No. 89-215
INTHE SUPREME COURTOF THE STATE OF MONTANA

CITY OF MISSOULA, Plaintiff and Respondent,-vsRICHARD DALE PRINKKI, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable Jack L. Green, Judgepresiding. COUNSELOF RECORD: ForAppellant: Richard Dale Prinkki,pro setMissoula,Montana For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana Clay R. Smith,Solicitor, Helena,Montana Donald Louden,CityAttorney's Office,Missoula,Montana

Filed: Submitted: Sept. 7, 1989 Decided: September 27, 1989Justice 

### R. C. McDonough delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court of the Fourth Judicial District, Missoula County, finding defendant Richard D. Prinkki (Prinkki) guilty of two counts of driving while his license was suspended,driving under the influence, failure to drive on the right side of the road, and drivingwith no insurance. We affirm. Prinkkiraises two issues on appeal: 1. Did the trial court err in ruling that Prinkki was not entitled to a jury of twelve persons in a trial de novo in District Court on appeal from a conviction in Municipal Court? 2. Did the District Court improperly deny Prinkkits motion to sever the charges? On January 20, 1988, Prinkki was arrested and charged with driving under the influence in violation of § 61-8-401, MCA; failure to drive on the right side of the road in violation of S 61-8-321,MCA; and driving with no insurance in violation of S 61-6-301,MCA. Subsequently, on May 16, 1988, Prinkki was convicted by a jury in Municipal Court for each of these offenses. After his arrest on January 20, Prinkki was issued two separate citations for driving while his license was revoked in violation of $ 61-5-212,MCA. These violations occurred
on February 1 and February 2, 1988. Upon a different trial, held on May 17, 1988,Prinkki was convicted of both of these offenses. Following the convictions, Prinkki filed a combined notice of appeal to the District Court appealing all of the convictions. At an omnibus hearing, Prinkki made amotion to sever the charges,which was denied. The new trial was set for a twelve person jury. The trial court later determinedthat, because the case was an appeal from Municipal Court, the defendant was only entitled to a six person jury. Trial by a six person jury was held. and Prinkki was convicted of all charges on October 24, 1988. This appeal followed. I Prinkkiargues that the trial court erred in ruling that he was not entitled to a twelve person jury. We disagree. Procedure in municipal court is set forth at Title 46, Chapter 17, Part 4, MCA. Section 46-17-403, MCA, provides that: "In criminal cases 

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# . . either party shall be entitled to a jury trial as provided in justices' courts.

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### " In justice court, a defendant is entitled to a jury of
no more than six persons. Section 46-17-201(1), MCA. Upon appeal to District Court, the defendant is entitled to 

# ".

. .be tried anew 

# . . . and may be 

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# . . tried before a jury of six." Section 46-17-311(1)

## , MCA. Because criminal defendants in muncipal courts are afforded the same rights as those in justice courts, they, likewise,are only entitled to
a sixperson jury. See § 46-17-403,MCA.

Prinkki next argues that the District Court improperly denied hismotion to sever the charges. We disagree. In support ofhis argument,Prinkkireliesupon Statev. Orsborn (1976),170 Mont. 480, 555 P.2d 509. In Orsborn we examined federal case law on the potentialities of prejudice resulting from the joinder of two crimes of the same class. This examination led us to the conclusion that three types of prejudice may result upon joinder of similar offenses. First, the jury may consider a defendant who is subject to multiple charges to be a "bad man.

### " Second,proof of guilt of one offense may be used to convict the defendant of another offense even though suchproof may be inadmissible attrial. And finally, prejudicemay resultwhere the defendant wishes to testify on his own behalf on one chargebut not on the other. Orsborn, 555 P.2d at 514-515. A district courtmust consider these three elements when faced with a motion to sever offenses. However, we fail to find any actualprejudice which resulted from a denial ofhis motion. This Court has accorded the trial courts a wide breadth of discretion in their determinations regarding separate trials. Joint trials are often necessary to preserve judicial economy. The defendant, therefore, must show actual and substantial prejudice. State v. Campbell (1980), 189Mont. 107, 615 P.2d 190. Prinkkiargues, in substance, that the facts surrounding the violations of driving while his licensewas revoked would tend to lead the jury to believe thathe was a "badman"who ignored the laws. Theviolation of February 2,occurred when
a police officer discovered his car outside of a Missoula bar. Prinkkiwas arrested as he left the bar. These facts, Prinkkimaintains,may haveprejudiced the juryby leading it to believe that he was an alcoholic who continued to drive despite the fact that his licensehad been revoked. In Statev. Slice (1988),753 P.2d 1309, 45 St.Rep. 752, we upheld a district court's denial of a motion to sever charges. In Slice, the defendant was tried on sixteen criminal counts. In upholding the conviction, we noted that reversal of a decision not to sever criminal charges is seldom granted. Slice, 753 P.2d at 1311. Generally, in order tobe entitled to a reversal, adefendant must show the prejudice was sogreat as toprevent a fair trial. The evidence asserted by Prinkki, which he argues led the jury to view him as- a "bad man," fails to meet the high standard of proof necessary to overturnhis conviction. The offenses of February 1st and 2nd are regulatory in nature.We therefore do not agree that they substantially prejudiced Mr. Prinkki by casting him in a bad light. Given the deference afforded to the discretion of the trial court's judgment in these matters, we decline to reverse its decision. Prinkki's conviction is affirmed.



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Justices 

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