Full Opinion

11/04/2026 DA 25-0013 Case Number: DA 25-0013 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 264 STATE OF MONTANA, Plaintiff and Appellee, v. DAN JAMES SAVAGE, JR., Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC-24-51 Honorable Matthew J. Cuffe, Presiding Judge COUNSEL OF RECORD: For Appellant: Laura Reed, Attorney at Law, Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Katie Schulz, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Libby, Montana Submitted on Briefs: August 26, 2026 Decided: November 4, 2026 Filed: __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 Dan James Savage, Jr., appeals the Nineteenth Judicial District Court’s judgment following his Lincoln County jury conviction of three counts each of Privacy in Communications, in violation of § 45-8-213, MCA; Obstructing a Peace Officer or Other Public Servant, in violation of § 45-7-302, MCA; and False Reports to Peace Officers, in violation of § 45-7-205, MCA. Savage presents the following issues for review: 1. Was trial counsel ineffective when he failed to object to Savage’s convictions under Montana’s multiple charges statute, § 46-11-410, MCA? 2. Did the District Court err in denying Savage’s motion to dismiss Count IV of Privacy in Communications for insufficient evidence? We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 On January 19, 2024, at 3:19 a.m., Savage contacted Lincoln County Dispatch through the “text-to-911” feature1 to report a theft. Savage had spoken to a Lincoln County Sheriff’s Deputy the night before complaining that the Sheriff’s Office had not returned a cellphone it had seized from him during an investigation a decade prior.2 Savage was advised by a dispatcher that his alleged theft was not an emergency and that an officer would contact him. Savage continued using the text-to-911 feature and opened twelve 1 The text-to-911 feature was created for emergency situations when citizens need to contact law enforcement discreetly, such as in a domestic abuse or a home invasion situation. Text-to-911 also allows those with poor cell service to send a text when a call will not go through. 2 Law enforcement testified at trial that they notified Savage that he could pick up his cellphone in 2014, but Savage never retrieved it. The cellphone was destroyed in 2015. The record indicates that Savage filed a theft report for the cellphone in June 2023. Officers deemed the report unfounded and Savage was informed of this. 2 more text sessions between 3:47 a.m. and 6:54 a.m. Savage sent ninety-three text messages to dispatch. ¶3 On the basis of the January 19 text-to-911 messages, the Lincoln County Attorney’s Office filed a criminal complaint and applied for a warrant to arrest Savage on January 22, alleging thirteen counts of Obstructing a Peace Officer or Other Public Servant. The Lincoln County Justice Court granted a warrant the same day. ¶4 Also on the morning of January 22, 2024, Savage began texting Lincoln County Dispatch again. Savage complained, “10 YEARS OF ME REPORTING THE SAME THING . . . YOU NOT FILING A REPORT FOR 10 YEARS WILL BE THE DEATH OF SOMEBODY NEEDING HELP!” (Emphasis in original.) Savage texted profanities to dispatch and told them that if an officer was dispatched to his property, “he will not step away. That’s not a threat, that is the truth. Send one down to counteract. I’m ready.” Savage began his text messages at 7:22 a.m. that day, with the last session ending at 4:00 p.m. Savage sent 196 text messages to dispatch. ¶5 On February 9, 2024, Savage was arrested on the January 22 warrant. He was released at midnight on February 10. On February 11, 2024—the day after his release—Savage began texting Lincoln County Dispatch at 2:47 a.m. Savage advised the dispatcher that he needed to report a false arrest. The dispatcher asked Savage if there was an active emergency. Savage replied that he needed to report a crime. The dispatcher informed Savage how to report a non-emergency complaint. Savage continued texting dispatch until 3:51 p.m. There were eight text sessions between Savage and the dispatcher. Savage sent sixteen messages to dispatch. 3 ¶6 Savage’s appointed counsel moved the Justice Court on April 12, 2024, to dismiss all but one of the charged obstruction counts on the ground that the series of text messages Savage sent on January 19 were part of the same transaction, motivated by the same purpose, and resulting in the repeated commission or effect upon the same person or entity, “Lincoln County Dispatch.” He argued that, as alleged, “the conduct was essentially continuous for three and a half hours but for the breaks initiated by Dispatch which lasted typically between zero and two minutes.” As such, Savage claimed that the multiple charges were precluded by § 46-11-410, MCA. ¶7 In response, the State moved to amend the complaint, asserting that in gathering information from law enforcement in preparing its response to Savage’s motion to dismiss, the State became aware of additional criminal offenses he had committed. The Justice Court granted the motion. The amended complaint became the basis for the County Attorney’s motion for leave to file an information against Savage in the District Court, which the court granted. The information charged ten counts: one count of intimidation (§ 45-5-203, MCA); three counts of obstructing a peace officer or other public servant (§ 45-7-302, MCA); three counts of false reports to peace officers (§ 45-7-205, MCA); and three counts of privacy in communications (§ 45-8-213, MCA). The charges were based on the three separate dates of Savage’s conduct. All counts charged were misdemeanors, except the intimidation offense (arising from Savage’s alleged threat on January 22, 2024) and the third privacy in communications offense, which was a felony. Savage did not move to dismiss any counts in the information. 4 ¶8 The case went to trial on September 10, 2024. After two days of testimony, the jury acquitted Savage of the intimidation charge and found him guilty of the other nine offenses. The District Court imposed suspended six-month jail terms on all offenses except Count VII, the second offense of privacy in communications—for which it imposed a one-year suspended jail term—and Count X, the felony privacy in communications conviction—for which it sentenced Savage to the Department of Corrections for five years, with three years suspended. The court ordered Savage’s sentences to run concurrently with one another, except for Count VII, which it ordered to run consecutively with the remaining counts. STANDARD OF REVIEW ¶9 Ineffective assistance of counsel claims are mixed questions of law and fact that this Court reviews de novo. State v. Hooper, 2016 MT 237, ¶ 5, 385 Mont. 14, 386 P.3d 548 (citing DeSchon v. State, 2008 MT 380, ¶ 16, 347 Mont. 30, 197 P.3d 476). We also “review de novo whether sufficient evidence supports a conviction.” State v. Torres, 2013 MT 101, ¶ 16, 369 Mont. 516, 299 P.3d 804 (citing State v. Trujillo, 2008 MT 101, ¶ 8, 342 Mont. 319, 180 P.3d 1153). “We view the evidence in the light most favorable to the prosecution and determine whether ‘any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.’” Torres, ¶ 16 (citing Trujillo, ¶ 8). 5 DISCUSSION ¶10 Issue 1: Was trial counsel ineffective when he failed to object to Savage’s convictions under Montana’s multiple charges statute, § 46-11-410, MCA? ¶11 Under § 46-11-410(1), MCA, “[w]hen the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense.” “A defendant may not, however, be convicted of more than one offense if[,]” as pertinent to Savage’s arguments, “one offense is included in the other” or if “the offense is defined to prohibit a continuing course of conduct and the defendant’s course of conduct was interrupted, unless the law provides that the specific periods of the conduct constitute separate offenses.” Section 46-11-410(2)(a), (e), MCA. The law defines “same transaction” as “conduct consisting of a series of acts . . . that are motivated by: (a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or (b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person . . . .” Section 46-1-202(24), MCA. ¶12 Savage asserts that his conduct consisted of a series of actions that were part of the same transaction as defined by Montana law. Savage argues that he sent texts to Lincoln County Dispatch on January 19, 22, and February 11, 2024, for the same purpose—to complain that the government had taken his phone and not returned it. Savage contends that two of the three charges for each offense are “included” offenses, thus prohibiting his multiple convictions under § 46-11-410(2)(a), MCA. Savage argues further that as the 6 Privacy in Communications statute3 is defined to prohibit a continuing course of conduct, his multiple convictions are prohibited under § 46-11-410(2)(e), MCA. Savage maintains that he was denied the effective assistance of counsel because his counsel failed to object to his conviction on multiple charges. Savage does not contest that his conduct supported each of the three distinct charged crimes, only his multiple convictions of each crime.4 ¶13 The State argues that Savage’s counsel was not ineffective for not objecting to the charges because Savage’s texts were not a part of the same transaction. The State asserts that the charges against Savage are distinct in their dates, their facts, and the content of the texts. The State also argues that the violation of each offense was complete at a particular point in time, and the prohibitions of § 46-11-410(2), MCA, therefore do not apply. ¶14 “A defendant’s conduct underlying the charged offenses may have been similar and may have continued over several years and still constitute separate offenses for which the State has the discretion to charge separately.” State v. Goodenough, 2010 MT 247, ¶ 21, 358 Mont. 219, 245 P.3d 14 (internal citation and quotation omitted). Separate transactions may arise from criminal conduct even when the conduct occurs “at the same place with the same victim.” State v. Foster, 2025 MT 132, ¶ 13, 422 Mont. 419, 571 P.3d 1016 (quoting State v. Geren, 2012 MT 307, ¶ 47, 367 Mont. 437, 291 P.3d 1144). When the “factual 3 Savage was charged under § 45-8-213(1)(b), MCA, of the Privacy in Communications statute, which states that a person commits the offense when the person knowingly or purposely, “uses an electronic communication to attempt to . . . disturb by repeated communications the peace, quiet, or right of privacy of a person at the place where the communications are received[.]” 4 Savage’s opening brief makes a passing reference to the constitutional protections against double jeopardy, but he did not develop a constitutional argument. As such, we limit our analysis to his statutory claim. See Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246, ¶ 42, 358 Mont. 193, 244 P.3d 321 (we do not consider undeveloped issues or arguments on appeal). 7 and evidentiary distinctions” show that “each conviction represented separate and independent criminal acts[,]” they are not part of the same transaction. Foster, ¶ 15. “A factual hallmark of separate offenses arises when acquittal on one charge will not affect the others.” Goodenough, ¶ 21. ¶15 “The definition of ‘same transaction’ compels examination of the facts underlying the charged offenses, including the defendant’s ‘motivat[ion] by . . . a common purpose or plan[.]’” State v. Strong, 2015 MT 251, ¶ 17, 380 Mont. 471, 356 P.3d 1078 (quoting § 46-1-202(23), MCA). The record in this case provides distinct facts to support each violation on each day. On January 19, dissatisfied with his conversation with a sheriff’s deputy the night before, Savage texted dispatch to get a new officer to take his theft report. Three days later, Savage began texting the dispatcher to complain that the sheriff’s office had been lying to him, that the problem had been going on for ten years, and that he wanted a deputy on his “doorstep.” He escalated his language as the day went on and included a threat that the next officer who came to his property “will not step away.” On February 11, after the County had filed charges against him, Savage began texting to report his purported false arrest, complaining that his “freedom was stolen again by Lincoln County” and that he did not do anything wrong. Although each of Savage’s texting sessions may have related back to the long-destroyed cell phone, each offense charged was completed on each of the three days that his conduct occurred; each distinct date involved Savage’s new initiation of contact with the Lincoln County Dispatch through the emergency service; and each offense could have separately been charged at the time it 8 occurred. Savage could have been convicted or acquitted on any count, and it would not have affected the other counts charging the same violation. ¶16 Savage’s claim that the offenses were all part of the same transaction would be stronger had the State sought conviction for each of Savage’s messages on the same day. See Strong, ¶¶ 14-17 (agreeing that a series of phone calls Strong made to his wife from the jail despite an order of protection were part of the same transaction when the calls occurred over a short period of time and were “motivated by a common purpose of discussing their divorce and custody”). But the information alleged one charge of each offense for each of the three temporally separated series of messages on nonconsecutive days. They were not part of the same transaction, and we therefore need not consider the limitations of § 46-11-410(2)(a) and (e), MCA. ¶17 Both the United States Constitution and the Montana Constitution guarantee individuals the right to effective assistance of counsel in criminal prosecutions. State v. Walter, 2018 MT 292, ¶ 13, 393 Mont. 390, 431 P.3d 22; U.S. Const. amend. VI, XIV; Mont. Const. art. II, § 24. To evaluate counsel’s effectiveness, this Court follows the principles outlined in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Walter, ¶ 13. “[T]he defendant must demonstrate that his or her counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” Walter, ¶ 13 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2052). Savage’s counsel was not deficient when he did not object under § 46-11-410, MCA, because there was no basis for a valid objection. Because Savage failed to prove the first prong under Strickland, he has not met his burden to establish ineffective assistance of counsel. 9 ¶18 Issue 2: Did the District Court err in denying Savage’s motion to dismiss Count IV of Privacy in Communications for insufficient evidence? ¶19 Montana’s Privacy in Communications statute provides in pertinent part that: a person commits the offense of violating privacy in communications if the person knowingly or purposely[] . . . (b) uses an electronic communication to attempt to . . . disturb by repeated communications the peace, quiet, or right of privacy of a person at the place where the communications are received. Section 45-8-213(1)(b), MCA. Savage moved to dismiss Count IV—the first Privacy in Communications charge from January 19, 2024—after the State rested. Savage argued that the State did not present testimony “with respect to the peace, quiet or right of privacy [of the dispatcher] having been violated.” The State responded that one dispatcher testified that text-to-911 alerts continue to “go off” until responded to. The State argued that jurors “are allowed to infer” that receiving over ninety texts “with an alert going off constantly during that time is disturbing the peace, the quiet, or the right to privacy of a person[.]” ¶20 The District Court concluded that there was sufficient evidence to support Count IV and that it was wasn’t a “critical fact” that no testimony mentioned the “peace, quiet, or right of privacy[]” of the dispatcher. The court denied Savage’s motion to dismiss Count IV. ¶21 On appeal, Savage argues that dispatchers do not enjoy a right of privacy because it is a public job. Savage maintains that a dispatcher’s job in particular is not one where they are “at peace” or “undisturbed.” The State responds that the District Court correctly concluded that the dispatchers did not have to specifically state that their peace and quiet was disturbed for the evidence to be sufficient. The State asserts that their testimony to the 10 distraction of the repeated text alerts provided the essential elements of a violation of Privacy in Communications. ¶22 Savage texted dispatch starting at 3:19 a.m. on January 19, 2024. After confirming with Savage that his complaint concerned a theft report of his cellphone, the dispatcher advised Savage “this is an emergency line[] . . . as of now you have talked with my officer and there is nothing else I can do.” When Savage texted again about filing a report and the dispatcher explained that the 911 text feature was for actual emergencies, Savage responded that he would “text the 911 system for the rest of my life if I have to . . . .” ¶23 The dispatcher on shift on January 19, 2024, testified that each text-to-911 makes an audible alert that does not stop until dispatch responds or ends the session. The dispatcher also testified that Savage’s constant text messages interfered with the ability to carry out other responsibilities at the dispatch center. ¶24 Savage sent dispatch over ninety text messages within a three-hour period on the date in question. Savage continued to text the dispatcher after being informed that his theft report was not emergent and of the proper avenue to report his complaints. The dispatchers testified that they were distracted by the text messages and that Savage’s conduct interfered with their other duties at the dispatch center. Unlike disorderly conduct, a Privacy in Communications violation does not require that the public peace be disturbed. See State v. Baertsch, 2025 MT 143, ¶ 24, 422 Mont. 528, 571 P.3d 659 (“disorderly conduct requires a disturbance that is public in character or impact”). It instead is specific to the peace “of a person at the place where the communications are received.” Section 45-8-213(1)(b), MCA (emphasis added). The statute limits neither offenses against public employees nor 11 the location at which the victim received the communications. The statute does not green-light repeated harassment of a 911 dispatcher simply because the nature of the job is to field public calls. Viewing the evidence in the light most favorable to the State, we conclude that a reasonable trier of fact could have found beyond a reasonable doubt that Savage committed the offense of Privacy in Communications. CONCLUSION ¶25 For the foregoing reasons, Savage’s convictions are affirmed. /S/ BETH BAKER We Concur: /S/ CORY J. SWANSON /S/ LAURIE McKINNON /S/ KATHERINE M. BIDEGARAY /S/ JIM RICE 12