No. 84-339 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDON LIAS, 

Defendant ancYAppellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles E. Petaja; Petaja and Smoyer, Helena, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath, County Attorney, Helena, Montana 

Carolyn A. Clemens, Deputy County Attorney, Helena 

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Submitted on Briefs: June 13, 1985 

Decided: September 26, 1985 

Filed: SEP 2 6 5985 

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Clerk 
Mr. Chief Justice J. A. 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:OO p.m. and 12:OO 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 was it 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, a.ppel- 

'ant filed a motion in limine to preclude: 

1. Any reference to a find.ing 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 

1 imine . It wa.s 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, M0nt.R.Evi.d. 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 preva-il. The test is 

met if a reasonable mind would accept the evidence as supporting the conclusion reached. State v. Green (Mont. 1984), 

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 vehicl~e lights were on, and the 

engine was running. He was impaired in speech and mobility 

and there was a strong smell of a.lcoho1 about him. He showed 

signs of belligerence and noncooperation. 

Affirmed. 
We concur: 

Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent and would reverse. After his conviction in 

Justice Court, where he appeared pro se, the defendant 

appealed: to the District Court. Prior to trial., defendant 

moved the court and the court granted a motion in limine to 

prevent all references in the trial de novo in the above 

cause to any of the following: 

1. Any reference to a finding of guilt in Justice 

Court. 

2. Any reference, bl7 way of impeachment or 

-- rebuttal or otherwise, to any statements made by 

defendant in Justice Court. 

There are three issues in this case. They are: 

1. Whether reversible error was committed by the 

prosecutor, when, during cross-examina.tj.on of the defendant 

and without objection by the defendant, he asked questions 

that were in violation of the order granting a motion in 

limine . 

2. Whether the testimony admitted without objection in 

violati.on of the court's order was "plain error" depriving 

appellant of a fair trial. 

3. Whether sufficient evi-dence supports the verdict of 

guilty beyond a reasonable doubt. 

A motion in limine may be used to exclude evidence that, 

even if relevant, has probative value substantially 

outweighed by the danger of unfair prejudice. See, Rule 403, 

M.R.Evid. Authority for the granting of a motion in limine 

rests with the inherent power of the court to admit or 

exclude evidence and to take such precautions as are 

necessary to afford a fair trial for all parties. Wallin v. 
Kinyon Estate (1974) , 164 Mont. 160, 1.64-1.65, 519 P. 2d 1236, 

1238, citing 94 A.JJ.R.2d 1087. 

As Professor Crowley has stated: 

The motion in limine is not provided for in either 

the statutes of Montana or the Rules of Civil 

Procedure. It has, however, been recognized as a 

valid and useful procedure by the Montana Supreme 

Court in several cases !the first and principal 

decision endorsing its use was Wallin v. Kinyon 

Estate, 164 Mont. 160, 519 P.2d 1236). 

The Latin phrase "in limine" means "at the 

threshold" or "in theebeginning" and was used at 

the early common law to denote motions that were 

preliminary in character. Currently , however, the 

term is used to denote motions made before or even 

during trial to forbid certain lines of inquiry or 

limit or prohibit the use of particular evidence." 

William F. Crowley, Montana Pleading and Practice 

Forms, p. 99 (1983). 

The prosecution gave as its reason for asking the 

question that raised the first issue in this case, as that 

its understanding of the court's ruling was that the State 

could not present evidence that appellant had been convicted 

in Justice Court, but that it could, for purposes of 

impeachment, present evid-ence of statements made by appel-lant 

under oath. I think that the motion is plain on its face and 

it would be difficult to believe that there could be any 

mention or reference to the Justice Court trial for any 

purpose, incl-uding impeachment. 

The motion was argued in chambers. The record is a 

minu-te entry that states, " lpl resent in chambers, out of the 

presence of the jury, were the Deputy County Attorneys . . . 

attorney for the defendant . . . . Upon presentation the 

Court denied the motion to dismiss and granted the motion in 

limine." The prosecution's argument that its understanding 

of the court's ruling was that the State could not present 

evidence that appellant had been convicted in Justice Court, 

but that it could, for purposes of impeachment, present 
evidence of statements made by appeilant under oath is not 

persuasive. As this Court has stated, "[ilt is not the duty 

of the prosecution to make independent determinations 

concerning the admissibility of evidence once the court rules 

such evidence is inadmissible. Willful attempts by counsel 

to place excluded evidence before the jury may result not 

only in a mistrial, but reversal." State v. Bain (1978), 176 

Mont. 23, 29, 575 P.2d 919, 923. 

Defendant argues that he did not object for the reason 

that an objection or a motion to strike would not have cured 

the damage done to defendant in violation of his substantial 

rights. He cites a recent case of this Court finding 

prejudicial and reversible error, because an admonition by 

the court to disregard the information would not suffice to 

remove the prejudice from the minds of the jurors because 

"the goose is already cooked." Workman v. McIntyre 

Construction Company (Mont. 1980), 617 P.2d 1281, 1285, 37 

St.Rep. 1637, 1.642. 

Defendant also argues that the conduct of the 

prosecution in introducing prejudicial evidence in violation 

of the court's ruling, has deprived him of a fair and 

impartial trial, and is therefore grounds for a new trial. 

In - Bain, 575 P.2d at 923, this Court said that " [iln 

determining whether such questions are so prejudicial to the 

defendant as to require reversal, this Court must look (1) to 

the reasonable inference to be drawn from the question, State 

v. Toner, [(1953), 127 Mont. 283, 263 P.2d 9711 and (2) 

whether such repeated attempts to offer excluded evidence 

might have contributed to the conviction. State v. Langan 

(1968), 151 Mont. 558, 445 P.2d 565." 
What is the inference to be drawn from the questions 

asked of appellant in this case? Since there was no 

reference directly to the Justice Court trial and conviction, 

the questions and answers on cross-examination of the witness 

on rebuttal must show indirectly that defendant was 

prejudiced. 

In District Court on cross-examination, in response to 

the questions of the prosecution, the appellant testified as 

follows: 

Q. Mr. Lias, did you on August 30th, 1983, while 

you were under oath make certain statements 

regarding the same issues that we're here 

discussing today? A. On August 30? Yes. 

Q. Isn't it true that on August 30th, 1983, while 

under oath you stated that you had nothing to drink 

on May 28th of 1983? A. I don't think so. 

Q. Mr. Lias, isn't it true that on August 30th, 

1983 you stated that under oath, and, once again, 

that you had no idea how the smell of alcohol got 

on yo;r body on May 28th, 1.983? A. The testimony 

- on August 30th you say? (Emphasis added.) 

Q. Yes. 

The rebuttal. witness testified as follows: 

Q. Okay. Dan, did you have an opportunity on or 

about August 30th to hear some statements made by 

the defendant in this case? A. Yes, I did. 

0. And during the time that you heard those 

statements, - do you recall whether ---- or not he was 

under oath? A. Yes, he was. (Emphasis added.) 

I would hold that these kind of questions raise a strong 

inference that the jury might well conclude that the 

defendant had been tried in another court and that his 

testimony was conflicting. The actions of the prosecution 

were done in violation of the order of the court. 

As to the second part of the Bain rule, that "whether 

such repeated attempts to offer excluded testimony might have 

contributed to the conviction" we must only decide here 
whether the one and very successful attempt to get the 

evidence in was a contributing factor to the conviction. The 

evidence in this case was conflicting. The arresting officer 

and the deputy that came to his assistance both testified 

that the defendant was under the influence of alcohol and 

based their opinion on training and experience in dealing 

with persons under the influence of alcohol. Ms. Edie Wood, 

a witness called by the defense testified that the defendant 

had been in a fight that day and during that fight the beer 

that he held in his hand was spilled all over him. After the 

fight she helped him up from the ground. She did not see him 

drink any more beer. She testified that defendant had been 

hit and kicked severely during the fight and was unsteady and 

complaining about injuries to his body. He told her that he 

thought that he was alright except for his hand. She did not 

see him again that night. 

Another witness called by the defense, Roger Hayle, the 

partner of the defendant in the egg business, testified that 

he saw the defendant that day and that the defendant told him 

that he had been in a fight and complained of his hand. 

Hayle testified that defendant's hand was swol.len up to the 

point where you couldn't see the muscles. He noted bumps and 

bruises on the head of the defendant. He offered to drive 

the defendant to the doctor or home but the defendant refused 

because he needed his truck to get to work. The defendant 

told him that he had to be at work by 6:00 a.m. the next 

morning so he would have to go home in his truck so that he 

would have it to go to work. Hayle testified that he had 

worked as a bartender and had some experience with seeing 

intoxicated people and in his opinion the defendant was not 

intoxicated when he saw him at the races. He testified that 
he offered to drive the defendant home because of his 

injuries and not because he thought he was under the 

influence. 

The trial judge who was in the best position to weigh 

the effects of the testimony was not called upon to rule in 

this matter because there was no objection. We are called 

upon to decide a question that was not before the trial 

judge, but is raised for the first time on appeal. I believe 

that the adverse effect of the testimony obtained for the 

purpose of impeachment may well have influenced the jury. 

The defendant's failure to object does not overcome the 

prejudice he suffered as a result of the prosecution's 

violation of the court order that there cannot be 'Yalny 

reference, by way of impeachment or rebuttal or otherwise, to 

any statements made by the Defend-ant in Justice Court." 

I do not consider the second issue of plain error or the 

third issue of whether there was sufficient evidence to 

support the verdict of guilty beyond a reasonable doubt 

because of my belief that there was reversible error 

committed by the prosecutor. 

I would reverse. 

Mr. Justice John C. Sheehy, concurs in the foregoing dissent 

of Mr. Justice Hunt.