No. 87-150 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1387 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTODD MICHAEL RYAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert W. Heilig, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Martin D. Lambert, Deputy County Attorney, Bozeman 

Filed: 

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Submitted on Briefs: Sept. 3, 1987 

Decided: October 27, 1987 

OCT 21 1987 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This case arose in the District Court for the Eighteenth 

Judicial District of Montana, in and for Gallatin County. 

Mr. Ryan appeals his conviction of being in actual physical 

control of a motor vehicle while under the influence of 

alcohol. We affirm. 

The issue is whether the District Court erred in refusing to give defendant's offered Instruction No. 11 concerning 

circumstantial evidence. 

A highway patrol officer noticed Mr. Ryan's vehicle 

parked on an interstate on-ramp at about 2:30 a.m. Its 

lights were on and its engine was running. As the officer 

approached the vehicle, she saw Mr. Ryan lying across the 

front seat, with his feet near the gas and brake pedals. She 

roused Mr. Ryan with difficulty, and noted that he smelled 

strongly of alcohol and had trouble walking. After having 

Mr. Ryan perform some field sobriety tests, the officer 

placed him under arrest. 

The officers present when Mr. Ryan arrived at the 

stationhouse testified that Mr. Ryan performed a series of 

deep knee bends and ran in place while awaiting booking. He 

was given a breath analysis test and repeated the field 

sobriety tests on videotape. The breath analysis test showed 

a blood alcohol concentration of .158. 

Mr. Ryan was charged with violation of 5 61-8-401 (1) (a), 

MCA: "It is unlawful . . . for any person who is under the 

influence of . . . alcohol to drive or be in actual physical 

control of a vehicle upon the ways of this state open to the 

public." After he was tried and convicted in justice court, 

Mr. Ryan appealed to district court. At his jury trial in 

district court, the defense offered an instruction on 
circumstantial evidence. The instruction was refused. The 

jury found Mr. Ryan guilty. 

Did the District Court err in refusing to give defendant's offered Instruction No. 11 concerning circumstantial 

evidence? 

Defendant's offered Instruction No. 11 was: 

You are instructed that if you find that the 

evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which 

points to his innocence, it is your duty under the 

law, to adopt that interpretation which will admit 

of the defendant's innocence, and reject that which 

points to his guilt. 

The District Court refused the instruction, "in favor of the 

reasonable doubt instruction." The defense argues that this 

refusal wrongfully deprived it of its theory that Mr. Ryan 

may have acted responsibly in stopping his vehicle and parking it when he felt the effects of alcohol were interfering 

with his ability to drive. 

In a case based solely on circumstantial evidence, an 

instruction such as defendant's No. 11 is proper. State v. 

Lucero (Mont. 1984), 693 P.2d 511, 513, 41 St.Rep. 2509, 

2511-12. However, such an instruction is not proper where 

the elements of the crime charged are found in the direct 

testimony of witnesses. State v. Freeman (1979), 183 Mont. 

334, 343, 599 P.2d 368, 373. Here, the arresting officer 

testified to the essential elements of the crime. Notwithstanding the defense's theory that Mr. Ryan may have stopped 

driving when he realized that he was under the influence of 

alcohol, the testimony of the arresting officer supports the 

conclusion that he was in actual physical control of the 

vehicle when she came upon him. He was the only person in 
the vehicle, was in the front seat as if flopped over from 

the driver's seat, and had the vehicle's engine running and 

its lights on. Those facts are sufficient to prove actual 

physical control of the vehicle. See State v. Taylor (1983), 

203 Mont. 284, 661 P.2d 33. 

Further, the defense was not deprived of its theory when 

the court refused to give proposed Instruction No. 11. The 

court gave an instruction on reasonable doubt. If the defense's theory raised a reasonable doubt in the jury's minds 

as to Mr. Ryan's guilt, the jury could have found Mr. Ryan 

not guilty. We hold that the court did not err in refusing 

to give proposed Instruction No. 11. 

Af f irrned. 

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i - Justices / /r