sic] was not used in any film or media” fails to serve

the statute’s legislative purpose. Hantz argues that applying the statutory language to his

alleged “virtual fantasy with no intention . . . of making it anything else” extends Montana’s

sexual abuse of children statute beyond constitutional validity.

¶28    An “as applied” challenge to the constitutional validity of a statute focuses upon

whether the statute is too vague to apply in a particular situation. Nye, 283 Mont. at 516, 943

P.2d at 103. We will not strike the statute for vagueness if the challenged statute appears

reasonably clear in its application. Nye, 283 Mont. at 516, 943 P.2d at 103. We confine our

“as applied” overbreadth evaluation to a determination of whether the statute reaches

constitutionally protected conduct. State v. Dugan, 2013 MT 38, ¶ 52, 369 Mont. 39, 303

P.3d 755

¶29    Hantz’s effort to entice Lissa, a person whom Hantz believed to be a 14-year-old girl,

to engage in simultaneous masturbation over the internet clearly falls within the prohibition
                                              9
of § 45-5-625(1)(c), MCA. The State charged Hantz with knowingly counseling Lissa to

engage in sexual conduct. The jury found Hantz guilty of violating the statute’s prohibition

on knowingly counseling a person under the age of 16 to engage in sexual conduct. Hantz

fails to identify any unclear application of the statute to his conduct. Neither the U.S.

Constitution nor the Montana Constitution provides protection for Hantz’s actions.

¶30    Hantz further argues that § 45-5-625(1)(c), MCA, violates the dormant Commerce

Clause. The Commerce Clause grants Congress the power “[t]o regulate Commerce with

foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art.

I, § 8, cl. 3. Dormant Commerce Clause jurisprudence interprets the federal Commerce

Clause to prohibit implicitly certain state actions “that interfere with interstate commerce.”

Quill Corp. v. N.D. ex rel. Heitkamp, 504 U.S. 298, 309, 112 S. Ct. 1904, 1911 (1992).

¶31    Hantz relies primarily on American Libraries Association v. Pataki, 969 F.Supp. 160

(S.D.N.Y.1997), to support his dormant Commerce Clause argument. The federal court in

Pataki invalidated a New York statute that prohibited the intentional use of the internet to

communicate pornography to children. Pataki, 969 F.Supp. at 169. The federal court

determined that the internet’s lack of “geographic distinctions” included the internet in the

realm of interstate commerce. Pataki, 969 F.Supp. at 170. The federal court feared that

inconsistent legislation, “taken to its most extreme, could paralyze development of the

[i]nternet altogether,” despite the fact that New York had acted in its traditional role to

protect minors and to enforce state laws. Pataki, 969 F.Supp. at 169.



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¶32    The federal court enjoined enforcement of the New York statute in Pataki because the

federal court believed that internet content providers outside of New York might violate the

statute unintentionally. Pataki, 969 F.Supp. at 174-76. This hypothetical result could burden

interstate commerce because the New York statute might chill internet content providers’

activities, even though the content providers were operating legally in their own states.

Pataki, 969 F.Supp. at 174-76. The federal court determined that the states’ varying

approaches to pornographic communications could subject a single actor “to haphazard,

uncoordinated, and even outright inconsistent regulation by states that the actor never

intended to reach and possibly was unaware were being accessed.” Pataki, 969 F.Supp. at

168-69.

¶33    The reasoning in Pataki fails to protect Hantz’s conduct from the reach of Montana’s

statute. Section 45-5-625(1)(c), MCA, requires a person to act “knowingly” when he seeks

to persuade, entice, counsel, or procure a minor to engage in an illegal sex act. The knowing

requirement of the statute greatly narrows the scope of the law and its effect on interstate

commerce. We conceive of no legitimate commerce, interstate or otherwise, that involves a

person who acts “knowingly” when he seeks to persuade, entice, counsel, or procure a minor

to engage in an illegal sex act.

¶34    Section 45-5-625(1)(c), MCA, likewise regulates no behavior that occurs wholly

outside of Montana. Montana may prosecute only those criminal acts that occur within

Montana. Section 45-1-104(2), MCA. The narrow focus of § 45-5-625(1)(c), MCA, further

reduces concerns regarding inconsistent regulation. The federal court in Pataki concluded
                                             11
that “an Internet user cannot foreclose access to her work from certain states or send

differing versions of her communications to different jurisdictions.” Pataki, 969 F.Supp. at

183. Section 45-5-625(1)(c), MCA, proscribes knowing communication with a minor for

purposes of illegal sexual activity, and nothing else.

¶35    The underlying assumption of Pataki that a ban on “communications” may interfere

with an adult’s legitimate free speech rights does not apply to a ban on a person acting

“knowingly” when he seeks to persuade, entice, counsel, or procure a minor to engage in an

illegal sex act. The State’s effort to prevent a knowing communication by an adult with a

person under 16 that focuses upon illegal sexual conduct constitutes a permissible regulation

of commerce that fails to infringe unlawfully upon “[c]ommerce . . . among the several

states.” U.S. Const. art. I, § 8, cl. 3.

¶36 Whether the District Court properly authenticated and admitted extensive internet
chat logs into evidence?
¶37 Hantz argues that the District Court committed reversible error when it admitted the

collateral chats. Hantz specifically alleges that the prejudice of the collateral chat logs

outweighs their probative value due to the 2,500 page length of the collateral chats. Hantz

further alleges that the State failed to lay a proper foundation to admit the evidence due to the

State’s failure to prove that Hantz actually had chatted with underage girls, or merely had

chatted with adults who held themselves out to be underage girls.

¶38     “[E]vidence sufficient to support a finding that the matter in question is what its

proponent claims” properly authenticates an evidentiary offer. M. R. Evid. 901(a). The

State offered the collateral chats as evidence of sexually explicit online chats between Hantz
                                               12
and other personas who held themselves out to be young girls. The State did not need to

prove the actual identity of the other personas. The State provided evidence sufficient for the

District Court to determine that the collateral chats involved Hantz and personas who held

themselves out as young girls. The nature of the chats showed that Hantz had engaged in

sexually explicit chats with other personas who had held themselves out to be young girls.

The State properly authenticated the evidentiary offer of the collateral chats.

¶39    Montana Rule of Evidence 404(b) governs the admissibility of other crimes, wrongs,

or acts. A district court possesses discretion when it determines whether other crimes

evidence should be admissible under M. R. Evid. 404(b). State v. Berosik, 2009 MT 260,

¶ 28, 352 Mont. 16, 214 P.3d 776. Generally, evidence of a defendant’s prior acts or crimes

“is not admissible to prove the character of a person in order to show action in conformity

therewith.” M. R. Evid. 404(b). Evidence of a defendant’s prior acts or crimes may be

admissible for other purposes, such as “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b).

¶40    Hantz earlier had filed a series of motions in limine to exclude various items of

potential evidence pursuant to M. R. Evid. 404(b). One of Hantz’s motions requested that

the District Court exclude any “written statement in the possession of any agency involved in

the investigation of this case.” The motion denoted evidence “in the form of chats.” Hantz’s

motion did not identify any specific chats for the District Court to evaluate. Hantz’s motion

further failed to advance any legal theory to exclude any particular chats. Hantz apparently



                                              13
also failed to file a brief in support of his motion in limine, despite claiming that he would do

so during a July 26, 2012, pretrial conference.

¶41    The District Court denied Hantz’s motion in limine based upon Hantz’s failure to

“specifically identif[y] what statements [he] finds objectionable or how such statements

constitute evidence of other crimes, wrongs, or acts.” The District Court determined that

Hantz had failed to cite any legal authority to support the exclusion of any written statements

“in the form of chats.” The District Court further noted Hantz’s failure to “demonstrate[]

with argument or authority why the statements should be excluded.” We decline to require

more precise findings of fact and conclusions of law when a defendant fails to raise an

argument sufficiently specific to allow a district court to conduct a meaningful review of the

evidence in question. State v. Dist. Court of Eighteenth Judicial Dist. of Montana, 2010 MT

263, ¶ 49, 358 Mont. 325, 246 P.3d 415.

¶42    Hantz objected again at trial when the State sought to introduce the collateral chats.

Hantz took exception to the potential cumulative nature of the chats. The District Court

noted that Hantz had failed again to “cite any authority,” or to “identify any of the specific

information at issue” when he raised his objection during trial. The District Court identified

the difficult circumstances that Hantz’s objection created during a hearing in chambers: “the

Court finds itself in the middle of the trial now, on the third day, trying to make an

assessment of the 404(b) factors.”

¶43    Hantz proffered the suggestion that the Court allow “whoever wants to testify about

[the collateral chats], to testify that there were chats with other [sic],” to obviate Hantz’s
                                               14
“cumulativeness” concerns. The District Court declined Hantz’s invitation. The District

Court determined that computer “gobbly gook” constituted most of the 2,500 pages of

collateral chats. The District Court further determined that the State had “parsed out the

parts involving the chats.” The District Court concluded that Hantz’s “404(b) type motion

[wa]s not in time, [and] that [Hantz] didn’t properly brief it.”

¶44    The District Court articulated its rationale to admit the collateral chats: “the facts

contained in these documents[] undermined the defense’s claim that Mr. Hantz’s chats were

harmless fantasy.” The District Court set the prosecution “at liberty to offer this into

evidence.” Upon admission of the evidence the District Court admonished the jury that the

State’s collateral chat “evidence is not admitted to prove the character of the Defendant or to

show that he acted in conformity therewith. The only purpose of admitting this evidence is

to show identity knowledge and/or intent.” The District Court further told that jury that

“[y]ou may not use this evidence for any other purpose. The Defendant is not being tried for

the other crimes, wrongs or acts.” A limiting instruction generally cures any unfair

prejudice. Dist. Court of Eighteenth Judicial Dist., ¶ 49.

¶45    Hantz suggests that District Court’s ruling prejudiced him because “there is a distinct

likelihood that the jury convicted Hantz based on his being merely suspicious and indifferent

about [Lissa]’s age, rather than on a factual determination.” We disagree. Hantz filed a

broad motion in limine that did not identify specific documents to be excluded, the legal

basis for excluding any of the collateral chats, or the reasons why the prejudice caused to

Hantz from the admission of specific documents outweighed the probative value of those
                                              15
documents. Moreover, Hantz testified at trial that he believed that Lissa was an adult and

that the two of them simply had been “role playing” that she was a minor and that he wanted

to engage in sexual activities with her. As the District Court recognized, Hantz’s defense

strategy entitled the State to use the collateral chats to demonstrate motive, intent, and

absence of mistake on Hantz’s part as to the age of the person to whom he had been chatting.

State v. Guill, 2010 MT 69, ¶ 39, 355 Mont. 490, 228 P.3d 1152.

¶46    Affirmed.

                                                        /S/ BRIAN MORRIS

We concur:



/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON




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