file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

No. 99-537 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 385N 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

JAMES ARTHUR SWARTZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer,

The Honorable Gary L. Day, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. B. Wheatcroft, Attorney at Law, Miles City, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Garry P. Bunke, Custer County Attorney; Coleen Magera, Deputy

County Attorney, Miles City, Montana

Submitted on Briefs: August 3, 2000 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (1 of 6)4/5/2007 11:46:16 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

Decided: December 28, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent but 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 to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 James Arthur Swartz (Swartz) appeals from the judgment entered by the Sixteenth 

Judicial District Court, Custer County, on a jury verdict finding him guilty of theft and of 

being a habitual traffic offender operating a motor vehicle. We affirm.

¶3 The issue on appeal is whether the District Court abused its discretion in denying 

Swartz's motion for a new trial based on improper jury instructions.

BACKGROUND 

¶4 On June 19, 1998, the Motor Vehicle Division of the Montana Department of Justice 

declared Swartz to be a habitual traffic offender for having accumulated 30 or more 

conviction points on his driving record related to the use of a motor vehicle and revoked 

his driver's license. He was duly served with notice of the habitual traffic offender 

declaration which stated, in part, that

AS OF THIS DATE, YOU ARE NOT AUTHORIZED TO OPERATE A MOTOR 

VEHICLE IN THIS STATE FOR A PERIOD OF THREE YEARS.

The notice also referenced § 61-11-213, MCA, which provides that operating a motor 

vehicle in this state while declared to be a habitual traffic offender is a misdemeanor 

criminal offense.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (2 of 6)4/5/2007 11:46:16 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

¶5 On October 20, 1998, Swartz was charged by amended information with the offenses of 

theft, driving under the influence of alcohol and being a habitual traffic offender operating 

a motor vehicle. Following a jury trial, he was convicted of theft and being a habitual 

traffic offender operating a motor vehicle. Swartz moved the District Court for a new trial 

arguing, inter alia, the court improperly instructed the jury on the offense of being a 

habitual traffic offender operating a motor vehicle and his counsel rendered ineffective 

assistance by failing to object to the jury instruction given. The District Court denied the 

motion, sentenced Swartz and entered judgment on the conviction and sentence. Swartz 

appeals.

STANDARD OF REVIEW 

¶6 We review a district court's ruling on a motion for a new trial to determine whether the 

court abused its discretion. State v. Clay, 1998 MT 244, ¶ 13, 291 Mont. 147, ¶ 13, 967 

P.2d 370, ¶ 13. Additionally, we review the adequacy of jury instructions to determine 

whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable 

to the case. State v. Hatten, 1999 MT 298, ¶ 56, 297 Mont. 127, ¶ 56, 991 P.2d 939, ¶ 56.

DISCUSSION 

¶7 Did the District Court abuse its discretion in denying Swartz's motion for a new trial 

based on improper jury instructions?

¶8 Swartz was charged with the offense of being a habitual traffic offender operating a 

motor vehicle in violation of § 61-11-213, MCA, which provides that

[a] person who is declared to be a habitual traffic offender under this part who 

operates a motor vehicle in this state during the period of revocation of the person's 

driver's license or driving privileges is guilty of a misdemeanor . . . .

With regard to this offense, the District Court instructed the jury as follows:

INSTRUCTION NO. 25 

The Defendant was declared a Habitual Traffic Offender by the Department of 

Justice, Motor Vehicle Division, on June 19, 1998. The Defendant's license was 

revoked for a period of three (3) years.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (3 of 6)4/5/2007 11:46:16 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

To convict the defendant of the offense of habitual traffic offender operating a 

motor vehicle, the State must prove the following:

1. was in actual physical control of a vehicle during the period of time that his 

driver's license was revoked.

If you find from your consideration of the evidence that this element has been 

proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of the evidence that this 

element has not been proved beyond a reasonable doubt then you should find the 

defendant not guilty.

¶9 Swartz contends that the District Court's Instruction No. 25 is an incorrect statement of 

the law because it states that the State of Montana (State) was required to prove that he 

was in actual physical control of a vehicle, while § 61-11-213, MCA, requires the State to 

prove he "operated" a motor vehicle. Swartz fails to observe, however, that the court's 

Instruction No. 24 instructed the jury that "[a] person who is declared to be a habitual 

traffic offender who operates a motor vehicle in this state during the period of revocation 

of the person's driver's license or driving privileges is guilty of a violation of the law." 

This is a nearly verbatim recitation of § 61-11-213, MCA, and correctly instructs that the 

offense occurs when a person "operates" a motor vehicle. Thus, when the instructions are 

read together, they fully and fairly instructed the jury that the State was required to prove 

Swartz "operated" a motor vehicle. See Hatten, ¶ 56.

¶10 Moreover, Swartz testified at trial that he started the ignition of the vehicle in question 

and drove the vehicle backward a short distance. This action would constitute both being 

in actual physical control of and operating the vehicle. In light of this admission, it cannot 

be said that the District Court's Instruction No. 25 prejudiced Swartz by using the 

language "actual physical control of a vehicle" rather than "operated a vehicle." An error 

by the trial court is not reversible on appeal unless the error was prejudicial. Section 46-20-

701(1), MCA.

¶11 Swartz also contends that, when he moved the vehicle in question, it was located on a 

private empty lot. He argues the State was required to prove he operated the vehicle on a 

public street or highway and the empty lot does not constitute such a public street or 

highway. In support of his argument, he relies on § 61-11-201, MCA, which states, in part, 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (4 of 6)4/5/2007 11:46:16 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

that

it is the purpose of this part to reduce the number of motor vehicle accidents in this 

state and to provide greater safety to the motoring public and others by denying to 

the habitual traffic offenders the privilege of operating a motor vehicle upon the 

public streets and highways of this state.

¶12 Section 61-11-201, MCA, sets forth the legislative purpose in enacting the statutes 

relating to habitual traffic offenders. The statute does not create a criminal offense. Rather, 

§ 61-11-213, MCA, creates the criminal offense with which Swartz was charged, namely, 

being a habitual traffic offender operating a motor vehicle. As stated above, § 61-11-213, 

MCA, provides that it is a criminal offense for a person declared a habitual traffic offender 

to operate a motor vehicle "in this state . . . ." This phrase encompasses any locale within 

the boundaries of Montana and does not incorporate any distinction between private or 

public property; nor does it distinguish between street or highway and empty lot. 

Consequently, the State's only burden was to prove that Swartz operated a motor vehicle 

within Montana. Finally, the District Court's Instruction Nos. 24 and 25, read together, 

accurately instructed the jury of the State's burden in this regard. We conclude that the 

District Court's jury instructions fairly instructed the jury on the law regarding the offense 

of being a habitual traffic offender operating a motor vehicle.

¶13 Swartz also reiterates his District Court argument that his trial counsel rendered 

ineffective assistance by failing to object to the court's jury instructions regarding § 61-11-

213, MCA. It is well-established that counsel's failure to object does not constitute 

ineffective assistance of counsel when the objection lacks merit and properly would have 

been overruled by the court. See, e.g., Kills on Top v. State (1995), 273 Mont. 32, 51, 901 

P.2d 1368, 1385; State v. Baker (1995), 272 Mont. 273, 285, 901 P.2d 54, 61; Dawson v. 

State, 2000 MT 219, ¶ 108, 10 P.3d 49, ¶ 108, 57 St.Rep. 883, ¶ 108; State v. Raugust, 

2000 MT 146, ¶ 45, 300 Mont. 54, ¶ 45, 3 P.3d 115, ¶ 45. Having concluded above that 

the District Court's jury instructions regarding the offense of being a habitual traffic 

offender operating a motor vehicle fairly stated the law, we further conclude that any 

objection to those instructions properly would have been overruled and the failure of 

Swartz's trial counsel to object to those instructions did not constitute ineffective 

assistance of counsel.

¶14 We hold the District Court did not abuse its discretion in denying Swartz's motion for 

a new trial based on improper jury instructions.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (5 of 6)4/5/2007 11:46:16 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm

¶15 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-537%20Opinion.htm (6 of 6)4/5/2007 11:46:16 AM