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State v. Holbach

April 2, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
MITCHELL HOLBACH, DEFENDANT AND APPELLANT



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED.

[¶1] Mitchell Holbach appeals from criminal judgments entered after a jury found him guilty of stalking and two charges of disobeying a judicial order. We affirm, concluding the district court did not err in denying Holbach's motion to exclude evidence because he was not engaged in constitutionally protected activities and because Holbach does not have standing to argue that N.D.C.C. § 12.1-17-07.1 is unconstitutionally vague.

I.

[¶2] In July 2006, Holbach entered a guilty plea to a charge of stalking Joy Dixon. Holbach was sentenced to serve time in jail and placed on supervised probation for two years. As a condition of Holbach's probation, the court ordered that Holbach was not to have any contact with Dixon and was prohibited from being within 500 feet of Dixon, her residence and the schools her children attend. Both Holbach and Dixon live in Minot.

[¶3] In August 2006, Dixon reported to law enforcement that she often saw Holbach as she was driving around town. Over the next couple of months Dixon reported each time she saw Holbach, including when Holbach followed or passed her in his vehicle or when she saw him stopped at stop signs or other locations as she traveled around the city. She claimed that on one occasion he parked along the road on the route to her son's school, pulling out in front of her as she approached his location, that he took a picture as she passed him in her vehicle during one incident, and another time that he held up a sign but she did not see what it said. A couple of times she reported seeing him more than once in a day.

[¶4] In September 2006, Holbach petitioned for a disorderly conduct restraining order against Dixon. A temporary restraining order was issued, but after a hearing the order was dismissed. Holbach appealed, and this Court affirmed the order dismissing the temporary restraining order. Holbach v. Dixon, 2007 ND 60, 730 N.W.2d 613.

[¶5] In October 2006, the court revoked Holbach's probation and ordered Holbach to serve 167 days in jail, after finding Holbach had been within 500 feet of Dixon on several occasions violating the conditions of his probation. Holbach appealed the district court order revoking his probation, and this Court affirmed. State v. Holbach, 2007 ND 114, 735 N.W.2d 862. Holbach was released from jail on the probation revocation in March 2007.

[¶6] After his release Dixon reported Holbach continued to follow and contact her. She claimed that she continued seeing him as she drove around town, that he occasionally followed her and that she often saw him sitting parked in a parking lot of a gas station or shopping center as she drove by. Dixon reported she was driving through town on March 30, 2007 when she passed Holbach who was traveling in the opposite direction. She reported that he turned his vehicle around and began following her, eventually turning off but shortly thereafter that he crossed in front of her. Dixon reported that she was passing a gas station on April 7, 2007 when she noticed Holbach was in the gas station parking lot and that he left the parking lot and began following her. Dixon reported she was driving home on May 2, 2007 when Holbach began following her at a high rate of speed. She became frightened, called 911 and was advised to go to the police station, but when she arrived at the police station, Holbach was already there. Dixon also reported receiving at least one letter from Holbach between July 2006 and May 2007. Approximately forty alleged contacts occurred between July 18, 2006 and May 16, 2007.

[¶7] On May 24, 2007, Holbach was charged with one count of stalking and one count of disobeying a judicial order. Holbach was later charged with a second charge of disobeying a judicial order.

[¶8] Holbach moved to determine whether some instances of the alleged stalking conduct were constitutionally protected and whether evidence of those instances should be excluded. Holbach argued he was engaged in the normal course of daily constitutionally protected activities and any contact between himself and Dixon was coincidental. Holbach also moved to determine the constitutionality of N.D.C.C. § 12.1-17-07.1, the criminal offense of stalking. He argued N.D.C.C. § 12.1-17-07.1 is unconstitutionally vague because it does not provide adequate warning of prohibited conduct and fails to prevent arbitrary and discriminatory enforcement. He also argued the statute was unconstitutionally overbroad because it criminalizes constitutionally protected activity. The district court denied his motions.

[¶9] A jury trial was held, and Holbach was found guilty of all three charges.

II.

[ΒΆ10] Holbach argues the alleged stalking conduct occurred while he was engaged in constitutionally protected activities and the district court erred in denying his motion to exclude evidence of this conduct. Holbach claims he was engaged in legitimate activities and the parties were likely to run into each other frequently while conducting everyday business since they both reside and commute in the same general area of town. He contends he was engaged in ...


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