State v. D. Iverson , 390 Mont. 260 ( 2018 )

02/20/2018
DA 16-0504
Case Number: DA 16-0504
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 27STATE OF MONTANA,
Plaintiff and Appellee,
v.
DARA STARR IVERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 16-020D
Honorable David M. Ortley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate
Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General; Helena, Montana
Edward J. Corrigan, Flathead County Attorney, Alison E. Howard, Deputy
County Attorney; Kalispell, Montana
Submitted on Briefs: January 31, 2018
Decided: February 20, 2018
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Dara Starr Iverson (Iverson) appeals a jury verdict in the Eleventh Judicial District
Court, Flathead County, convicting her of operating a noncommercial vehicle with alcohol
concentration of 0.08 or more (DUI per se), a felony. We affirm in part and reverse in part.
¶2 We restate the issues on appeal as follows:
1. Whether Iverson’s right to due process was violated by a jury instruction that
instructed the jurors, when choosing between two competing interpretations
of circumstantial evidence—one that supports guilt and one that supports
innocence—to choose whichever interpretation was the “most reasonable?”
2. Did the District Court err in imposing cost of legal counsel on Iverson?
3. Did the District Court err in incorporating additional costs in the written
judgment that were stricken in the oral pronouncement?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 12, 2016, Iverson was charged with felony driving under the influence,
in violation of § 61-8-401, MCA. On March 18, 2016, the Information was amended to
add an alternative offense of felony DUI per se in violation of § 61-8-406, MCA.
Following a jury trial, Iverson was acquitted of felony DUI and convicted of felony DUI
per se. Over Iverson’s objection, the District Court instructed the jury, “When
circumstantial evidence is susceptible to two interpretations, one that supports guilt and the
other that supports innocence, the jury determines which is most reasonable” and denied
Iverson’s proposed circumstantial evidence instruction.
¶4 On January 9, 2016, Iverson was stopped for speeding. Upon interaction with
Iverson, Officer Wardensky noted her speech to be slightly slurred and he observed her
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eyes to be red and glassy. He also noted she smelled of alcohol. Iverson admitted to
drinking alcohol and smoking medical marijuana. Iverson admitted going to the Silver
Bullet Bar for dinner and consuming a couple alcoholic drinks. After leaving that bar,
Iverson also admitted to stopping at the Eagles for an additional alcoholic drink. She was
on her way home from the Eagles when she was stopped. Officer Wardensky arrested
Iverson for the offense of DUI. At the detention center, Iverson exhibited indications of
impairment on standard field sobriety tests including raising her arms and losing her
balance on the walk-and-turn test. Iverson refused to provide a breath sample. As such,
Officer Wardensky obtained a search warrant for a blood draw. Approximately two hours
after being stopped, Iverson’s blood alcohol content (BAC) registered 0.107 plus or minus
0.008 grams of ethanol per 100 milliliters of whole blood.
¶5 Montana State Crime Lab forensic toxicologist Douglas Lancon testified regarding
his testing of Iverson’s blood sample explaining his finding of 0.107 reflected Iverson’s
BAC at the time of the blood draw. He explained initial effects of alcohol include
impairment of judgment and euphoria and later effects include slurred speech and
disruption of fine and gross motor skills which impair the ability to successfully complete
field sobriety tests such as the walk-and-turn and one-leg stand. He explained an individual
can begin to exhibit the effects of alcohol within 20 minutes or less of consumption.
Further, depending on how much a person has already consumed, consumption of new
alcohol can affect a person within minutes. Lancon described the uncertainty in attempting
to calculate a person’s BAC at a time prior to her blood draw, noting a variety of impacting
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factors such as the person’s weight, whether she had eaten, when she consumed alcohol,
what alcohol she consumed and how long had she consumed alcohol. Lancon testified the
absorption rate of alcohol varies considerably between 20 minutes and an hour and a half
after consumption and that the body processes alcohol over three phases, the “absorption”
phase, the “peak” phase, and the “elimination” phase.
¶6 Iverson contends there were two reasonable interpretations of the BAC evidence
presented at trial: 1) Iverson’s body was eliminating alcohol at the time she was driving
such that her BAC was above 0.08 at the time she was driving or, 2) Iverson’s body was
absorbing alcohol at the time she was driving such that her BAC was below 0.08 at the
time she was driving.
¶7 Iverson asserts the District Court erred in giving the circumstantial
evidence instruction because it violated her due process right “by authorizing jurors to
find guilt even where they believed the circumstantial evidence also supported a
reasonable–plausible–interpretation supportive of innocence.” Iverson further asserts the
given circumstantial evidence instruction altered the standard of proof the jury must use
when evaluating circumstantial evidence.
¶8 The State contends the District Court did not err in giving the pattern “most
reasonable” instruction. The State asserts the instructions “as a whole fully and fairly
instructed the jury regarding the State’s burden of proof and the presumption of innocence,
and there is no reasonable likelihood that the jury understood the instruction to allow it to
convict Iverson of DUI per se on anything less than proof beyond a reasonable doubt.”
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¶9 Iverson also contends there is a discrepancy between the Court’s oral
pronouncement and its written judgment in that Condition 13(a)(i) requires payment of an
additional $800 in public defender fees which were stricken orally at sentencing. Iverson
alternatively contends the District Court erred by imposing any costs for counsel after its
own determination at sentencing that Iverson did not have the current financial ability to
pay a fine or other fees contained in paragraph 13 of the Presentence-Investigation (PSI)
report and would not have the financial ability to do so within a reasonable time. The State
concurs noting, “the evidence in the record indicates she does not have the present or future
ability to pay these costs.” The State requests “remand with instructions to strike the
portion of Condition 13 of the Judgment ordering Iverson to pay the costs of defense
counsel.”
STANDARD OF REVIEW
¶10 “We review for an abuse of discretion whether the district court correctly instructed
the jury.” Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont. 293,
239 P.3d 904. “[W]hile a district court has broad discretion to formulate jury instructions,
that discretion is limited by the overriding principle that jury instructions must fully and
fairly instruct the jury regarding the applicable law.” Peterson, ¶ 22 (quoting Tarlton v.
Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263) (internal quotations omitted).
“We review the instructions as a whole to determine whether they fully and fairly instruct
the jury on the applicable law.” State v Sanchez, 2017 MT 192, ¶ 7, 388 Mont. 262, 399
P.3d 886 (citing State v. Kaarma, 2017 MT 24, ¶ 7, 386 Mont. 243, 390, P.3d 609). “[T]he
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party assigning error to a district court’s instruction must show prejudice in order to prevail,
and prejudice will not be found if the jury instructions in their entirety state the applicable
law of the case.” Tarlton, ¶ 19 (quoting Murphy Homes, Inc. v. Muller, 2007 MT 140,
¶ 74, 337 Mont. 411, 162 P.3d 106).
¶11 Jury instructions that relieve the State of its burden to prove every element of the
charged offense beyond a reasonable doubt violate the defendant’s due process rights.
State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625 (citing Carella v.
California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420 (1989) (per curiam)). The issue of
whether a defendant’s due process rights were violated is a question of law; we review the
district court’s conclusion to determine whether its interpretation of the law was correct.
Miller, ¶ 11.
DISCUSSION
¶12 1. Whether Iverson’s right to due process was violated by a jury instruction that
instructed the jurors, when choosing between two competing interpretations of
circumstantial evidence–one that supports guilt and one that supports innocence‒to choose
whichever interpretation was the “most reasonable?”
¶13 Iverson properly preserved her objection to this instruction. Iverson asserts the
instruction relieved the State of its burden to prove her guilt beyond a reasonable doubt.
Iverson argues her right to due process was violated by the instruction as it allowed the
jury to convict her based on evidence that was reasonable, rather than requiring proof
beyond a reasonable doubt. The State contends the jury instructions, as a whole, fully and
fairly instructed the jury on all relevant points of law and the instruction at issue, when read
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in totality with the other instructions, did not shift the State’s burden to prove her guilty
beyond a reasonable doubt. The State also contends the case against Iverson was not based
primarily on circumstantial evidence, but was based on direct evidence as testified to by
Officer Wardensky—he observed Iverson speeding in her vehicle, he observed Iverson in
the driver’s seat with no one else in the vehicle, he observed Iverson smelled of alcohol,
he observed Iverson’s eyes to be red and glassy, he watched Iverson demonstrate clues of
impairment when performing field sobriety tests, Iverson admitted to him she had
consumed alcohol at two different bars before being stopped, and as the evening
progressed, he observed Iverson’s speech became clearer and her comprehension level
increased.
¶14 We first consider whether the instructions on a whole fully and fairly instructed the
jury. Sanchez, ¶ 7. The District Court provided jurors with twenty-four instructions. The
District Court instructed the fact that charges were brought against Iverson could not be
taken “as any indication, evidence or proof that the Defendant is guilty of any offense.”
The Court clearly instructed on the burden of proof:
The State of Montana has the burden of proving the guilt of the Defendant
beyond a reasonable doubt. Proof beyond a reasonable doubt is proof of such
a convincing character that a reasonable person would rely and act upon it in
the most important of his or her own affairs. Beyond a reasonable doubt does
not mean beyond any doubt or beyond a shadow of a doubt. The Defendant
is presumed to be innocent of the charge against [her]. This presumption
remains with [her] throughout every stage of the trial and during your
deliberations on the verdict. It is not overcome unless from all the evidence
in the case you are convinced beyond a reasonable doubt that the Defendant
is guilty.
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¶15 The District Court instructed as to Count One that a “person commits the offense of
driving under the influence of alcohol and/or drugs if, while under the influence of alcohol
and/or drugs, he or she drives or is in actual physical control of a vehicle upon the ways of
this state open to the public.” The District Court specifically instructed, “[i]f you find from
your consideration of the evidence that all of these elements have been proved beyond a
reasonable doubt, then you should find the Defendant guilty. If, on the other hand, you
find from your consideration of the evidence that any of these elements have not been
proved beyond a reasonable doubt then you should find the Defendant not guilty.”
¶16 The District Court instructed Count Two was charged in the alternative to Count
One such that Iverson could not be convicted of both offenses. Again, the District Court
instructed the jury as to the specific elements of the offense of operating a noncommercial
vehicle with an alcohol concentration of 0.08 or more and again reiterated that if the
elements were not proved beyond a reasonable doubt, the jury should find Iverson not
guilty.
¶17 The District Court further instructed:
A positive blood alcohol test result does not, in itself, prove that the person
was under the influence of alcohol at the time the person was driving a
vehicle upon the ways of the state open to the public. A person may not be
convicted based upon a positive blood alcohol test alone. The State must
produce other competent evidence that the person was under the influence of
alcohol while driving a vehicle upon the ways of this state open to the public.
You must weigh the evidence presented and decide whether the State has
proven beyond a reasonable doubt that the Defendant was under the influence
of alcohol while driving a vehicle upon the ways of this state open to the
public.
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¶18 The District Court instructed jurors they were the sole judges of the credibility of
witnesses and to determine what weight should be given to the testimony of each witness
upon careful consideration of all the testimony given and the circumstances under which
each witness testified.
¶19 The record is clear the District Court fully and fairly instructed the jury on the
offense of driving under the influence and, in the alternative, operation of a noncommercial
vehicle by a person with an alcohol concentration of 0.08 or more. Each of the individual
offense instructions required the jury to convict only if the State proved each element of
the offense beyond a reasonable doubt. As in Sanchez, we conclude the disputed
instruction did not relieve the State from its burden to prove guilt beyond a reasonable
doubt:
Rather, it only provided the jury with some guidance for resolving competing
interpretations of circumstantial evidence. If the jury found that an
interpretation of circumstantial evidence was reasonable, it could be
considered in conjunction with any other evidence to determine whether the
State met its burden to prove guilt of each offense beyond a reasonable doubt.
It is the overall weight of the evidence, and not any particular inference from
the evidence, that determines the jury’s ultimate decision on guilt. The
existence of alternative interpretations of circumstantial evidence does not
mean that both interpretations are equally persuasive or weighty. . . . This
Court has plainly held that a district court may properly give the
circumstantial evidence instruction which is at issue in this case requiring the
jury to accept the interpretation of circumstantial evidence they believe is the
most reasonable.
Sanchez, ¶¶ 16, 17.
¶20 The jury was able to consider the circumstantial evidence in conjunction with the
direct evidence to determine whether the State proved guilt beyond a reasonable doubt.
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Iverson has failed to show the disputed instruction adversely affected her due process
rights. The District Court fully, fairly and properly instructed the jury that the State must
prove guilt beyond a reasonable doubt. In reviewing the instructions in their entirety, it is
clear the disputed instruction did not violate Iverson’s due process rights.
¶21 2. Did the District Court err in imposing costs of legal counsel on Iverson?
¶22 Section 46-8-113(1), MCA, requires the Court to determine whether Iverson should
pay the cost of assigned counsel. Pursuant to § 46-8-113(4), MCA, the Court may not
sentence Iverson to pay costs of counsel unless she is or will be financially able to pay
those costs.
¶23 Iverson is disabled and lives on a limited, fixed income. She receives $733 per
month in Social Security income and $270 per month in food stamp benefits. At the time
of sentencing, she resided in Section 8 housing and owned no assets other than items of
personal property. In sentencing Iverson, the District Court considered her limited
financial means. The District Court imposed the statutory $5,000 fine and suspended it in
its entirety, stating “I do make the determination that you are not presently able to pay those
fine[s] -- a fine nor will you be in a reasonable amount of time. You’re on a limited income,
it’s a fixed income based on Social Security income.” The District Court further found
Iverson was not financially able to pay fees, costs, and surcharges set forth in paragraph 13
of the PSI report. Given her limited fixed income and disability status, the State concedes
Iverson is not and will not be financially able to pay costs of assigned counsel.
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¶24 The District Court suspended Iverson’s fine and found Iverson financially unable to
now or in the future pay any fine or the fees, costs, and surcharges set forth in paragraph
13 of the PSI report. The District Court has already determined Iverson’s ability to pay
and the record is clear she is financially unable now or in the future to pay the costs of
assigned counsel. As such, this cause is remanded to the District Court to strike the portion
of Condition 13 of the Judgment ordering Iverson to pay any costs of assigned counsel.
Because this issue is dispositive, we need not address Issue 3.
CONCLUSION
¶25 The jury instructions, as a whole, fully and fairly instructed on all relevant points of
law and the instruction at issue, when read in totality with the other instructions, did not
shift the State’s burden to prove Iverson’s guilt beyond a reasonable doubt. Further, the
record is clear Iverson does not have the financial ability now or in the future to pay the
costs of assigned counsel.
¶26 We affirm in part and reverse in part.
/S/ INGRID GUSTAFSON
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE
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