DA 14-0511

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 63

CITY OF KALISPELL,

 Plaintiffs and Appellees,

 v.

TYLER OMYER, CALVIN ATHY and

GLORIA FERRARI,

 Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause Nos. DC-13-326A, 13-263A

and 13-264A

Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Chad Wright, Chief Appellate Defender, Natalie Wicklund, Assistant

Appellate Defender; Helena, Montana

For Appellees:

Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,

Assistant Attorney General; Helena, Montana 

Charles A. Harball, Kalispell City Attorney, Emily Von Jentzen,

Assistant City Attorney; Kalispell, Montana

Submitted on Briefs: January 27, 2016

 Decided: March 15, 2016

Filed:

__________________________________________

Clerk

March 15 2016
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Gloria Ferrari, Calvin Athy, and Tyler Omyer (jointly Appellants) were convicted 

in the City of Kalispell Municipal Court of various traffic violations including driving 

with a suspended license. They appealed their convictions to the Eleventh Judicial 

District Court, Flathead County. After the District Court affirmed the convictions, they 

appealed separately to this Court. While the factual backgrounds differ slightly, the legal 

issue and analysis are identical; therefore we have consolidated these cases for the 

purpose of appeal and this Opinion. Attorney Greg Rapkoch represented each of the 

Appellants in the Municipal and District Courts. Assistant Appellate Defender Natalie 

Wicklund represented all of the Appellants before this Court. We affirm.

ISSUES

1. Did the District Court err in failing to determine whether § 61-5-212, MCA, 

imposed absolute liability on each of the Appellants?

2. Did the District Court abuse its discretion by holding that the evidentiary 

“letters of suspension” were admissible as “certified copies of public records” 

under M. R. Evid. 902(4) (Rule 902(4))?

FACTUAL AND PROCEDURAL BACKGROUND

Gloria Ferrari

¶2 On June 20, 2010, Gloria Ferrari was cited by Kalispell Police Officer A.J. 

McDonnell for various traffic violations including driving with a suspended license. The 

Kalispell Municipal Court conducted a bench trial on May 30, 2013. Ferrari was 

represented by appointed counsel Rapkoch but was not in attendance. McDonnell 

presented Ferrari’s “Certified Driver Record” generated by the State of Montana 
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Department of Justice, Motor Vehicle Division (MVD), as well as six letters from MVD 

to Ferrari informing her that her license was suspended. Counsel objected to the 

suspension letters as hearsay and in violation of Ferrari’s United States and Montana 

constitutional rights to confrontation. The Municipal Court admitted the evidence over 

counsel’s objection. Ferrari was found guilty and sentenced to 180 days in jail with 178 

suspended and fined $325.00. She appealed to the District Court.

Calvin Athy 

¶3 On September 10, 2012, Calvin Athy was cited by Officer Stan Ottosen of the 

Kalispell Police Department for multiple traffic violations including driving with a 

suspended license. At the May 30, 2013 Municipal Court bench trial, Athy was 

represented by Rapkoch but Athy did not attend the trial. Ottosen testified at Athy’s trial 

and presented Athy’s “Certified Driver Record” as well as three letters from MVD to 

Athy notifying him that his license was suspended. Counsel objected to the letters on 

hearsay and Confrontation Clause grounds but the Municipal Court admitted the evidence 

and found Athy guilty. Athy was sentenced to a 180-day jail sentence with 178 days 

suspended and fined $325.00. On June 11, 2013, Athy appealed his judgment to the 

District Court.

Tyler Omyer

¶4 On December 8, 2012, Tyler Omyer was cited by Sargent Allen Bardwell of the 

Kalispell Police Department for multiple traffic violations including driving a motor 

vehicle with a suspended license. The Kalispell Municipal Court conducted a bench trial 

on June 27, 2013, at which Omyer was present and represented by Rapkoch. Bardwell 
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presented Omyer’s “Certified Driver Record” as well as six letters sent by MVD to 

Omyer notifying him that his driver’s license was suspended for reasons stated in the 

letters. Omyer objected to the admission of the MVD suspension letters on hearsay and

Confrontation Clause grounds. The Municipal Court admitted the evidence, convicted 

Omyer of all offenses, and sentenced him to 180 days in jail with 178 suspended. The 

court allowed him to serve his time at the community car wash or the animal shelter. 

Additionally, he was fined $325.00. On July 25, 2013, Omyer appealed to the District 

Court.

¶5 The three cases were consolidated by the District Court for purposes of appeal. 

Counsel for the Appellants had not objected to, nor did he appeal, the Municipal Court’s 

admission of the “Certified Driving Record” for each defendant as each record 

unequivocally established that the license for each driver was suspended at the time of the 

traffic stops and of citations to each. Rather, counsel argued that conviction of the 

offense of driving with a suspended license required the City to prove that each defendant 

had a culpable mental state, i.e., that they “knew” their licenses were suspended at the 

time of their offenses. Counsel claimed that the only evidence presented of the 

Appellants’ knowledge of their suspensions were the MVD suspension letters. Counsel 

asserted that these letters were inadmissible because they contained “testimonial hearsay”

subject to the protections of the Confrontation Clauses of the United States and Montana 

Constitutions. The certificate of mailing language stamped onto the bottom of each 

notification letter and challenged by the Appellants read:
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The undersigned hereby testifies that on the date below, he or she, as an 

officer or employee of the motor vehicle division, deposited in the United 

States mail at Helena, Montana, a copy of the paper to which this is affixed, 

in an envelope with the postage prepaid, addressed to the person named in 

the paper at his or her last address as shown by the records of the 

Department.

________________________________________________

Date Officer or Employee of Department

Counsel argued that this language constituted testimony and was included in letters that 

were “prepared in anticipation of use at trial to prove historical facts relevant to 

prosecution.” Counsel claimed that had the evidence been properly excluded, there 

would have been no evidence presented at trial establishing a “knowing” culpable mental 

state and Appellants could not have been convicted under § 61-5-212, MCA.

¶6 The City of Kalispell responded that the MVD letters were properly admitted as 

self-authenticating business records under § 61-11-102, MCA, and Rule 902(4) of the 

Montana Rules of Evidence. The City further argued that the challenged letters did not 

constitute testimonial evidence triggering the Confrontation Clause and were admissible 

under Rule 803(8), M. R. Evid. Lastly, the City countered that under § 26-1-602(24), 

MCA, it is presumed that a correctly addressed and mailed letter is received by the 

intended recipient and none of the Appellants rebutted this presumption at trial.

¶7 The District Court determined that the stamped certificates of mailing included in 

each suspension letter did not constitute testimonial hearsay; rather, the letters were 

certified copies of public records and were admissible under Rules 902(4) and 803(8) of 

the Montana Rules of Evidence. The court also concluded that Appellants had not 
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rebutted the statutory presumption that they had received the suspension letters; therefore, 

the court presumed receipt.

¶8 Appellants filed timely appeals.

STANDARD OF REVIEW

¶9 Section 3-6-110, MCA, governing a district court’s review of a municipal court’s 

ruling, confines the district court’s review to the record and questions of law. Section 

3-6-110(1), MCA. In turn, when this Court reviews the district court, we undertake an 

independent examination of the record apart from the district court’s decision and will

“affirm the district court when it reaches the right result, even if it reaches the right result 

for the wrong reason.” State v. Gai, 2012 MT 235, ¶ 11, 366 Mont. 408, 288 P.3d 164. 

Based upon our review of the trial court’s record, we review the trial court’s factual 

findings under the clearly erroneous standard, its discretionary rulings for an abuse of 

discretion, and its legal conclusions de novo. State v. Ellison, 2012 MT 50, ¶ 8, 

364 Mont. 276, 272 P.3d 646.

DISCUSSION

¶10 Each of the Appellants was convicted under § 61-5-212, MCA, which provides, in 

relevant part:

(1)(a) A person commits the offense of driving a motor vehicle without a 

valid license or without statutory exemption or during a suspension or 

revocation period if the person drives:

(i) a motor vehicle on any public highway of this state at a time when the 

person’s privilege to drive or apply for and be issued a driver’s license is 

suspended or revoked in this state or any other state . . . .
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¶11 Appellants assert on appeal that the District Court abused its discretion by 

admitting testimonial hearsay evidence at trial in violation of the Confrontation Clauses 

of the Montana and the United States Constitutions. They claim that testimonial hearsay 

is “an out-of-court statement offered for the truth of the matter asserted and where the 

declarant spoke in a manner as to create evidence.” They explain that in this case 

“unknown government agents purport to testify in writing that [defendant] should have 

had notice and knowledge of her [or his] suspended license.” Appellants claim that 

testimonial hearsay is only permissible if a court determines a declarant is unavailable 

and the defendant had a prior opportunity for cross-examination. They argue this did not 

occur. They request that we reverse and remand for new trials with instructions that the 

trial court reject admission of the suspension letters.

¶12 The State counters that the suspension letters were not testimonial hearsay but 

were contemporaneous business records created for the administration of the MVD’s 

operations and not for the purpose of establishing or proving some fact at trial. As such 

the letters were admissible. Additionally, the State asserts that even if the letters were 

erroneously admitted, the error was harmless because “driving with a suspended license” 

is an absolute liability offense that does not require knowledge of the suspension.

¶13 1. Did the District Court err in failing to determine whether § 61-5-212, MCA, 

imposed absolute liability on each of the Appellants?

¶14 We first address the State’s assertion that § 61-5-212, MCA, establishes that 

driving with a suspended license is an absolute liability offense which does not require 

proof of a mental state. Notably, we have not decided previously whether this offense 
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requires proof of a mental state or is an absolute liability offense. To determine whether 

the legislature intended an offense to be an absolute liability offense we look to 

the language of the statute and the statute’s apparent purpose. State v. Huebner, 

252 Mont. 184, 827 P.2d 1260 (1992).

¶15 In Huebner, we concluded that § 87-3-102, MCA, prohibiting someone from 

killing a game animal and abandoning the meat, or removing only the parts suitable for 

trophy mounting, was an absolute liability statute based upon the State’s responsibility 

for protecting public wildlife resources. Huebner, 252 Mont. at 188, 827 Mont. at 1263. 

We relied upon § 45-2-104, MCA, which currently provides that “A person may be guilty 

of an offense without having, as to each element of the offense, one of the mental states 

of knowingly, negligently, or purposely only if the offense is punishable by a fine not 

exceeding $500 or the statute defining the offense clearly indicates a legislative purpose 

to impose absolute liability for the conduct described.” Huebner, 252 Mont. at 188, 

827 Mont. at 1263. Applying a previous, but similar, version of § 45-2-104, MCA

(1991), the Huebner Court determined that the language of the statute indicated a 

legislative purpose to impose absolute liability. 

¶16 Turning to § 61-5-212, MCA, the statute does not contain any reference to a 

mental state, such as knowingly or purposely. It is clear based upon the many statutes in 

which the Legislature requires a specific mental state, for example, §§ 45-5-102, 

45-5-201, 45-5-202, and 45-6-204, MCA, that had the Legislature intended to require one 

for this statute, it would have done so. Additionally, the legislative purpose of the statute 

is not difficult to discern. The State has a compelling interest in keeping unsafe drivers 
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off the road, especially drivers whose privileges have been suspended for various reasons 

such as unsafe driving, driving while under the influence of alcohol or drugs, or driving 

without liability insurance. State v. Pyette, 2007 MT 119, ¶ 27, 337 Mont. 265, 

159 0P.3d 232.

¶17 Furthermore, while we note that § 45-2-104, MCA, is written in the disjunctive 

and requires only that the statutory penalty not exceed $500 or that the statute clearly 

indicates a legislative purpose to impose absolute liability, in this case both requirements 

are met in that § 61-5-212(1)(b)(i), MCA, provides with some exceptions, that a person 

convicted of driving during a period of license suspension may be fined “not more than 

$500.” For these reasons, we conclude that the statute clearly indicates a legislative 

purpose to impose absolute liability and that conviction under this statute does not require 

a culpable mental state.

¶18 The elements of driving while suspended include driving “a motor vehicle on any 

public highway” when the driver’s “privilege to drive . . . is suspended.” The evidence 

presented in each of the Appellant’s trials through admission of their Certified Driver 

Records established that they drove vehicles upon the public roads of this State while 

their licenses were suspended. As these were the only requirements necessary for 

conviction under § 61-5-212, MCA, the Municipal Court did not err in convicting the 

Appellants nor did the District Court err in affirming the Municipal Court. As we 

indicated above, we will not overturn a district court when it reaches the right result, even 

if it reaches the right result for a different or a wrong reason. Gai, ¶ 11.
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¶19 2. Did the District Court abuse its discretion by holding that the evidentiary 

“letters of suspension” were admissible as “certified copies of public records” 

under M. R. Evid. 902(4)?

¶20 We next address the Appellants’ assertion that the letters notifying them of their 

suspensions contained “testimonial hearsay” and should not have been admitted or used 

to support their convictions. As indicated above, the District Court affirmed the 

Municipal Court’s admission of the suspension letters, finding them to be certified copies 

of public records under Rule 902(4). The court further determined they were not 

testimonial in nature and were appropriately admitted under the public records hearsay 

exception set forth in Rule 803.

¶21 Rule 803(8), M. R. Evid. provides:

The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness:

. . .

(8) Public records and reports. To the extent not otherwise provided in this 

paragraph, records, reports, statements, or data compilations in any form of 

a public office or agency setting forth its regularly conducted and regularly 

recorded activities, or matters observed pursuant to duty imposed by law 

and as to which there was a duty to report, or factual findings resulting 

from an investigation made pursuant to authority granted by law. The 

following are not within this exception to the hearsay rule: (i) investigative 

reports by police and other law enforcement personnel; (ii) investigative 

reports prepared by or for a government, a public office, or an agency when 

offered by it in a case in which it is a party; (iii) factual findings offered by 

the government in criminal cases; (iv) factual findings resulting from 

special investigation of a particular complaint, case, or incident; and (v) any 

matter as to which the sources of information or other circumstances 

indicate lack of trust worthiness.

Rule 902(4), M. R. Evid. provides:

Extrinsic evidence of authenticity as a condition precedent to admissibility 

is not required with respect to the following:

. . .
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(4) Certified copies of public records. A copy of an official record or report 

or entry therein, or of a document authorized by law to be recorded or filed 

and actually recorded or filed in a public office, including data compilations 

in any form, certified as correct by the custodian or other person authorized 

to make the certification, by certificate complying with paragraph (1), (2), 

or (3) or complying with any law of the United States or of this state.

¶22 In Billings v. Lindell, 236 Mont. 519, 771 P.2d 134 (1989), we addressed the 

self-authenticating nature of the MVD’s driving records. We explained that the MVD 

has the duty to maintain records of license convictions and that it would be unreasonable 

for a custodian of the department to be present in court each time a record was necessary 

for a trial. Billings, 236 Mont. at 521, 771 P.2d at 136. We discussed some of the 

various methods developed by the Legislature through which authenticity is taken as 

established for purposes of admissibility. Two such methods were Rules 803(8) and 

902(4), M. R. Evid. Billings, 236 Mont. at 521-22, 771 P.2d at 136. Based upon the 

plain language of these rules, the statutorily-mandated purpose of MVD’s 

record-keeping, and our analysis in Billings, we conclude the District Court did not abuse 

its discretion in holding that the suspension letters were admissible under Rules 803 and 

902(4).

¶23 Lastly, we note that our ruling is consistent with multiple U. S. Supreme Court

decisions. That Court distinguishes between testimonial and non-testimonial hearsay, but 

has repeatedly declined to offer an exhaustive or comprehensive definition of 

“testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). 

See also Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006). 

However, in Davis, the U. S. Supreme Court declared that statements are testimonial 
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when their “primary purpose . . . is to establish or prove past events potentially relevant 

to later criminal prosecution.” Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74. 

Subsequently, in Melendez-Diaz v. Mass., 557 U.S. 305, 129 S. Ct. 2527 (2009), the 

Court further elaborated that “[b]usiness and public records are generally admissible 

absent confrontation not because they qualify under an exception to the hearsay rules, but 

because—having been created for the administration of an entity’s affairs and not for the 

purpose of establishing or proving some fact at trial—they are not testimonial.” 

Melendez-Diaz, 557 U.S. at 324, 129 S. Ct. at 2539-40.

¶24 In the case at bar, as in Melendez-Diaz, the primary purpose of the MVD’s 

suspension letters is not to provide evidence in future criminal prosecutions but rather to 

notify drivers of a license suspension and to create a statutorily-mandated database of 

driver’s license records. It is realistic to presume that the vast majority of suspension 

letters, and other MVD documentation, exist within the agency’s database and printed 

copies are never generated for purposes of criminal prosecutions. This analysis supports 

our conclusion that driver’s records are created for the administration of the MVD’s 

affairs and not for the purpose of proving a fact at trial.

CONCLUSION

¶25 For the foregoing reasons, we conclude the District Court neither erred nor abused 

its discretion in affirming the Municipal Court’s convictions and judgments of the 

Appellants.

/S/ MICHAEL E WHEAT
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We Concur: 

/S/ JAMES JEREMIAH SHEA

/S/ PATRICIA COTTER

/S/ BETH BAKER

/S/ JIM RICE