DA 10 - 0244 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 83 STATE OF MONTANA, Plaintiff and Appellee, v. ANTHONY VINCENT OTTEN, Defendant and Appellant. APPEAL FROM: District Co urt of the Seventeenth Judicial District,

In and For the County of Valley, Cause No. DC 09 - 30 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jeremy S. Yellin; Attorney at Law; Havre, Montana For Appellee : Steve Bullock, M ontana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana C. David Gorton; Glasgow City Attorney; Glasgow, Montana Submitted on Briefs: February 23, 2011 Decided: April 20, 2011 Filed:

__________________________________________ Clerk April 20 20112

Justice Beth Baker delivered the Opinion of the Court. ¶1 Anthony Vincent Otten( Otten) appeals from the judgment of the Valley County District Court, where he was convicted of o perating a motor v ehicle w hile d eclared to be a h ab itual traffic o ffender , a misdemeanor in violation of § 61 - 11 - 213, MCA . We consider the following issues on appeal: ¶2 **I. Whether**  **the District**  **Court ’**  **s denial**  **of Otten**  **’**

**s motion**  **to dismiss**  **was erroneously premised on an incorrect definition of**  **“ motor vehicle.**  **”** ¶3 **II. Whether the District Court erred in denying Otten**  **’ s motion**  **to dismiss on the**  **ground that there was insufficient evidence to support the verdict.**  ¶4 **III. Whether**  **the District Court erroneously instructed the jury on the definition of**  **“ motor vehicle.**  **”**

**FACTUAL AND PROCEDUR AL BACKGROUND**  ¶5 On May 24, 2009, Glasgow police received a call from Josh Thompson, placed from Ezzie ’ s Wholesale gas station. Thompson told police he had observed Otten pull in to Ezzie ’ s, fill up his four- wheeler, and speed out of the lot in a “wheelie, ”leaving tire marks in the gravel and on the pavement . Thompson recognized Otten as they had previously worked together doing ranch work in the area , a nd recognized his distinctive gray Yamaha Raptor four- wheeler from numerous previo us instances . In response to Thompson ’ s call, Officer Tyler Edwards arrived at Ezzie ’ s to talk to Thompson. Thompson ag

ain relayed what he had observed, and pointed out the tire marks to Edwards. Edwards took several pictures of the marks, and attemptedto find Otten in the fe w hours remaining before nightfall , but was unsuccessful. E dwards had also known3

Otten for a number of years, and had seen Otten riding his gray four- wheeler around town numerous times. ¶6 Two days later, Edwards observed Otten riding his four- wheeler near Highway 2. He approached Otten and issued him a Notice to Appear and Complaint that forms the basis of the charge at issue. On October 14, 2009, Otten was convicted in Glasgow City Court for v

iolation of § 61 - 11 -213, MCA . H e appealed the judgment to Valley County District Court. The District Court held a trial in front of a six-person jury on April 29, 2010 , after which the jury returned a verdict of guilty on the sole charge. Otten stipulated that he was a h abitual traffic o ffen der whose license was rev oked on the alleg

ed date of the offense. He disputed only that the State could prove he was operating a motor vehicle at the time. ¶7 Near the close of trial, Otten moved for a “ directed verdict. ”He based this motion on the claim that the Statep resented insufficient ev idencet o show that Otten’s four- wheeler met the definition of a motor vehicle in § 61 - 1 - 101(40)(a)(ii) , MCA . Otten arg ued that because subsection (ii) makesspecific reference to quadricycles, it alone was av ailablef or the State to prove that hewas operating a motor vehicle . The State responded, and the court agreed, that the two subsections in the definition were phrased in the disjunctive, and that a four- wheeler such as Otten ’ s could qualify as a motor vehicle under either § 61 - 1 - 101(40)(a) (i) or (ii) , MCA . In response, Otten ma intained that insufficient evidence was presented to convict him under subsection (i) regardless . Otten also objected to the jury instruction incorporating both subsections of the defin ition on the same basis . The court rejected Otten ’ s motion and objection to the jury4

instruction, concluding that sufficient evidence supported the State ’ s arg ument that Otten ’s four- wheeler

met the definition of a “motor vehicle ”under subsection (i) , and that subsection (i) was properly applied to the case . ¶8 On appeal, Otten challenges the District Court ’ s ruling on his motion and objection to jury instruction resulting from its incorporation of both subsectionsof § 61 - 1 - 101(40)(a), MCA, in the definitio n of “ motor v ehicle . ”H e also contends that insufficient ev

idence was presented to meet the definition re lied upon by the District Court. While Otten and the Stateb oth address the sufficiency of evidence presented under subse ction (ii), the resolution o f these arguments is not necessary to our decision . **STANDARD OF REVIEW** ¶9 As a preliminary

matter, Otten ’ s motion, framed as a motion for directed verdict of acquittal , is correctly named a “motion to dismiss for insufficient evidence. ”S ection 46 - 16 - 403, M CA; State v. McWilliams , 2008 MT 59, ¶ 36 , 341 Mont. 517, 178 P.3d 121 . We review the denial of a motion to dismiss for insufficient ev idence de novo . Id . at ¶ 37. ¶10 A district court ’ s decision pertaining to jury instructions is reviewed for an abuse of di scretion. Goles v. Neumann , 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P .3d 1089. While the district court ’ s discretion is broad, it is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicabl e law. The instructions must prejudicially affect the defendant ’ s substantial rights to constitute rev ersible error. Id. (citing State v. Christiansen , 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949).5 **DISCUSSION** ¶11 **I. Whether**  **the District**  **Court ’**  **s denial**  **of Otten**  **’**

**s motion**  **to dismiss**  **was erroneously**  **premised on an incorrect definition of “**  **motor vehicle**

**. ”**  ¶12 Under § 46 - 16 -403, MCA, a criminal defendant may move to dismiss the action at the close of the prosecution ’ s evidence or at the close of all evidence wherethe ev idence is insufficient to support a verdict of guilty. The evidence is viewed in the light most fa vorable to the prosecution, and a g rant of the motion is appropriate only if there is not sufficient evidence upon which a rational trier of fact coul d find the essential elements of the crime beyond a reasonable doubt. State v. Cybulski , 2009 MT 70, ¶ 42 , 349 Mont. 429, 204 P.3d 7. ¶13 Otten was charged with operating a motor vehicle while declared to be a habitual traffic offender, a misdemeanor under § 61 - 11 - 213, MCA. The sole element of the crime for which Otten contends the State ’ s evidence was insufficient is that he was “ operating a motor vehicle. ”He argues that the Statepresented evidence that he was driving a “ motor vehicle ” only as that term i s defined in § 61 - 1 - 101(40)(a)(i), not as defined in § 61 - 1 - 101(40)(a)(ii) , which he contends is the only correct definition . Section 61 - 1 - 101, MCA, defines numerous terms used in Title 61, Motor Vehicles. The definition at issue is as follows: (40) (a) “ Motor vehicle ”means: (i) a vehicle propelled by its own power and designed or used to transport persons or property upon the highways of the state; and (ii) a quadricycle if it is equipped for use on the highways as prescribed in chapter 9.6

¶14 The District Court heard oral argument on Otten ’ s motion to dismiss at trial. The parties made substantially the same arguments inopen court as they do on appeal . Otten contends that because subsection (ii) specifically applies to quadricycles, subsecti on (i) cannot be interpreted to also include quadricycleswithin its definition . U nder this analysis, Otten maintains, the Statem ust show that his quadricycle is “ equipped for use on the highways as prescribed in chapter 9, ”a nd submitted insufficient ev idence at trial to do so. ¶15 The District Court observed that nothing in the leg islative history indicates the enactmento f subsection (ii) , added to the definition in 2007, was meant to exclude quadricycles from qualifying under subsection (i)

—as a “ vehicl e propelled by its own power and designed or used to transport persons or property upon the highways of the state . ”Thus, reasoned the court, a quadricycle may fit the definition of a “motor vehicle ” under either subsection (i) or (ii). The court continu ed, “ [t]herefore, I will consider the whole definition of motor vehicle as outlined in 61 - 1 - 101(40) as the definition to apply in this case, and given that consideration, the motion . . . is denied. ”Otten argues that this language

—“ given that considerati on ”

—indicates that the court would have granted his motion, were it to have found only subsection (ii) applicable. ¶16 In the construction of a statute, we are simply to ascertain and declare what is in terms or in substance contained therein, not to insert wh at has been omitted or to omit what has been inserted. Section 1 - 2 - 101, MCA; State ex rel. Dep ’ t of Envtl. Quality v. BNSF Ry. Co. , 2010 MT 267, ¶ 52, 358 Mont. 368, 246 P.3d 1037. A statute is to be construed according to its plain meaning, and if the l anguage is clear and unambiguous,7

no further interpretation is required. State v. Stiffarm , 2011 MT 9, ¶ 12, 359 Mont. 116, ___ P.3d ___. ¶17 We conclude that the District Court correctly defined “motor vehicle ”in this case as incorporating both subsections of § 61 - 1 - 101(40), MCA . It is clear and unambiguous that a quadricycle meets thed efinition of “ a vehicle propelled by its own power and designed or used to transport persons or property upon the highways of the state . ” Section6 1 - 1 - 101(51)(a), MCA, defining “ quadricycle, ”specifically states that a quadricycle is a “ motor vehicle, designed for on - road or off - road use. ”The state application for “ street - leg al ”quadricycles, suc h as Otten ’ s gray Yamaha Raptor, states that it applies to all quadricycles “that will be operated on highways or roads allowing for vehicular traffic dedicated to public use in the State of Montana. ” Furthermore, the definition of “ quadricycle ” in § 61 - 1 - 101(51) limits such vehicles to “not more than 50 horsepower, ”and the definition of “motor vehicle ”c annot be logically interpreted to exclude a four- wheeler with a 55 horsepower motor , yet that is what Otten ’ s interpretation would dictate. Otten ’ s argument falls short in light of the inescapable applicability of subsection (i) t o quadricycles used on public highways. We therefore affirm the District Court ’ s interpretation of § 61 - 1 - 101(40), MCA, and decline to reverse the court ’ s denial of Otten ’ s motion to dismiss on the ground that the court applied an incorrect definition of “motor vehicle. ”8

¶18 **II. Whether the District Court erred in denying Otten**  **’ s motion to dismiss on the**  **ground that there was insufficient evidence to support the verdict.** ¶19 Otten next argues that ev en under a definition of “ motor veh icle ”including both subsect ions of § 61 - 1 - 101(40), MCA, the Statep resented insufficient ev idence for a rational trier of fact to conclude that Otten ’ s veh icle met the definition. We disagree. The State clearly presented sufficient evidence for a rational trier of fact to concludethat Otten ’ s vehicle met the definition of a “motor vehicle ”under subsection (i). Josh Thompson and Officer Tyler Edwards both testified thatt hey saw Otten riding his four- wheeler on public roads, and physical evidence in the form of tire marks also provided evidence of Otten ’ s operation of the v ehicleon public roads . Otten filled out and signed the application to register his four- wheeler as “ street legal, ”to e nable its use in transporting persons and property on public highways , and his registratio n was current on the date of his offense . B oth Edwards and Thompson had seen Otten riding his particular gray Yamaha Raptor four- wheeler around town numerous times. This testimony directly supports a determination that the vehicle was “propelled by its o wn power, ”andwas “used to transport persons or property upon the highways of the state. ” ¶20 Otten also frames these arg uments in a second light on appeal: that there was insufficient ev

idence to support the jury verdict. He incorporates by reference the ar guments related to his motion to dismiss. Because we conclude that the District Court correctly denied Otten ’ s motion to dismissa s there was substantial evidence on which a rational trier of fa ct could find the essential elements of the crime charged , we likewise conclude that sufficient evidenc e support edthe jury verdict.9

¶21 **III. Whether the District Court erroneously instructed the jury on the definition**  **of “**  **motor vehicle. ”**  ¶22 We review the District Court ’ s instructions to the jury for abuse of discretion, and to ensure that they fully and fairly instruct the jury regarding the applicable law. Goles , ¶ 9. Otten makes substantially the same arguments regarding the interpretation of § 61 - 1 - 101(40), MCA, to support his contention that the District Court erroneously instructed the jury on the definition of “motor vehicle ”by including both subsection s(i) and (ii). ¶23 As we have concluded above, the District Court correctly determined that the full statutory definition of “ motor vehicle ”was applicable to Otten ’ sf our- wheeler. I

t therefore correctly instructed the jury to apply the definition in § 61 - 1 - 101(40), MCA , and did not abuse its discretion in doing so. ¶24 Affirmed. /S/ BETH BAKER We concur: /S/ PATRICIA COTTER /S/ JAMES C. NELSON /S/ MICHAEL E W HEAT /S/ BRIAN MORRIS