State v. Strong, 2015 MT 251 (Aug. 25, 2015) (Baker, J.; Cotter, J., dissenting) (5-2, aff’d)
Issue: Whether the district court erred in denying Strong’s motion to dismiss based on its determination that Strong’s conduct could give rise to multiple offenses.
Short Answer: No.
Facts: In August 2012, Strong was charged with four counts of partner/family member assault against his wife, Jessica, and their minor child. He pled guilty to two misdemeanor charges of PFMA and one felony charge of PFMA. He was jailed pending sentencing. On August 10, Jessica obtained an order of protection prohibiting all contract between Strong and Jessica, effective for one year. Strong did not oppose the order.
On Nov. 6, 2012,Strong called Jessica four times from jail. All of the calls were recorded. On Nov. 8, Jessica requested that the order of protection be dismissed so she and Strong could communicate about child support and their pending divorce.
On Nov. 14, 2015, the state charged Strong with four counts of violating an order of protection. The first two were charged as misdemeanors, and the third and fourth were charged as felonies.
Strong moved to dismiss the charges or, in the alternative, to dismiss three of the four charges as part of the “same transaction” under § 46-11-410, MCA.
Procedural Posture & Holding: At the hearing, Strong testified each telephone call was a continuation of the same conversation. The district court denied the motion, after which Strong entered into a plea agreement, reserving his right to appeal the denial of his motion to dismiss. The state dropped the fourth count, and Strong pled guilty to two misdemeanor counts and one felony count of violating the Aug, 10, 2012 order of protection. Strong appeals, and the Supreme Court affirms.
Reasoning: The parties dispute whether Strong’s telephone calls constitute conduct that is part of the same transaction and, if so, whether the calls meet the exception under § 46–11–410(2)(e), MCA. The Court agrees with the state that each telephone call was a violation of the no-contact order and, therefore, each telephone call constituted a separate offense.
Strong argues that even if the calls were separate offenses, they were part of the same transaction, § 46-1-202(23), MCA, and the Court agrees. However, this does not mean he could not be convicted of multiple offenses arising from a single transaction. The decision to charge four offenses was within the prosecutor’s discretion.
Justice Cotter’s Dissent (joined by Justice McKinnon): Justice Cotter would conclude that Strong’s conviction violates the statutory definition of “same transaction,” as well as the spirit and intent of § 45-5-626(3), MCA, and would remand with instructions to vacate all but one misdemeanor conviction. Based on § 46-1-202(23)(b), MCA, “by definition, the singular term “same transaction” encompasses the repeated commission of one offense.” ¶ 26. Ambiguity in the criminal statutes should be resolved in favor of the defendant. The prosecution and conviction of Strong was overzealous. The victim was neither harmed nor offended by Strong’s phone calls. Strong’s conviction is wholly unjustifiable.