State v. Heuer , 2015 MT 325N ( 2015 )

November 17 2015
DA 14-0383
Case Number: DA 14-0383
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 325N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MATTHEW HEUER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 13-423A
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James Reavis, Assistant Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Edward J. Corrigan, Flathead County Attorney, Andrew Clegg, Deputy
County Attorney; Kalispell, Montana
Submitted on Briefs: November 4, 2015
Decided: November 17, 2015
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 Matthew Heuer appeals from the order of the Eleventh Judicial District Court
affirming his conviction in Justice Court for Violation of A Protective Order,
§ 45-5-626(3), MCA. He challenges his conviction as not supported by sufficient
evidence. “In an appeal from a justice court established as a court of record, the district
court functions as an intermediate appellate court and, as such, is confined to review of
the record and questions of law.” State v. Hodge, 2014 MT 308, ¶ 11, 377 Mont. 123,
339 P.3d 8 (citations omitted). “Because the scope of the district court’s review and this
Court’s review is the same, we review the justice court’s decision as if the appeal
originally had been filed in this Court. . . . We examine the record independently of the
district court’s decision, applying the relevant standard of review.” Hodge, ¶ 11 (citation
omitted).
¶3 In January 2012, the Justice Court issued an order of protection against Heuer
upon the petition of Misty Anderson, sister of Heuer’s former wife. The term of the order
was for five years and the order included provisions restraining Heuer from contacting or
being near Anderson, and also provisions mandating that Heuer was not to “harass,
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annoy, or disturb the peace” (Provision #1) or “contact, or otherwise communicate,
directly or indirectly or through a third party” (Provision #5), not only Anderson, but any
of her children as well.
¶4 On May 5, 2013, Heuer went to Cislo’s Restaurant to dine with his two children.
The busser at Cislo’s, Leya Storkson-Anderson, is a daughter of Misty Anderson and a
cousin to Heuer’s two children. Heuer was not previously aware that Leya worked at
Cislo’s. Leya sat down briefly at their table and spoke with her two cousins. Leya did
not report this incident because she was not sure Heuer was aware of her employment
arrangements.
¶5 On June 8, 2013, Heuer returned to Cislo’s with his children, who saw Leya
working in the restaurant and reported this to Heuer. Leya saw Heuer and immediately
went to the back of the restaurant and told two waitresses that Heuer was not supposed to
be there, and they contacted Leya’s boss. Leya told her boss that there was a restraining
order in effect and that Heuer was not supposed to be near her. Leya’s boss asked Heuer
to leave the restaurant, and he did so without incident.
¶6 The State filed a charge of Violation of a Protective Order against Heuer for his
actions in the June 8 occurrence. About that occurrence, the Justice Court found that
Leya was afraid and that “it’s clear that she felt that her peace was disturbed at that time.”
¶7 Heuer argues that the State failed to support its assertions that Heuer violated
Provision #1 or Provision #5 of the protective order with sufficient evidence. He argues
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that, under Provision #1, “Leya testified that she had not been harassed nor had her peace
been disturbed,” referring to her testimony under cross examination as follows:
Q. Were you harassed or annoyed?
A. No.
Q. Was your peace disturbed?
A. No.
¶8 The parties argue over whether these two questions and answers were referring to
the May 5 occurrence, or whether they were generally referring to both the May 5 and
June 8 occurrences. Upon a review of the record testimony, we agree with the State that
the comments were in regard to the May 5 occurrence. Although there was a short pause
before these two questions were asked, they followed seriatim a line of questioning about
the May 5 occurrence, specifically, the content of Leya’s conversation with her two
cousins on that night. After these two questions were asked, defense counsel asked Leya
about the timing of a $20 tip that Heuer had left for Leya, which occurred on May 5.
Following that question, defense counsel asked Leya, “Now the second time, you saw
him come in, correct?”, turning to the June 8 occurrence. The context clearly indicates
that Leya would have believed that the questions about being disturbed were referring to
the May 5 occurrence. Although the District Court, acting as an appellate court, stated
Leya had testified that she did not feel threatened, harassed, or annoyed during the June 8
occurrence, and therefore concluded the Justice Court’s finding that Leya was afraid that
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night was not supported by the evidence, we conclude, to the contrary, that this testimony
referred only to the May 5 incident, and affirm the Justice Court’s finding.
¶9 About Prohibition #5, Heuer focuses on the “communication” prohibition, arguing
that the State failed to introduce evidence that he made any communication with Leya by
way of telephone, email, text message, social network, or other communication methods.
However, Provision #5 also includes a broad prohibition on direct or indirect contact with
Leya. Heuer entered a restaurant where he knew Leya worked, with his children. Leya
saw him, and his children and Leya saw each other. Heuer’s children reported to Heuer
that Leya was working that night. Heuer remained at the restaurant. As the District
Court reasoned in affirming the conviction, the contours of the order of protection “do[]
not open the door for Defendant to knowingly create a situation where he would come
into contact with Petitioner or her children, as he did in the instant case.”
¶10 Although we reach slightly different conclusions than the District Court, we
conclude there was sufficient evidence to establish that, on June 8, 2013, Heuer had
indirect contact with Leya, a daughter of the petitioner of the order of protection, and that
her peace was disturbed on that occasion, both in violation of the order of protection.
¶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 and by the clear
application of applicable standards of review. We affirm the District Court’s order
affirming the conviction.
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/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
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