State v. B. Bagnell

2020 MT 234N

Opinion

09/15/2020

DA 18-0160 Case Number: DA 18-0160

IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 234N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

BRANDON BAGNELL,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC 15-355 Honorable James A. Manley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joseph P. Howard, Joseph P. Howard, P.C., Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana

Steven N. Eschenbacher, Lake County Attorney, Brendan D. McQuillan, Deputy County Attorney, Polson, Montana

Submitted on Briefs: August 12, 2020

Decided: September 15, 2020

Filed:

cir-641.—if __________________________________________ 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 Brandon Bagnell appeals his conviction by a Lake County jury of felony stalking,

arguing that the court failed adequately to instruct the jury with respect to the required

mental state. Bagnell urges plain-error review, claiming that the instructions relieved the

State of its burden to prove an element of the offense beyond a reasonable doubt. Bagnell

alternatively argues that his attorney rendered ineffective assistance by failing to object to

the instructional error. He seeks a new trial. We conclude on this record that the

District Court’s failure to instruct the jury on the definitions of “purposely” and

“knowingly” does not entitle Bagnell to a new trial or demonstrate prejudice from defense

counsel’s performance. We accordingly affirm.

¶3 Bagnell and L.L. married in 2011 and divorced in 2015. They met “a long time

ago” but hadn’t “really been [together] probably for a good ten years at least” because

“most of the time he’s in prison.” L.L., who testified that she did not want to appear at the

trial because she was “afraid of the outcome, what is going to happen to me” and “afraid for

my child[,]” described their relationship as “[v]ery violent[]”—she “always had a

black eye.” L.L. obtained two orders of protection against Bagnell. The first, which she

2 obtained in 2012, expired in 2014. She obtained the second in 2015, after realizing the first

had expired. While in prison on a 2014 conviction for stalking L.L., Bagnell mailed her

hundreds of violent and sexually explicit letters. L.L. reported the letters to her domestic

violence advocate, Jolene Schmitz, who contacted law enforcement.

¶4 On October 2, 2015, the State charged Bagnell by information with one count of

stalking. The State alleged that Bagnell “purposely or knowingly caused serious emotional

distress to L.L. by repeatedly send[ing] her letters.”1 Prior to trial, the parties submitted

proposed jury instructions to the District Court. None from either party contained an

instruction defining “purposely” and “knowingly.” Before trial began, the State submitted

two additional instructions defining “purposely” and “knowingly,” to which Bagnell did

not object. The court informed counsel of its intent to “deal with these at the end . . . when

we settle instructions.” The record reflects, however—and the parties do not dispute—that

everyone apparently overlooked these instructions, and they were not given to the jury with

the other instructions.

¶5 After deliberating just over an hour, the jury found Bagnell guilty. The

District Court sentenced Bagnell as a persistent felony offender to twenty years’

imprisonment, with no time suspended. This appeal followed.

¶6 “We review jury instructions to determine whether the instructions, taken as a

whole, fully and fairly instruct the jury as to the applicable law and whether the

1 The court subsequently allowed the State to amend the Information to include two counts of violating an order of protection under § 45-5-626, MCA, but the State dismissed these counts before trial. 3 district court abused its discretion in instructing the jury.” State v. Gerstner, 2009 MT 303,

¶ 15, 353 Mont. 86, 219 P.3d 833 (citation omitted). If the instructions are erroneous, we

will reverse only if the mistake prejudicially affects the defendant’s substantial rights.

Gerstner, ¶ 15 (citation omitted). Ineffective assistance of counsel claims are mixed

questions of law and fact, which we review de novo. State v. Flowers, 2018 MT 96, ¶ 13,

391 Mont. 237, 416 P.3d 180 (citation omitted).

¶7 Bagnell did not object to the District Court’s failure to instruct the jury on the

definitions of “purposely” or “knowingly,” thus failing to preserve the issue for appeal.

This Court may discretionarily review unpreserved claims alleging errors implicating a

criminal defendant’s fundamental rights under the common law plain-error doctrine.

State v. George, 2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d 854 (citing State v. Akers,

2017 MT 311, ¶ 13, 389 Mont. 531, 408 P.3d 142). The party requesting reversal because

of plain error bears the burden of firmly convincing this Court that (1) the claimed error

implicates a fundamental right and (2) the failure to review may lead to a manifest

miscarriage of justice, may leave unsettled the question of the fundamental fairness of the

trial, or may compromise the integrity of the judicial process. George, ¶ 5

(citations omitted).

¶8 Bagnell claims that the claimed error implicates his fundamental right to

due process. See, e.g. Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419,

2420 (1989) (jury instructions relieving states of the burden to prove every element of the

offense beyond a reasonable doubt violate a defendant’s due process rights);

4 State v. Azure, 2005 MT 328, ¶ 20, 329 Mont. 536, 125 P.3d 1116 (“When a criminal

offense requires that a defendant act ‘knowingly’ [and ‘purposely’], the District Court must

instruct the jury on what the term ‘knowingly’ [and ‘purposely’] means in the context of

the particular crime.”).

¶9 The trial court gave the following instruction defining the offense of stalking as set

forth in § 45-5-220, MCA:

A person commits the offense of stalking when he purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly: harassing, threatening, or intimidating the stalked person, in person or by mail, electronic communication, or any other action, device, or method.

It instructed the jury further that for it to find Bagnell guilty, the State must prove beyond

a reasonable doubt each element of the offense, including that he “acted purposely or

knowingly.” The District Court’s instructions properly included the elements of the

charged offense and the State’s obligation to prove each element beyond a reasonable

doubt. But it incorrectly left out an instruction defining the terms “purposely” and

“knowingly” in the context of the offense of stalking. See Azure, ¶ 20.

¶10 Bagnell nonetheless bears the burden to demonstrate that the unchallenged error

requires a new trial. We considered a similar argument in State v. Nuessle, 2016 MT 335,

386 Mont. 18, 385 P.3d 952. The State charged Nuessle with obstructing justice, an offense

requiring proof that he “knew” the person he harbored or concealed was an offender. The

jury instructions did not define “knowing” or “knew,” and Nuessle did not offer an

instruction defining those terms. Nuessle, ¶ 7. Like Bagnell, he claimed on appeal that

5 failure to include a definition of the “knowing” element relieved the State of its burden of

proof on an essential element of the offense, amounting to plain error; alternatively, he

argued that his counsel was ineffective for failing to offer the appropriate instruction.

Nuessle, ¶ 11. Because the jury instructions correctly stated all elements of the offense,

“including the requirement that Nuessle knew [the person he concealed] was an offender,”

we declined plain-error review. “Even without an instruction defining ‘knowing,’ the State

was not relieved of its burden to prove the ‘knowing’ element, and the jury was well aware

of the burden.” Nuessle, ¶ 14. We reached a similar conclusion in State v. Williams,

2015 MT 247, ¶ 17, 380 Mont. 445, 358 P.3d 127, declining to exercise plain-error review

of a “clearly defective” jury instruction omitting the element of “purpose to deprive” in a

theft charge where other instructions included all elements of the offense and the evidence

was overwhelming.

¶11 Like Nuessle and Williams, Bagnell has not shown that the District Court’s failure

to instruct the jury on the mental state definitions would “result in a manifest miscarriage

of justice, leave unsettled the question of the fundamental fairness of the trial proceedings,

or compromise the integrity of the judicial process.” Nuessle, ¶ 15 (quoting Williams, ¶ 16).

The instructions correctly recited the statutory definition of stalking and included each

element of the offense the State had to prove beyond a reasonable doubt. And the State

presented compelling evidence—largely taken from Bagnell’s own words—that he was

aware of a high probability that his letters would cause L.L. to fear for her safety or suffer

6 emotional distress.2 George Simpson, the officer assigned to investigate the case, testified

that he had reviewed Bagnell’s letters—over 140 pages—and found them to be “very

disturbing emotionally.” Simpson read excerpts from twelve of the letters to the jury. In

one, Bagnell wrote to L.L., “But I promise you this: Divorce is just a piece of paper . . . .

That piece of paper is not going to keep me away and you know it.” In another, he wrote,

“Nothing is stopping me from coming home to see you and you can bank on that.” In yet

another letter, Bagnell told L.L., “No piece of paper is going to stop me from coming by in

the middle of the night and sneaking in your bedroom and burglarize your [body].”

Simpson testified that Bagnell enclosed his own pubic hairs in another letter to L.L.

Simpson testified that Bagnell’s letters made L.L. “very, very disturbed, very upset.”

Jolene Schmitz also testified that Bagnell’s letters made L.L. “cry[,]” “shake[,]” and

“constantly look at the door.” L.L. testified that, when her granddaughter came to live with

her in 2012, she “finally put a restraining order on [Bagnell]” in response to his threatening

letters. L.L. testified that she told Bagnell that his communication upset her—“because he

just makes me snap”—and that when she read his letters, “It’s just like I’m having a PTSD.

He just gets me off the charts. I just get high stress and I just can’t do it.” She described

their relationship as one that was “never [] loving and normal” and was “very violent[]”

because “he was always beating me up.”

2 We assume for the purpose of resolving this appeal that stalking is a result-based offense—as Bagnell advocates. 7 ¶12 From this evidence, we conclude that no reasonable juror presented with Bagnell’s

letters could harbor reasonable doubt that he had the conscious object to cause or was aware

of a high probability they would cause L.L. to fear for her safety or suffer emotional

distress. The letters’ plain language shows they were designed to do so. Though the

instructions were defective, the error is not grounds for plain-error reversal.

¶13 Bagnell alternatively contends that trial counsel rendered ineffective assistance by

failing to object to the instructional error, requiring reversal of his conviction. To prevail

on a claim of ineffective assistance of counsel, a defendant must show “(1) that counsel’s

performance was deficient, and (2) that counsel’s deficient performance prejudiced the

defendant.” Nuessle, ¶ 17 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984), and Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861). A defendant

must satisfy both prongs of the Strickland test to prevail on a claim for

ineffective assistance of counsel. Nuessle, ¶ 17 (citation omitted).

¶14 We conclude that Bagnell has not demonstrated prejudice from counsel’s allegedly

deficient performance. “To establish prejudice, the defendant must show that, but for

counsel’s errors, a reasonable probability exists that the result of the proceeding would

have been different.” St. Germain v. State, 2012 MT 86, ¶ 11, 364 Mont. 494, 276 P.3d 886

(citation omitted). As we have explained, in light of the evidence presented at trial—

chiefly, Bagnell’s explicit letters to L.L. and the impact they had on her—we are confident

that the jury would not have reached a different outcome had defense counsel objected to

the court’s instructional error. See St. Germain, ¶ 11.

8 ¶15 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. Bagnell did not suffer an unfair trial as the result of the

District Court’s instructional error or prejudice from his counsel’s failure to object to it.

The judgment is affirmed.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON /S/ JIM RICE