NO. 95-353 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996
STATE OF MONTANA, CITY OF BOZEMAN, Plaintiff and Respondent, v. JOHN YANKOWSKI, Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD: For Appellant: John Yankowski, pro se, Bozeman, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Montana Susan Wordal, Bozeman City Prosecutor, Bozeman, Montana
‘. I*~ I- - .‘%*pc Submitted on Briefs: October 24, 1996 Decided: December 17, 1996
-, Justice Charles E. Erdmann delivered the opinion of the Court. Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
John Yankowski was convicted of the offense of criminal
trespass to property in violation of 5 45-6-203, MCA, by a
six-person jury. Yankowski appeals the sentence and judgment
entered by the Eighteenth Judicial District Court, Gallatin County.
We affirm the judgment of the District Court. Further, we affirm
the sentence in part, vacating the condition that Yankowski write
a formal letter of apology. The issues on appeal are as follows:
1. Did Yankowski's conviction for criminal trespass violate
his right to freedom of speech under the First Amendment? 2. Did the District Court err in limiting the cross-
examination of the witnesses on their views of abortion?
3. Did the District Court err in denying Yankowski's motion
for directed verdict?
4. Did the District Court abuse its discretion in denying Yankowski's motion to dismiss alleging failure of the citation to
comply with the requirements under 5 46-11-401, MCA?
2 5. Did Yankowski properly preserve the issue regarding the condition of his sentence requiring him to write a letter of apology?
6. Did the District Court err in stating that the Bridger
Clinic was conducting a lawful activity and improperly refuse
proposed sentencing exhibits?
7. Was the issue of justification under § 45-3-102, MCA,
properly raised? 8. Was Yankowski's sentence excessive?
9. Was the motion for mistrial improperly denied?
10. Did Yankowski waive his right to counsel on appeal?
FACTS
On September 25, 1993, Shelley Videon, an employee of Bridger
Mountain Family Planning ("Bridger Clinic") was setting up for a
mother-daughter workshop at the Pilgrim Congregational Church in
Bozeman. The church is not open, except on Sunday; however, the
church rents out its facilities as a community service. Videon
rented the church space for $10 and obtained the key to the
building. The workshop was advertised through posters, press
releases in the newspaper, and public service announcements on
radio and television. The participants were required to
preregister and pay a $12 fee.
There were three women outside picketing the workshop by the
church door. Videon informed them that the workshop was not about
birth control, abortion, or sex, and asked them to leave. The
3 protesters did not leave, and the workshop facilitators had to escort the participants into the church. As Videon and another facilitator of the workshop, Kristi Campbell, were standing at the
registration table, Yankowski approached them. Campbell knew
Yankowski was an abortion protestor and testified at trial that she
was afraid of him because she did not believe he acted rationally.
This testimony was objected to by defense counsel and counsel moved
for a mistrial, which was denied. Campbell testified she opened the door for Yankowski and requested that he leave. Yankowski
refused and began to "thrash" around, so Campbell backed off.
Both facilitators followed Yankowski into the room where the
participants were waiting. Videon and Campbell repeatedly asked
him to leave. Yankowski, however, addressed the participants,
telling them they should not have their daughters there to be subjected to the influences of the Bridger Clinic. He then placed
anti-abortion literature on the laps of the participants. He also
tried to leave his literature on the resource table, but was told
by Campbell that their policy was to exclude outside sources.
Campbell attempted to call the police, but Yankowski picked up
another phone and pressed the switch. She dialed again and
informed the police that a man was interrupting their workshop and
requested that he be removed. Yankowski sat down on the couch and
refused to move. When the police arrived, he headed for the
sanctuary. He was then arrested for criminal trespass. On June 22, 1994, Yankowski was convicted of misdemeanor criminal trespass by a jury in City Court. He appealed this determination and was tried de ~OVD in District Court. The State
moved in limine to exclude all information regarding "what an
abortion is, when life begins or religious or moral justification
for action" and "any evidence that would support any of the
affirmative defenses listed in § 46-IS-323(2)." The State argued
that Yankowski's views on abortion were not relevant to the issue
of whether he trespassed on private property. Yankowski stipulated
to the motion, stating he was not attempting to justify his conduct
by reference to a higher cause or moral imperative. Yankowski then
moved to dismiss the charge for failure of the citation to state an
offense. This motion was denied.
The six-person jury returned a verdict of guilty of the
misdemeanor charge of criminal trespass. Yankowski was sentenced
to six months in jail with all but ten days suspended, and a $500
fine. He was also ordered to write a letter of apology to the
Bridger Clinic, and to Reverend Wagner and the Pilgrim
Congregational Church. Yankowski appeals the conviction and
judgment.
ISSUE 1
Did Yankowski's conviction for criminal trespass violate his
right to freedom of speech under the First Amendment? Yankowski argues that anti-abortion speech is not excluded
from protection under the First Amendment. Yankowski also argues
5 that the church, which was being used by a private organization, was "obviously a public forum," and therefore his activities were
all protected activities.
The United States Supreme Court has held that private property
owners may exclude persons from exercising First Amendment rights
upon private property. Lloyd Corp., Ltd. v. Tanner (1972), 407
U.S. 551. This Court has similarly rejected the assertion that an
individual has an unfettered right to access private property for
the purposes of exercising his freedom of speech. City of Helena
v. Krautter (1993), 258 Mont. 361, 852 P.2d 636. In Lloyd, the U.S. Supreme Court determined that an owner of
a privately-owned shopping mall could prohibit persons from
distributing anti-war handbills in the mall where the handbills
"had no relation to any purpose for which the center was built and
being used." Lloyd, 407 U.S. at 564-67. The Court concluded that
the shopping mall's invitation to the public was limited to the
business use of the mall, and that the protestors had other
alternatives for distribution of their message in public areas.
Here, it is clear that invitation to the public to attend the
mother-daughter workshop was limited to the subject matter as
presented by the private organization. The testimony at trial was
that the discussion was not to include sex, birth control, or
abortion issues. The testimony at trial also established that the
church was open to the public only on Sundays and was otherwise
locked unless rented to a private organization. Yankowski has made
6 no showing that the church was transformed from private property
into quasi-public property by the renting of the facility to
another private organization. He admitted that he knew the church
or a person authorized by the church, or the police, could lawfully
terminate his license or privilege to remain. Furthermore, even if
the church was considered a quasi-public forum during the workshop,
Yankowski had other alternatives for distribution of his message,
including protesting out on the sidewalk and distributing his
literature there.
We therefore determine that Yankowski's rights under the First
Amendment were not violated by his conviction of criminal trespass
upon the private property at issue here.
ISSUE 2
Did the District Court err in limiting the cross-examination
of the witnesses on their views of abortion?
Yankowski argues his right to confrontation, as guaranteed by
the Sixth Amendment to the U.S. Constitution, and Article II,
Section 24, of the Montana Constitution, was denied when the
District Court restricted cross-examination as to the witnesses'
beliefs concerning abortion. These witnesses, which Yankowski
alleges the court precluded him from admitting evidence showing
bias, prejudice or ulterior motives, include Videon, Campbell, and
Connie Foiles. The State contends that the threshold level of
inquiry was allowed. A defendant's right to demonstrate the bias or motive of
prosecution witnesses is guaranteed by the Sixth Amendment right of
confrontation. Alford v. United States (1931), 282 U.S. 687. This
Court has held that the trial court's discretion in exercising
control pursuant to Rule 611(a), M.R.Evid., becomes operative only
after the constitutionally required threshold level of inquiry
concerning the witness's bias or motive to testify falsely has been
met. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455.
Thus, the State argues that a district court errs only if it cuts
off all inquiry into the possible bias of the witness. The District Court granted the State's motion in limine to
exclude evidence on abortion or justification of conduct based upon
pro-life views. The court stated that Yankowski would be allowed
to introduce evidence explaining the reason for his behavior and
would also be allowed to cross-examine witnesses on the issue of
whether or not their views on abortion resulted in bias either for
the State or against Yankowski.
Yankowski asserts that the court did not allow him to question
Videon, Campbell, or Foiles on their possible bias. The record,
however, does not support his assertion. The District Court
allowed inquiry by Yankowski of Videon as to her professional views
of abortion. She explained that there were three legal options for
pregnant women--adoption, keeping the child, or abortion. After
further questioning, the State objected to the line of questioning. The court sustained the objection because the witness had testified
8 that the workshop had a purpose, and that that purpose was to delve into issues of puberty and open communication between mothers and
daughters. The court asked the witness whether abortion was a
topic. Videon replied that it definitely was not a topic for
discussion at the workshop. The court also allowed Campbell, over Yankowski's objection, to testify that she had had prior dealings
with Yankowski and was afraid of him. Finally, Yankowski attempted
to question Connie Foiles, a mother who attended the workshop,
regarding her statement that she did not want her daughter to see
the literature Yankowski was distributing because it contained
photographs of aborted fetuses. Yankowski's counsel asked, "Well,
why would you not want to see aborted fetuses?" The District Court
sustained the State's objection to this question on the basis of relevancy.
The court did not abuse its discretion by denying further
questioning of the witnesses once it was determined that abortion was not the subject of the workshop and once it was established
that the witnesses' opinions on abortion were not relevant to the
issue of interest or bias. The District Court allowed the
constitutionally required threshold level of inquiry concerning the
witnesses' biases or motives to testify falsely and did not abuse
its discretion by limiting further inquiry.
ISSUE 3
Did the District Court err in denying Yankowski's motion for
directed verdict?
9 The decision to direct a verdict of acquittal lies within the
sound discretion of the district court and will not be disturbed on
appeal absent an abuse of discretion. State v. Moore (1994), 268
Mont. 20, 64, 884 P.2d 457, 484. The standard of review for a
trial court's motion for directed verdict is whether, after viewing
the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. State v. Mummey (1994), 264
Mont. 272, 871 P.2d 868. Yankowski argues that at the close of the State's case the
State failed to prove that he had remained after being asked to
leave by the landowner or other authorized person pursuant to
5 45-6-201, MCA. Yankowski asserts that neither facilitator was an
"authorized person" under the statute and therefore they did not
have the authority to ask him to leave. The State asserts that
because a tenant has the exclusive right of possession of the
premises under Montana law, they also have the right to deny
Yankowski the license, invitation, or privilege to enter or remain
on the premises. The offense of criminal trespass pursuant to 5 45-6-203, MCA,
is defined as when a person knowingly enters or remains unlawfully
in an occupied structure or enters or remains unlawfully in or upon
the premises of another. Section 45-6-201(l), MCA, defines "enters
or remains unlawfully" as follows:
A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when he is not
10 licensed, invited, or otherwise privileged to do so. Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by the failure of the landowner or other authorized person to post notice denying entry onto private land. The privilege may be revoked at any time by personal communication of notice by the landowner or other authorized person to the entering person.
The church financial secretary testified that the people who
rent the facility pick up the key and are in control of the
facility. The Bridger Clinic rented the facility, had the keys,
and had the right to control the premises during their rental
period. This would include the right to deny Yankowski the
privilege to remain on the premises. Welsh v. Pritchard (1952),
125 Mont. 517, 241 P.2d 816 (concluding that a tenant has the
exclusive right of possession of the premises, including the right
to exclude the landlord). We therefore determine that the District
Court did not abuse its discretion in denying Yankowski's motion
for directed verdict. ISSUE 4
Did the District Court abuse its discretion in denying
Yankowski's motion to dismiss alleging failure of the citation to
Yankowski moved to dismiss the charge for failure of the
citation to state an offense under § 45-6-203, MCA, and to comply
with the requirements of 5 46-11-401, MCA. He argues that the
charge which states "failure to leave a building when asked to do
so" is not the equivalent of "enters or remains unlawfully in an
occupied structure.fl He also asserts that the citation is not
11 sufficiently specific when it refers to a "building" instead of an "occupied structure."
The general rule in Montana is that an information is
sufficient if it properly charges an offense in the language of the
statute describing the offense. State v. Matt (1990), 245 Mont.
208, 799 P.2d 1085; State v. Matson 11987), 221 Mont. 36, 736 P.2d
971. The test is simply whether a person of common understanding
would know what is intended to be charged. ~, Matt 799 P.Zd at 1088. The citation in this case named the jurisdiction, the
defendant, cited the statute, recited the statutory name of the
crime, stated the location of the building as "Pilgrim Cong.
Church," stated the time of the offense, and stated "said defendant
did knowingly or purposely or negligently commit the offense of
criminal trespass to wit: fail to leave a building when asked to do
so. I' This citation clearly complies with § 46-11-401, MCA, and
therefore we hold that the District Court's denial of Yankowski's
motion to dismiss was not an abuse of its discretion. ISSUE 5
Did Yankowski properly preserve the issue regarding the
condition of his sentence that he write a letter of apology? Yankowski argues that to force him to apologize for criminal
trespass is ordering words in his mouth and is a violation of his
First Amendment right to free speech, freedom of religion, and
freedom of conscience. He also asserts that his compliance with
the District Court's order to write an apology would entail
12 committing two or three counts of criminal contempt, as it would violate the preliminary injunction ordering him not to communicate
with any petitioner, their families, etc.
The District court ' s authority to impose conditions or restrictions upon Yankowski in conjuction with his suspended sentence are limited by the provisions of 5 46-18-201, MCA. The
imposition of the condition requiring Yankowski to write an apology
letter is outside the scope of the District Court's authority under
§ 46-18-201, MCA, to impose reasonable conditions upon sentencing.
Therefore, we hereby vacate the condition of Yankowski's suspended sentence requiring him to write a formal letter of apology to the
Bridger Clinic, and to Reverend Glover Wagner and the Pilgrim
Congregational Church. ISSUE 6
Did the District Court err in stating that the Bridger Clinic
was conducting a lawful activity and improperly refuse proposed
sentencing exhibits?
The State filed a motion in limine to exclude all evidence on
the defense of justification, which, in fact, Yankowski stipulated
that he was not going to raise on defense. Yankowski argues now on
appeal that the Bridger Clinic was unlawfully conducting its
workshop. He cites his proposed sentencing exhibits A through M
which were excluded by the District Court from the record on the basis of relevancy. The State asserts that these exhibits were
13 properly excluded under Rules 401 and 402, M.R.Evid., as Yankowski
never advanced any basis for which the evidence was offered. This Court has previously held that the evidence is relevant
if it naturally and logically tends to establish a fact in issue.
State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301. The trial
court has broad discretion to prohibit the introduction of
irrelevant evidence, and absent a showing that the court abused its
discretion, this Court will not overturn the determination of relevancy. State v. Hage (1993), 258 Mont. 498, 853 P.2d 1251.
The question in dispute was whether Yankowski engaged in activity
which was in violation of the criminal trespass statute. The
exhibits offered had no relevancy to this question nor to any fact
in issue, and thus were properly excluded by the District Court.
ISSUE 7
Was the issue of justification under § 45-3-102, MCA, properly
raised?
Yankowski argues that he "had a right to use force to stop an
unlawful use of force" pursuant to 5 45-3-102, MCA. He essentially
attempts to raise a defense of justification on appeal. This Court
will not address this issue, as it is being raised for the first
time on appeal. City of Helena v. Lewis (1993), 260 Mont. 421, 860
P.2d 698; 5 46-20-104, MCA. ISSUE 8
Was Yankowski's sentence excessive?
14 Yankowski appeals to this Court to reduce his sentence because he was thrown out of graduate school and was refused employment due
to the impending sentence in this case.
The District Court sentenced Yankowski to serve only ten days
in jail, which he has not yet done, and to pay a $500 fine. The sentence was within the statutory maximum for the offense
committed. The review of sentences for inequity or disparity must
be conducted by the Sentence Review Division according to statutes
applicable to those proceedings. Petition of Slice (1995), 271
Mont. 337, 896 P.2d 1125. This Court therefore declines to address
this issue. ISSUE 9
Was the motion for mistrial improperly denied? Campbell testified that she was standing at the registration
desk when Yankowski approached, that she knew he was an abortion
protestor, and that she was afraid of him because she did not
believe he acted rationally and she did not know what he would do.
Defense counsel objected on grounds of relevancy, which was
overruled. Defense counsel then requested to make a motion outside
the presence of the jury, and moved for a mistrial on the basis of
other crimes evidence. This motion was likewise denied.
We review the district court's denial of a motion for mistrial
to determine whether there is clear and convincing evidence that
the court's ruling is erroneous. State v. Romero (Mont. 1996), 53
St. Rep. 1050, 1057; State v. Ford (Mont. 1996), 53 St. Rep. 947,
15 950. This Court has held that a mistrial is appropriate only when
there is a demonstration of manifest necessity or where the
defendant has been denied a fair and impartial trial. Romero, 53
St. Rep. at 1057. The district court is in the best position to
determine the potential for prejudice and therefore has been afforded significant latitude when ruling on these matters. State
v. McNatt (1993), 257 Mont. 468, 471, 849 P.2d 1050, 1052.
The State argues that Yankowski failed to properly preserve his objection on "other crimes evidence," as his objection was on
the ground of relevance. The District Court found the evidence
relevant to the issue of the witnesses' identification of Yankowski.
Regardless of whether this issue was properly preserved for
appeal, in deferring to the District Court as being in the best
position to determine the potential for prejudice, we affirm its
denial of the motion for mistrial as there was no demonstration of
manifest necessity and no evidence that Yankowski has been denied
a fair and impartial trial.
ISSUE 10
Did Yankowski waive his right to counsel on appeal?
Although Yankowski raises this issue, the record is abundantly
clear that he had several appointed attorneys and has discharged
them all. As an indigent defendant, he has the right to a
court-appointed attorney during his first appeal of right, but he
does not have the right to choose or to demand a different attorney
16 so long as the assistance he was receiving was effective. State v. Zackuse (1991), 250 Mont. 385, 833 P.2d 142. The burden of proof
is Yankowski's to come forward with facts establishing either a
total lack of communication with counsel, or ineffective assistance
of counsel, and bare unsupported allegations are insufficient.
Zackuse, 833 P.2d 142. We therefore hold that Yankowski
effectively waived his right to counsel on appeal by failing to
accept his court-appointed counsel.
We affirm the judgment of the District Court. Further, we
affirm the sentence in part, vacating the condition that Yankowski
write a formal letter of apology.
Justice
We concur:
j/f44 / /-Y. (. Chief Justice -’ f I