State v. T. Buttolph

                                                                                         12/12/2023


                                         DA 21-0383
                                                                                     Case Number: DA 21-0383


              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        

STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TYLOR THOMAS BUTTOLPH,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. ADC-19-751
                      Honorable Elizabeth A. Best, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant
                      Appellate Defender, Helena, Montana

               For Appellee:

                      Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
                      Attorney General, Helena, Montana

                      Joshua A. Racki, Cascade County Attorney, Kory Larsen, Deputy
                      County Attorney, Great Falls, Montana


                                                Submitted on Briefs: July 12, 2023

                                                          Decided: December 12, 2023

Filed:
                                    ir,-6‘A•-if
                      __________________________________________
                                       Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Tylor Buttolph (Buttolph) appeals his conviction of stalking entered in the Eighth

Judicial District Court, Cascade County. We reverse.

¶2     We restate the issue on appeal as follows:

       Was Buttolph’s constitutional right to due process violated when the State used an
       act not charged in the information to prove “course of conduct” for the offense of
       stalking?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3     Buttolph and his former girlfriend, K.D., have a young son, T.B., born in 2015.

Buttolph and K.D. have a turbulent relationship and on May 14, 2018, K.D. obtained an

order of protection against Buttolph. Although Buttolph was not present for the hearing,

the Court granted K.D.’s petition and ordered that Buttolph have no contact with his son,

K.D., and K.D.’s other children.1 The Court entered the order to be in place for ten years,

from May 14, 2018, until its expiration on May 14, 2028.


1
  The record does not contain the affidavit filed by K.D. in support of her petition for a protective
order. However, based on an order issued April 15, 2019, by then Standing Master David J.
Grubich, Buttolph was served with the Temporary Order of Protection (TOP) while detained but
no provisions were made for his transport to the subsequent show cause hearing. When Buttolph
did not appear after being served, the Court granted K.D.’s request for a ten-year order of
protection. Buttolph thereafter filed a motion to terminate the TOP, asking for a hearing so that
he could be heard on the merits of K.D.’s petition. Buttolph maintained he was incarcerated and
had not been transported for the earlier hearing. The Court set a hearing for May 14, 2019, and,
although the Court’s order was served on Buttolph at the detention facility, the Court admonished
Buttolph to provide notice of his address and whether he needed transportation arrangements to be
made. Buttolph’s parents appeared for the hearing and advised the Court that Buttolph was
incarcerated and had not been transported. Although the Court had served its prior orders on
Buttolph while he was detained, the Court ultimately determined that Buttolph had not provided
notice to the Court that he was incarcerated or that he needed arrangements to be made for
transport. The Court held that it “is not tasked with investigating the living status of each and
every litigant that appears before it” and that “[t]his Court is not privy to every change in
Buttolph’s status of incarceration.” Although there was never a hearing on the merits of K.D.’s
                                                  2
¶4     More than 17 months after the order was issued, Buttolph was in Smith’s grocery

store in Great Falls when K.D. and her daughter were there. Buttolph indicated he was in

the store to purchase a bottled water while he and his father waited for Buttolph’s mother

to get off work from the Hampton Inn across the street. K.D. represented that Buttolph

called to her from the other end of a food aisle and that, upon seeing Buttolph, she feared

for her safety and that of her daughter. K.D. reported the incident to police and Buttolph

was arrested at his father’s home.

¶5     While in jail, Buttolph wrote a letter to T.B. on October 20, 2019. In the letter

Buttolph wished T.B. a happy birthday, told T.B. he loved him, asked whether K.D. had

given T.B. the Dream Catcher he had sent, and said he would draw some pictures for T.B.

Thereafter, the State charged Buttolph with three counts of felony stalking. Two counts

were for contact with K.D. and her daughter, (A.P.), at Smith’s grocery store, and one count

was for the letter Buttolph wrote to T.B. on October 20, 2019.

¶6     Buttolph did not post bail and remained in the Cascade County Regional Detention

Center. Over the next several months, Buttolph wrote T.B. four more letters. In a letter

dated December 2019, Buttolph wrote a Christmas poem, entitled “Daddy’s Little Man,”

describing his love for T.B. and revisiting several milestone moments in their lives. The

second letter, written January 1, 2020, was a New Year’s letter that told T.B. that he wanted

him to have the best life this world has to offer and that he thinks about him every day.

Buttolph wrote that he missed T.B., described how much he loved him, and reminded T.B.


petition, the Court held the order of protection, which included Buttolph’s son, T.B., would remain
in effect for 10 years.
                                                   3
that he had a strong family that also supported and loved him. In a third letter written

January 13, 2020, Buttolph again reminded T.B. of how much he loved him, recounted

special events they shared, and told T.B. he made a chess board for them. Finally, in a

fourth letter written March 29, 2020, Buttolph wrote T.B. reminding him how much he

loved T.B. and asking T.B. about his life.

¶7        Buttolph also wrote a letter to K.D., postmarked April 6, 2020. In his letter,

Buttolph expressed concern that COVID might affect her health and the children’s health,

that T.B. deserved for K.D. and Buttolph to be better, and Buttolph apologized to K.D. for

past actions. K.D. turned all the letters over to police without opening them.

¶8        In the Second Amended Information, which was the information the parties

proceeded on at trial, the State charged Buttolph with eight counts of stalking: Count I

charged stalking of K.D. at Smith’s; Count II charged stalking of A.P. at Smith’s;2 Count

III charged stalking of T.B. arising from Buttolph’s October 29, 2019 letter to T.B.; Count

IV charged stalking of T.B. arising from Buttolph’s December 2019 letter to T.B.; Count

V charged stalking of T.B. arising from Buttolph’s January 1, 2020 letter to T.B.; Count

VI charged stalking of T.B. arising from Buttolph’s January 13, 2020 letter to T.B.; Count

VII charged stalking of T.B. arising from Buttolph’s February 11, 2020 letter to T.B.; and

Count VIII charged stalking of K.D. arising from Buttolph’s March 29, 2020 letter to K.D.

The charging document thus specified that the eight counts of stalking occurred between




2
    At the close of evidence, the State agreed to drop Count II pertaining to K.D.’s daughter, A.P.
                                                    4
October 17, 2019, and April 6, 2020.3 Although K.D. claimed she had received threatening

letters from Buttolph prior to October 17, 2019, and even before the order of protection,

the State did not include these letters in the charging document. Importantly, in none of

the counts was there any mention of a second act which would satisfy the “course of

conduct” element of stalking.

¶9     Prior to trial Buttolph filed a motion to exclude prior bad acts evidence. The State

did not object and the Court granted the motion preventing the State from introducing

evidence of prior bad acts not charged.

¶10    On the morning of trial, prior to voir dire, the State noted that the charged offenses

“require a course of conduct which is two or more things, so we have to show some activity

that occurred prior to in order to prove the course of conduct element.” The State then

requested that it be allowed to discuss alleged acts that had occurred prior to the charged

offenses. The State argued that the testimony was admissible as transaction evidence to

establish two elements of the offense of stalking: (1) that K.D.’s fear was reasonable, and

(2) that there was a “course of conduct” involving two or more acts. Buttolph objected that

the evidence involved uncharged conduct and was too remote to the charged conduct in the

underlying case. Buttolph argued the Court needed to narrow the scope of the trial to the

timeframe in which the State alleged the charged conduct occurred. Buttolph argued the

request was untimely, inappropriate, and likely to confuse the jury.




3
 The State included two different end dates for the alleged offenses, March 29, 2020, and April 6,
2020. The prosecutor later clarified that the correct date was April 6, 2020.
                                                 5
¶11    The District Court heard arguments from the State and Buttolph during a pretrial

hearing to consider whether the State could introduce evidence of prior conduct during

trial. The Court ruled that the evidence could be admitted to help “the jury understand the

relationship between the parties” and to establish the reasonableness of K.D.’s fear.

However, the Court did not authorize the State to use prior uncharged conduct to prove one

of the acts constituting “course of conduct” and the Court clarified that “the State must not

introduce any evidence of any prior convictions or criminal investigations.” The Court

stated it would read a cautionary 404(b) instruction at trial when the State introduced the

evidence.

¶12    At trial, K.D. related the events surrounding her obtaining the order of protection.

She testified she was concerned for her family’s safety based on Buttolph’s history of

physical, mental, and emotional abuse.       The Court immediately gave the following

cautionary instruction:

       [T]he State is going to offer evidence that the Defendant at another time
       engaged in other acts. The evidence is not admitted to prove the character of
       the Defendant or to show he acted in conformity therewith. The only purpose
       of admitting that evidence is to show proof of motive. You may not use that
       evidence for any other purpose. The Defendant is not being tried for any
       other acts. He may not be convicted for any other offense, other than those
       charged in the case. For the jury to convict the Defendant of any other
       offense than charged in the case may result in unjust double punishment for
       the Defendant.

¶13    During closing arguments, the State referred to the letters written prior to the

charged conduct and issuance of the protection order. The State told the jury that Buttolph

engaged in a “course of conduct,” an element of the stalking statute, and that “course of


                                             6
conduct” requires two or more acts. The State argued to the jury “[t]here’s acts prior to the

restraining order and acts after the restraining order. Each of those acts gives you the

second act. . . . But, there are two or more acts. There were acts that occurred prior to the

restraining order that result in [K.D.] getting it, and there are acts after that time.”

¶14    The Court instructed the jury on the elements of stalking, including the definition of

“course of conduct”:

       To convict the Defendant of stalking, the State must prove the following
       elements: One, that the Defendant engaged in a course of conduct directed at
       a specific person and knows or should know that the course of conduct would
       cause a reasonable person to [f]ear for that person’s own safety or the safety
       of a third person.
                                  . . .

       Course of conduct means two or more acts, including but not limited to acts
       in which the offender directly or indirectly, by any action, method,
       communication, or physical or electronic devices or means, follows,
       monitors, observes, surveils, threatens, harasses, or intimidates a person or
       interferes with a person’s property.

The verdict form listed one act for each count. During deliberations, the jury submitted a

question related to “course of conduct” and asked: “Does the ‘course of conduct’

necessitate 2 or more acts under the same count or can they be across multiple counts?”

The parties asked the Court to instruct the jury to rely on the evidence and the instructions

given. The jury acquitted Buttolph of six of the remaining seven counts; convicting

Buttolph only on count eight for writing a letter to K.D.

¶15    Buttolph appeals.




                                               7
                                STANDARD OF REVIEW

¶16    We exercise plenary review of constitutional questions, including whether an

accused’s constitutional right to due process was violated. State v. Pyette, 

, 

, 

. “One of the Montana Legislature’s purposes for

enacting criminal statutes is ‘to give fair warning of the nature of the conduct declared to

constitute an offense.’” State v. Abe, 

, 

, 

,

(citing State v. Tower, 

, 

). When determining if a

claim has been properly preserved for appeal, this Court evaluates whether the issue was

presented to the trial court “because it is unfair to fault the trial court on an issue it was

never given an opportunity to consider.” State v. Montgomery, 

, 

, 

.

                                       DISCUSSION

¶17    We first note that Buttolph’s claim was properly preserved for appeal. The State

acknowledges on appeal that the District Court ruled on the admissibility of the prior

conduct. However, it argues that the District Court “was never ‘directly faced with the

question’ about notice and appraisal issues pertaining to the State’s charging documents,

nor did it give a ‘definitive ruling’ on the matter.” Therefore, the State asserts that

Buttolph’s failure to object during closing argument bars raising the claim on appeal.

Buttolph, relying on State v. Byrne, 

, 

, 

,

asserts that objecting to an issue pretrial preserves the issue for appeal and does not require

a subsequent objection at trial. Based on the record and the arguments of counsel, we


                                              8
conclude that Buttolph preserved his objection to the State’s use of pre-2018 order of

protection conduct. His objection was to any use of the evidence for any purpose. Buttolph

asked the Court to limit the scope of the trial to the timeframe of what the State had alleged

and charged. Buttolph preserved his objection to the use of uncharged, pre-2018 conduct

which would expand the scope of the timeframe charged in the Second Amended

Information. The objection was the basis of a pretrial hearing wherein the District Court

considered the State’s use of the prior uncharged conduct. The District Court ruled the

evidence was admissible only for the limited purpose of establishing K.D.’s reasonable

apprehension. Buttolph was not required to make a contemporaneous objection for each

alleged violation. We, accordingly, will address the merits of Buttolph’s claim.

¶18    Buttolph was charged by information with eight counts of felony stalking allegedly

occurring between October 17, 2019, and April 6, 2020. For each count of stalking, the

State listed only one act of misconduct. The stalking statute, § 45-5-220(1)(a), MCA,

provides, however, that “[a] person commits the offense of stalking if the person purposely

or knowingly engages in a course of conduct directed at a specific person and knows or

should know that the course of conduct would cause a reasonable person to: (a) fear for the

person’s own safety or the safety of a third person. . . .” “Course of conduct” is defined

within the stalking statute. Section 45-5-220(2)(a), MCA, provides: “‘Course of conduct’

means two or more acts, including but not limited to acts in which the offender directly or

indirectly, by any action, method, communication, or physical or electronic devices or




                                              9
means, follows, monitors, observes, surveils, threatens, harasses, or intimidates a person or

interferes with a person’s property.” (Emphasis added).

¶19    The issue before this Court is whether Buttolph’s conviction for felony stalking

violated his constitutional right to be informed of the nature and cause of the accusation

when his charging document omitted any reference to a second act which was a required

element of the offense of stalking. The Sixth Amendment to the United States Constitution

provides that an accused has the right “to be informed of the nature and cause of the

accusation. . . .” The notice provision of the Sixth Amendment is incorporated within the

Due Process Clause of the Fourteenth Amendment and is therefore fully applicable to the

states. The Due Process Clause of the Fourteenth Amendment establishes that “[n]o

principle of procedural due process is more clearly established than that notice of the

specific charge, and a chance to be heard in a trial of the issues raised by that charge, if

desired, are among the constitutional rights of every accused in a criminal proceeding in

all courts, state or federal.” Cole v. Arkansas, 

, 

 (1948).

The right to notice is basic and a clearly established due process right of an accused in a

criminal proceeding. It is “generally sufficient that an indictment set forth the offense in

the words of the statute itself, as long as ‘those words of themselves fully, directly, and

expressly, without any uncertainty or ambiguity, set forth all the elements necessary to

constitute the offense intended to be punished.’” Hamling v. United States, 

, 

 (1974). However, “it must be accompanied with such a statement

of the facts and circumstances as will inform the accused of the specific offense, coming


                                             10
under the general description, with which he is charged.” Hamling, 

, 

.

¶20    Montana’s Constitution similarly provides for an accused’s right to be informed of

the nature and the cause of the accusation. Article II, Section 24 provides that the accused

shall have the right “to demand the nature and cause of the accusation. . . .” A person

cannot be convicted of an offense not charged against him by information, whether or not

there was evidence at his trial to show that he committed the offense. “Long ago, this Court

held that an information must contain ‘a statement of the facts constituting the offense

charged in ordinary and concise language in such manner as to enable a person of common

understanding to know what was intended.’” State v. Kern, 

, 

, 

 (quoting State v. Paine, 

, 

, 205 (1921)). “[A]n

information is sufficient if it properly charges an offense in the language of the statute

defining the offense charged.” Kern, ¶ 31.

¶21    An accused is entitled to have an information reasonably indicate the exact offense

to enable the accused to make intelligent preparation of his defense. The form of the charge

is the responsibility of the State and it is not unjust to hold the prosecuting authority

accountable for substantive shortcomings in its pleadings. To amorph this requirement to

a subjective consideration of whether a defendant had an understanding of a defective

charge or otherwise had notice of particular facts would place this fundamental

constitutional purpose in danger. Here, the State charged an offense requiring that two or

more acts of misconduct be set forth as a necessary element of the crime. It failed to do


                                             11
so. For each count in Buttolph’s charging document, only one act was charged. In spite

of this, the State was able to present at trial and during argument evidence of second acts

of misconduct not set forth in the charging documents but necessary elements of the offense

of stalking. This was a fundamental due process violation of the highest order; an accused

cannot be convicted of a crime for which he was not charged. The State did not allege

pre-2018 protection order acts as part of the facts constituting the elements of stalking. It

could not make up for its deficiency by presenting evidence under an unrelated theory of

admissibility and then arguing to the jury that the evidence of the second act was before it.

The State’s realization of its blunder on the day of trial illustrates the prejudice inherent in

an information which fails to specify the essential elements of the offense. The defendant

is given insufficient notice to prepare a defense, he proceeds to trial with factual issues

undefined, and the prosecution is left “free to roam at large to shift its theory of criminality

so as to take advantage of each passing vicissitude of the trial and appeal.” Goodloe v.

Parratt, 

 (8th Cir. 1979).

¶22    Here, there was no “statement of facts constituting the offense charged” because the

charging document was silent as to the second act constituting the course of conduct

element of the offense. The language of the statute required that the charging documents

set forth at least two acts of misconduct. The State cannot shift its theory of criminality on

the day of trial without violating Buttolph’s fundamental right to due process.




                                              12
                                     CONCLUSION

¶23    Buttolph’s constitutional right to due process was violated when the State used an

act not charged in the information to prove “course of conduct” for the offense of stalking.

¶24    Reversed.


                                                 /S/ LAURIE McKINNON


We Concur:

/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE




                                            13