## Facts

- Roman Sonny McCarthy and Karen McCarthy had an intermittent romantic relationship over roughly 15 years.
- After the relationship deteriorated, each obtained an order of protection against the other; Karen’s order barred Roman from harassing, intimidating, or contacting her directly or through third parties.
- Roman continued unwanted contact and was previously convicted of stalking Karen.
- While incarcerated, Roman mailed a letter addressed jointly to Karen and a victim–witness coordinator at the county attorney’s office; the coordinator opened it during official duties, read it, gave it to a detective, and contacted Karen about its contents.
- The next week, Roman mailed a second letter directly to Karen; she did not open it and instead turned it over to police.
- Based on these letters and the broader history of contact, the State charged Roman with felony stalking under Montana’s stalking statute.

## Issues

1. Whether “repeatedly,” as used in Montana’s stalking statute, requires more than two acts.
2. Whether evidence was sufficient to prove stalking where the victim did not personally open and read the defendant’s letters.
3. Whether the stalking statute was void for vagueness under the Fourteenth Amendment.
4. Whether the stalking statute was facially overbroad under the First Amendment.

## Decision

- The Montana Supreme Court affirmed the conviction.
- The court held that “repeatedly” means “more than once,” so two letters could satisfy the statute’s repetition requirement.
- The court held the evidence sufficient because the first letter’s contents were communicated to the victim through the victim–witness coordinator and the second letter, viewed in context, supported a finding of statutory harm under an objective standard.
- The court declined to address vagueness and overbreadth challenges because they were not preserved in the trial court and no exception justified review on appeal.

## Legal Principles

- Under Montana’s stalking statute, “repeatedly” means more than one instance of prohibited conduct; it does not require three or more acts.
- Proof of “substantial emotional distress” or reasonable fear of bodily injury is assessed using an objective reasonable-person standard in the victim’s circumstances.
- Stalking can be established even if the victim does not personally read a communication, where the defendant intended it for the victim and its contents are effectively conveyed, and the conduct meets statutory criteria in context.
- Constitutional challenges generally must be raised in the trial court; issues first raised on appeal are waived absent a recognized exception.

## Conclusion

The court upheld a felony stalking conviction based on two letters sent in violation of protective orders and a history of unwanted contact, ruling that the statute’s “repeatedly” element requires only more than one act and that the victim’s personal reading of the communications was not required where the content was relayed and the evidence supported the statutory harm under an objective standard.


State v. McCarthy, 980 P.2d 629 (Mont. 1999)