State v. Lias

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The appellant, Don Lias, was convicted in Justice Court on the charge of driving under the influence. He appealed to District Court, and a jury returned a verdict of guilty. He now appeals to this Court.

We affirm.

At about 9:00 p.m. on May 28, 1983, appellant, in search of his business partner, went to a stock car race near Helena, Montana. He purchased one beer and then a second. After purchasing the second beer he was involved in a fight, and the beer was spilled on him. He was injured in the fight and suffered severe pain and disorientation. He then found his business partner and left to go home. He contends he did not drink any more that night.

Between 11:00 p.m. and 12:00 midnight, a highway patrolman found appellant asleep in a vehicle parked in the median of Interstate 15. The vehicle lights were on, and the engine was running.

When appellant awoke, the patrolman found him somewhat impaired in speech and mobility. The patrolman detected a strong smell of alcohol. After some discussion and informing himself of the situation, the patrolman arrested appellant for driving under the influence. Appellant refused a field sobriety test. He showed indications of belligerence and noncooperation. Because of appellant’s belligerence, the patrolman radioed for help. An assisting officer arrived, and appellant was taken to jail.

In Justice Court, on August 30,1983, appellant was found guilty of driving under the influence. He appealed to the District Court, and on April 9, 1984, a six-person jury returned a verdict of guilty. Appellant appeals to this Court.

The issues presented are:

1. Whether certain testimony elicited by the prosecutor was in violation of an order granting a motion in limine to preclude certain testimony and, if so, absent timely objection, whether it was plain error, depriving appellant of a fair trial.

2. Whether sufficient evidence supports the verdict of guilty beyond a reasonable doubt.

The first issue is whether certain testimony violated an order precluding mention of certain matters and, if so, whether, absent a timely objection, it falls within “plain error.” The testimony violated the order, but no objection was made. We determine that the plain error doctrine does not apply.

On appeal from Justice Court to District Court, appellant filed a motion in limine to preclude:

1. Any reference to a finding of guilty in Justice Court.

2. Any reference, by way of impeachment or rebuttal or otherwise, to any statements made by Defendant in Justice Court.

A minute entry is the only record of a ruling on the motion in limine. It stated that the motion was granted. The State argues that it understood the granting of the motion to not preclude evidence of statements made by the appellant under oath for purposes of impeachment. The motion, according to the minute entry of the clerk of court, was granted in its entirety and prohibited such testimony. However, the record as to precisely what the court ruled in chambers with relation to the motion in limine is not complete, as no record exists of the discussion and ruling on the motion other than the clerk of court’s minute entry. Rule 613, Mont.R.Evid., authorizes the use of prior inconsistent statements for the purpose of impeachment.

The questioned testimony was testimony elicited on cross-examination and testimony by a rebuttal witness called to impeach appellant by a prior inconsistent statement. The subsequent inconsistent statement was elicited by the prosecution on cross-examination:

“Q. Isn’t it true that on August 30, 1983, while under oath you stated that you had had nothing to drink on May 28, 1983?

“A. I don’t think so.”

In response to a question regarding statements made by appellant on August 30,1983, concerning drinking, the rebuttal witness, called to impeach the above testimony, stated:

“A. He said, no, he didn’t, he hadn’t consumed any alcohol that day.”

August 30, 1983, was the date of the trial at Justice Court. All reference to statements made by the appellant at that trial were prohibited by the granting of the motion in limine. It was error for the prosecution to elicit the statement on cross-examination, and it was error to introduce the rebuttal testimony. However, such errors are, in this case, harmless errors.

The absence of appellant’s objection to or the court’s intervention in the cross-examination and rebuttal testimony suggests that counsel and the court recognized that the motion in limine could not properly prevent the use of prior inconsistent statements for impeachment purposes under Rule 613, Mont.R.Evid. Here the substantial rights of the appellant were not affected. Viewing the entire record, the questioned testimony could only have had little, if any, damaging effect on the jury determination. If error, it was harmless error, and the “plain error” doctrine does not apply. Errors not affecting substantial rights shall be disregarded. Section 46-20-702, MCA.

The second issue is whether substantial evidence supports the jury verdict. In applying the substantial evidence test to determine whether there was sufficient evidence to support the jury verdict, this Court is governed by established principles. In applying the test the evidence is viewed in a light most favorable to the prevailing party. The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail. The test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. State v. Green (Mont. 1984), [212 Mont. 20,] 685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564; State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; State v. Martinez (1980), 188 Mont. 271, 281-282, 613 P.2d 974, 980.

In this case substantial evidence supports the jury verdict. Appellant was found asleep in his vehicle parked in an interstate median. The vehicle lights were on, and the engine was running. He was impaired in speech and mobility and there was a strong smell of alcohol about him. He showed signs of belligerence and noncooperation.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, WEBER and GULBRANDSON concur.