                                                                                             May 19 2015


                                          DA 13-0486
                                                                                         Case Number: DA 13-0486

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 138N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

WILLIAM ROBERT CURRY,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. DC 12-292
                       Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Chad R. Vanisko, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Bureau
                       Chief, Appellate Services Bureau; Helena, Montana

                       John W. Parker, Cascade County Attorney; Great Falls, Montana



                                                   Submitted on Briefs: April 22, 2015
                                                              Decided: May 19, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

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

Rules, this case is decided by unpublished opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     A jury in the Eighth Judicial District Court, Cascade County, convicted William

Robert Curry (Curry) of driving under the influence of alcohol and driving with a

suspended driver’s license. Curry now appeals, seeking to have his convictions vacated

and the case remanded for a new trial. We affirm. We address two issues on appeal:

(1) whether the District Court committed reversible error in permitting the State

toxicologist to testify by two-way video; and (2) whether sufficient evidence was

presented at trial to support the jury’s verdict.

¶3     On June 23, 2012, Sandy Derry (Derry) observed a man staggering toward his

vehicle outside the Electric City Speedway in Great Falls. The man was unable to get the

driver’s side door of the vehicle open and entered the vehicle through the passenger side,

before driving away. Derry called 911 and proceeded to follow the vehicle.       While on

the phone with the 911 operator Derry provided additional information concerning the

man’s erratic driving. Derry followed the man to a motor home residence where she

observed the man leave the vehicle and stumble into the home. When officers arrived at

the residence, they knocked on the door and Curry answered. The officers noted that

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Curry was unsteady on his feet, smelled of alcohol, and his eyes were glassy and

bloodshot. Curry admitted to the officers that he had been at the racetrack that day, and

had consumed “at least a few beers” prior to leaving. The officers asked Curry to

perform standardized field sobriety tests. Curry’s performance on the tests exhibited

indications of intoxication.   After the officers read Curry a written advisory, Curry

consented to a blood sample, revealing 0.20 grams of alcohol per 100 milliliters of whole

blood. At trial, the District Court permitted Lynn Kurtz, a toxicologist from the State

Crime Lab, to testify by two-way video rather than requiring him to testify in person.

The court did not provide findings in support of this ruling regarding the important public

policy that permitted Kurtz to testify in such a way.

¶4     Curry argues the District Court erred in allowing Kurtz to testify by two-way

video. The State offers that although the District Court’s arrangement, permitting live

video testimony, met most requirements established by the U.S. Supreme Court for

Confrontation Clause purposes, there was no evidence placed in the record to support a

conclusion that it was necessary to permit the live two-way video testimony in order to

further public policy considerations, and therefore concedes the court erred. Nonetheless,

the State contends the error was harmless. In view of the State’s concession, we proceed

to an analysis of harmless error.

¶5     If tainted evidence was admitted to prove an element of the offense, in this case

that Curry was under the influence, the State must: (1) direct the Court to admissible

evidence that proves the same facts as the tainted evidence, and (2) demonstrate that the

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quality of the tainted evidence was such that there was no reasonable possibility that it

contributed to the defendant’s conviction. State v. McOmber, 2007 MT 340, ¶ 26, 340

Mont. 262, 173 P.3d 690.

¶6    We conclude sufficient evidence exists to meet the harmless error standard. The

State notes several pieces of evidence, aside from the testimony of Kurtz, which

demonstrated Curry was intoxicated, including: (1) Derry’s testimony at trial, (2) Curry’s

poor performance on the field sobriety tests, (3) the observations of the officers, and

(4) Curry’s admission to drinking alcohol. Further, at trial, Lay’s defense counsel stated:

“I’m not disputing that [Curry] was very intoxicated that night.” Since Kurtz’ testimony

was offered for the purpose of proving that Curry was under the influence of alcohol, we

hold that the District Court did not commit reversible error under these circumstances by

permitting him to testify by two-way video.

¶7    Next, Curry argues the State presented insufficient evidence to convict him of

either of the two charged offenses, contending the State did not present evidence to show

he was in actual physical control of the vehicle. Curry reasons he “was never identified

as the driver of the vehicle by Derry, who was the only witness who could have seen the

driver of the vehicle she followed after making the 911 call.” We review the jury’s

verdict “to determine whether sufficient evidence supports it, not whether the evidence

supports a different conclusion or verdict.” State v. Jackson, 2009 MT 427, ¶ 23, 354

Mont. 63, 221 P.3d 1213. This Court does “not substitute our judgment for that of the

jury, and will assume every fact which the jury could have deduced from the evidence.”

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Jackson, ¶ 23.     A review of the trial transcripts reveals that, contrary to Curry’s

representation on appeal, Derry identified Curry as the driver of the vehicle, and testified

accordingly at trial. Therefore, the State presented direct evidence demonstrating Curry

was in actual physical control of the vehicle. We conclude sufficient evidence was

presented to support the jury’s verdict.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.



                                                 /S/ JIM RICE

We concur:

/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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