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 DefenderOffice,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, 1992Justice 

### 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 inviolation of 5 45-5-208, MCA. Affirmed. The issues on appeal are: 1. Whether a trial judgemay allow theprosecution to compare the blood alcohol level of a defendant in a non-DUI casewith the blood alcohol level that the scientific community has determined will impair a person's ability to drive an automobile. 2. Whether the juryheard sufficient evidence to findthat Larson acted negligently. On July 21, 1991, five-year old Brenda Perry suffered fatal injurieswhen 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 barbecuewith his son, his girlfriend Kate Perry, and Kate's children. Brenda was one of Kate's children. Larsonhad 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'smother, lifted Brenda onto the horse. Shegrabbed Larson around the waist and gripped the horse's flanks with her legs. Thehorsebegan to "crow-hop," so Larsonpulled back on the reins. Thehorse 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 fromhisbreath. Larson refused,stating either, "It's obvious that I've been drinkingfror, rlCanrt you see 

### I'm drunk.

## " After theofficersgot a searchwarrant,a lab techniciandrewa blood sample 

### from Larson. 

### By then, over threehours had elapsed sincetheaccident. LynnKurtz, a forensic scientist for the State Crime Lab,

### measured Larsontsblood alcohol content at .17grams of alcohol per 100milliliters ofblood. Kurtz estimated that Larson had a blood alcohol contentbetween -20and .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 Larsontsblood alcohol level with the 

### level that the scientific community has determinedwill impairaperson's 

### ability todrive amotorvehicle. 

### Kurtz testified that the scientific community has determined that

a blood alcohol level of .08 grams of alcohol per 100milliliters 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 aperson 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 alsoargued that a person who is too impaired to drive an automobile safely is too impairedto 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]tlsnot 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 forhis own acts. I submit toyou 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 judgersdetermination of the admissibility of evidence only for an abuse of discretion. Oman 707 P.2d at 1119 

### -, Larsoncontends that "bloodalcohol 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

### impairsone's ability todrive, and Larsonls blood alcohol level on the day of the accident is actually a "DUI-type presumptionI1 in disguise. To supporthis 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: Statev. 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. InMoraan, 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 isunder 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-typepres~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.

Thetestof relevance 

### iswhetheran 

### itemof evidence will have anyvalue,asdeterminedby logicand experience, in proving the proposition for which it 

### is offered. The standard used to measure thisacceptable probative value 

### is 'any tendency tomake the existence of any fact 

# . . . more probable 

### or lessprobable than 

### it would be without the evidence'. State v. Fitzpatrick (l98O), 186 Mont. 187, 207, 606 P.2d 1343, 1354 (quotingM.R.Evid. Commission Comments). At Larsonfstrial, the prosecution offered his blood alcohol level to show that alcohol had impaired his reactions and judgment when he chose to ridedouble on a high-spirited horse with 

### a young girl. Larsonfsblood alcohol level on the day of the accident is relevant. The comparisonof Larson'sblood alcohol level

### with thatwhich the scientific community has determined will impair a person's ability to drive amotor 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 todetermine

### whether Larsonlslevel 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 "anyrational trier of factcouldhave found theessential elements 

### of the crime beyond a reasonabledoubt." Statev. 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 thatLarson negligentlyengaged 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 fromthe standard of conduct that a reasonable person would observe in the actor's situation. l'Gross deviation"meansadeviationthat isconsiderablygreater 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 .08will 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. Hisblood alcohol level at the time of the accidentwas at least .17, and likelymuch higher. In that condition,Larson mounted a horse described to him by the owner as ohot-bloodedwand "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 reasonableperson 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 CERTIFICATEOFSERVICE 

### Iherebycertifythatthefollowingorderwassentby United Statesmail,prepaid,tothe followingnamed:

William

### F.Hooks,Appellate Defender Appellate Defender Capitol Station Helena,MT59620

HON.MARCRACICOT,AttorneyGeneral GeorgeSchunk, Assistant JusticeBldg. Helena,MT59620

MichaelMcGrath Lewis&ClarkCountyAttorney 228Broadway Helena,MT 59623

EDSMITH CLERKOFTHESUPREME COURT STATEOF-MONTAPjA