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No. 99-413 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 184 

STATE OF MONTANA, 

Plaintiff/Respondent, 

v.

MARVIN VAN KIRK, 

Defendant/Appellant.

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edward Yelsa, Anaconda, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana 

Attorney General; Michael B. Grayson, Deer Lodge County Attorney, Anaconda, Montana

Submitted on Briefs: February 23, 2001 

Decided: September 6, 2001

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Filed:

__________________________________________

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 On January 19, 1999, a jury convicted Marvin Van Kirk (Van Kirk) of four criminal 

offenses: driving under the influence of alcohol, failing to carry proof of vehicle 

registration, operating a motor vehicle without liability insurance, and driving a vehicle 

with a suspended or revoked driver's license. Van Kirk appeals his convictions to this 

Court. We affirm.

¶2 Van Kirk raises three issues on appeal:

1. Did the District Court correctly conclude that the arresting officer had a 

particularized suspicion to initially stop Van Kirk's vehicle?

2. Did the District Court properly conclude that Van Kirk did not have a right to 

counsel prior to submitting to a breath test or performing field sobriety maneuvers?

3. Did the District Court commit reversible error by allowing the arresting officer to 

testify about Van Kirk's performance on the horizontal gaze nystagmus test?

FACTUAL BACKGROUND

¶3 On October 3, 1997, at approximately 8:00 p.m., Officer John Kelly (Officer Kelly) 

was giving a person a ride from the police station to his vehicle parked at the First Quarter 

Restaurant in Anaconda, Montana. While in the First Quarter Restaurant's parking lot, 

Officer Kelly observed a truck pull into the parking lot to his right. The driver looked in 

Officer Kelly's general direction, and then immediately pulled back out of the parking 

area. It appeared to Officer Kelly that the driver of the truck wanted to get away from him, 

so he decided to investigate by following the vehicle.

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¶4 While following the truck, Officer Kelly observed that its speed was only seven to ten 

mph in a twenty-five mph zone. Officer Kelly also noticed that the driver was 

continuously watching him in the rearview mirror. Officer Kelly watched the vehicle shift 

from the edge of the roadway to the mid-point and across it, several times. On at least one 

occasion, the vehicle would have impeded any oncoming traffic. Based on his 

observations, Officer Kelly decided to initiate a traffic stop.

¶5 Officer Kelly approached the vehicle on foot after initiating the stop. When Van Kirk 

rolled down his window, Officer Kelly detected the moderate odor of an alcoholic 

beverage and noticed that Van Kirk's eyes were bloodshot. Officer Kelly also observed 

that there was a screwdriver, rather than a key, in the ignition of the truck. Officer Kelly 

asked to see Van Kirk's driver's license, but Van Kirk replied he did not have one. Officer 

Kelly later confirmed through the dispatcher that Van Kirk's license was revoked. Officer 

Kelly also asked to see the vehicle registration and proof of insurance. Van Kirk 

responded to this by handing him a map. Officer Kelly then requested that Van Kirk step 

out of his truck and perform some field sobriety tests, but Van Kirk declined because it 

was dark and the road surface was rough. Officer Kelly responded that Van Kirk could 

perform the tests at the police station under better conditions.

¶6 Officer Kelly decided to place Van Kirk under arrest and transport him to the police 

station. Upon reaching the police station, Officer Kelly read Van Kirk Montana's implied 

consent advisory form and asked him to submit to a breath test. Van Kirk agreed to the test 

and he registered a blood alcohol level of .115. Upon completion of the breath test, Officer 

Kelly requested that Van Kirk perform some field sobriety tests. Another officer 

videotaped Van Kirk's performance of the field sobriety maneuvers. Officer Kelly scored 

Van Kirk four points out of eight on the walk-and-turn test because Van Kirk missed 

touching his heel to toe twice on each direction, and took too many steps prior to and after 

his turn. Van Kirk performed well on the one-leg-stand test. Finally, Officer Kelly 

conducted the horizontal gaze nystagmus (HGN) test upon Van Kirk. Officer Kelly scored 

Van Kirk four points out of six on this test.

¶7 Upon completing the field sobriety test, Officer Kelly read Van Kirk his Miranda 

rights. Van Kirk informed Officer Kelly that he wanted to speak with an attorney, and 

Officer Kelly did not thereafter question Van Kirk. Van Kirk was charged with four 

offenses: (1) driving under the influence of alcohol, a misdemeanor; (2) failing to carry 

proof of vehicle registration, a misdemeanor; (3) operating a motor vehicle without 

liability insurance in effect; and (4) driving a vehicle with a suspended or revoked driver's 

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license. On July 13, 1998, a justice court jury convicted Van Kirk of all four offenses, and 

he appealed to the District Court.

¶8 Van Kirk filed several pretrial motions and supporting briefs in District Court, 

including a motion to suppress evidence and a motion to dismiss the charges against him. 

Van Kirk contended that Officer Kelly lacked particularized suspicion to initiate an 

investigative stop. In addition, Van Kirk asserted that when Officer Kelly did not allow 

him to speak to an attorney prior to giving a breath sample or performing field sobriety 

maneuvers, Van Kirk was denied his right to counsel. The District Court denied these 

motions.

¶9 On January 19, 1999, the District Court held a jury trial on this matter. During trial, 

when the State asked Officer Kelly how Van Kirk scored on the HGN test, Van Kirk 

objected on the grounds that the State had not laid sufficient foundation for the testimony. 

Officer Kelly testified that he was certified to administer the HGN test, and that he 

properly administered the test. Officer Kelly also testified that he has a bachelor's degree 

in medical technology and had worked as a lab supervisor and technician at Montana State 

Hospital. The District Court overruled Van Kirk's objection, and allowed Officer Kelly to 

testify from his training and experience that there is a correlation between alcohol 

consumption and nystagmus. Officer Kelly then explained how Van Kirk scored on the 

HGN test. The jury convicted Van Kirk of all four offenses. He now appeals.

STANDARD OF REVIEW

¶10 We review a district court's denial of a motion to suppress to determine whether its 

findings of fact are clearly erroneous and whether its conclusions of law are correct. State 

v. Hatler, 2001 MT 38, ¶ 5, 304 Mont. 211, ¶ 5, 19 P.3d 822, ¶ 5. We review a district 

court's evidentiary rulings for an abuse of discretion. State v. Gustafson, 2000 MT 364, ¶ 

14, 303 Mont. 386, ¶ 14, 15 P.3d 944, ¶ 14.

ISSUE 1

¶11 Did the District Court correctly conclude the arresting officer had a 

particularized suspicion to initially stop Van Kirk's vehicle?

¶12 Van Kirk argues the arresting officer did not have adequate particularized suspicion to 

initially stop his truck, that all the resulting evidence against him should be suppressed as 

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fruit of an illegal seizure, and therefore the charges against him must be dismissed. The 

State counters that Van Kirk's apparent attempts to avoid the arresting officer, coupled 

with his driving at a slow rate of speed and crossing from the edge of the road across the 

middle of the road multiple times, combined to provide sufficient particularized suspicion 

to make an investigative stop of Van Kirk's vehicle. We agree.

¶13 The Fourth Amendment to the United States Constitution and Article II, Section 11, of 

the Montana State Constitution protect against unreasonable searches and seizures, 

including brief investigatory stops of vehicles. State v. Elison, 2000 MT 288, ¶ 15, 302 

Mont. 228, ¶ 15, 14 P.3d 456, ¶ 15. Montana peace officers, however, are authorized to 

initiate an investigatory stop of any vehicle observed in circumstances that create a 

particularized suspicion that an occupant of the vehicle has committed or is committing a 

criminal offense. State v. Halvorson, 2000 MT 56, ¶ 8, 299 Mont. 1, ¶ 8, 997 P.2d 751, ¶ 

8. The requirement that a particularized suspicion be found in order to justify an 

investigatory stop of a vehicle is codified in a Montana statute:

Investigative stop. In order to obtain or verify an account of the person's presence 

or conduct or to determine whether to arrest the person, a peace officer may stop 

any person or vehicle that is observed in circumstances that create a particularized 

suspicion that the person or occupant of the vehicle has committed, is committing, 

or is about to commit an offense. 

Section 46-5-401, MCA. 

¶14 Particularized suspicion does not require that an officer possess proof beyond a 

reasonable doubt that a crime has been, is, or is about to be committed before initiating an 

investigative stop. Hatler, ¶ 11. Particularized suspicion is quantitatively different and less 

stringent than probable cause to arrest or conduct a search. State v. Williamson, 1998 MT 

199, ¶ 12, 290 Mont. 321, ¶ 12, 965 P.2d 231, ¶ 12. In order to show sufficient cause to 

stop a vehicle, the burden is on the State to show (1) objective data from which an 

experienced police officer can make certain inferences, and (2) a resulting suspicion that 

an occupant of a vehicle is or has been engaged in wrongdoing or was a witness to 

criminal activity. State v. Gilder, 1999 MT 207, ¶ 10, 295 Mont. 483, ¶ 10, 985 P.2d 147, 

¶ 10. 

¶15 The gravamen of the particularized suspicion standard is that the totality of the 

circumstances confronting the officer at the time of the investigative stop must give rise to 

a particularized and objective basis for suspecting criminal activity. Halvorson, ¶ 9. In 

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evaluating the totality of the circumstances, this Court considers the quantity, or content, 

and quality, or degree of reliability, of the information available to the officer at the time 

of the investigatory stop. Gilder, ¶ 11. 

¶16 Here, Van Kirk first drew suspicion by pulling into and then immediately pulling back 

out of a parking lot after spotting Officer Kelly's patrol car. It appeared to Officer Kelly 

that the driver of the vehicle wanted to get quickly away from him, so he decided to follow 

and observe this vehicle. While following Van Kirk's vehicle, Officer Kelly observed that, 

even though the speed limit was twenty-five mph, Van Kirk was going only seven to ten 

mph. Officer Kelly also observed Van Kirk's vehicle meandering from the edge of the 

roadway to the center of the roadway and across it several times. On at least one occasion, 

Van Kirk's vehicle would have impeded any oncoming traffic. Based on this erratic 

driving and slow speed, Officer Kelly decided to initiate a traffic stop.

¶17 Van Kirk argues that these facts are analogous to those in State v. Lafferty, 1998 MT 

247, 291 Mont. 157, 967 P.2d 363, where this Court concluded there were insufficient 

facts to support a particularized suspicion. We disagree. In Lafferty, the officer observed 

Lafferty driving across the fog line twice, and upon it once. Lafferty, ¶ 13. Here, Van 

Kirk's crossing over the edge of the road was only one of several facts giving rise to 

Officer Kelly's particularized suspicion. Officer Kelly also observed Van Kirk's apparent 

desire to avoid him, Van Kirk's unusually slow speed, and Van Kirk's meandering from 

the edge of the road to across the center of the road. This constitutes substantially more 

suspicious behavior than that observed in Lafferty.

¶18 We conclude that, based on the totality of the circumstances, Officer Kelly had 

particularized suspicion to initiate an investigatory stop of Van Kirk's vehicle. Therefore, 

the District Court correctly denied Van Kirk's motion to suppress evidence based on his 

claim that Officer Kelly did not have sufficient grounds to stop his vehicle. The District 

Court is affirmed on this issue.

ISSUE 2

¶19 Did the District Court properly conclude that Van Kirk did not have a right to 

counsel prior to submitting to a breath test or performing field sobriety maneuvers?

¶20 Van Kirk argues that the District Court's failure to suppress evidence obtained after he 

demanded assistance of counsel warrants reversal of his convictions. The State counters 

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that Van Kirk did not have a right to counsel before submitting to the breath test and field 

sobriety tests. The State argues further that Van Kirk's rights were not violated when 

Officer Kelly videotaped the breath test and field sobriety tests prior to giving his Miranda 

warnings. 

¶21 The Fifth Amendment to the United States Constitution and Article II, Section 25 of 

the Montana Constitution provide that no person may be compelled to testify against 

himself in a criminal proceeding. The results of a breath test, however, are not selfincriminating communications. State v. Armfield (1984), 214 Mont. 229, 235, 693 P.2d 

1226, 1229. Moreover, a person has no right to consult with counsel prior to deciding to 

take an alcohol breath test, because consent is deemed given as a matter of law. Section 61-

8-402, MCA; State v. Strand (1997), 286 Mont. 122, 126, 951 P.2d 552, 553.

¶22 The privilege against self-incrimination does not extend to real or objective evidence. 

State v. Thompson (1989), 237 Mont. 384, 386, 773 P.2d 722, 723. In Thompson, this 

Court rejected the argument that an officer must read a DUI suspect his Miranda rights 

before audio-videotaping the suspect performing field sobriety tests. Thompson, 237 

Mont. at 387, 773 P.2d at 724. A mere request that the suspect perform a series of sobriety 

tests, done without any interrogation of the suspect, does not constitute a custodial 

interrogation. Id.

¶23 Here, Officer Kelly arrested Van Kirk alongside the road and transported him to the 

police station in his patrol car. At the station, Officer Kelly read Van Kirk Montana's 

implied consent advisory form and asked Van Kirk to submit to a breath test. Van Kirk 

agreed to the breath test. Next, Officer Kelly requested that Van Kirk complete some field 

sobriety maneuvers while another officer videotaped his performance. Upon completing 

the field sobriety tests, Officer Kelly read Van Kirk his Miranda rights. After Van Kirk 

told Officer Kelly he wanted to speak with an attorney, Officer Kelly did not question Van 

Kirk.

¶24 We hold that Van Kirk was not denied his right to counsel, or his right against selfincrimination. Accordingly, the District Court is affirmed on this issue.

ISSUE 3

¶25 Did the District Court commit reversible error by allowing the arresting officer 

to testify about Van Kirk's performance on the horizontal gaze nystagmus (HGN) 

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test?

¶26 Van Kirk argues the District Court abused its discretion by allowing Officer Kelly to 

testify about Van Kirk's performance on the HGN test, because Officer Kelly was unable 

to meet the foundation requirements set forth in Hulse v. State, Dept. of Justice, 1998 MT 

108, 289 Mont. 1, 961 P.2d 75. The State counters that even if it was error for the District 

Court to allow the HGN testimony, it was harmless error because there was overwhelming 

evidence to convict Van Kirk of DUI.

¶27 In order to lay the proper foundation for admitting the results of the HGN test, the 

State, in addition to showing that the test was properly administered, must also establish a 

scientific basis for the reliability of the test results. Hulse, ¶ 72. Before HGN test results 

can be introduced into evidence, a qualified expert must explain the underlying scientific 

basis of the correlation between alcohol consumption and nystagmus. Id. 

¶28 Officer Kelly has a bachelor's degree in medical technology and worked as a lab 

supervisor and technician at Montana State Hospital. Officer Kelly was certified to 

administer the HGN test and he testified that he properly administered the test to Van 

Kirk. However, nothing in the evidence establishes that Officer Kelly was specially 

trained or educated, or that he had adequate knowledge to qualify him as an expert able to 

explain the correlation between alcohol consumption and nystagmus, the underlying 

scientific basis of the HGN test. Pursuant to our holding in Hulse, we agree with Van Kirk 

that the District Court abused its discretion in permitting Officer Kelly to offer the HGN 

results into evidence without the State first establishing the requisite scientific basis for the 

test's reliability. We next examine whether the error was prejudicial.

¶29 Section 46-20-701(1), MCA, provides that not all error committed by a district court 

in a criminal proceeding is reversible error:

A cause may not be reversed by reason of any error committed by the trial court 

against the convicted person unless the record shows that the error was prejudicial. 

We have held that error is prejudicial, and requires reversal, if a reasonable possibility 

exists that the inadmissible evidence might have contributed to a conviction. State v. Gray

(1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266. However, we have at times applied a 

slightly different standard when confronted with errors that arguably implicate 

constitutional rights, relying on Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 

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17 L.Ed.2d 705.

¶30 In Chapman, the United States Supreme Court held that the test for harmless 

constitutional error is whether the court can declare its belief that the error was harmless 

beyond a reasonable doubt. Chapman, 386 U.S. at 24. The Court in Chapman rejected the 

notion that all federal constitutional errors, regardless of the facts and circumstances, are 

harmful and require automatic reversal of a conviction. Id. at 22. We have applied the 

Chapman harmless error rule to cases in which federal constitutional error is involved. 

State v. Rothacher (1995), 272 Mont. 303, 312-13, 901 P.2d 82, 87; State v. McKenzie

(1980), 186 Mont. 481, 532-33, 608 P.2d 428, 458. However, over time it appears we have 

interchanged our harmless error rule expressed in State v. Gray, supra, with the Chapman 

harmless error rule, resulting in some inconsistency and confusion over the proper test to 

be applied in a harmless error analysis.

¶31 In State v. McKenzie, supra, we addressed whether the error in giving jury instructions 

on rebuttable presumptions, which effectively shifted the burden of proving each element 

of the crime from the State to the defendant, was harmless. We weighed what appeared to 

us to be three definable approaches to harmless error under various United States Supreme 

Court cases, and concluded that the proper test for determining federal constitutional 

errors under Chapman was the "overwhelming weight of the evidence" test. We expressed 

our belief that confining our review to one component of the case "[i]n artificial isolation," 

would result in a lopsided view of the case on appeal. McKenzie, 186 Mont. at 533-34, 608 

P.2d at 458.

¶32 We reaffirmed our commitment to the "overwhelming weight of the evidence" test in 

Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74, referring to that test as "[o]

ne method used by this Court to ascertain whether there is a reasonable possibility that the 

inadmissible evidence contributed to the verdict." In Brodniak, we applied a mixed test 

which borrowed language from both McKenzie and Gray, concluding that we must look 

both to the overwhelming evidence and the totality of the circumstances in assessing 

whether there is a reasonable possibility that the inadmissible evidence contributed to the 

verdict. Brodniak, 239 Mont. at 115, 779 P.2d at 74.

¶33 In State v. Fuhrmann (1996), 278 Mont. 396, 925 P.2d 1162, we expressed the belief 

that the federal harmless error rule and Montana's harmless error rule were "essentially the 

same," and concluded:

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[t]hat in either case overwhelming evidence of a defendant's guilt can render 

harmless a district court's error. McKenzie, 608 P.2d at 458; Brodniak, 779 P.2d at 

74. 

Fuhrmann, 278 Mont. at 407, 925 P.2d at 1169.

¶34 Thus, it is clear that, over time, the "overwhelming evidence" analysis eclipsed the 

more substantive inquiry of whether the erroneously admitted evidence might have 

contributed to the conviction. The above cases demonstrate a recent inclination to simply 

tally the quantity of the admissible evidence of guilt, instead of evaluating the qualitative 

impact the inadmissible evidence might have had on the finder of fact.

¶35 There are two problems with this type of "scorecard" analysis. First, the test always 

involves "adding up" the admissible evidence on a case-by-case basis, to determine if it is 

overwhelming enough to transcend the effect of the inadmissible evidence, thereby 

ignoring the weight of the tainted evidence in favor of the sum of the other evidence. This 

ad hoc type of analysis results in an unpredictable and subjective framework which 

provides little guidance to parties in deciding what evidence to offer at trial. Moreover, the 

"overwhelming evidence" test may also have the unintended consequence of inviting the 

State to offer inadmissible yet damaging evidence in a strong case, even if by 

happenstance, since the worst that can happen is that the error is noted but deemed 

harmless. Neither result is desirable. 

¶36 If we are to preserve the substantial rights of the accused and the fundamental fairness 

of the criminal trial, and provide consistent guidance to practitioners in the criminal 

practice, we must do more than simply quantify the admissible evidence offered by the 

State on a case-by-case basis. We therefore deem it appropriate to formally adopt an 

approach to harmless error issues which, first, defines for the trial court and the parties the 

type of error in question, and second, depending on the type of error defined, sets forth a 

uniform standard against which the error must be analyzed to determine if the error is 

sufficiently prejudicial to compel reversal of a conviction. We began this process last year 

when we distinguished between trial and structural errors, in State v. LaMere, 2000 MT 

45, ¶¶ 39-50, 298 Mont. 358, ¶¶ 39-50, 2 P.3d 204, ¶¶ 39-50. We now complete the 

analysis. 

¶37 Today, we adopt a two-step analysis to determine whether the alleged error prejudiced 

the criminal defendant's right to a fair trial and is therefore reversible. The first step in the 

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analysis is an inquiry of whether the claimed error is categorized as "structural" error or 

"trial" error. 

¶38 "Structural" error is that type of error that "[a]ffects the framework within which the 

trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante 

(1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331; LaMere, ¶ 48. 

Such error is typically of constitutional dimensions, precedes the trial, and undermines the 

fairness of the entire trial proceeding. Because of its nature, it cannot be qualitatively or 

quantitatively weighed against the admissible evidence introduced at trial. Structural error 

is presumptively prejudicial and is not subject to harmless error review jurisprudentially or 

under our harmless error statute found at § 46-20-701, MCA. LaMere, ¶ 50.

¶39 Structural error is automatically reversible and requires no additional analysis or 

review. Examples of structural error include errors in the jury selection process (LaMere); 

total deprivation of the right to counsel (Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.

Ct. 792, 9 L.Ed.2d 799); and lack of an impartial trial judge (Tumey v. Ohio (1927), 273 U.

S. 510, 47 S.Ct. 437, 71 L.Ed 749). See, generally, the discussion in LaMere, ¶ 23.

¶40 As opposed to "structural" error, "trial" error is that type of error that typically occurs 

during the presentation of a case to the jury. Such error is amenable to qualitative 

assessment by a reviewing court for prejudicial impact relative to the other evidence 

introduced at trial. Trial error is not presumptively prejudicial and therefore not 

automatically reversible, and is subject to review under our harmless error statute, § 46-20-

701(1), MCA.

¶41 Thus, the first step in the inquiry is whether the error at issue is structural error or trial 

error. If structural, the inquiry ends and the verdict is reversed. If the error is the more 

typical "trial" error, then the analysis proceeds to the second step, which involves the 

determination of whether the error was harmless under the circumstances.

¶42 As a threshold matter, once a convicted person raises and establishes that the evidence 

in question was erroneously admitted and has alleged prejudice under the "reasonable 

possibility" test, it then becomes incumbent on the State to demonstrate that the error at 

issue was not prejudicial. We have previously held that the test of prejudicial error is 

whether there is a reasonable possibility that the inadmissible evidence might have 

contributed to a conviction. Gray, 207 Mont. at 268, 673 P.2d at 1266. It is how the State 

demonstrates that the error was not prejudicial that we address next. 

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¶43 Because our focus returns to the question of whether there was a reasonable 

possibility that the erroneously admitted evidence might have contributed to the 

conviction, it is time to abandon the use of the "overwhelming evidence" test in answering 

the question of whether an error is harmless. Such a subjective analysis of the volume of 

the evidence, geared as it is to quantity, simply does not adequately assess the qualitative 

impact of tainted evidence. Therefore, we overrule our previous decisions in McKenzie, 

Brodniak, and Fuhrmann to the extent that they applied the "overwhelming weight of the 

evidence" test in analyzing harmless error. We choose instead to utilize the "cumulative 

evidence" test in answering this inquiry. This test looks not to the quantitative effect of 

other admissible evidence, but rather to whether the fact-finder was presented with 

admissible evidence that proved the same facts as the tainted evidence proved. This test, 

applied by the United States Supreme Court in Harrington v. California (1969), 395 U.S. 

250, 89 S.Ct. 1726, 23 L.Ed.2d 284, is inarguably more restrictive than the "overwhelming 

evidence" test. However, we believe its application, modified to incorporate the qualitative 

standards we set forth below, will bring us closer to gauging the potentially prejudicial 

impact of the tainted evidence than the "overwhelming evidence" test has done in the past.

¶44 In making its proof under the "cumulative evidence" standard, the State must direct us 

to admissible evidence that proved the same facts as the tainted evidence. Moreover, the 

State must also demonstrate that the quality of the tainted evidence was such that there 

was no reasonable possibility that it might have contributed to the defendant's conviction.

By way of example only, assume a case where the defendant is charged with armed 

robbery of a liquor store. At trial, the police officer repeats the statements of an 

unidentified, non-testifying store patron to the effect that the defendant was present in the 

liquor store at the time of the offense. The State may be able to demonstrate that there is 

no reasonable possibility that this inadmissible hearsay evidence might have contributed to 

the defendant's conviction, where the defendant's admission to investigators that he was, in 

fact, present in the store at the time of the offense merely to purchase alcohol, was 

properly admitted. On the other hand, if the tainted evidence is the admission of the 

defendant's involuntary confession to the robbery, the State would be hard-pressed to 

demonstrate that, qualitatively, there is no reasonable possibility that this evidence might 

have contributed to the defendant's conviction, even though there was other evidence 

tending to prove that the defendant committed the crime.

¶45 We readily acknowledge that there will be cases in which there was no other 

admissible evidence proving the same facts that the tainted evidence proved, making the 

burden of producing cumulative evidence of the fact impossible. Clearly, if the only 

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evidence tending to prove an element of the crime is tainted, then reversal will be 

compelled. Assume, for example, that the accused is charged with robbery under § 45-5-

401(1)(b), MCA. The only evidence of the defendant's threat to inflict bodily injury on the 

liquor store clerk (the threat being an essential element of the crime charged) is the 

repetition by the investigating officer of the hearsay statement of a non-testifying witness. 

Under this circumstance, the threat element was proven only by inadmissible evidence. 

That element having not been proved by other admissible evidence, the error in admitting 

the tainted evidence cannot be harmless as a matter of law, and reversal is compelled. 

¶46 However, in those cases where the tainted evidence does not go to the proof of an 

element of the crime charged, and there is no other admissible evidence tending to prove 

the particular fact at issue, the admission of the tainted evidence will be deemed harmless 

only if the State demonstrates that no reasonable possibility exists that the admission of 

the tainted evidence might have contributed to the defendant's conviction. Again, by way 

of example, suppose the State offers evidence in a DUI case that the defendant is a 

convicted child molester. As there would be no other admissible evidence which would 

prove this fact, and since the tainted evidence does not go to the proof of an element of 

DUI, the State would have to demonstrate that, qualitatively, there was no reasonable 

possibility that the tainted evidence might have contributed to the defendant's conviction--

a virtually impossible burden to carry, given the highly inflammatory nature of child 

molestation evidence. If, on the other hand, the tainted evidence consisted of a passing 

reference to the fact that the defendant went through bankruptcy years earlier, the State 

could well demonstrate that, qualitatively, there was no reasonable possibility that the 

tainted evidence might have contributed to the defendant's conviction. 

¶47 Thus, restated, we hold that, in order to prove that trial error was harmless, the State 

must demonstrate that there is no reasonable possibility that the inadmissible evidence 

might have contributed to the conviction. To do this, the State must demonstrate that the 

fact-finder was presented with admissible evidence that proved the same facts as the 

tainted evidence and, qualitatively, by comparison, the tainted evidence would not have 

contributed to the conviction. In those cases in which no such cumulative admissible 

evidence was presented, then we must determine whether the tainted evidence went to the 

proof of an element of the crime charged or, by contrast, to some fact not involving an 

element of the crime. If there was no cumulative evidence presented as to a fact proving 

an element of the crime charged, then the error in admitting the tainted evidence which 

proved that element cannot be considered harmless, the qualitative assessment is never 

reached, and the court's decision will be reversed. If the evidence in question did not prove 

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an element of the crime, then the State must demonstrate that, qualitatively, there is no 

reasonable possibility that the tainted evidence might have contributed to the defendant's 

conviction.

¶48 Applying this test in the present case, the improper admission of the HGN evidence 

would be categorized as "trial" error under the above definition. Moreover, the HGN 

evidence was offered to prove that the defendant was "under the influence," which is an 

element of the DUI offense. The State therefore must demonstrate that (a) there was other 

admissible (cumulative) evidence demonstrating the "under the influence" element of the 

crime charged; and (b) that, qualitatively, no reasonable possibility exists that the tainted 

evidence might have contributed to the defendant's conviction. We conclude that the State 

demonstrated both elements here.

¶49 The fact-finder was presented with other admissible (cumulative) evidence that 

proved the same fact as the tainted (HGN) evidence, which was Van Kirk's intoxication. 

Officer Kelly testified to Van Kirk's slow, erratic, and suspicious driving. Once the 

ensuing stop was initiated, Officer Kelly observed that Van Kirk had bloodshot eyes and 

smelled of alcohol, and when asked to produce his vehicle registration and proof of 

insurance, Van Kirk handed over a map. At the police station, Van Kirk did not perform 

well on the walk-and-turn sobriety test, and he submitted to a breath test which indicated 

his blood/alcohol content was .115. On the basis of this other admissible (cumulative) 

evidence of intoxication, the State met its burden of proving that Van Kirk was under the 

influence. Moreover, we conclude that the introduction of the inadmissible HGN evidence 

was harmless because, qualitatively, and in comparison to the admissible evidence 

presented demonstrating that Van Kirk was under the influence, there is no reasonable 

possibility that it contributed to the conviction. Accordingly, Van Kirk's right to a fair trial 

was not prejudiced.

¶50 We will never be able to completely eliminate from judicial review the factual context 

surrounding each claimed error. However, we conclude that the harmless error test 

announced here, to be applied to the review of all cases after the date of this decision, will 

help to insure that the substantial rights of the defendant are not prejudiced by the 

admission of tainted evidence, and will bring the consistency to our future harmless error 

analyses that has been lacking in the past.

¶51 The District Court is affirmed.

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/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

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