No. 13330 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,

LOUIS ARTHUR ANDERSON, Defendant and Appellant.

Appeal from: District Court of theFourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: D. R. Matthews argued, Missoula, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Douglas G. Harkin argued, County Attorney, Hamilton,

Montana

Submitted: October 22, 1976 Decided: 

### DEC

## 131976 Filed: j~l; 

## i3

# lmMr. Justice Gene B. Daly delivered the Opinion of the Court.

Defendant Louis ArthurAnderson appeals from a final judgment of conviction for the crime of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor following ajury trial inthe district court, Ravalli County.On the evening of December 18, 1974 defendant was stopped by Montana Highway Patrol Officer Stottswhen defendant failed to dim hisbright headlight beams for oncoming traffic. Upon observing defendant's speech and behavior, Officer Stotts and Officer Buck, the other investigating officer, concluded defendant

was intoxicated. Officer Stotts cited defendant for driving a motor vehicle upon a public highway while under the influence of intoxicating liquor. Defendant appeared before the Ravalli County justice court

on January 

### 30, 1975 and a sixman jury found defendant guilty as charged. The decision of thejustice court was appealed by defendant to the district court, Ravalli County. On December 2, 1975, a twelve man jury returned a verdict finding defendant guilty. Defendant appeals and presents three issues for this Court's review: 

### 1. Did the district court errwhen the court refused defendant'

### s proposed instruction No. 

### 3? 2. Did the district court errwhen it permitted the arresting highway patrolman todemonstrate tothejury the manner inwhich the defendant walked atthe scene of the arrest? 

### 3. Did the districtcourt errwhen the court denied defendant's motion for an order allowing defendant to appealhisconviction with a partial transcript containing only the arresting highway patrolman's testimony? Defendant's first issue concerns refusal of his proposed jury instructLonNo. 3, which in effect defined drivingwhile under the influence of intoxicating liquor as the lessening of the ability of the driver of an automobile to control the vehicle. The record discloses defendant was not stopped on the evening of December 18, 1974, for failing to exercise reasonable control

over the movement of defendant's vehicle on the road, rather defendant was stopped by Officer Stottsbecause he failed to dim hisbright headlight beams for oncoming traffic. ~efendant's proposed instruction No. 3was inapplicable under these particular facts. If given, thejury might be misled tobelieve that in order to show that defendant violated section 32-2142, 

### R.C.M. 1947,.the statemust prove that defendant was under the influence of intoxicating liquor, that defendant was driving a motor vehicle on thehighways of Montana and thatbeing under the influence of intoxicating liquor affected defendant's driving ability. This would be an incorrect statement of the applicable law. Where jury instructions as a whole correctly state the law prejudice 

### isnot created because of a refusai of a proposed instruction. State

### v. Bosch, 125Mont. 566, 242 P.2d 477; State

v. Lukus, 149Mont. 

### 45, 423 P.2d 49. Upon examining allof the instructions presented to the jury by the district court, we conclude thejury was properly instructed as to the applicable law indefendant's case and defendant incurred no prejudice through the exclusion of proposed instruction No. 3. -3-

### Defendant's second allegation of error involves the district courti- permitting Officer Stotts to demonstrate to the jury the manner inwhich the defendant walked at the scene of the arrest on the evening of December 18, 1974. Theparticular question of whether a witness may demonstrate the physicalmannerisms of a defendant before a jury in a criminalmatter would appear to be a matter of first impression in the state of Montana. Other jurisdictions acknowledge that a witnessmay give testimony showing that the accused, at the time of his arrest, appeared intoxicated. Millican v. State, 143 Tex. Crim. 115, 157 S,'W.2d 357;Green Lake County

v. Domes, 247Wis. 90, 18N.W.2d 348. There is also recognized authority that a skilled or expert witnessmay use his own body,

or a member of his body, or an article to illustrate or explain the evidence. State v. Atwood, 250N.C. 141, 108 S.E.2d 219. Defendant objected to the demonstration of Officer Stotts
on the grounds therewas no adequate foundation for admission of the demonstrationand the demonstrationwould not be on the record for appellate purposes. Whether the proper foundation for admission of the demonstrationwas presented and whether defendantwould be substantiallyprejudiced by the admission of the demonstration is a preliminary question addressed to the discretion of the district court. As 

### statedin State v. Medicine Bull,Jr., 152 Mont. 34, 45,445 P.2d 916: 

# "*** the solution of the question of admissibility of the evidence must in every casebe left largely to the sound legal discretion of the trial court, subject to review only in case ofmanifest abuse."

### Defendant's contention therewas inadequate foundation for allowing the demonstrationby Officer Stotts would appear to be without merit. The record disclosesOfficer Stotts had ample opportunity to observe the defendantwalking at the time of the arrest and at the time of the trial Officer Stotts had good recollection of the manner inwhich defendant walked on the evening in question. Defendantwas allowed the opportunity to cross-examineOfficer Stotts prior to the demonstration. Defendant's objection that the demonstration would not be adequately represented in the trial record iswithout merit. Officer Stott's demonstrationwas accorded the same formalities of recordationas any other introduction of non-verbal evidence. We find no abuse of discretion in the admission of this demonstration. Defendant's final allegation of error concerns the district court'.denial of defendant's request to use a partial transcript for purposes of appeal. Defendant cites section 93-8018,R.C.M. 1947, inhis appellate brief as authority for the use of partial or abbreviated records on appeal. Section 93-8018 (supersededby appropriate rules in Montana Rules ofAppellate Civil Procedure), was applicable to abbrevia,tedrecords on appeal in civil actions. Defendant's motion for a partial transcript for purposes of appealwould be appropriatelymade under section 95-2408(b), R.C.M. 1947,which provides inpertinent part: "Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the respondent a description of the parts of the transcriptwhich he intends to include in the record and a statement of the issues which he intends to present on the appeal."Defendant

# 's motion for partial transcript, dated February 

### 25, 1976, 

### isdefective since it does not set forth those issues which defendant intended topresent on the appeal. The purpose for setting out the issues on appeal in the motion for partial transcript 

### is tonotify the court and opposing parties

as towhat areas of the record willbe needed to argue the issues on appeal. Even if defendant's motion for partial transcriptwas not found tobe fatally defective, itwas within the sound discretion of the district court todetermine that only by the examination of a complete record could itbe determined whether or not a miscarriage of justice occurred. State

### v. Hay, 120Mont. 573, 194 P.2d 232. 

### We find no abuse of discretion. The judgment 

### is affirmed.

We Concur:



### s tting for ~ustice 

# YkZ; Lstles.