DA 07

- 0291 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 243N
CITY OF MISSOULA, Plaint iff and Appellee,
v. RICKY D. SIMON, Defendant and Appellant.

APPEAL FROM: Di strict Court of the Fourth Judicial District,

In and For the County

of Missoula, Cause No. DC 06

- 411 Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:

For Appellant: Richard R. Buley; Tipp & Buley, Missoula, Montana For Appellee: Hon. Mike McGr ath, Montana Attorney General; David Ole Olson, Assistant Attorney

General , Helena, Montana Fred Van Valkenburg, Missoula Count y Attorney; Andrew Scott, Deputy County A ttorney, Missoula, Montana

Submitted on Briefs: June 4, 2008 Decided: Ju ly 8, 2008 Filed:

__________________________________________ Clerk July 8 20082

Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and West Grou p in the quarterly table of noncitable cases issued by this Court. ¶2 Ricky Simon (Simon) appeals an order of the Fourth Judicial District Court, Missoula County, which affirmed the Missoula Municipal Court ’ s denial of Simon ’ s motion to suppress. We affirm. ¶3 Missoula police officer Tim Richtmyer (Richtmyer) was patrolling in Missoula on November 12, 2005, at approximately 11:25 p.m. when he allegedly observed Si mon ’ s vehicle traveling in the oncoming lane without its headlights on. Officer Richtymer stopped the vehicle, and upon speaking with Simon observed evidence of intoxication. Si mon was arrested for driving under the influence of alcohol and driving after nightfall without his headlights on . ¶4 Si mon moved the municipal court to suppress all evidence Richtmyer obtained as a result of the traffic stop. Simon alleged that Richtmyer lacked particularized suspicion for the stop, claiming an 8 mm videotape from the on

- board camera in Richtmyer ’ s patrol car showed that Simon ’ s headlights were on the entire time that Richtmyer had observed3

Si mon ’ s vehicle. The municipal court held a hearing on the motion, at which Richtmyer testified he had witnessed Simon turn on the headlights while Simon was driving towards him. The municipal court then viewed the videotape, and concluded that, “ although it does not provide an absolutely clear answer to the issue, . . . the sudden increase in the glare of lights coming down Russell shortly after the intersection is due to an approaching vehicle turning on its lights . . . . ” Accordingly, the municipal court agreed Richtmyer had particularized suspicion to stop Simon and denied Simon ’ s motion to suppress. ¶5 Si mon pled nolo contendere, reserving the right to appeal the denial of h is suppression motion. Si mon appealed to the Di strict Court , whichreviewed the videotape and determined that it supported Richtmyer ’ s testimony and the municipal court ’ s conclusion. The District Court explained: “ When one looks at the videotape numerous times, one is able to see a set of he adlights appear suddenly . . ., giving Officer Richtmyer grounds to pull the v ehicle over. Once the driver, Ricky Simon, is approached the evidence of alcohol consumption becomes evident. ” Simon appeals. ¶6 We review a trial court ’ s denial of a suppression motion ba sed on a finding of particularized suspicion to determine whether that finding is clearly erroneous and whether the trial court ’ s conclusions of law are correct. City of Billings v. Costa , 2006 MT 181, ¶ 7, 333 Mont. 84, ¶ 7, 140 P.3d 1070, ¶ 7. Findings of fact are clearly erroneous when they are not supported by substantial credible evidence, the district court has misapprehended the effect of the evidence, or a review of the record leaves this Court4

with the conviction that a mistake has been ma de

. State v. Graham , 2007 MT 358, ¶ 10, 340 Mont. 366, ¶ 10, 175 P.3d 885, ¶ 10. The trier of fact is in the best position to determine the credibility of witnesses and the weight to be given to their testimony, and its determination with regard to disputed que stions of fact and credibility will not be disturbed on appeal. State v. Rennaker , 2007 MT 10, ¶ 16, 335 Mont. 274, ¶ 16, 150 P.3d 960, ¶ 16. ¶7 Si mon argues that the videotape “ clearly ” shows that his headlights were on as he approached Richtmyer ’ s vehicl e. However, Richtmyer testified to the contrary, and both the municipal court and the District Court concluded, after reviewing the videotape and taking testimony from Richtmyer and Simon, that Simon ’ s headlights were initially off. We will not substitut e our judgment for the trier of fact and conclude that the District Court ’ s finding is supported by substantial evidence

. ¶8 It is appropriate to decide this case pursuant to our Order of February 11, 2003, amending Section I .3 of our 1996 Internal Operatin g Rules and providing for
me morandum opinions. It is manifest on the face of the briefs and the record before us that the appeal is without merit because the findings of fact are supported by substantial evidence, the legal issues are clearly controlled b y settled Montana law which the District Court correctly interpreted, and there was clearly no abuse of discretion by the District Court.5

¶9 We affirm the judgment of the District Court.
/S/ JIM RICE

We concur: /S/ KARLA M. GRAY /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART