NO. 92-197 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMYRON CHRISTIAN LARSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks, Appellate Defender Office, Helena, 

Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana: 

George Schunk, Asst. Attorney General, Helena, 

Montana; Mike McGrath, Lewis & Clark County 

Attorney, Helena, Montana 

.Gw.sy ..- I 4 SB ,, 5' rr,.,.fl gi Submitted on Briefs: October 8 1992 .~, 

!:3% .$. . ~ 

~ecided: December 15, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a judgment of the First Judicial 

District Court, Lewis and Clark County, convicting Larson of 

negligent endangerment in violation of 5 45-5-208, MCA. Affirmed. 

The issues on appeal are: 

1. Whether a trial judge may allow the prosecution to compare the 

blood alcohol level of a defendant in a non-DUI case with the 

blood alcohol level that the scientific community has 

determined will impair a person's ability to drive an 

automobile. 

2. Whether the jury heard sufficient evidence to find that Larson 

acted negligently. 

On July 21, 1991, five-year old Brenda Perry suffered fatal 

injuries when a horse she and Myron Larson were riding reared and 

fell backward, crushing Brenda. She died a short time later of 

internal bleeding. 

The accident occurred during a barbecue at a rural home near 

Helena. Larson attended the barbecue with his son, his girlfriend 

Kate Perry, and Kate's children. Brenda was one of Kate's 

children. 

Larson had consumed several alcoholic beverages that day. He 

testified that he drank four sixteen-ounce cans of beer and two 

shots of whiskey. The coroner, however, testified that Larson 

admitted to drinking six or seven cans of beer and two shots of 

whiskey. 

Larson saw the hostess, Heidi St. Germaine, riding a horse 

2 
named Taz and asked St. Germaine if he could ride the animal. 

Before St. Germaine allowed Larson to ride Taz, she gave him 

instructions on handling the horse. She told Larson that Taz was 

"inexperienced" and "hot-blooded.I1 She also told him that Taz did 

not like to have her mouth tugged by the reins. 

Larson rode the horse for a while, then returned to talk to 

st. Germaine. Larson asked her if his son could go for a ride. 

St. Germaine testified that she told Larson she did not want 

children riding the horse. She also testified that she told him 

the horse did not like anything, even saddle bags, behind the 

saddle. Larson, on the other hand, testified that St. Germaine 

told him she did not want children on the horse alone. He also 

testified that she said nothing about riding double. 

Moments later, Brenda said that she wanted a ride. Kate 

Perry, Brenda's mother, lifted Brenda onto the horse. She grabbed 

Larson around the waist and gripped the horse's flanks with her 

legs. The horse began to "crow-hop," so Larson pulled back on the 

reins. The horse reared straight up and fell backward onto Larson 

and Brenda. A bystander rushed Brenda to the hospital, but she 

died of internal injuries. 

At the hospital, law enforcement officers requested that 

Larson submit to a blood test, because a strong odor of alcoholic 

beverage emanated from his breath. Larson refused, stating either, 

"It's obvious that I've been drinkingfr or, rlCanrt you see I'm 

drunk. " 

After the officers got a search warrant, a lab technician drew 
a blood sample from Larson. By then, over three hours had elapsed 

since the accident. Lynn Kurtz, a forensic scientist for the State 

Crime Lab, measured Larsonts blood alcohol content at .17 grams of 

alcohol per 100 milliliters of blood. Kurtz estimated that Larson 

had a blood alcohol content between -20 and .27 at the time of the 

accident. 

At trial, Larson objected to any discussion of the statutory 

level of intoxication sufficient for an inference that a DUI 

defendant is under the influence of alcohol. The court sustained 

the objection. 

The court, however, permitted Kurtz to compare Larsonts blood 

alcohol level with the level that the scientific community has 

determined will impair a person's ability to drive a motor vehicle. 

Kurtz testified that the scientific community has determined that 

a blood alcohol level of .08 grams of alcohol per 100 milliliters 

of blood will impair a person's ability to safely operate a motor 

vehicle. 

In addition to the physical effects of alcohol, Kurtz 

testified concerning the effect of alcohol on a person's reasoning 

and judgment. He said that a person with a blood alcohol level as 

low as .O5 tlwill do stupid things. 

The prosecution argued that Larson made mistakes in judgment 

due to his alcohol consumption. In closing, the prosecution 

mentioned to the jury that Larson's blood alcohol level at the time 

of the accident was three times the level that will impair a 

person's ability to drive an automobile. The prosecution also 
argued that a person who is too impaired to drive an automobile 

safely is too impaired to ride a horse safely, and certainly is too 

impaired to allow a five-year old child on a high-spirited horse 

with him. The prosecution closed by stating: 

[I]tls not a crime to put a child on a horse. That's 

true. It's not. It's not a crime to drive an 

automobile. But had Myron Larson been .17, gets in a 

car, runs off the interstate, plows into another car and 

people are killed, we wouldn't have any trouble with 

that. He would be held accountable for his own acts. I 

submit to you this is the same situation. He engaged in 

a course of conduct that created a substantial risk of 

death for this child. He should be held accountable. 

The jury found Larson guilty of negligent endangerment in 

violation of 9 45-5-208, MCA. This appeal follows. 

May a trial judge allow the prosecution to compare the blood 

alcohol level of a defendant in a non-DUI case with the blood 

alcohol level that the scientific community has determined will 

impair a person's ability to drive an automobile? 

We have consistently held that a trial judge has great 

discretion in ruling on the admissibility of evidence. State v. 

Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119 (citing 

cases). This Court will overturn a trial judgers determination of 

the admissibility of evidence only for an abuse of discretion. 

-, Oman 707 P.2d at 1119 

Larson contends that "blood alcohol standards, which establish 

whether a person is too impaired to drive safely, apply only in 

cases involving a charge of driving under the influence." He 

reasons that a comparison between the blood alcohol level which 
impairs one's ability to drive, and Larsonls blood alcohol level on 

the day of the accident is actually a "DUI-type presumptionI1 in 

disguise. 

To support his contention, Larson relies on cases concerning 

a statute that, at one time, created a presumption of intoxication 

if a DUI defendant had a certain blood alcohol level. See 

generally 5 61-8-401, MCA: State v. Morgan (1982), 198 Mont. 391, 

646 P.2d 1177; State v. Leverett (lggO), 245 Mont. 124, 799 P.2d 

119. In Leverett, this Court held it was unconstitutional, thus 

reversible error, to give a jury instruction that raised a 

mandatory rebuttable presumption of an element essential to a 

criminal charge. 799 P.2d at 124. In Moraan, we noted that after 

a court has held that the jury would not be instructed on the 

presumed level of intoxication, a prosecutor should not refer to 

such a presumption. In that case, despite a pre-trial order 

forbidding it, the prosecutor repeatedly referred to the blood 

alcohol level that gave rise to a presumption of intoxication. 

Morqan, 646 P.2d at 1181-82. 

Neither case applies to the case at hand. Montana's statute 

no longer mandates a presumption that a DUI defendant with a 

certain blood alcohol content is intoxicated. Rather, it allows 

the trier of fact to infer that a person with a certain blood 

alcohol level is under the influence of alcohol for purposes of the 

DUI law. See 5 61-8-401(4) (c), MCA. The prosecution did not 

mention the contents of the statute after the court sustained 

Larson's objection to any mention of the statute. Therefore, 
Larson's contention that a comparison of a non-DUI defendant's 

blood alcohol level with the level which will impair a driver is 

actually a lfDUI-type pres~mption~~ is unfounded. 

Larson also contends that the level of blood alcohol which 

will impair a person's ability to drive is irrelevant to his 

conduct relative to a high-spirited young horse. On the contrary, 

"[rlelvant evidence means evidence having any tendency to make the 

existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be 

without the evidence." Rule 401, M.R.Evid. 

The test of relevance is whether an item of evidence will 

have any value, as determined by logic and experience, in 

proving the proposition for which it is offered. The 

standard used to measure this acceptable probative value 

is 'any tendency to make the existence of any fact . . . more probable or less probable than it would be without 

the evidence'. 

State v. Fitzpatrick (l98O), 186 Mont. 187, 207, 606 P.2d 1343, 

1354 (quoting M.R.Evid. Commission Comments). 

At Larsonfs trial, the prosecution offered his blood alcohol 

level to show that alcohol had impaired his reactions and judgment 

when he chose to ride double on a high-spirited horse with a young 

girl. Larsonfs blood alcohol level on the day of the accident is 

relevant. 

The comparison of Larson' s blood alcohol level with that which 

the scientific community has determined will impair a person's 

ability to drive a motor vehicle is also relevant. The comparison 

aided the jury in evaluating Larson's level of intoxication. It 

allowed the jurors to apply their experience and logic to determine 
whether Larsonls level of intoxication clouded his judgment and 

impaired his reactions, and its probative value outweighs any 

prejudice to the defendant. We hold that the court did not abuse 

its discretion in admitting the comparison. 

Did the jury hear sufficient evidence to find that Larson 

acted negligently? 

When reviewing whether evidence was sufficient to support a 

criminal conviction, this Court views the facts in a light most 

favorable to the prosecution. The standard of review is whether 

"any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt." State v. McLain (1991), 

249 Mont. 242, 246, 815 P.2d 147, 150; See also, Jackson v. 

Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. 

The jury convicted Larson of negligent endangerment. This 

required a finding that Larson negligently engaged in conduct which 

created a substantial risk of death or serious bodily injury to 

another. See 3 45-5-208, MCA. Larson contends that his conduct 

did not amount to criminal negligence. 

Criminal negligence is defined as follows: 

[A] person acts negligently with respect to a result or 

to a circumstance described by a statute defining an 

offense . , . when he disregards a risk of which he 

should be aware that the result will occur or that the 

circumstance exists. The risk must be of such a nature 

and degree that to disregard it involves a gross 

deviation from the standard of conduct that a reasonable 

person would observe in the actor's situation. l'Gross 

deviation" means a deviation that is considerably greater 

than lack of ordinary care. 

Section 45-2-101(37), MCA. 
At trial, the jury heard evidence that a blood alcohol level 

of .05 begins to affect a person's reasoning and judgment. The 

scientific community has determined that a blood alcohol level of 

.08 will affect a person's reactions and judgment to the point of 

impairing the person's ability to safely operate a motor vehicle. 

Shortly before the accident Larson had consumed at least four 

cans of beer and two shots of whiskey. His blood alcohol level at 

the time of the accident was at least .17, and likely much higher. 

In that condition, Larson mounted a horse described to him by 

the owner as ohot-bloodedw and "inexperienced." The owner of the 

horse had warned him not to tug back on the reins and not to give 

rides to children. Yet, Larson allowed a five-year old child on 

the horse with him. When the horse began to jump, Larson reined 

the horse back. The animal fell over backward, fatally crushing 

the child. 

Upon these facts, a rational jury could find that Larson's 

conduct amounted to a gross deviation from the ordinary care that 

a reasonable person would observe in a similar situation. We hold 

that the jury was justified in finding beyond a reasonable doubt 

that Larson acted negligently. Affirmed. 

December 15, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

William F. Hooks, Appellate Defender 

Appellate Defender 

Capitol Station 

Helena, MT 59620 

HON. MARC RACICOT, Attorney General 

George Schunk, Assistant 

Justice Bldg. 

Helena, MT 59620 

Michael McGrath 

Lewis & Clark County Attorney 

228 Broadway 

Helena, MT 59623 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF-MONTAPjA