DA 07-0760

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 55N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CHARLES JAY DEVLIN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Lake, Cause No. DC-06-92

Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James B. Wheelis, Chief Appellate Defender; Tammy Hinderman, Legal

Intern; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli,

Assistant Attorney General; Helena, Montana

Mitch Young, Lake County Attorney; Mark A. Russell, Deputy County

Attorney; Polson, Montana

Submitted on Briefs: January 14, 2009

Decided: February 24, 2009

Filed:

__________________________________________

Clerk

February 24 2009
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 Following a jury trial in the Twentieth Judicial District Court, Lake County,

Charles Jay Devlin (“Devlin”) was convicted of kidnapping and obstructing a peace

officer. Devlin appeals. We affirm in part and reverse and remand in part.

¶3 The issues on appeal are as follows:

¶4 1. Did the District Court abuse its discretion when it denied Devlin’s motion to

continue trial and for a change of venue?

¶5 2. Did the District Court err when it denied Devlin’s motion to dismiss for

insufficient evidence on the obstructing a peace officer charge?

¶6 3. Should the written judgment be corrected to reflect that Devlin’s conviction for

obstructing a peace officer is a misdemeanor and not a felony offense?

¶7 In May 2006, a resident of Woods Bay in Big Fork reported hearing a woman

screaming for help. An officer subsequently noticed a van traveling at a low rate of

speed down the highway. When the van was spotted by another officer, the van was

reversing backwards up the highway into the entrance of Yellow Bay State Park. This

officer stopped the vehicle and noticed that the driver, later identified as Devlin, smelled
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of alcohol and that his zipper was down. When the officer asked Devlin about the smell

of alcohol, Devlin stated that he had been in Big Fork with his wife, that she had too

much to drink and that she was sleeping it off in the back of the van. The officer noticed

a lump covered by a blanket in the back of the van. As the officer turned his attention

back to Devlin, a young woman wearing only a bra jumped up from underneath the

blanket, started screaming and pounding on the window of the van, opened the door, and

ran out into the woods. The officer then handcuffed Devlin, placed him in his patrol

vehicle, and called for backup. As the investigation continued, Devlin complained of

chest pain and was taken by ambulance to the emergency room at St. Joseph’s hospital

for evaluation. Devlin was released approximately 30 minutes later.

¶8 Devlin was charged with kidnapping, driving under the influence of alcohol or

drugs, failure to provide proof of liability insurance, and obstructing a peace officer.

Devlin posted bond and was released from custody. Devlin’s release was revoked after

he failed to appear at an omnibus hearing on July 6, 2006. Devlin was subsequently

charged with bail-jumping, which he pled guilty to pursuant to a plea agreement. The

agreement was reached after Devlin conducted individual voir dire on one potential juror.

A jury trial was held on the kidnapping, DUI, proof of insurance, and obstructing a peace

officer charges on March 26, 2007. However, a mistrial was declared after the State’s

first witness testified that Devlin was on probation. Another trial was held on April 9 –

12, 2007. Following the second trial, the jury found Devlin guilty of kidnapping and

obstructing a peace officer. Devlin challenges his convictions for kidnapping and

obstruction in the present appeal.
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¶9 Devlin alleges that the District Court erred by denying his motion for a change of

venue. Devlin claims that he could not receive a fair and impartial trial in Lake County

because of a series of media reports about the incident. In the present appeal, Devlin

relies primarily on two newspaper articles published by the Lake County Leader &

Advertiser prior to the selection of the jurors which Devlin claims resulted in “highly

inflammatory and prejudicial” publicity. Devlin raised a similar challenge to the denial

of his motion for a change of venue in a separate appeal on the bail-jumping charge

which this Court decided in January 2009. See State v. Devlin, 2009 MT 18, 349 Mont.

67, __ P.3d __. We concluded, however, that the news reports were not inflammatory

and that they did not actually inflame prejudice in the community. Devlin, ¶¶ 30, 34.

Thus, we held that the District Court did not abuse its discretion when it denied Devlin’s

motion for a change of venue. Devlin, ¶ 36.

¶10 We reach a similar conclusion in this case. Under State v. Pittman, 2005 MT 70,

¶ 17, 326 Mont. 324, 109 P.3d 237, “[a] defendant seeking a change of venue due to

prejudicial publicity must establish that the news reports were inflammatory and that they

actually inflamed the prejudice of the community to an extent that a reasonable

possibility exists that the defendant may not receive a fair trial.” We agree with the State

that the news articles were not sufficiently inflammatory and that there is no evidence

that the publicity actually inflamed the prejudice of the community. Devlin had the

opportunity to conduct individual voir dire on a number of the potential panelists. In that

process the District Court excused several panelists who stated that they had limited

knowledge of the case from the media reports. None of these individuals, however,
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expressed a fixed opinion or bias towards Devlin. Other panelists who expressed

knowledge about Devlin’s probationary status were also excused. As noted by the State,

“Devlin was not facing the kind of actual community prejudice that would have

mandated a change of venue.” We conclude that the District Court did not abuse its

discretion when it denied Devlin’s motion for a change of venue.

¶11 Devlin also alleges on appeal that the District Court erred by denying his motion

to dismiss for insufficient evidence on the obstruction charge. Devlin claims that the

State failed provide evidence from which a rational trier of fact could conclude that

Devlin actually impeded or impaired the officers’ investigation. Specifically, Devlin

claims that the State failed to offer evidence at trial that Devlin faked an emergency

medical condition which impeded the investigation. The State counters by arguing that it

was reasonable for jurors to infer that Devlin’s concealment of the victim’s identity

“knowingly obstructed, hindered, or impaired a lawful investigation.”

¶12 A person commits the offense of obstructing a peace officer if the person

“knowingly obstructs, impairs, or hinders the enforcement of the criminal law, the

preservation of the peace, or the performance of a governmental function, including

service of process.” Section 45-7-302, MCA. It is undisputed that Devlin told the officer

that his wife had too much to drink and that she was sleeping it off in the back of his van.

While Devlin contends that this deliberate falsification did not disturb or delay the

officers’ investigation, it is reasonable to conclude that Devlin made these statements in

an effort to mislead the officer and hinder the investigation. Moreover, as we have

repeatedly stated, jurors are the fact finders or triers of fact, and it is the jury’s
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responsibility to weigh the evidence and determine the credibility of the witnesses. See

State v. Baker, 2004 MT 393, ¶ 22, 325 Mont. 229, 104 P.3d 491. We conclude that

evidence Devlin lied to police officers about the identity of the woman in the back of his

van is sufficient to support his conviction for obstruction; thus, we need not address the

credibility of Devlin’s claim of medical emergency.

¶13 We affirm the District Court’s denial of Devlin’s motion for a change of venue

and his motion to dismiss for insufficient evidence. However, recognizing that a charge

of obstructing a peace officer is a misdemeanor instead of a felony, we reverse and

remand to the District Court for the limited purpose of correcting the written judgment.

We have decided to determine this case pursuant to Section 1, Paragraph 3(d) of our 1996

Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the record before us that the District Court did not err in the

disposition of this matter.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ JOHN WARNER

/S/ JIM RICE

/S/ BRIAN MORRIS