STATE v. PEIN (2026)

¶1 David Allen Pein (Pein) appeals from an order issued by the Tenth Judicial District Court, Fergus County, charging Pein with purposely or knowingly abusing an elderly person, and first-offense partner or family member assault (PFMA). The District Court found that Pein had caused mental injury to his 80-year-old stepfather Dennis Harley Kuhfus (Dennis) “by threatening him, getting into his face and yelling at him, and causing him to live in fear for 3 years.” The PFMA arose from an incident in which Pein punched Dennis three times in the left cheek.

¶2 Pein presents the following issues for review:

1. Did the District Court have sufficient evidence to convict Pein of abuse of an elderly person without the use of expert witness testimony?

2. Did the District Court commit plain error that warrants reversal when it accepted Pein's verbal requests for a bench trial?

3. Do Pein's facial constitutional challenges for vagueness and overbreadth fail because Pein's conduct is clearly proscribed by the elder abuse statute?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Dennis stepped into the role of stepfather for Pein when Pein was just eight years old. Years later, Dennis had seen his health steadily decline to the point that he became dependent upon others to help him. His wife Roseanna did her best to assist him, but after suffering from a heart attack and broken hip, she could no longer fill that role. This prompted the couple to move into a care home known as Valle Vista.

¶5 In the years prior to Dennis and Roseanna moving to Valle Vista together, Pein would occasionally come to his parents’ house to perform tasks such as mowing the lawn, shoveling snow, fixing meals, or just checking in on them. However, Pein's sister, Bethany, testified that she had witnessed interactions between Pein and Dennis that gave her concern. One such occasion was when Pein and Dennis got into an argument on Christmas Day that escalated to the point that Bethany's husband had to step in; Dennis told Pein to stop several times. Bethany also described another time where, after Dennis had grown weaker and was more often confined to a wheelchair, Pein went to help him out of his wheelchair but instead got behind Dennis “and physically put his hands up underneath [Dennis's] armpits and just kind of shook him.” As a nurse of 15 years, Bethany recognized this was an inappropriate way to assist an older person. She further testified that “it was like a restrained rage” and that “it was like a threat.” Lastly, Bethany explained that Pein appeared to be denying Dennis simple pleasures such as ice cream.

¶6 Before the trial in this matter began, Dennis died. However, he participated in an audio and video recorded deposition conducted by the State that was entered into evidence. In that deposition, Dennis described the turmoil he suffered at the hands of Pein. Particularly of note, Dennis detailed a time Pein physically assaulted him. He explained that Pein came into his house seeking money and got right into his face while he was lying in bed. “[Y]ou could tell it in his eyes he was just getting more and more frustrated up to the point where he just came back with his right fist and biff, biff, biff, three quick slugs against the left cheekbone ․” Dennis further testified that Pein's “crescendo built to the point where he, I guess that was the only way he could vent his frustrations.” Dennis explained his cheek did not bruise, but it was tender and puffy. He described the event as “the culmination of his fears and anxieties that it finally happened.” Dennis further described Pein as having a “rather radical temper,” and that this behavior of getting into his face had been happening to varying degrees for “at least two, maybe as much as three years.” Pein even went as far as telling Dennis that “he should have killed [him] when he had a chance.” Many of the verbal assaults were premised upon Dennis refusing to give Pein money.

¶7 In his deposition, Dennis admitted that he had wanted to report Pein for years but held off on doing so out of respect for his wife. After he obtained an order of protection against Pein, Dennis testified that “he had feelings of ‘Thank God. Feelings of thank God.’ ” When asked how he would feel if he saw Pein on the street, Dennis explained that “on one hand [he] would be anxious, but then [he] would probably be thinking ․ thank God we're out here in front of God and everybody, that maybe I might be okay, physically safe ․” and that “[he] would be looking forward to the meeting to come to an end ․” He further testified that if Pein were to ever get away, he “would be full of all kinds of fear and anxieties ․” Moreover, when asked whether he felt safe with Pein taking “free rein” to come into the house whenever he pleased, Dennis explained that while he did not initially feel unsafe, the anxieties would begin to creep in when he found out what Pein wanted. Finally, “when it was becoming clear to [Pein] that he wasn't about to get his way and there wasn't a way that he couldn't, quote, ‘get his way,’ then this would trigger ․ the anxiety in him and anger would start to build in him towards me.” Dennis then felt that he was going to be in danger because of Pein's temper.

¶8 The day before trial was to begin, Pein filed a notice with the District Court explaining that he would be arguing that a plea agreement was offered and that he had accepted that offer. Additionally, Pein requested a Gallagher 1 hearing. The next day, the prosecutor explained that while global negotiations were explored both for this case and a case that was in front of the same judge the previous week, she withdrew the global offer about a month prior. The court granted Pein's request and conducted a Gallagher hearing where it further ruled the offer had been withdrawn prior to acceptance.

¶9 With a jury trial set to begin and prospective jurors waiting outside the courtroom, Pein requested a bench trial and to waive his right to a jury. The District Court asked extensive questions to ensure that Pein was knowingly and willingly waiving his right to a jury trial. Following a recess, Pein's counsel agreed that sworn testimony made sense and that a written waiver was not necessary. The court conducted the following colloquy:

COURT: Is it correct that you wish to waive your constitutional right to a jury trial in this matter?

PEIN: Yes, Your Honor.

COURT: And you understand that we have a perspective [sic] jury panel waiting outside the courtroom at this time?

PEIN: Yes, Your Honor, thank you.

COURT: Are you doing this knowingly and willingly?

PEIN: Yes, Your Honor.

COURT: Has anyone coerced you into waiving your right to a jury trial?

PEIN: No, Your Honor.

COURT: Do you think it's in your best interest to proceed with a bench trial and waive your right to a jury trial?

PEIN: Yes, Your Honor.

COURT: And is there any other reason that you wisht o [sic] waive a jury trial today or can you tell me what the reason is that you'd rather have a bench trial?

PEIN: Your Honor, you've had experience with me already in this courtroom and I think what we saw last time with the hung jury and then it didn't go through. I don't want to take that opportunity sir and I've seen your discretion in the law and evidentiary facts, and I think your ruling will be more than fair.

COURT: All right. Do you understand that there's no guarantee what I'm gonna rule, I don't know what I'm gonna rule.

PEIN: Oh, I'm not predicting anything other than the facts to be presented and you will make a fair and accurate ruling sir.

COURT: Okay. Okay let me just be clear. Are you under the influence of alcohol or any intoxicating drugs today?

PEIN: No intoxications sir.

COURT: Do you have any mental or physical impairments today?

PEIN: No, Your Honor.

COURT: Okay. And did you have enough time to discuss this with your counsel?

PEIN: The bench trial, yes.

COURT: Okay. And you were able to communicate with Mr. Jacobi about this issue and he advised you in this matter?

PEIN: Your Honor, it was his idea three weeks ago.

COURT: So, you've discussed it 3 weeks ago.

PEIN: We had an opportunity for a few minutes and then I've contemplated the option of a jury or a bench trial, yes.

COURT: Okay. So, at this point it's your request that the jury panel be excused and that we'll proceed with a trial today in which this Court will make the ultimate decision is that what you're asking?

PEIN: Yes, Your Honor.

Pein's counsel then confirmed with the District Court that Pein had knowingly, voluntarily, and intelligently waived his right to a jury trial. Thus, Pein's request for a bench trial was granted.

¶10 Following a two-day bench trial on February 14-15, 2024, the District Court found Pein guilty of both Count I: Abuse of an Older Person and Count II: PFMA. Pein was sentenced to Montana State Prison for 10 years for elder abuse and one year concurrent in jail for first offense PFMA. Pein appeals.

STANDARD OF REVIEW

¶11 In criminal matters, questions on the sufficiency of the evidence are reviewed to determine whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. State v. Spottedbear, 2016 MT 243, ¶ 8, 385 Mont. 68, 380 P.3d 810. The evidence is reviewed in the light most favorable to the prosecution. Spottedbear, ¶ 8.

¶12 Generally, this Court does not address issues being raised for the first time on appeal. State v. George, 2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d 854. However, errors implicating a criminal defendant's fundamental rights may be reviewed under our discretion through the common law plain error doctrine. State v. Akers, 2017 MT 311, ¶ 13, 389 Mont. 531, 408 P.3d 142. The burden of proof is on the appealing party to establish plain error review, and they must “firmly convince” this Court that, under the totality of the circumstances, the alleged error would result in a manifest miscarriage of justice, call into question the fairness of the trial or proceeding, or compromise the integrity of the judicial process. George, ¶ 5.

¶13 “This Court exercises plenary review over constitutional questions.” Spottedbear, ¶ 7. Statutes are presumed to be constitutional. State v. Martel, 273 Mont. 143, 148, 902 P.2d 14, 17 (1995).

DISCUSSION

¶14 1. Did the District Court have sufficient evidence to convict Pein of abuse of an elderly person without the use of expert witness testimony?

¶15 Pein argues the State was required to produce a qualified expert to render an opinion on what constitutes mental injury to have sufficient evidence to support Pein's conviction. The State maintains Pein is raising this argument for the first time on appeal. We first address whether Pein has preserved this issue for appeal.

¶16 An issue is not timely raised and may not be raised on appeal if it has not been raised in the pleadings, is not presented in argument, the party does not move to amend the pleadings to conform to any evidence presented, or it is raised for the first time in a post-hearing memorandum which the district court has not been able to address. Nason v. Leistiko, 1998 MT 217, ¶ 18, 290 Mont. 460, 963 P.2d 1279. During trial, Pein's counsel confirmed with the District Court that Pein's motion for a directed verdict under § 46-16-403, MCA (2023),² was to both offenses, rather than just the PFMA charge. Pein argued that the State's witness claimed mental injury which was outside the factfinder's common experience. Upon careful review of the record, we consider the exchange between the District Court and Pein's counsel sufficient to have preserved the issue for appeal.

¶17 To establish the offense of abuse of a vulnerable adult in this case, the State must prove beyond a reasonable doubt that the defendant purposely or knowingly inflicted a mental injury on a vulnerable adult. Sections 52-3-803(1)(a), -825(2), MCA (2023). “Mental injury” is defined as “an identifiable and substantial impairment of a person's intellectual or psychological functioning or well-being.” Section 52-3-803(6), MCA (2023). Pein cites to several civil negligence cases where it is well established that proof of bodily and mental injuries does require expert testimony. See, e.g., Breuer v. State, 2023 MT 242, ¶ 20, 414 Mont. 256, 539 P.3d 1147; Hinkle v. Shepherd Sch. Dist. No. 37, 2004 MT 175, ¶¶ 35-38, 322 Mont. 80, 93 P.3d 1239; Henricksen v. State, 2004 MT 20, ¶ 70, 319 Mont. 307, 84 P.3d 38.

¶18 Our precedent in criminal cases, however, is distinguishable. For example, in State v. Bower, this Court stated that “a nonexpert witness is competent to testify as to his or her past or present condition.” State v. Bower, 254 Mont. 1, 10, 833 P.2d 1106, 1112 (1992) (citing Cain v. Stevenson, 218 Mont. 101, 105, 706 P.2d 128, 131 (1985)). In that case, we permitted the victim of an aggravated assault to testify about the facial scars he suffered, while also holding it was not necessary for the State to produce expert medical testimony to establish bodily injury under the circumstances of that case. Bower, 254 Mont. at 10, 833 P.2d at 1112. Similarly, this Court has never held that expert testimony is required to establish cause of death. State v. Laird, 2019 MT 198, ¶¶ 69-70, 397 Mont. 29, 447 P.3d 416. In Laird, we explained that “our case law reflects the well-established concept that direct and circumstantial evidence exist on equal footing and that circumstantial evidence is sufficient to prove any element of an offense and to sustain a conviction.” Laird, ¶ 70.

¶19 Additionally, mental injury, like substantial emotional distress, is an emotional injury. For substantial emotional distress, this Court employs the “reasonable person” standard. Martel, 273 Mont. at 150-51, 902 P.2d at 19 (1995). In other words, we ask “[w]hen faced with the conduct complained of, would a reasonable person feel apprehension or substantial emotional distress?” Martel, 273 Mont. at 150, 902 P.2d at 19. The reasonable person standard is an objective one. Martel, 273 Mont. at 150, 902 P.2d at 19. In Martel, we explained that the reasonable person standard was the “most appropriate way of quantifying an abstract concept such as emotional distress.” Martel, 273 Mont. at 150, 902 P.2d at 19.

¶20 Applying our precedent here, we conclude that expert testimony is not necessary to establish mental injury under these circumstances. Consistent with our holding in Bower, Dennis could testify to Pein's abuse as well as to the fear and anxiety he felt for several years because of Pein's unpredictable temper. The same logic applies to Bethany's testimony; she was competent to testify about her personal observations of both Dennis's and Pein's emotions—fear and rage, respectively. Moreover, the use of a reasonable person standard in this case allows a factfinder to use their own common experience to assess whether Pein intentionally inflicted a substantial and identifiable impairment to Dennis's well-being. The District Court was the factfinder and found credible the testimony of verbal and physical abuse, threats of harm, and swearing. Therefore, it was able to conclude that there was sufficient evidence that Pein knowingly caused Dennis to live with mental anxiety and fear, thus causing him to suffer from an identifiable and substantial impairment of his well-being.

¶21 Pein cites the evolution of Montana's child abuse and neglect statutes to support his argument that expert testimony of mental abuse is required. Prior to 1997, the child abuse and neglect statutes defined “mental injury” similarly to the modern definition of “mental injury” of a vulnerable person, with the only difference being that the vulnerable person definition includes “well-being.” Compare § 41-3-102(10), MCA (1995), with § 52-3-803(6), MCA (2023). Years later, the legislature removed the “mental injury” definition under the child abuse and neglect statutes and replaced it with “psychological abuse or neglect.” See, e.g., § 41-3-102(14), MCA (2021). “Psychological abuse or neglect” was defined as “severe maltreatment through acts or omissions that are injurious to the child's emotional, intellectual, or psychological capacity to function, including acts of violence against another person residing in the child's home.” Section 41-3-102(14), MCA (2021). Most recently, in 2023, the Montana legislature settled on a definition of “psychological abuse and neglect” which required a medical professional to identify the mental abuse:

(a) “Psychological abuse or neglect” means severe maltreatment, through acts or omissions, that is injurious to the child's intellectual or psychological capacity to function and that is identified as psychological abuse or neglect by a licensed psychologist, a licensed professional counselor, a licensed clinical social worker, a licensed psychiatrist, a licensed pediatrician, or a licensed advanced practice registered nurse with a focused practice in psychiatry.

Section 41-3-102(25)(a), MCA (2023). Pein argues that this trend towards requiring expert testimony in child abuse and neglect cases should likewise apply to other statutory mental or psychological abuse definitions.

¶22 However, although the Legislature in 2023 amended the definition of “psychological abuse or neglect” of a child to expressly require a licensed expert to identify the abuse, the Legislature did not include that same express requirement to prove mental injury of a vulnerable adult. Compare § 41-3-102(25)(a), MCA (2023), with § 52-3-803(6), MCA (2023). In fact, while Montana's Vulnerable Adult Prevention of Abuse Act has undergone some name changes over the years, its definition of “mental injury” has remained unchanged since its implementation in 1983. 1983 Mont. Laws ch. 623, § 3(4). The legislature's continuous omission of an expert witness requirement for mental injury to a vulnerable adult, in contrast to its inclusion in “psychological abuse or neglect” of a child, is a clear indication that the Legislature did not intend to include an expert witness requirement to establish the offense of mental injury to a vulnerable adult. Our “role is not to determine the prudence of a legislative decision ․ [i]t is for the legislature to pass upon the wisdom of a statute.” Rohlfs v. Klemenhagen, LLC, 2009 MT 440, ¶ 20, 354 Mont. 133, 227 P.3d 42 (citations omitted). Nor does inartful legislative drafting “excuse us from the responsibility of construing a statute as faithfully as possible to its actual text.” In re N.A., 2021 MT 228, ¶ 13 n.1, 405 Mont. 277, 495 P.3d 45 (citations omitted).

¶23 We conclude that expert testimony is not required to establish “mental injury” under § 52-3-803(6), MCA (2023). Over a two-to-three-year period, Dennis lived with fear and anxiety due to Pein's verbal and physical abuse. Viewed in the light most favorable to the prosecution, we conclude the evidence in the record is sufficient to establish that Pein caused an identifiable and substantial impairment of Dennis's well-being.

¶24 2. Did the District Court commit plain error that warrants reversal when it accepted Pein's verbal requests for a bench trial?

¶25 In Pein's opening brief, he concedes that this issue was not preserved for review. However, in his reply brief, he retracts that statement and argues that this issue was preserved because he raised it at sentencing. An issue not objected to at the trial court, including constitutional issues, is unpreserved and generally will not be reviewed by this Court. See, e.g., State v. Roundstone, 2011 MT 227, ¶ 31, 362 Mont. 74, 261 P.3d 1009; State v. Polak, 2021 MT 307, ¶ 9, 406 Mont. 421, 499 P.3d 565. Here, the failure to obtain a written waiver was not raised by Pein until sentencing. Therefore, this objection was not preserved.

¶26 However, plain error review is an exception to our general rule for issues not preserved for appeal. Akers, ¶ 10. To invoke plain error review, the appellant must “(1) show that the claimed error implicates a fundamental right and (2) ‘firmly convince’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737. Plain error review is reserved for exceptional cases. State v. Robertson, 2015 MT 266, ¶ 13, 381 Mont. 75, 364 P.3d 580. It is employed sparingly on a case-by-case basis and shall consider the “totality of [the] circumstances of each case.” Akers, ¶ 13.

¶27 “The right to a trial by jury is fundamental, personal to the defendant, and is guaranteed by both the Montana and Federal Constitutions.” State v. Reim, 2014 MT 108, ¶ 30, 374 Mont. 487, 323 P.3d 880 (citing Mont. Const. art. II, §§ 24, 26; U.S. Const. art. III, § 2; U.S. Const. amend. VI; State v. Dahlin, 1998 MT 113, ¶ 15, 289 Mont. 182, 961 P.2d 1247). Under Article II, Section 26, of the Montana Constitution, a jury trial is guaranteed to all and shall remain inviolate unless waived in a manner provided by law. Mont. Const. art. II, § 26. Waiver of a jury trial in a felony case is governed by § 46-16-110(3), MCA (2023), which provides that a trial by jury may be waived through written consent of the parties. Additionally, for a waiver to be effective, the defendant must make the waiver knowingly, intelligently, and voluntarily. Reim, ¶ 31 (citing State v. Walker, 2008 MT 244, ¶ 18, 344 Mont. 477, 188 P.3d 1069).

¶28 Both parties rely heavily on Dahlin and Reim; two cases where we exercised plain error review to address a claim by the defendant that the district court improperly concluded they waived their right to a jury trial. Dahlin, ¶ 15; Reim, ¶ 30. In Dahlin, a waiver was granted despite the absence of a written waiver or other evidence in the record that the defendant consented to the waiver. Dahlin, ¶ 5. Rather, the district court relied solely on the oral representation of Dahlin's counsel when determining that Dahlin had consented to a bench trial. Dahlin, ¶¶ 5, 11. We held the waiver was ineffective because the oral representations of counsel alone are insufficient to satisfy the requirements of § 46-16-110(3), MCA (2023). Dahlin, ¶¶ 20, 24. Moreover, we held that for a criminal defendant to waive their right to a jury trial, the waiver must be in writing with the consent of both parties and filed with the district court. Dahlin, ¶ 23.

¶29 In Reim, we likewise considered whether the district court committed plain error when it concluded that Reim had waived his right to a jury trial without obtaining a written waiver. Reim, ¶¶ 28-33. However, unlike Dahlin, Reim's counsel filed a motion with the court to vacate the jury trial and set the matter for a bench trial following an omnibus hearing where the State waived its right to a jury trial. Reim, ¶ 33. Neither Reim nor his counsel ever objected to the waiver or proceeding with a bench trial. Reim, ¶¶ 23, 33. We exercised plain error review and upheld the waiver on the grounds that the motion signed by Reim's attorney, along with Reim's acquiescence to the judge's statement at trial and participation in the bench trial, demonstrated there was no manifest miscarriage of justice and no question about the fundamental fairness or integrity of the trial. Reim, ¶ 34.

¶30 While the record shows, and Pein does not contest, that he knowingly, intelligently, and voluntarily waived his right to a jury trial, a written waiver was statutorily required because it was a felony. Although Pein has satisfied his burden of showing that a fundamental right was implicated, he still bears the burden of firmly convincing this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Norman, ¶ 17. Neither Pein's opening brief nor reply brief present an argument satisfying this burden.

¶31 Nor could Pein have met this burden. On the first day of trial and before the jury was drawn, Pein asked the court for a bench trial. His counsel agreed that testimony from Pein regarding his wavier would be appropriate in the absence of a written waiver. On the stand, Pein expressly acknowledged a jury was available if he wanted a jury trial and that he was waiving his right knowingly and willingly. Pein agreed he had not been coerced; he believed a bench trial was in his best interest; he was not under the influence of drugs or alcohol; he had no mental or physical impairments; he had time both in the weeks leading up to the trial and in a recess to confer with counsel; and he ultimately wished to have a bench trial. During the bench trial, neither Pein nor his counsel ever challenged the absence of a written waiver. These facts demonstrate that Pein was not denied a fair trial and that the error did not result in a manifest miscarriage of justice. Therefore, we will not reverse the District Court for accepting Pein's oral waiver of his right to a jury trial without a written waiver.

¶32 3. Do Pein's facial constitutional challenges for vagueness and overbreadth fail because Pein's conduct is clearly proscribed by the elder abuse statute?

¶33 Pein argues the statutory definition of “mental injury” under the Montana Vulnerable Adult Prevention of Abuse Act is both unconstitutionally vague and overbroad. He raised neither claim in the trial court.

¶34 Vague statutes are an infringement upon a citizen's right to due process under both the United States and Montana constitutions. State v. Knudson, 2007 MT 324, ¶ 18, 340 Mont. 167, 174 P.3d 469. If there is speculation as to whether a contemplated course of action may be subject to criminal penalties under a particular statute, this Court will find that statute to be unconstitutionally vague. Knudson, ¶ 18. “The void for vagueness doctrine ‘requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Knudson, ¶ 18 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). If a statute fails to give a person of ordinary intelligence fair notice that their contemplated conduct is forbidden, then the statute will be void on its face. State v. Nye, 283 Mont. 505, 513, 943 P.2d 96,101 (1997).

¶35 “An overbroad statute is one that is designed to burden or punish activities that are not constitutionally protected but includes within its scope activities that are protected by the First Amendment.” State v. Lamoureux, 2021 MT 94, ¶ 15, 404 Mont. 61, 485 P.3d 192. Generally, statutes are evaluated considering the situation and facts before the court, but the overbreadth doctrine is an exception to this rule. Spottedbear, ¶ 15. Application of the overbreadth doctrine is done sparingly and a statute will be found unconstitutionally overbroad “only if its overbreadth is not only ‘real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.’ ” Spottedbear, ¶ 15 (quoting State v. Lilburn, 265 Mont. 258, 264-65, 875 P.2d 1036, 1040 (1994)).

¶36 Pein did not raise an as-applied vagueness or overbreadth challenge to the elder abuse statutes in the trial court. Accordingly, he may not raise an unpreserved as-applied challenge on appeal. State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244. However, a facial challenge to a statute may be raised for the first time on appeal. Parkhill, ¶ 16. The party who raises a facial challenge to the constitutionality of a statute has the burden of proving beyond a reasonable doubt that it is unconstitutional. State v. Trull, 2006 MT 119, ¶ 30, 332 Mont. 233, 136 P.3d 551. To meet their burden, the party must show either that “ ‘no set of circumstances exists’ under which the statute would be valid or that the statute lacks a ‘plainly legitimate sweep.’ ” In re S.M., 2017 MT 244, ¶ 10, 389 Mont. 28, 403 P.3d 324 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190, 170 L.Ed.2d 151 (2008)) (internal citations omitted).

¶37 We have made clear that if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness or overbreadth. Nye, 283 Mont. at 515-16, 943 P.2d at 102-03. Because Pein's verbal and physical abuse, threats, and intimidation clearly fell within the conduct proscribed by § 52-3-803(6), MCA (2023), his facial challenge must fail. Finally, a party may ask this Court to exercise its discretionary power of plain error review to consider alleged constitutional errors. See Reim, ¶ 29. Pein has requested this Court to exercise plain error review over all his unpreserved claims. However, Pein has not advanced an argument, other than establishing a fundamental right is implicated, showing how the error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Plain error review is reserved for exceptional cases, and Pein has not presented a sufficient argument to convince us that these proceedings present such a case. Accordingly, we decline Pein's invitation to exercise plain error review over his constitutional vagueness and overbreadth challenges to § 52-3-803(6), MCA (2023).

CONCLUSION

¶38 We conclude that the lack of expert testimony did not render the State's evidence insufficient to support a conviction for abuse of a vulnerable adult. Expert testimony is not required to establish mental injury and like emotional distress, emotional injury utilizes the reasonable person standard, which is an objective standard. We also conclude that Pein's conviction should not be reversed for the District Court's failure to obtain his written waiver. Although we acknowledge the requirement for a written waiver, Pein and his counsel agreed that testimony from Pein regarding his waiver would be appropriate in the absence of a written waiver. Additionally, Pein failed to establish that he was denied a fair trial or that the error resulted in a manifest miscarriage of justice. Finally, Pein's vagueness and overbreadth challenges must be construed as facial challenges. Because Pein's conduct is clearly proscribed by the statute, his facial challenge must fail. We decline to exercise plain error review of his constitutional challenges to § 52-3-803(6), MCA (2023).

¶39 Affirmed.

FOOTNOTES

1.   State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817.

2.   Because this case was decided in the lower court prior to the 2025 amendments, the 2023 version of Montana Code Annotated applies. Section 1-2-109, MCA.

Justice Laurie McKinnon delivered the Opinion of the Court.

We Concur: CORY J. SWANSON, C.J. JAMES JEREMIAH SHEA, J. BETH BAKER, J. JIM RICE, J.