State v. W. Lamoureux, 485 P.3d 192

Background

Defendant William F. Lamoureux (Flathead County resident, prior Privacy in Communications conviction) made three threatening, profanity-laced calls in 2017: one to employee Ashley Dunigan and two to Sam McGough (the victims are connected to Lamoureux’s ex-wife, Stacey).
Calls included explicit threats to kill Stacey, to shoot her, to burn the store, and lewd/profane statements that caused fear and prompted police involvement.
State charged Lamoureux with three counts of Privacy in Communications, § 45-8-213(1)(a) (2017); prior conviction elevated the counts to felonies.
Lamoureux moved to dismiss: claiming the statute is facially overbroad/content-based, that a threat to a third party (Stacey) cannot violate the statute as to the recipient (Sam), and (post-evidence) that jurisdiction was lacking because Sam was in New York for one call; the court denied these motions.
Jury convicted on all three counts; Lamoureux appealed, raising four issues: constitutionality of the statute, third-party threat coverage, jurisdiction for out-of-state recipient, and adequacy of jury instructions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Is § 45-8-213(1)(a) facially overbroad or an unconstitutional content-based restriction?	Statute is constitutional and narrowly tailored; the required specific intent (knowingly/purposely) removes risk to protected speech.	Statute criminalizes protected speech and is content-based because it targets obscene/profane/lewd/threatening content.	Statute is not facially overbroad nor an unconstitutional content-based restriction; intent element saves statute (Dugan controlling).
2. Does a threat about a third person (not the recipient) violate the statute?	A threat to harm a third person can harass/intimidate the recipient and falls within the statute’s plain language.	A threat to a third person is not a threat to the recipient’s person or property and thus fails to state an offense.	Threats to a third party (e.g., the recipient’s daughter) suffice under the statute; statutory "threat" includes threats to any other person or property.
3. Was there sufficient evidence of jurisdiction when the recipient was outside Montana?	Conduct and/or result occurred partly in Montana: calls were made from Montana (or intended to have immediate effects in Montana), so Montana has jurisdiction.	Recipient was in New York; State failed to prove the offense was committed in Montana.	Jurisdiction proper: circumstantial evidence supported that defendant made the calls while in Montana and intended effects in Montana; offense committed partly in state.
4. Did the court improperly amend charges by instructing on uncharged elements?	Instructions were supported by the evidence (defendant’s obscene/threatening language) and did not surprise or prejudice defendant.	Instructions added elements (obscene language; purpose to harass/annoy/offend) not pleaded in the Information, effectively changing the charge.	No reversible error: instructions were supported by the evidence, defendant had notice, and the full statute was given; Spotted Eagle distinguished.

Key Cases Cited

State v. Dugan, 303 P.3d 755 (Mont. 2013) (upheld statute with specific-intent requirement; invalidated prima facie intent provision)
Dugan v. State, 451 P.3d 731 (Wyo. 2019) (persuasive discussion that intent-based harassment statutes regulate conduct, not protected expression)
Virginia v. Black, 538 U.S. 343 (2003) (First Amendment permits prohibiting cross burnings done with intent to intimidate)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words/facially unprotected categories of speech)
Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based regulation is presumptively invalid)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine: statute invalid only if overbreadth is substantial relative to legitimate sweep)
State v. Spottedbear, 380 P.3d 810 (Mont. 2016) (instructional amendments that change essential elements can require reversal when defendant lacks notice)
State v. Lance, 721 P.2d 1258 (Mont. 1986) (threatening speech that terrorizes is not protected)
United States v. Waggy, 936 F.3d 1014 (9th Cir. 2019) (upheld telephone harassment statute with intent element)
Strassheim v. Daily, 221 U.S. 280 (1911) (acts done outside state that produce detrimental effects inside justify prosecution in state)