No. 04-829 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 93

THE CITY OF GREAT FALLS, Plaintiff and Respondent,

v. GAYL E AB RAHAM MORRIS, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighth Judici al Dis t rict, In and For the County Cascade, Cause No. ADC 2004-238, Honorable E

. W a yne Phillips, P r es iding Judge

COUNSEL OF RE CORD: For Appella nt: Kenneth R. Olson, Olson Law Office, Great Falls, Montana For Respondent: Honorable Mike McGrath, Atto rney General; Mark Mattioli, Assistan t Attorney Ge neral, Helena, Montana David V. Gliko, City Attorney; Tony P. Lucas, Assistant City Attorney, Great Falls, Montana

Subm itted on Briefs: Decem b er 29, 2005 Decided: May 4, 2006 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 Following jury convictions in Great Fa lls Municipal Court on charges of misdemeanor driving under the influence ( DUI) and careless driving, Gayle Abraham Morris filed an appeal in the Eighth Judicial Di strict Court, Cascade County. The District Court affirmed the Municipal Court, and Morri s filed an appeal with this Court. ¶2 We restate the issues as follows: ¶3 1. Does the statutory provision that a ju ry may infer from the refusal to take a sobriety test that the defendant was u nder the influence of drugs or alcohol unconstitutionally place the burde n of proof on the defendant? ¶4 2. Did the Municipal Court err in not in structing the jury to distrust weaker and less satisfactory evidence? ¶5 3. Did the evidence support a conviction of careless driving?

BACKGROUND ¶6 Morris owns a bar and supper club west of Great Falls. On December 21, 2003, after finishing a late shift at the bar, Mo rris consumed a couple amaretto drinks, performed his closing duties and began his driv e home. Close to four in the morning,

Officer Travis Palmer observed Morris driv ing eastbound on Tenth Avenue South in Great Falls. Although Officer Palmer’s vehicle was equipped with a video camera3 mounted on the dashboard, he did not ac tivate the camera as he followed Morris. 1 The camera automatically began re cording, however, when Offi cer Palmer turned on his overhead lights to initiate the traffic stop. ¶7 With no video of Morris’s driving prior to being pulled over by Officer Palmer, the only evidence presented to the jury regarding the DUI and careless driving charges consisted of testimony from law enforcement and Morris. Officer Palmer testified that he observed Morris’s vehicle swerve severely left to right, failing to main tain its presence in one lane. At one point, according to Officer Palmer, Morris made a sharp turn so as to avoid striking the median; he then turned sh arply the other direction to compensate. Based on his six years of experience, Offi cer Palmer believed Mo rris to be impaired. Officer Palmer testified that when he appr oached Morris’s vehicle after pulling him over,

Morris rolled down his window two inches a nd immediately handed over his driver’s license, insurance and registration informati on. According to Officer Palmer, Morris exhibited slurred speech, glassy re d eyes and smelled of alcohol. ¶8 Sergeant Chris Hickman and Officer Shane Sorenson arrived at the scene shortly after the stop and similarly testified that Mo rris showed signs of alcohol impairment.

When Officer Palmer asked Mo rris to perform field sobriety tests, Morris exited the car and stated that he would not do any of the tests. Upon being asked to remove the gum from his mouth, Morris had a difficult tim e, requiring several attempts.

1 Officer Palmer testified that he never ac tivates the video came ra when following DUI suspects. He also commented that 95 percent of officers do not utilize the equipment.4 ¶9 At the police station, Morris again refused to perform sobriety tests and would not

take a breath test. After law enforcement r ead Morris his Miranda rights, Morris stated

that he had three amaretto drinks at the end of his work shift. ¶10 At trial, Morris took the stand in his own de fense, asserting that he drove safely on the evening of his arrest. Morris also tes tified that he actually had less than three drinks—closer to two and a half—prior to th e bar’s 2:00 a.m. closing. As a means of explaining his near collisions with the median, Morris told the jury that he regularly drives on the high side of the roadway, close to the median, in orde r to see traffic more easily. As for his trouble removing the gum from his mouth, Morris testified that his difficulties had nothing to do with alcohol impairment, but simply the stickiness of the gum. He blamed the glassy red appearance of his eyes on smoke from the bar. ¶11 After the jury convicted Morris, he appealed to the District Court issues regarding jury instructions and sufficien cy of the evidence, all of wh ich the court affirmed. Morris now appeals the same i ssues to this Court.

STANDARDS OF REVIEW ¶12 The trial court has broad discretion when it instructs the jury. Statutes carry the presumption of constitutionality ; therefore the party making the constitutional challenge bears the burden of provin g, beyond a reasonable do ubt, that the statute is unconstitutional, and any doubt mu st be resolved in favor of the statute. Because the issue of whether a defendant’s due process right s were violated is a question of law, we

review the district court’s conclusion to de termine whether its interpretation of the law5 was correct. State v. McCaslin , 2004 MT 212, ¶ 14 , 322 Mont. 350, ¶ 14, 96 P.3d 722, ¶ 14. ¶13 When the defendant challe nges the sufficiency of th e evidence to support the conviction, the applicable standard of revi ew is whether, upon viewing the evidence in the light most favorable to the prosecution, a ny rational trier of fact could have found the

essential elements of the offe nse beyond a reasonable doubt. State v. Black , 2003 MT 376, ¶ 29, 319 Mont. 154, ¶ 29, 82 P.3d 926, ¶ 29.

DISCUSSION ¶14 1. Does the statutory provision that a jury may infer fr om the refusal to take a sobriety test that the defendant was under the in fluence of drugs or alcohol unconstitutionally place the burd en of proof on the defendant? ¶15 Over Morris’s objection, the Municipal Court gave Jury Instruction 10, including language set forth in § 61-8-404(2), MCA: If the person under arrest refused to subm it to one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The trier of fact may infer from the refusal that the person was under the influence. Th e inference is rebuttable. [Emphasis added.] ¶16 Morris argues that § 61-8-404(2), MCA, as it applies to him, is unconstitutional because, in his view, the statute’s language requires the State to submit no evidence of Morris’s guilt beyond the fact that he refused the breathalyzer test. Having reviewed the jury instructions as a whole, as well as § 61-8-404, MCA, in its entirety, we disagree.6 ¶17 Turning to Jury Instruction 10, we note th at a singular instruction cannot be judged

in a vacuum. In analyzing evidentiary presumptions in a criminal case, the reviewing court must focus on the particular la nguage used to charge the jury and determine whether a reasonable juror co uld have interpreted the challenged instruction as an uncons titutional presumption. “Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reas onably have been understood as creating [an unconstitutional presumption], the potentially o ffending words must be considered in the context of the char ge as a whole. Other instructions might explain the particular infirm la nguage to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.”

State v. Leverett (1990), 245 Mont. 124, 127, 799 P.2d 119, 120-21 (quoting

Francis v. Franklin (1985), 471 U.S. 307, 315, 10 5 S.Ct. 1965, 19 71, 85 L.Ed.2d 344, 354). ¶18 Reviewing the instructions as a whole, wh ich the court specifically directed the jury to do, we conclude that the burden of proof did not unconstitu tionally shift to Morris. To begin with, the court unambiguously told the jury that Morris was “not required to prove his innocence or present any evidence.” The court also instructed the jury to presume Morris innocent, unle ss the City of Great Falls proved through all of the evidence that Morris was gu ilty beyond a reasonable doubt . Additionally, the court directed the jury to carefully consider all testimony and only reach a guilty verdict if it determined, in light of the ev idence, that the elements of the crime charged had been proven beyond a reason able doubt. Based on the above, we conclude that § 61-8-404(2),7 MCA, as applied to Morris by Instruction 10, did not imperm issibly shift the burden of proof onto Morris. ¶19 In addition, we note that all statut es carry with them a presumption of constitutionality, and we construe statutes narrowly to avoid an unconstitutional interpretation if feasible. Farrier v. Teacher’s Retirement Board , 2005 MT 229, ¶ 13, 328 Mont. 375, ¶ 13, 120 P.3d 390, ¶ 13. “Whenever possible, [this] Court will adopt statutory construction which renders challenge d statutes constitutional rather than a

construction which renders them invalid. Wh en construing a challenged statute, the Court will read and interpret the statute as a whole, without isolating specific terms from

the context in which they are used by the Legislature.” State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17 (cita tions omitted). If there is any doubt rega rding constitutionality, we resolve the issue in favor of the statute. Farrier , ¶ 13. Additionally, we interpret statutes so at to gi ve effect to the legislative will, while avoiding an absurd

result. Colmore v. Uninsured Employers’ Fund , 2005 MT 239, ¶ 82, 328 Mont. 441, ¶ 82, 121 P.3d 1007, ¶ 82. ¶20 Section 61-8-404, MCA, stat es in pertinent part:

61-8-404. Evidence admissible – conditions of admissibility . (1) Upon the trial of a criminal action or other proceeding arising out of acts alleged to have been committed by a pe rson in violation of 61-8-401, 61-8- 406, 61-8-410, or 61-8-805: (a) evidence of any measured am ount or detected presence of alcohol, drugs, or a combination of al cohol and drugs in the person at the time of a test, as shown by an analysis of the person’s blood or breath, is admissible. A positive test result does not, in itself, prove that the person was under the influence of a drug or drugs at the time the person was in control of a motor vehicle. A person ma y not be convicted of a violation of8 61-8-401 based upon the presence of a drug or drugs in the person unless some other competen t evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving or in actual physical control of a motor ve hicle within this state.

. . . . (2) If the person under arrest refu sed to submit to one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of ac ts alleged to have been committed while the person was driving or in actu al physical contro l of a vehicle upon the ways of this state open to th e public, while under the influence of alcohol, drugs, or a combina tion of alcohol and drugs. The trier of fact may infer from the refusal that the pe rson was under the influence. The inference is rebuttable. (3) The provisions of this part do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, dr ugs, or a combination of alcohol and drugs. Section 61-8-404, MCA (emphasis added). ¶21 Analyzing this statute as a w hole, we conclude that subs ection (2) must be read as requiring the production of other competent co rroborating evidence of a DUI. In light of the fact that subsection (1)(a) requires corr oborating evidence when a person actually takes a drug test, to interpret subsection (2) as not requiring corroborating evidence when a person refuses to take the test would create an absurd result. In this case, the State presented corroborating eviden ce that Morris was driving while under the influence, including testimony from law enforcement that Morris exhibited erratic driving, slurred speech, red eyes and the odor of alcohol on his breath. ¶22 Moreover, we note that th e admissibility of a defendant’s refusal to take a breathalyzer test presupposes other competent evidence in the form of probable cause to9 make the arrest in the first instance—in this case, poor driv ing, slurred speech, red eyes

and the odor of alcohol. A lthough Morris provides an expl anation for his behavior and appearance, he has not challenged the prob able cause to make the arrest. ¶23 We hold that the court did not err in inst ructing the jury on th e provisions of § 61- 8-404(2), MCA. ¶24 2. Did the Municipal Court err in no t instructing the ju ry to distrust weaker and less satisfactory evidence? ¶25 At trial, the Municipal Court denied the following jury instruction proposed by

Morris: If weaker and less satisfactory evidence is offered and it appears that it is within the power of th e party to offer stronger and more satisfactory evidence, it is presumed th at the evidence withheld would be adverse to the party. The evidence that is offe red should be viewed with distrust. ¶26 Morris argued to the District Court that the jury should have been instructed on the above language because, accordi ng to Morris, the State failed to offer the best evidence to prove Morris was driving under the influe nce when Officer Palmer chose not to videotape Morris’s driving. Morris acknowl edges that there is no video of Morris driving, but nonetheless argues that the State violated “the spirit” of § 26-1-602(6), MCA, by not utilizing the vide o equipment. The District Cour t rejected this argument on the grounds that Morris failed to cite authority “o ther than his stretched construction of § 26- 1-602, MCA.” ¶27 On appeal, Morris again fails to provide any legal authority in support of his argument. Regardless, § 26-1-602(6), MCA, presumes the existence of actual and10 identifiable evidence, which did not exist in this case. While Morris argues that the State

should have had a video recording of his driving, the fact remains that the State did not

have such evidence. The District Court correctly affirm ed the Municipal Court’s refusal of Morris’s proposed instruction on distrusting weaker evidence. ¶28 3. Did the evidence support a conviction of careless driving? ¶29 Morris argues that the evidence presented at trial failed to support a conviction of careless driving, pursuant to § 61-8-302(1), MCA, which states: A person operating or driving a vehicl e on a public highway shall drive it in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the highway. ¶30 Morris contends that the evidence presen ted at trial did not support a conviction under the above statutory language. Specifi cally, Morris argues that because he did not come into close proximity to any other vehi cle, driver or pedestrian, the evidence does not establish proof beyond a re asonable doubt that he drove in a legally careless manner. The District Court was correct in rejecting this argument. Section 61-8-302(1), MCA, requires careful and prudent driving at a ll times. The statutory concern with “endanger[ment]” does not require that the driv er come into close proximity to another vehicle or pedestrian for there to be carelessne ss. In light of the evidence before the jury, the District Court correctly concluded that a rational jury could determine that Morris drove carelessly.11 ¶31 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS