                                                                                             April 9 2013


                                       DA 12-0118

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2013 MT 88



STATE OF MONTANA,

          Plaintiff and Appellee,

     v.

SERGEY BUSLAYEV,

          Defendant and Appellant.



APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Mineral, Cause No. DC-2010-11
                    Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                    Wade Zolynski, Chief Appellate Defender, Garrett R. Norcott, Assistant
                    Appellate Defender, Helena, Montana

            For Appellee:

                    Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                    Attorney General, Helena, Montana

                    Marcia Boris, Mineral County Attorney, Superior, Montana



                                                 Submitted on Briefs: March 13, 2013

                                                            Decided: April 9, 2013


Filed:

                    __________________________________________
                                      Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Sergey Buslayev appeals from a jury verdict in the Fourth Judicial District Court,

Mineral County, finding him guilty of negligent homicide and criminal endangerment.

Buslayev maintains that the District Court improperly admitted into evidence five photos

of the victim’s body. We affirm.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶2     On December 17, 2008, Jerry Parrick, a volunteer with the West End Volunteer

Fire Department, responded to a call regarding an overturned vehicle at McGee Point on

westbound I-90, at mile marker 17 between Haugen and DeBorgia in Mineral County,

Montana.    Parrick responded in his firefighter uniform and in his personal pickup.

Parrick’s pickup was equipped with emergency lighting. As rescue workers began their

efforts to extricate a family from an overturned vehicle, Parrick moved his vehicle to a

position that would establish a safety zone to alert oncoming traffic of the hazard and to

provide an area for rescue personnel to work. At the time of the emergency, snow was

falling, the Interstate was snow packed and slippery, and the temperature was five

degrees.

¶3     Parrick was inside his pickup, facing west, and parked on the shoulder of I-90 to

warn oncoming traffic of the accident. Buslayev, who was operating a commercial

tractor trailer, approached Parrick’s vehicle and began merging into the left lane.

Buslayev downshifted and used the brake which caused the tractor trailer to jackknife and

hit Parrick’s pickup. The force of the collision pushed the cargo area of the pickup into

the cab killing Parrick.

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¶4     An Information was filed on June 9, 2010, charging Buslayev with negligent

homicide and criminal endangerment. Prior to trial, the parties entered into the following

stipulation:

              The parties hereby stipulate that Jerry Parrick died as a result of
       injuries sustained when his vehicle was struck by a tractor-trailer driven by
       the Defendant on December 17, 2008. You should consider this fact to be
       proven; no other proof is required.

¶5     Buslayev filed a Motion in Limine requesting that five photos of the victim’s

body, State’s Exhibits 1-5, 1-6, 1-7, 1-8, and 1-10, be excluded from evidence at trial.

The photos depicted the victim’s body in his firefighter gear and how the victim was

positioned within the cab of his pickup following impact. The victim’s face was covered

with a cloth. Although Buslayev admits the photographs were not particularly gruesome

or gory, he argues that the photos were highly prejudicial in that they depicted death and

showed the victim in his firefighter gear. Buslayev maintains that the photos had no

probative value because they could not establish the speed of Buslayev’s truck and, in

light of the parties’ stipulation, were not probative of any issue the jury must decide.

¶6     The State argues that the photos were relevant to demonstrate that the victim’s

position within the cab was due to Buslayev’s excessive speed. The State also maintains

that the position of the victim’s body tended to show severe impact and excessive speed

which rendered Buslayev’s statements to law enforcement that he was traveling at a

slower speed incredible and not worthy of belief.

¶7     Both the State and Buslayev produced expert witnesses in crash reconstruction. A

primary consideration for the jury was whether Buslayev was traveling at an excessive


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rate of speed given the conditions of the roadway. The District Court noted that the

photos helped explain how the accident happened and that they were not “unduly

sensational.” The court granted Buslayev’s request as to one photo which depicted the

victim’s face, but allowed the State to use the remaining photos which depicted the

victim with a cloth over his head.

¶8     The sole issue on appeal is whether the District Court erred when it admitted the

photos of the victim into evidence.

                               STANDARD OF REVIEW

¶9     A district court’s decision regarding the admissibility of evidence will not be

reversed absent an abuse of discretion. State v. Montgomery, 2005 MT 120, ¶ 7, 327

Mont. 138, 112 P.3d 1014 (citing State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, 103

P.3d 503).    In considering the admissibility of photographs, a district court must

determine whether the probative value of the photos outweighs any prejudicial effect.

State v. Dunfee, 2005 MT 147, ¶ 26, 327 Mont. 335, 114 P.3d 217 (citing M. R. Evid.

403; State v. Henry, 241 Mont. 524, 531, 788 P.2d 316, 320 (1990)). “This Court has

consistently held that photographs possessing instructive value are relevant and

admissible provided their probative value is not substantially outweighed by the danger

of unfair prejudice.” Dunfee, ¶ 26 (citing State v. Close, 267 Mont. 44, 47-48, 881 P.2d

1312, 1314 (1994)). “The test for abuse of discretion is whether the trial court acted

arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v.

English, 2006 MT 177, ¶ 50, 333 Mont. 23, 140 P.3d. 454 (quoting State v. Kearney,

2005 MT 171, ¶ 12, 327 Mont. 485, 115 P.3d 214).

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                                     DISCUSSION

¶10   The jury had to decide if Buslayev committed the criminal offense of negligent

homicide. A person commits the offense of negligent homicide “if the person negligently

causes the death of another human being.”         Section 45-5-104(1), MCA.       Section

45-2-101(43), MCA, defines the mental state of “negligently” as:

      when the person consciously disregards a risk that the result will occur or
      that the circumstance exists or when the person disregards a risk of which
      the person should be aware that the result will occur or that the
      circumstance exists. The risk must be of a nature and degree that to
      disregard it involves a gross deviation from the standard of conduct that a
      reasonable person would observe in the actor’s situation. “Gross deviation”
      means a deviation that is considerably greater than the lack of ordinary
      care.

¶11   Evidence having any tendency to make the existence of a fact that is of

consequence to an action more probable or less probable is relevant evidence.

M. R. Evid. 401. Further, all relevant evidence is generally admissible. M. R. Evid. 402.

A trial judge, faced with the potential admission of relevant but prejudicial evidence, is

required, pursuant to M. R. Evid. 403, to determine whether the probative value of the

evidence is substantially outweighed by the danger of “unfair prejudice.” As has been

often noted by this Court, probative evidence is frequently prejudicial to the defendant.

This does not, however, make it unfairly prejudicial and require its exclusion. State v.

Heuther, 284 Mont. 259, 265-66, 943 P.2d 1291, 1295 (1997); State v. Bieber, 2007 MT

262, ¶ 59, 339 Mont 309, 170 P.3d 444; State v. Schauf, 2009 MT 281, ¶ 42, 352 Mont.

186, 216 P.3d 740.




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¶12    The photos to which Buslayev objects depict the victim’s body and his position

within the interior of his cab. They are relevant in not only demonstrating the severity or

the strength of the impact, but are additionally relevant in depicting the circumstances

which establish Buslayev’s negligent conduct. As the District Court noted, the photos

assist in explaining the accident and illustrate what happened.         Although Buslayev

stipulated that the victim died as a result of injuries sustained when his vehicle was hit by

Buslayev’s truck, the photos illustrate not only the impact, but, as specifically noted by

the District Court, that the truck jackknifed.       The photos thus were probative of

Buslayev’s negligence and the manner in which the collision occurred.

¶13    The District Court also considered the prejudicial value of the photos and

determined that they were not “unduly sensational.” The District Court thus correctly

balanced the probative value of the photos against their prejudicial effect. Having found

the photos not “unduly sensational” and of explanatory or illustrative value, the District

Court allowed their admission.

¶14    The balancing of probative value against unfair prejudice is a matter within the

discretion of the trial court, and a ruling on the admissibility of photographs will not be

disturbed on appeal absent an abuse of discretion. State v. Devlin, 251 Mont. 278, 283,

825 P.2d 185, 188 (1991); State v. Austad, 197 Mont. 70, 83, 641 P.2d 1373, 1380

(1982). We hold that the District Court properly considered admission of the photos

under M. R. Evid. 403 and did not abuse its discretion in admitting them.

¶15    Affirmed.



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                          /S/ LAURIE McKINNON



We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE




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